4 Nov 2020 12:39 PM GMT
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 arguments and observations by the Supreme Court.At the outset, Senior Advocate Fali S. Nariman, appearing for the state of Jharkhand, drew the bench's attention to the October 9 affidavit filed by...
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 arguments and observations by the Supreme Court.
At the outset, Senior Advocate Fali S. Nariman, appearing for the state of Jharkhand, drew the bench's attention to the October 9 affidavit filed by the Union of India, stating that the suit is not maintainable, it is misconceived and devoid of merits and should be dismissed.
"Your Lordships have in a bench of five said that suits under Article 131 are to be heard expeditiously...there is to be no oral evidence here and it is to be dealt solely on the provisions of the law", he advanced.
"So you don't want any oral evidence or cross-examination of the deponents?", checked the CJ.
"No, no,", replied both Mr. Nariman and Senior Advocate A. M. Singhvi, also for the government of Jharkhand.
"So we will record this. And put up the matter for hearing...we will also need to frame issues ourselves...", said the CJ.
Then, the CJ inquired about the "so-called divided stand of the state of Jharkhand as to what kind of land it is where the mining is proposed to take place- forest land or eco-sensitive area".
"At the last hearing, Your Lordships had said there is no order where the Governor of Jharkhand has said that the MMDR Act won't apply to the areas in question under clause 5(1) of the Fifth Schedule. But the local law to govern the area is the Chhotanagpur Tenancy Act, 1908 and Santhal Pargana Tenancy Act, 1949, which state that this land containing the mines cannot be transferred to a non-tribal and that any such transfer would be null and void", argued Mr. Nariman.
"But mines and their leases have been dealt with under a Central statute", pointed out the CJ again.
"Just in case, there is a dispute on whether allowing mining in the region would damage the eco-sensitive zone, we want a report on this aspect by experts. It is an important issue and the court is not equipped to decide it", continued the CJ.
"We have submitted a report on this. But certainly, the Court may appoint experts. We have no issues", assured Mr. Nariman. "It is an extremely important issue. We have no problems. Anyone may be appointed. There is no difficulty", agreed Dr. Singhvi.
"Should we ask (senior advocate) ADN Rao? He is familiar with the experts?", asked the CJ, also venturing the name of a Gujarat official for selection to this court-appointed committee.
"There is also the Director of the Wildlife Institute of India, Dhananjai Mohan", continued the CJ.
"There is also M. K. Jiwrajka (who has been a Member of the Central Empowered Committee of the Supreme Court). Then, there is Ajay Desai who has already been appointed earlier", suggested Mr. Nariman.
At this point, the AG interjected to say that has to be heard before anything is decided upon.
"We are only considering names, not passing any orders", said the CJ.
"Each of the mines is atleast 22 km away from the eco-sensitive zone", began the AG.
"Some are closer", pointed out the CJ.
"What kind of mining people do has an effect of diverting the water from below the forest level to the mines", continued the judge.
"In connection with the proposal for opening commercial mining, the Cheif Secretaries of the 5 states concerned were called for a discussion...there is also a letter of the CM of Jharkhand, where he has described it as a "bold, historic step". He said that he is "not averse to the competitive level" and expressed a desire "to work in tandem with the GOI"...He had raised concerns about the "tribal restrictions", how "international players won't be able to participate" as of now, and that "the domestic players are also facing a liquidity crunch"....he had even mentioned a 'moratorium'", advanced the AG.
He submitted 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".
"There was nothing about the environment in that! Then, they said the mines are in the midst of forest sanctuaries. I filed my counter affidavit to that. Then, they said the mines are n the middle of environmental zones! But they have themselves admitted that the mines are atleast 20-23 km away! If even this is prohibited, the industry and the development of the country will seriously suffer! No court would want that", urged the AG.
"The whole problem with your approach is that there can be no economic value put on the forest. On timber, yes, but not on a forest. We don't want to stop the development of the country, but the natural wealth cannot be eroded either!", asserted the CJ.
"But it is outside the eco-sensitive zone! We are not eroding anything! It is essential for the industry!", pressed the AG.
"59 km, 65 m, 67 km- is that not dangerously close?", asked the CJ.
