Shri A L Meena
Union Coal Secretary
Dear Shri Meena,
I refer to the notification issued by your Ministry on June 14, 2023, proposing the auction of 98 coal blocks in different States, including Chhattisgarh, Odisha and Telangana.
I find that many of those coal blocks are located in tribal areas notified under the Fifth Schedule to the Constitution, where the Panchayat (Extension to the Scheduled Areas) Act, 1996 [PESA] is applicable. PESA mandates that the prior consent of the local tribal Gram Sabhas should be obtained before the government can proceed further with the auctions.
In addition, in both the Scheduled Areas and outside, where tribals and other traditional forest dwellers have been cultivating lands for generations, the provisions of the Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006 [FRA] are attracted. In pursuance of the FRA, the local tribals and the other forest dwellers cultivating lands are entitled to individual occupation rights. In addition, the local communities dependent on the forest resources are also entitled to community rights. Before the government can proceed with the auctions, therefore, it is mandatory for the Centre to seek the prior consent of the local Gram Sabhas, as required under that Act.
The apex court, in their judgement of April 18, 2013, in a case relating to the allotment of a bauxite block to the Vedanta Group in Niyamgiri Hill in Kalahandi/Rayagada districts in Odisha, reiterated the mandatory requirement of obtaining such prior consent of the local tribal Gram Sabhas under both PESA and FRA. Based on the apex court’s directions in that case, the mining lease given to the Vedanta group had to be revoked.
In States such as Odisha, Telangana etc., there are special laws applicable to the Scheduled Areas, which prohibit the alienation of land and minerals to private companies.
For example, in Telangana, the Land Transfer Regulation Act 1 of 1970 imposes such a restriction. The apex court, in their judgement of July 11, 1997, in the Samatha case, not only reiterated such a legal requirement but also held the allotment of a mining lease to a private company in contravention of the said legislation to be null and void.
In Odisha, the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 similarly prohibits the alienation of land and allotment of mineral rights to private companies in the Scheduled Areas. The apex court’s judgement in the Samatha case may therefore apply to coal blocks proposed to be auctioned in the Scheduled Areas of Odisha.
It is possible that similar laws prohibiting the alienation of land and mineral rights to private agencies in the Scheduled Areas exist in the case of other States where coal blocks are proposed to be auctioned.
Against the above background, coal block auctions that violate such laws will have to be deemed to be illegal.
Apart from the above-mentioned protective legislations, some of the coal blocks proposed to be auctioned, as per the latest notification, are located in dense forest areas in the catchments of the major rivers of the country and the value of the forests that will get destroyed and the consequent loss of biodiversity resulting from coal mining, in addition to the adverse impact of mining on inflows into the rivers, would far exceed the economic returns from mining. To the best of my knowledge, neither your Ministry, the Environment Ministry, nor the government’s “think tank”, Niti Ayog, has ever cared to evaluate the net social costs/benefits of mining. In the absence of such an evaluation, I am afraid that the proposed coal and other mineral auctions would be imprudent, and not in the national interest.
The most traumatic consequence of mining in the forest areas, such as the densely covered Hasdeo Anand forest region, is the inhuman uprooting of the local communities who live in the forests and depend on forest resources, imposing the scourge of displacement and pollution on their lives. No wonder that States such as Chhattisgarh, have expressed their objections to the proposed coal block auctions in their respective States.
In this connection, I understand from news reports (https://www.hindustantimes.com/india-news/stop-auction-of-9-coal-blocks-chhattisgarh-to-centre-101687633154686.html) that the Chhattisgarh Legislative Assembly, as early as on July 26, 2022, resolved that the proposed auction of coal blocks in the Hasdeo area be cancelled. Apparently, the Chhattisgarh government conveyed this to the Coal Ministry on September 19, 2022. I am surprised that your Ministry should ignore the State’s objections and obstinately proceed to auction the coal blocks in the Hasdeo Anand area. In my view, this runs counter to the spirit of federalism that lies at the heart of our Constitution, apart from the statutory violations involved and the environmental damage that is likely to follow.
In matters such as this that involve mining in the tribal areas, the least that your Ministry ought to have done is to seek the considered views of the National Commission for the Scheduled Areas (NCST), as required under Article 338A(9) of the Constitution.
I am afraid that the manner in which the government has chosen to proceed with the auction of coal and other mineral blocks runs counter to the letter and the spirit of the Constitution and violates the laws that protect the rights of the tribals.
May I therefore call upon your Ministry to get these matters examined by the Ministry of Law, seek the considered views of the NCST before rushing into alienating the blocks to private companies?
E A S Sarma, Former Secretary to the Govt of India & former Commissioner (Tribal Welfare), Govt of erstwhile Andhra Pradesh, Visakhapatnam