1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10720 OF 2018
STATE OF MEGHALAYA ...APPELLANT(S)
VERSUS
ALL DIMASA STUDENTS UNION,
DIMA-HASAO DISTRICT COMMITTEE & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO. 10611 OF 2018
THE STATE COORDINATION COMMITTEE
OF COAL OWNERS, MINERS AND DEALERS
FORUM ...APPELLANT(S)
VERSUS
ALL DIMASA STUDENTS UNION
DIMA HASAO DISTRICT COMMITTEE & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.10907 OF 2018
GARO HILLS AUTONOMOUS DISTRICT
COUNCIL ...APPELLANT(S)
VERSUS
ALL DIMASA STUDENTS UNION
DIMA HASAO DISTRICT COMMITTEE & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO. 5272 OF 2016
KA HIMA NONGSTOIN LAND OWNERS,
COAL TRADERS AND
PRODUCERS ASSOCIATION ...APPELLANT(S)
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2020.02.29
10:59:59 IST
Reason:
VERSUS
ALL DIMASA STUDENTS UNION
DIMA HASAO DISTRICT COMMITTEE & ORS. ...RESPONDENT(S)
2
WITH
CIVIL APPEAL No.5295 OF 2019
(@C.A. DIARY NO. 3067 OF 2018)
LBER LALOO ...APPELLANT(S)
VERSUS
ALL DIMASA STUDENTS UNION,
HASAO DISTRICT COMMITTEE & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO. 2968 OF 2019
STATE OF MEGHALAYA ...APPELLANT(S)
VERSUS
ALL DIMASA STUDENTS UNION
DIMA HASAO DISTRICT COMMITTEE & ORS. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
Natural resources of the country are not meant to
be consumed only by the present generation of men or
women of the region where natural resources are
deposited. These treasures of nature are for all
generations to come and for intelligent use of the
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entire country. The present generation owes a duty to
preserve and conserve the natural resources of the
nation so that it may be used in the best interest of
coming generations as well and for the country as a
whole.
2. These appeals have been filed challenging various
orders passed by National Green Tribunal wherein
several directions were issued, measures to be taken
to check and combat the unregulated coal mining in
Tribal areas of State of Meghalaya which coal mining
resulted not only loss of lives but damaged the
environment of the area.
Details of appeals
3. Civil Appeal Nos. 10720 of 2018, 10611 of 2018
and 10907 of 2018 have been filed against order dated
31.08.2018 passed by the National Green Tribunal,
Principal Bench, New Delhi. Civil Appeal No.5272 of
2016 has been filed by KA Hima Nongstoin Land Owners,
Coal Traders and Producers Association against the
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order dated 10.05.2016 of the National Green
Tribunal, Principal Bench, New Delhi. Civil Appeal
(Diary No.3067) of 2018 has been filed by Lber Laloo
against order dated 25.03.2015 of National Green
Tribunal, Principal Bench, New Delhi and Civil Appeal
No.2968 of 2019 has been filed against order dated
04.01.2019 of National Green Tribunal, Principal
Bench, New Delhi by which State of Meghalaya has been
directed to deposit Rs.100 crores with the Central
Pollution Control Board.
4. All the appeals having been filed against the
orders of National Green Tribunal (NGT), it is
necessary to notice the details of various
proceedings before the NGT to appreciate the
grievances raised in the appeals. The Gauhati High
Court on the basis of a News item to the effect that
on 06.07.2012, 30 coal labourers were trapped inside
a coal mine at Nongalbibra in the District of South
Garo Hill and 15 of them died inside the coal mine,
registered PIL suo moto No.(SH) 3 of 2012. Vide
order dated 10.12.2012 of the Gauhati High Court the
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matter was directed to be transferred to NGT in which
notice was issued by the Tribunal on 30.01.2013.
Transferred matter was registered as Original
Application NO.11(THC)/2012. All Dimasa Students
Union Dima Hasao District Committee filed an Original
Application No.73 of 2014 before National Green
Tribunal, Principal Bench making serious complaints
with regard to rat-hole mining operation, which has
been going on in Jaintia Hills in the State of
Meghalaya for last many years without being regulated
by any law. It was alleged that in the course of rat-
hole coal mining by flooding water several employees
and workers have died. The applicant had also brought
before the Tribunal a detailed report of one Dr. O.P.