"If we take the example of Goa, it is only a narrow strip of land. If Your Lordships say there cannot be any mining within 20 km, the country will be affected!", argued the AG.
"We are not on the country, but this specific terrain. It depends on the soil and the forests. We just want experts to tell us that everything is fine", said the CJ.
"In the counter-affidavit, we have said that every clearance has to be obtained by the bidders before the mining- environmental clearance, forest clearance, mining permission...mining will only take place after two years!", advanced the AG.
"In the meanwhile, they cannot enter the land and cut down trees?", asked the CJ.
When the AG replied that there is no cutting down of trees, the CJ countered, "how can any mining take place without cutting down of trees?"
"It is not as if the grant of right to exploit in favour of individuals would not matter just because mining is to take place later", continued the CJ.
"Every single law of the country has been satisfied!", stressed the AG.
"It is being forgotten that the elephant corridor and the other animals are within 17-20 km in all the 7 cases! In an October 14 judgment, Your Lordships have detailed the significance of elephant corridors, their habits, their nature of movement! From the notifications of the elephant corridor, it becomes clear that it is not just the immediate contiguous area but also the peripheral buffer area which is important for the corridor! The reports say this! Once three independent persons have clarified the situation, the auction can happen! Otherwise, once the private individuals have uprooted trees, how will it be reversible? It is a private auction to take place electronically on November 9 and everything will then be finalised on November 11...", contended Dr. Singhvi.
"You will be told that crores have been paid, equities have been created and they cant wait for 2 months! But all 7 of the mines are in eco-sensitive area. Within 20 km of the area, there are animal corridors!", he continued.
"Why should an auction anyway take place during COVID? The maximisation of revenue is clearly a distant dream during COVID. And even if I am wrong, Your Lordships may consider the prima facie case, the balance of convenience and the irreparable injury!", he submitted.
"But then your powers under that Chhotanagpur Act are also curtailed! Apparently, the CM was very enthusiastic about the auction in his letter...", commented the CJ. "100%", agreed Dr. Singhvi.
"So satisfy our conscience..make all the material available to the expert committee, render you assistance to the committee, which we will require to report to us after 1 month...and we'll ask the other side to not do anything for one month, or we'll stay the entire proposal", said the CJ.
"The is an all-India question! Your order will affect bidders all over the country!", countered the AG.
"We are not all over the country, we are only on Jharkhand. Let the people come from anywhere! Don't jump the gun! Why can't you hold on for a while and let the committee tell us the facts? We are are not passing any orders", observed the CJ.
"Jharkhand has the highest bids, as compared to anywhere else. 2 have already been auctioned. While others are getting 14-18% shares, the government of Jharkhand is getting 41% of the total revenue! This is a subterfuge on their part, they didn't say anything about the elephant corridor or the eco-sensitive zones in their earlier writ petition? There, they had only spoken of the revenue!", argued the AG.
"We won't allow this matter to be limited to pleadings", said the CJ.
"Happening of the auction is a day-to-day process. Don't stop the auction. It will affect the UOI in its efforts to rebuild the economy!", pressed the AG.
"If you agree, it's fine. EVEN IF YOU DON'T AGREE, WE'LL PASS AN order that all over the country, you won't auction any proposed mining block nearer than 50 km", said the CJ.
"This will impact the development of the country! We'll have to argue then! Your Lordships are not looking at your own judgments", advanced the AG.
"What have you been doing so far then ? (in response to the AG assertion that the Centre would argue its stand)...Don't say that we are not looking at the judgments. We are on facts right now! What is your problem in holding off the auction?", said the CJ.
"The state said postpone the auction to maximise the revenue! They never said that auction not be held at all! Why don't you ask them?', argued the AG.
"We are not sure of the stand or the intentions of the state of Jharkhand. But this is not a matter for you or for Jharkhand or against you or against them", noted the CJ.
"Between the governments, our anxiety is that resources are not depleted", commented the CJ.
"Give us one day's time. We will place the situation before you instead of the long drawn process of a committee", suggested the AG.
The bench adjourned the matter to Friday, acceding to the AG's request.
"I may be allowed to withdraw the writ petition. I say it everytime, but everytime it becomes a point", requested Dr. Singhvi, which was allowed.