A little noticed decision by the Supreme Court, that ownership of minerals vests with the owner of a land title and not with the Government, coupled with the UPA Government’s desperation to push its Land Acquisition, Rehabilitation and Resettlement Bill, 2011 through Parliament in the coming monsoon session, can set a dangerous precedent and make India a Republic of the Rich and Powerful.
Civilisationally and historically, natural resources have been owned by the State (kingdom), which levied royalty on those extracting the same. Kautilya asserted this in Arthasastra; Asoka’s edicts prove that the State was owner of all natural resources in the kingdom, be it forest or mineral wealth.
Now, the Supreme Court has negated the civilisational legacy of over two millennia. Coupled with the proposed Land Acquisition Bill, which will give States power to expropriate land from unwilling farmers at prices fixed by itself and hand it over to rich corporates for ‘development’, all wealth could get concentrated in the hands of crony capitalists through conniving politicians and bureaucrats.
Mining is such an important activity that countries like Australia, South Africa and Canada maintain public ownership of mineral wealth, even if individuals own title to the surface land. Few nations allow individuals to own mineral wealth.
Organisations opposing the Land Bill should keep this judgment in mind as the Bill perverts the meaning of “public purpose” to benefit corporates and facilitate creation of special economic zones (SEZ) for private industry. The Bill changes the definition of public purpose (land acquired by government for defence purposes, railways, roads, power plants, irrigation schemes, government universities and government hospitals) to cover land desired by the private sector. It opens the door for SEZ by providing for “project for industrial corridors or mining activities (emphasis ours), national investment and manufacturing zones, as designated in the National Manufacturing Policy”. The UPA has refused a land ceiling on SEZs, which will open the door for relentless purchase of farm lands from poor farmers.
The Supreme Court ruling of July 8, 2013 (strangely reported in all newspapers only on July 14, 2013) has to be seen in connection with the Land Bill. The three-judge bench comprising Justices RM Lodha, J Chelameswar and Madan B Lokur ruled that no law in the country declares the State is owner of sub-soil or mineral wealth; hence ownership of minerals should vest with the landowner and not the government, “unless the owner of the land is deprived of the same by some valid process”. This overturned a 1999 Kerala High Court ruling regarding mineral wealth in land owned by private parties under jenmom land tenure in Malabar.
In Thressiamma Jacob & Ors vs Geologist, Dptt of Mining & Geology & Ors (Civil Appeal Nos 4540-4548 and 4549 of 2000), the Court ruled that the British Government had exercised limited right to minerals with regard to gold, diamonds, coal, which implies that the State recognised the legal right of the land holder to subsoil metals and minerals – whatever name such right is called – proprietary or otherwise. The British never claimed proprietary rights over the soil and jenmis were recognised as absolute owners of the soil. The same position held for land under ryotwari patta.
Article 294[19] of the Constitution provides for succession by the Union of India or corresponding State of property vested in the British Crown immediately before commencement of the Constitution. Article 297[20] vests in the Union of India all minerals and other things of value underlying the ocean within the territorial waters or continental shelf of India. The Court ruled that the makers of the Constitution were aware that mineral wealth obtaining in the landmass (territory of India) was not vested in the State in all cases, and that under extant law proprietary rights in minerals (subsoil) could vest in private parties who own the land. Hence the difference in the language of the two Articles.
The Apex Court said the Mines and Minerals Act regulates mining activities in the country and does not purport to declare the proprietary rights of the State in the mineral wealth or contain any provision divesting any owner of a mine of his proprietary rights. Specific Acts like the Coking Coal Mines (Nationalisation) Act, 1972 and Coal Bearing Areas (Acquisition and Development) Act, 1957 expressly provide for acquisition of mines and rights in or over land from which coal is obtainable.
The Court noted that even regarding sensitive minerals like uranium, the Atomic Energy Act, 1962 only provides for prohibition or regulation of mining activity in such mineral and does not in any way declare the proprietary right of the State. Even the Oilfields (Regulation and Development) Act, 1948 dealing with oilfields containing crude oil, petroleum, does not declare the proprietary right of the State.
The Government’s right to collect duty or tax lies in the realm of sovereign authority, but is not a proprietary right. The bench ruled that the issue of liability of landowners to pay royalty to the state would be decided by a larger bench.
This verdict, however legally correct, can have dangerous consequences. In future, crony capitalists can use political clout to buy huge tracts of land with valuable minerals not specifically owned by the State from farmers or tribals in remote areas at cheap rates, and rake in unnatural profits.
They can also, if the Land Bill is passed, indulge in reckless mining at the cost of the environment.
The Supreme Court has exposed major loopholes in our laws, which must be plugged urgently, or poor farmers and tribals will be at the mercy of State-backed predatory capitalism; there are well known instances of multinational firms using local front-men to buy up tribal land for their projects.
Niticentral.com, July 24, 2013
http://www.niticentral.com/2013/07/24/a-republic-of-and-for-the-the-rich-and-powerful-108749.html