Singh, Professor, Department of Environmental
Studies, North-Eastern Hills University, Shillong,
Meghalaya where entire aspects of the coal mining in
the State of Meghalaya were discussed. The NGT
admitted the application and took the view that
illegal and unscientific mining neither can be held
to be in the interest of people of the area, the
people working in the mines nor in the interest of
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environment. After hearing applicant, the Tribunal on
17.04.2014 passed an order directing the Chief
Secretary of Meghalaya, Director General of Police,
State of Meghalaya to ensure that rat-hole
mining/illegal mining is stopped forthwith throughout
the State of Meghalaya and any illegal transport of
coal shall not take place until further orders passed
by the Tribunal. After the passing of the order dated
17.04.2014 various applications were filed before the
Tribunal by different Associations and persons
claiming interest in the subject matter of the
application. Application No. 317/2019 was filed by
Western Coal Miners and Exporters Association for
being impleaded in O.A. No.73 of 2014, which was
allowed. Another application M.A.No.306 of 2014 was
filed by Khasi Hills District Autonomous District
Council, Shillong, East Khasi Hills District,
Meghalaya (one of the appellants before us) for
impleadment claiming to be a constitutional body and
entitled in the sharing primarily of the royalty on
the coal produced/mined, which application was
allowed.
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5. The Tribunal clubbed O.A.No.13 of 2014, O.A.No.73
of 2014 and O.A.No.11(THC)/2012. Miscellaneous
applications were filed before the Tribunal praying
for vacating the order dated 17.04.2014. Against
order dated 17.04.2014, C.A.No.5756 of 2014 was filed
by a coal mine owner. The miscellaneous application
was also filed by the State Coordination Committee of
the Jaintia Hills District, Meghalaya (one of the
appellants before us) for their impleadment, which
was allowed. This Court dismissed the Civil Appeal
filed against the order dated 17.04.2014 passed by
the Tribunal, however, granted liberty to the
appellant to approach the Tribunal for modification
of the order. The Tribunal also noticed in its order
dated 09.06.2014 that there has been serious air,
water and environmental pollution being caused by the
illegal, unregulated and indiscriminate rat-hole
mining being carried on in various parts of the State
of Meghalaya. Serious pollution to the upstream was
also noticed. The Tribunal, however, noticed that
there are documents on record to show that right from
the year 2003, there has been serious air and water
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pollution in the mining areas of Meghalaya which is
injurious and has not only resulted in degradation of
environment, particularly the streams and underground
water, but has also seriously jeopardised the human
health. It was further noticed that Transportation of
coal in an illegal, unregulated, indiscriminate and
unscientific manner has resulted in serious diseases
to the people. The report of the Committee dated
09.06.2014 was noticed by the Tribunal. By order
dated 09.06.2014 while permitting the transportation
of the already extracted coal lying in open near the
mining sites, constituted a committee for supervising
such transportation. Various other directions were
issued to the committee as well as to the State and
its authorities.
6. By a subsequent order dated 01.08.2014 the
Tribunal noticed that the committee earlier
constituted by order dated 09.06.2014 failed to
perform the functions assigned to it, hence, a new
committee was constituted. The Tribunal from time to
time issued various directions. We need to notice
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four orders passed by the Tribunal in detail which
are subject matter of challenge in these appeals. The
orders which are subject matter in these appeals are
orders dated 25.03.2015, 10.05.2016, 31.08.2018 and
04.01.2019.
