[Coal Block Auction] SC Calls Jharkhand's Plea For Revenue Maximisation 'Abominable', Says Neither State Nor Centre Reliable In Environment Matters In View Of Tendency To 'Exploit Nature For Money'

Chief Justice S. A. Bobde pulled up the state of Jharkhand for its prayer that the auction be withheld until such time the global investment climate has recuperated from the effects of the lockdown so that the state may maximise revenue from its natural resources. The CJ even remarked that so far as the environment is concerned, the Court cannot rely on either the state government or the Union of India as there is a tendency to exploit nature to make money.

"A suit under Article 131 was filed...such suit cannot be infructuous for not granting any relief sought...they want to auction the mines which is unconstitutional...that will defeat the suit...5 judges have repeatedly said that a suit under Article 131 is to be decided expeditiously. The issues have also been finalised..if then the auction is held, there may be no difficulty...let it be held in a month", began Senior Advocate Fali S. Nariman, for the Jharkhand government.

"I am on three points- Scheduled Area, environment and forests, and maximising revenue...Jharkhand is a unique state. 48.5% of the region is ST. No other state has this feature, not even the districts...('Some of the north-eastern states do', commented the CJ)...6 of the 9 areas where the mines are to be auctioned fall here...there were to be 5 auctions in Chhattisgarh which were cancelled and stopped, and rightly so (for the same reasons). There was one in Maharashtra which was also cancelled and stopped, and rightly...the ST areas have certain peculiarities- the legislature has passed the Scheduled Tribes and Forest Dwellers Act, whose sections 3 & 5 provide against any diversion or merging of the area which may affect the forest dwellers. The provisions carry a non-obstante clause. The same had come to be interpreted by a three-judge bench of this court in 2013., that forest dwellers can't be uprooted in giving away coal blocks...then there is the 1997 Samatha case which rules that touching upon any such property by way of encumbrance or sale would be void...", advanced Senior Advocate A. M. Singhvi, also for the state government.

'Samatha was different. It said that 'person' includes even the state and therefore, even the state is prohibited from transferring such land to a non-tribal", observed the CJ.

"In BALCO also, Samatha was explained...In the present case, I don't see any order where the Governor of Jharkhand has said that the MMDR Act won't apply to the Schedule Areas under clause 5(1) of the Fifth Schedule...", continued the CJ

"Our jurisdiction to approach the court is based on the Presidential Order notifying the entire area as Scheduled...", suggested Dr. Singhvi.

"It is not enough. All leases in India are covered under the MMDR which is the central legislation...In relation to a Scheduled Area, the Governor may say that the Act won't apply...Until the Governor says this, how can you say the MMDR does not apply?", inquired the CJ.

"This is not a case of application of the MMDR", Dr. Singhvi sought to argue.

"You are claiming immunity from the MMDRA saying it is a Scheduled Area? Now look at the conditions necessary for the exclusion of such areas from the application of a law- clause 5 of the fifth schedule", noted the CJ.

"MMDR is a central law. The Governor is the representative of the central government in the state. How could he not apply the central legislation in any area in the state?", Dr. Singhvi contended.

"That is a political argument. We are not going into it. Politics and law are connected, no doubt. But we don't consider the political aspect of the law", said the CJ.

"We are telling you for the purpose of saying 'no' to your request. The central government prima facie appears entitled to conduct the auction as the mines are not in the areas where the MMDR does not apply...The same has been said in both BALCO and in Samatha...", noted the CJ.

"But the 2006 Forest Dwellers Act says you can't affect the right of the Scheduled Tribes and the other traditional forest dwellers...30% of the land in Jharkhand is forest land, which has been so declared by the Government of india- it is firther divided into eco-sensitive areas and no-go areas....6 or 7 of these 9 are hit by these areas...I am not on the applicability of the MMDRA, but I am challenging the auction notice as it is not in public interest...", contended Dr. Singhvi.

"So if an area is declared as eco-sensitive, no mining lease can be granted there?", asked the CJ.

