[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'

The hearing, on Wednesday, in the suit by the Jharkhand Government against the launch of the auction process of coal blocks for purposes of commercial mining by the Centre was privy to interesting observations by the Supreme Court.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 ...

[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'

Mehal Jain

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