Order dated 25.03.2015
7. In order dated 25.03.2015 NGT noticed that the
rampant, illegal, unscientific and life-threatening
mining activity, particularly rat hole mining is
going on in the State of Meghalaya for years. The NGT
noticed the report of Commissioner appointed by it
and opined that in spite of order dated 17.04.2014
fresh mining was going on. The Tribunal also noticed
that State of Meghalaya has promulgated a Mining
Policy of 2012 which does not deal with rat hole
mining. The State Government was also directed to
formulate and declare Mining Policy and Guidelines
for the State of Meghalaya to deal with all aspects
of mining, which Policy was yet to see the light of
the day. The Tribunal also noticed that the order of
the Tribunal has been violated by illegal mining
despite complete prohibitory orders. It was noticed
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that the State Government has found as many as 73
cases of illegal transportation of coal in one
District. Further, 15 more cases of specific
violation of the NGT orders had already been
registered by the State Government. In all 11
Districts of State of Meghalaya, 308 cases of
violation have been registered and a total number of
605 trucks and 2675.63 tonnes of coal has been
seized. The stand of the State for a non-compliance
and its inability to comply with the direction was
also noticed to the following effect:
“(a) Lack of forces of carry out counter
insurgency operations and implementation of
NGT orders.
(b) The State Government proposes to
approach the Central Government for
claiming an exemption, in terms of para
12A(b) of the VIth Schedule of the
Constitution of India and from the
condition of previous approval of the
Central Government under the Mine and
Mineral Rule Regulation Act, 1957 in
respect of reconnaissance, prospecting and
mining of coal and from the operations of
Coal Mines Nationalisation Act.”
8. The Tribunal issued directions that the
Additional Secretary, North East in the Ministry of
Home, Central Government shall, within a period of
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two weeks, hold a meeting with the Chief Secretary of
the State of Meghalaya and other concerned
Authorities and consider the proposal of the State of
Meghalaya. The Tribunal also expressed its
disapproval for the conduct of the State in not
formulating appropriate Policy and Guidelines. The
Tribunal further observed that the mining in the
State cannot be permitted, unless appropriate policy
is prepared by the State Government.
9. The Tribunal also noticed that there is huge
environmental degradation and pollution of the water
in the State of Meghalaya and observed that serious
steps are required to be taken for cleaning polluted
waterbodies, with the above objective the Tribunal
authorised the State Government to collect 10% on the
market value of the coal in addition to the royally
payable to it. In this regard following directions
were issued:
“It is also undisputable that there has
been huge environmental degradation and
pollution of the waterbody in the State of
Meghalaya, because of this illegal,
unscientific mining. No one has even
thought of restoration of the area in
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question, to bring to some extent, if not
completely, restoration of ecology and
environment in question. Serious steps are
required to be taken for cleaning polluted
waterbodies and ensure that no further
pollution is caused by this activity and
the activity which would be permitted to be
carried on finally including transportation
of coal. On the basis of `Polluter Pay
Principle’. We direct that the State
Government shall in addition to the royalty
payable to it, shall also collect 10% on
the market value of the coal for every
consignment. Having heard the learned
Counsel appearing for the parties and
keeping in view the notifications of the
Central Government dated 10.05.2012 and
that of the State Government dated
22.06.2012, we may notice that in the
report of Comptroller and Auditor General
of India for the period ending 31st March,
2013 under 7.5.18 of Chapter 7 of which the
invoice value of the coal has been taken
Rs. 4850/- per metric tonne.
Thus, we direct that the State
Government shall in addition to the royalty
payable to it, also collect 10% of the said
market value of the coal per metric tonne
from each person. The amount so collected
shall be deposited in the account to be
titled as ‘Meghalaya Environment Protection
and Restoration Fund’ to be maintained by
the State under the direct control of the
Chief Secretary of the State of Meghalaya.
This amount shall only be used for
restoration of environment and for
necessary remedial and preventive measures
in regard to environment and matters
related thereto.”
10. Certain other directions were issued by the
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Tribunal vide order dated 25.03.2015.