"An exercise needs to be undertaken to see that the eco-sensitive area would remain untouched and that the mining lease would be confined to a small region", answered Dr. Singhvi.

"Under which law are you advancing this submission?", pressed the CJ.

"The Environment Protection Act, the Godavarman principles and the principles of the eco-sensitive and no-go areas....", replied Dr. Singhvi.

"So how many of these are eco-sensitive? What is the evidence for that?", asked the CJ. "7 out of 9. And all 9 are in forest land", replied Dr. Singhvi.

"Is any activity being carried out there as of now? Has the state diverted the land for agricultural purposes? Or is it pure nature?", asked the CJ.

At this point, Mr. Nariman interjected to show the bench the details of the 7 coal blocks located in the eco-sensitive zone- that the area houses wildlife sanctuaries, the only wolf sanctuary in the country, and a tiger reserve. "When Maharashtra and Chhattisgarh had raised a challenge on the same ground, the Union of India had released the lease from the notification", he pointed out.

"This requires detailed arguments on whether the area is eco-sensitive or not. If yes, then we shall consider why it is being diverted to mining...Legally, anything can happen since the MMDR is in force", reflected the CJ.

In his turn, AG K. K. Venugopal intervened to submit that 15 days before the suit was filed, a writ petition had been filed by the state. "Their prayer in the writ petition was totally contrary to the relief sought in this suit...there they had sought a writ commanding the respondents to immediately withhold the launch of the auction for commercial coal mining, as scheduled for 18.6.2020, for 6-9 months or until such time the global investment climate improves post the lockdown so that the state can maximise the revenue from the natural resources",

"This is ridiculous. What is this?", demanded the CJ.

Referring to the Coal Nationalisation Case, the AG pressed on, "For all these years, after the mines were allotted, there were no objections. If the objections are allowed now, then all this goes away. No coal mines would ever be allotted then"

"At this juncture, we are not interested in who is spoiling the area, whether it is the Union of india, or the state of Jharkhand, either now or later...If this an eco-sensitive are, then no one can do it...neither under the MMDR nor by the state of Jharkhand, can it be done...", said the CJ.

"As far as the exploitation of natural resources is concerned, we can't rely on either the state or the UOI to say who may not spoil the area...our experience says when it comes to the environment, there is great demand to exploit nature and turn in to a money-making scheme..so we can't rely on either of you...If you haven't taken the trouble to see if the area is eco-sensitive and if the mining would result in deterioration of the environment, then we cannot allow...", the CJ continued.

"But there are statements of facts showing that the mines are not in the eco-sensitive zone", pressed the AG.

"We are not experts to decide this...we will ask someone to visit and tell us", said the CJ.

"But this cannot result in postponement", stressed the AG.

"So it can neither result in postponement, nor can we allow...", said the CJ.

"But Your Lordships have not seen a single fact as to why the mines cannot be said to be in the eco-sensitive zone! We will file an affidavit!", argued the AG passionately.

"Please do that. Show us why they cannot be said to be the eco-sensitive zone! We'll consider it...we are aware of our ignorance", allowed the CJ.

"My brother judge says that this argument regarding eco-sensitive areas has come up only in the course of the hearing but not in the suit?", asked the CJ from Dr. Singhvi.

In response, the Senior Counsel indicated his replication.

"The writ petition prayer clause is abominable! How could you say that in your prayer? Your bonafides are totally compromised! Look at your intention! What your officers intend is clear from the prayer in the writ petition- the maximisation of revenue from the area!", observed the CJ.

"The prayer was read out of context...the whole prayer has also not been read out to you...we said that we are withdrawing the writ to file the suit...and we only said that there may be no mining during COVID. Even the UN has issued a circular saying that there may not be mining during COVID as it leads to minimisation of revenue", counterd Dr. Singhvi.

"We have to protect the area even from you, if we come to the conclusion on facts which the AG is vehemently telling us we are not aware of", said the CJ.

"We are prepared and we have sought instructions to withdraw the wit petition", repeated Dr. Singhvi.

"We want it on record because we will have to look into the prayer", said the CJ, deferring the hearing by 2 weeks.