The Supreme Court on Wednesday observed that if an area falls under eco sensitive zone then neither the Centre nor the state government will have the right to mine it.
The remark was made by the top court which was hearing Jharkhand government's pleas challenging the Centre's decision to auction coal blocks for commercial mining.
The apex court court said prima facie Central government is entitled to auction the coal blocks in the state.
However, it said that to find out if the areas in question are eco-sensitive or not, it may send some experts.
A bench headed by Chief Justice S A Bobde asked the Centre to file an affidavit within a week on whether these areas in question are eco-sensitive zones or not.
During the hearing, the bench observed that “at the moment we are not dealing with whether the Centre has the right or the Jharkhand to do mining. If the area is eco sensitive then no one either the Centre or the state government have the right to mine”.
It said, “We are not experts to decide whether the areas are eco sensitive or not. What we will do is send some expert's to say on this”.
At the outset, senior advocate F S Nariman, appearing for Jharkhand, said that auction of coal blocks can be postponed for a few months and the suit under Article 131 they have filed needs to be decided.
Senior advocate A M Singhvi, also appearing for the state government, said that the state has a large population of tribal people and 30 percent of area is a forest area and falls under eco sensitive zone.
“I am challenging the coal auction as it is against the public interest and not the Mines and Minerals (Development and Regulation) Act (MMDR Act),” he said.
The bench told Singhvi that how can he say that the MMDR Act will not apply in the state on the ground that it is a scheduled area.
“Central government is prima facie entitled to auction the coal blocks”, the bench observed, and asked Singhvi that under which law there cannot be mining leases in eco-sensitive areas.
Singhvi said mining can be done in small areas far away from eco-sensitive zones.
The bench asked Singhvi to show the evidence that these areas in questions are eco-sensitive zones.
Nariman then referred to various areas including Hazaribagh wildlife sanctuary terming them eco-sensitive zones.
The bench said that what has the state been doing in these areas and it would like to hear whether they are eco sensitive areas.
Attorney General KK Venugopal, appearing for Centre, said that just 14 days before a suit is filed, they had filed a writ petition asking us to roll back auction of coal mine in Jharkhand for six to nine months or unless until Global investment climate improves, so that Jharkhand maximizes returns on natural resources.
The bench said that at the moment it is not dealing with whether the Centre has the right or the Jharkhand has right to do the mining but if the area is eco sensitive then no one either the Centre or the state government have the right to mine.
“Our experience shows that people want to exploit the eco sensitive zones and if the areas are eco sensitive then we will not allow either to mine,” it said, adding that as the courts are not an expert on the issue, it may send some experts to ascertain whether they are eco-sensitive areas or not.
Venugopal said that they are not eco sensitive areas and proposed to file an affidavit in this regard.
The bench then adjourned the hearing for two weeks and asked the Centre to file an affidavit within a week on the issue and permitted the state government to file a rejoinder thereafter.
On July 14, the top court had issued notice to the Centre on Jharkhand government's pleas challenging its decision to auction coal blocks for commercial mining.
The state government has alleged that the announcement was made by the Centre "unilaterally" without consulting it.
On July 6, the top court had said it would hear this week the plea challenging the Centre's decision for virtual auction process of 41 coal blocks for commercial mining.
It had also said the plea would be heard along with the original suit filed by the state questioning the Centre's coal block auction.
The original suit under Article 131 of the Constitution provides for the state to move directly to the Supreme Court in matters of dispute with the Centre.
In its suit, the state has claimed that it is "highly inappropriate" for the Centre to conduct an auction at this time of COVID-19 pandemic as all the machinery of the state and the Centre are to be enjoined to "alleviate the problems of citizen" caused due to the deadly virus.
"The defendant (Centre) has announced the impugned auction unilaterally without consultation with the plaintiff (Jharkhand). The plaintiff state is the owner of the mines and minerals situated within the territory of the plaintiff," said the suit.
Referring to the Fifth Schedule to the Constitution, which deals with administration and control of Scheduled Areas and Scheduled Tribes, it said that six of the nine coal blocks in Jharkhand - Chakla, Chitarpur, North Dhadu, Rajhara North, Seregarha and Urma Paharitola -- which have been put up for auction fall within the Schedule Fifth areas.
It said out of the total population of 3,29,88,134 in Jharkhand, a total of 1,60,10,448 resides in the Schedule Areas and the impugned action impinges the rights of the indigenous people of the state.