Order dated 10.05.2016
11. Order dated 10.05.2016 has been challenged by KA
Hima Nongstoin Land Owners, Coal Traders and
Producers Association. The NGT vide its order dated
23.12.2015 had permitted transportation of coal for
the period till 15.05.2016. By order dated
31.03.2016, NGT refused to further extend the time
for transportation and directed that after 15.05.2016
all extracted coal shall vest in the State. Aggrieved
against order dated 31.03.2016 KA Hima Nongstoin Land
Owners, Coal Traders and Producers Association filed
C.A.No.4793 of 2016 before this Court, which was
disposed of by granting liberty to the appellant to
file application before the NGT. Pursuant to the
liberty granted by this Court M.A.No.427 of 2016 was
filed before the NGT. By order dated 10.05.2016
applications, M.A. Nos.400 and 427 of 2016 were
dismissed. By the same order the State of Meghalaya
was directed to place on record the exact current
quantity of coal and value thereof including the
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status of the coal lying and mined anywhere in the
State of Meghalaya as on 01.04.2015 and the exact
quantity of coal lying as on 16.05.2016. The state
was also directed to submit its proposal as to how
the State shall deal with the coal that is vested in
the State primarily for the reasons that entire coal
is illegally extracted coal.
Order dated 31.08.2018
12. On 31.08.2018, the Tribunal noticing the earlier
proceedings also noted that few issues are pending
before this Court arising out of orders passed by the
Tribunal. In paragraph 10 of the order following has
been noticed:
“10. At this stage, we may note that
following issues are pending before the
Hon’ble Supreme Court arising out of orders
passed by this Tribunal:
i) Civil Appeal No(s). 5272/2016 titled
as Ka Hima Nongstoin Land Owners,
Coal Traders and Producers
Association Vs. All Dimasa Students
Union, Dima Hasao District Committee
and Ors., wherein following order
was passed on 21.09.2016:
“Having heard counsel for the parties,
it is directed that the petitioners, as
well as the respondents, who have mined
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the coal, are permitted to transport
the coal on payment of royalty and
other fees as fixed by the National
Green Tribunal (for short, ‘the
Tribunal’) and other relevant status.
The extracted coal can be transported
from 1st October, 2016 till 31st May,
2017. It is further directed that no
other extraction shall take place in
the meantime.
The finding of the Tribunal that the
coal is vested in the State on the
ground that it is illegally extracted
coal, shall be adverted to at the time
of final hearing. The miners shall keep
the accounts and if, ultimately, it is
held that the coal belongs to the
State, they will refund the amount with
interest. The quantum of interest shall
be determined at the time of final
hearing. Needless to say, these
observations have been made without
prejudice to the contentions to be
raised by the learned counsel for the
parties. The tribunal can proceed with
regard to the other aspects which are
pending before it.”
The above order shows that question
whether coal is vested in the State is to
be gone into before the Hon’ble Supreme
Court.
Thereafter, on 28.03.2018, by the said
order, time for transporting already
extracted coal was extended up to
31.05.2018 but it was clear that no further
extraction shall be allowed.
ii) Civil Appeal Diary No. 3067/2018
titled as Lber Laloo Vs. All Dimasa
Students Union, Dima Hasao District
Committee and Ors., raising the question
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whether ban on mining can be continued. We
are informed that in the said matter, the
issue of mining plan has also been raised.”
13. The Tribunal further directed that ban on rat
hole mining shall continue subject to further orders
of this Court. Ban on transportation of extracted
coal will also continue subject to further orders.
Following directions were issued in paragraph 13:
“13. Accordingly, we direct that orders of
ban of rat-hole mining will continue,
subject to further orders of the Hon’ble
Supreme Court. Ban of transportation of the
already mined material will also continue
subject to further orders of the Hon’ble
Supreme Court. The State of Meghalaya will
be the receiver/custodian of the available
extracted coal as on date, subject to
further orders of the Hon’ble Supreme
Court. If any further coal not so far
recorded in the inventory is available, a
separate inventory may be made and if it is
found that the extraction was illegal,
royalty in terms of orders already passed
may also be collected. This may be
determined by the Secretary of Mining of
the State of Meghalaya. While one view is
that there is extracted coal and not
accounted for, the other view put forward
that it is result of illegal mining. This
aspect may be gone into by the Secretary of
Mining, State of Meghalaya in the first
instance. The same be cross-checked by a
joint team of representatives of Central
Pollution Control Board and Indian School
of Mines, Dhanbad.”
