Following is the text of a letter sent to the Nominated Authority under the CM(SP) Ordinance, 2014 signed by 35 social activists from Jharkhand and Chattisgarh.
To: The Nominated Authority under the CM(SP) Ordinance, 2014 as per Public Notice No. 11022/10/2014-CA-I at [email protected]
From: Indigenous /Adivasi /Tribal individuals, organizations, people’s movements in Vth Schedule Areas of Odisha, Jharkhand, Chattisgarh, Madhya Pradesh
Subject: Nominated Authority as the implementing authority in auctioning coal blocks declared illegal by the Supreme Court of India.
Sir, We, the Indigenous/Adivasi/Tribal individuals, organizations, people’s movements in the Vth Schedule Areas of Odisha, Jharkhand, Chattisgarh, Madhya Pradesh, disagree completely with the proposed rules authorizing the ‘Nominated Authority’(Chapter II of the Draft Rules) nominated by the Central Govt. to implement the process of auctioning coal blocks declared illegal by the Supreme Court of India. Rather, it should be the respective Gram Sabhas wherein the illegal mines are situated which should decide as to whether auctioning should take place at all and if so in what manner.
This for the following reasons:
- All illegal mining was done in illegally acquired land: May we bring to your attention that the Indigenous/ Adivasi/Tribal People figure nowhere in the whole discourse on illegal mining presently going on. It is common knowledge that especially in the mineral- rich Indigenous/ Adivasi /Tribal dominant central India most mining, both legal and illegal, has taken place in Adivasi land. Land was forcibly acquired from them under the Land Acquisition Act of 1894. They were given some meager cash compensation and were displaced wholesale. No Indigenous/ Adivasi/Tribal has ever been rehabilitated as it involves giving ‘land for land’, resettlement as a community and other social & cultural factors. Sad to say even the SC has not taken this fact into consideration. All it did was to levy a fine of Rs. 295 per ton on all illegally excavated coal. The least that should be done is to reimburse this amount to the Adivasi/Tribal land-owners whose land was acquired illegally and mining was done illegally. This apart, illegal mining is a culpable offence and therefore all those (Public and Private sectors) who did it must be punished according to the law of the land. These are points of justice.
- Auctioning coal blocks will be validating an invalid process: it is no secret that if auctioning is done it will be a back-door exercise to reward the looters because it will be mostly the same Public and Private sector companies which will bid in the auction and secure mining leases. A serious concern is that auctioning will go counter to the constitutional, legal and judicial provisions in favour of the indigenous/ adivasi/ tribal people. PESA Act of 1996 prescribes that “the Gram Sabha shall be consulted before making the acquisition of land in Scheduled Areas for development projects and before resettling or rehabilitating persons affected by such projects in Scheduled Areas…” [PESA (i)]. The Act also gives “the power to prevent alienation of land in Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe” [PESA (m)(III)]. Is it any wonder why PESA Act has not been implemented in any of the Adivasi/Tribal dominant States of Central India. Hence we take serious exception to the very concept of “auctioning” the illegal mines so as to make it look “legal”.
- Owner of the land is also the owner of the minerals: The SC in a path-breaking judgment observes “…there is nothing in the law which declares that all mineral wealth sub-soil rights vest in the State, on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process.” [CIVIL APPEAL NOS.4540-4548 OF 2000, para 57]. So let us accept that the Indigenous/ Adivasi/Tribal communities are the real owners not only of their land but also whatever minerals their land contains. No one has the right to snatch it from them.
- Gram Sabhas are the supreme authority and not the ‘Nominated Authority’: it is common knowledge that the supremacy of Gram Sabha has been established by the SC in the context of bauxite mining in the Niyamgiri Mountains of Odisha. Another SC judgment known as ‘Samata judgment’ of 1997 goes further when it says “Instead of getting the minerals exploited through non-tribals, by exploitation of tribals, the minerals could be exploited through an appropriate scheme, without disturbing the ecology and the forests by the tribals themselves, either individually or through cooperative societies composed solely of the tribals with the financial assistance of the State or its instrumentalities…” [Samata, section 109, Civil Appeals Nos.4601-02 of 1997]
For the above-given reasons, we Indigenous /Adivasi /Tribal individuals, organizations, people’s movements in the Vth Schedule Areas of Odisha, Jharkhand, Chattisgarh, Madhya Pradesh do not accept the provision made for the Nominated Authority in the proposed Rules of the Coal Mines (Special Provisions) Ordinance, 2014. We regret that the Gram Sabha has not been considered as the necessary party in the decision making processes concerning re-allotment of coal blocks declared “illegal” by the SC.
We demand that the Gram Sabha be recognized as the legitimate, constitutional body to decide on all that pertains to mining.
Signed by 35 social activists from Jharkhand and Chattisgarh on 23rd Nov 2014