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14. The Tribunal also deliberated on restoration of
the environment and rehabilitation of the victims for
which funds were available. The Tribunal constituted
a committee headed by Justice B.P. Katakey, Former
Judge of the Gauhati High Court with representatives
from Central Pollution Control Board and Indian
School of Mines, Dhanbad. Paragraphs 14 to 28 of the
order are relevant in this context which are as
follows:
“14. Only last question which remains is of
restoration of the environment and
rehabilitation of the victims for which
funds are available. We are of the view that
for this task, it will appropriate that we
constitute an independent Committee. This
Committee will be headed by Justice B.P.
Katakey, Former Judge of the Guwahati High
Court with representatives from Central
Pollution Control Board and Indian School of
Mines, Dhanbad.
15. The Committee will take the following
steps:
Take stock of all actions taken so far
in this regard.
Prepare time bound action plan to deal
with the issue and ensure its
implementation.
16. The Committee may requisition services
of such technical experts as may be
necessary and may also carry out visits to
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sites whenever necessary. They will be
entitled to all logistic support for
performing these functions which shall be
provided under the directions of the Chief
Secretary, Meghalaya.
17. The Committee may also set up website
for receiving and giving information on
subject.
18. The Committee may also involve
educational institutions for awareness and
feedback about results.
19. All authorities concerned in the State
of Meghalaya shall cooperate and coordinate
with the Committee. The Committee can seek
such technical assistance as may be required
from any relevant authority.
20. The Chief Secretary, Meghalaya to
provide all facilities to said Committee to
perform its functions. The Committee may
send its periodical reports to the Tribunal
by e-mail at filing.ngt@gmail.com.
21. The Committee may assume its charge
within two weeks from today. The Committee
may prepare Action Plan which shall have
targets of ensuring compliance. It may meet
at such intervals as considered appropriate
but twice in every month and fix targets for
compliance.
22. The Committee will be free to take up
all incidental issues. The committee will be
free to seek any further directions from
this Tribunal by e-mail.
23. The Chief Secretary of State of
Meghalaya may determine remuneration of the
Chairman in consultation with him and the
Chief Secretary of the State of Meghalaya
will also provide all logistic support
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including security if needed for their
proper functioning.
25. The Committee will be entitled to take
the help of the technical experts in
execution of this order. The Committee may
frame its action plan for implementation
within one month from today and
implementation may be completed within six
months as far as possible. The timelines may
be laid down. A copy of the action plan may
be sent to this Tribunal by e-mail at
filing.ngt@gmail.com. Thereafter, reports
may be sent at least once in two months. The
Committee may also assess the damage to the
environment as well as to the individuals as
already suggested in the Report.
27. The State of Meghalaya will make
available all the relevant records to the
Committee for the purpose. The State will
also determine the remuneration to be paid
to the Chairman of the Committee in
consultation with him within one month from
today.
28. The Committee will be at liberty to take
technical assistance from any quarter which
may be facilitated by the State of
Meghalaya. The Committee may also supervise
any issue arising out of
receivership/custodianship of the already
extracted coal, including any environmental
issues which any arise out of storage of the
extracted material and the steps required to
be taken for the purpose.
The Report of the Committee may be furnished
to this Tribunal by e-mail at
filing.ngt@gmail.com.
A copy of this order may be sent to all the
concerned authorities by e-mail for
compliance.
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All pending matters will stand disposed of
in above terms.
List for consideration of the Report on 06th
March, 2019.”
Order dated 04.01.2019
15. Justice Katakey submitted its report before the
Tribunal on 02.01.2019. Committee’s various
proceedings which were part of the report were
noticed in detail by the NGT. In paragraph 21 of the
order following was noticed:
“21. Under issue number D, it was noted
that the Meghalaya State Pollution Control
Board in its report in September, 1997 had
noted that unplanned and unscientific coal
mining activities were taking place. This
had achieved dangerous dimensions in the
last two decades creating ecological
disturbance and adverse environmental
impacts. This showed that though cognizance
of the problem was taken in the year 1997,
the problem continues even 20 years
thereafter. The State Pollution Control
Board had, in the year 1997, recommended
steps to check illegal mining including
generation of awareness, legislative
measures, use of technology, carrying out
of study but none of the recommendations
were implemented even after 21 years.”
16. The Tribunal after considering the report of the
committee and other materials on record came to the
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conclusion that the State of Meghalaya had failed to
perform its duties to act on the recommendation of
the report of the Meghalaya State Pollution Control
Board submitted in the year 1997. The Tribunal opined
that interim amount be deposited towards restoration
of the environment. Paragraphs 31 to 33 are as
follows:
“31. Paying capacity and the amount which
may act as deterrent to prevent further
damage is also well recognised. Net Present
Value of the ecological services foregone
and cost of damage to environment and
pristine ecology, the cost of illegal mined
material, and the cost of mitigation and
restoration are also relevant factors. The
Committee may go into these aspects to
determine the final figure.
32. We are satisfied that having regard to
the totality of factual situation emerging
from the record, damages required to be
recovered are not, prima facie, less than
Rs. 100 Crores. Accordingly, by way of an
interim measure, we require the State of
Meghalaya to deposit Rs. 100 crores within
two months with the CPCB in this regard.
33. We have already noted the extent of
damage found and the value of the illegally
mined material, apart from clandestine
mining for which sufficient material is not
available. The State had collected, as
noted in the earlier order, royalty of Rs.
400 crores which by now must be higher
figure.”
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17. The State of Meghalaya has filed two appeals
being C.A.No.10720 of 2018 and C.A.No.2968 of 2019.
C.A.No.10720 of 2018 has been filed questioning the
order dated 31.08.2018 passed by the Tribunal by
which the Tribunal directed that order of the ban of
rat-hole mining will continue and further constituted
Justice B.P. Katakey committee to take steps for
restoration of the environment and rehabilitation of
the victims. The other Civil Appeal No.2968 of 2019
has been filed by the State of Madhya Pradesh
questioning the order dated 04.01.2019 by which State
of Meghalaya was directed to deposit interim amount
of Rs.100 crores towards restoration of the
environment.
18. Against the same order dated 31.08.2018 two
other appeals have been filed being C.A.No.10611 of
2018 by the State Coordination Committee of Coal
Owners, Miners and Dealers Forum and C.A.No.10907 of
2018 by Garo Hills Autonomous District Council
aggrieved by the perpetual ban of coal mining by
order dated 31.08.2018 without considering illegality
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of the ban in the first place. The appellants are
also aggrieved by appointment of State Government
receiver/custodian of the extracted coal when there
is no dispute of the ownership of the coal and
further the question of vesting of the coal in the
State is pending consideration in this Court in
C.A.No.5272 of 2016.
19. C.A.No.10907 of 2018 is filed by Garo Hills
Autonomous District Council which is aggrieved by the
order of the Tribunal dated 31.08.2018 by which it
has confirmed the ban on coal mining which was in
force for over four years and further direction by
the Tribunal to constitute a committee for the
disposal of funds in excess of Rs.400 crores. The
appellants are aggrieved by the above and alleged
that the Tribunal failed to consider that
constituting the committee without considering the
roles and responsibilities of the District Council
has the effect of virtually excluding the Council
from issues concerning administration of forests and
lands which are within the exclusive jurisdiction of
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the Council. The ban on coal mining has effectively
closed the doors on a major source of revenue for the
functioning of the District Council, which is
empowered in terms of Sixth Schedule of the
Constitution to collect taxes.
20. C.A.No.5272 of 2016 by KA Hima Nongstoin Land
Owners, Coal Traders and Producers Association has
been filed against order dated 10.05.2016 by which
Miscellaneous Applications No.400 and 420 of 2016
were dismissed. The appellants had prayed for
modification and clarification and/or recall of the
final order dated 31.03.2016 by which Tribunal
directed for vesting of the duly assessed already
extracted coal with the State of Meghalaya and
refusing to extend the time for transportation of the
already extracted coal. The appellants claim for
propriety rights of its members over such coal, which
were mined as per prevailing custom prior to
17.04.2014.
21.
Now, remains appeal being Civil Appeal of
2019(@ Diary No.3067 of 2018) filed on behalf of the
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Lber Laloo. The appellant has filed this appeal
against the order dated 25.03.2015. Aggrieved by the
blanket ban on mining activities imposed in the State
of Meghalaya by the NGT which, according to the
appellant, is adversely affecting the lives and
livelihood of the miners in the State of Meghalaya.
As a result of ban on coal mining large number of the
families are affected in the State of Meghalaya, who
are dependent for their livelihood on coal mining.
Submissions
22. We have heard Shri Shekhar Naphade, learned
senior counsel, Shri Amrendra Sharan, learned senior
counsel, Shri Amit Kumar, Advocate General, for the
State of Meghalaya. We also heard Shri Ranjan
Mukherjee appearing for the State of Meghalaya. Shri
Ranjit Kumar, learned senior counsel, appearing for
the appellant in C.A. Diary No.3067 of 2018 and Shri
Raju Ramachandran, learned senior counsel, appearing
for the appellant in C.A.No.10907/2018. Shri Colin
Gonsalves, learned senior counsel has been heard as
amicus curiae. We have also heard learned counsel for
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respondent No.1 in C.A. No.5272 of 2016 (who was the
applicant before the NGT). Shri Nidhesh Gupta,
learned senior counsel has been heard for the private
respondents in C.A.No.5272 of 2016. Shri A.N.S.
Nadkarni, learned Additional Solicitor General has
been heard for the Union of India. We have also heard
other learned counsel who were permitted to intervene
in the matter and raise various arguments in respect
of their different IAs.
23. Shri Shekhar Naphade, learned senior counsel led
the arguments on behalf of the State of Meghalaya.
Shri Naphade submits that jurisdiction of NGT
constituted under National Green Tribunal Act, 2010
is confined to Sections 14,15 and 16. Section 16 is
not attracted in the present case. Section 14 deals
with original jurisdiction of NGT and it takes within
its compass or all of civil cases where a substantial
question relating to environment (including
enforcement of any legal right relating to
environment) is involved and such question arises out
of the implementation of the enactments specified in
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Schedule I. The jurisdiction depends upon two
conditions which are required to be satisfied
cumulatively and they are: (1) substantial question
which relates to environment and (2) implementation
of the enactments specified in Schedule I. It is
submitted that Mines and Minerals (Development and
Regulation) Act, 1957(hereinafter referred to as
“MMDR Act, 1957”) not being specified in Schedule I,
the National Green Tribunal could not have exercised
jurisdiction to examine violation of MMDR Act, 1957.
It is submitted that the NGT committed error in
holding that the coal mining in State of Meghalaya is
unregulated. The NGT proceeded on erroneous premise
that the Tribals of Meghalaya cannot do coal mining
without obtaining lease from the State Government. It
is submitted that Tribals who are owners of the land
are also owners of the sub-soil and the minerals in
the land. The land in the State of Meghalaya was
property of men and villages. The Khasi Hills,
Jaintia Hills and Garo Hills have different land
tenure system of their own, which does not provide
28
for vesting of land or minerals in the State right
from pre-Independence period.
24. Shri Naphade submits that the ownership of
minerals vests with the owner of the land unless the
owner of the land is deprived of the same by some
valid process of law, for example, the provision
contained in Land Revenue Codes of different States,
which categorically state that the ownership of
minerals exclusively vests in the State Government.
However, in the State of Meghalaya, there exists no
such law that deprives the owner of the land from
owning the minerals beneath it.
25. Shri Naphade submits that under MMDR Act, 1957,
State has no legislative or executive power with
regard to coal, which is a major mineral. It can
neither exercise any jurisdiction of granting any
mining lease to the Tribals nor it has any
jurisdiction to frame any mining policy. It is
submitted that the provisions of the MMDR Act deal
with lease and prospecting licence. The Tribals of
Meghalaya are owners of the minerals located in their
29
land. Since they are the owners, there is no question
of they being required to obtain either a prospecting
licence or a mining lease. The concepts of lease and
licence necessarily involve minimum two parties to
the transaction- in case of a license, there has to
be a licensor and licensee. The owner of minerals
cannot give licence or lease to himself or grant a
prospecting licence. The State is not the owner of
the minerals and, therefore, it cannot on its own
grant prospecting licence or lease as it has no
proprietary right in respect of such minerals. State
can neither be a licensor nor a lessor in such
situation.
26. Shri Naphade reiterates that the whole premise
of NGT that the coal mining in the State of Meghalaya
is unregulated is fully erroneous. Referring to
north-eastern area under which the State of Meghalaya
was established as full-fledged State, it is
submitted that administration of Tribal areas is to
be governed as per Sixth Schedule of the Constitution
of India and various orders passed by the NGT
30
directly interfered in the administration of Tribal
area which is vested in the Autonomous District
Councils. It is submitted that NGT failed to consider
the relevant statutory matrix including the
provisions of Sixth Schedule and legislation framed
by the Autonomous District Councils. It is submitted
that NGT has no jurisdiction to constitute any
committee for the purpose of enforcing its orders.
The constitution of committees including constitution
of Justice B.P. Katakey, former Judge of the Gauhati
High Court by the impugned order dated 31.08.2018 is
beyond the jurisdiction of NGT. The constitution of
the committee is interference with the jurisdiction
of Autonomous District Council. It is further
submitted that NGT has also no jurisdiction to create
any fund. The Tribunal by constituting the committee
and by constituting a fund has created a parallel
Government. The Tribunal not being a constitutional
court it cannot issue a continuous mandamus. It is
submitted that Tribunal although issued several
directions to the State of Meghalaya to frame mining
policy whereas the State has no jurisdiction
31
regarding framing of mining policy under MMDR Act,
1957, the State is denuded with any legislative
powers with regard to regulation and development of
minerals, which have been declared by the Union to
have taken under its control. Referring to EIA
notification dated 14.09.2006 issued under
Environment Protection Act, 1986, he submitted that
environment clearance for mining was required only
when area of mining was more than five hectares. In
Tribal areas of State of Meghalaya, mining area
consists of small area which being not more than five
hectares, there was no requirement of obtaining an
environment clearance. He does not dispute that after
15.01.2016 by the EIA notification now the
requirement of area of being not more than five
hectares having been deleted environment clearance is
required as on date with regard to carrying mining
operations. The Tribals are dependent for their
livelihood on coal mining and, therefore, by complete
ban on coal mining with effect from 17.04.2014, large
number of Tribals are deprived from their livelihood
and it is obligatory for the State to espouse the
32
cause of the Tribals, who individually were not
before the NGT. There being no jurisdiction in the
State of Meghalaya to grant mining lease as per
special nature of land tenure in the Tribal areas of
State of Meghalaya and further minerals are not
vested in the State of Meghalaya, the NGT erred in
holding that State has failed to carry on its
obligation and failed to check coal mining in the
State of Meghalaya, it is Central Government which
have all jurisdiction and authorities under Act, 1957
to make necessary Rules and issue necessary
directions and State alone cannot be blamed.
Referring to Minerals Concession Rules, 1960 framed
under Section 13 of MMDR Act, 1957, it is submitted
that even though Rule 13(f) refers to mining
application with regard to land of which minerals
vest in persons other than the Government, he submits
that this provision shall not apply for owner when he
himself carries on the mining, the question of taking
lease may arise when owner of the land give land to
some other person to mine the minerals.
33
27.
Shri Naphade, however, submits that the
provisions of the Mines Act, 1952 are applicable and
Conservation and Development Rules, 1988, where cess
can be charged by the State.
28. Shri Amrendra Sharan, learned senior counsel
appearing for the State of Meghalaya in C.A. No.2968
of 2019 submits that NGT vide impugned order dated
04.01.2019 has directed the State of Meghalaya to
deposit Rs. 100 crores as an interim measure which is
wholly unsustainable. The NGT has passed the order
dated 04.01.2019 relying on first interim report of
the Committee headed by Justice B.P. Katakey, former
Judge of the Gauhati High Court. The constitution of
committee was itself beyond the jurisdiction of the
NGT. Shri Sharan adopts the submissions made by Shri
Naphade and in addition to those submissions, submits
that order dated 04.01.2019 has been passed in
violation of principles of natural justice since no
opportunity was given to the State of Meghalaya to
respond to the report of the committee used against
34
it for imposing a penalty of Rs.100 crores. The order
impugned has been made by the NGT contrary to the
findings recorded in the report of the committee of
Justice B.P. Katakey. The impugned order dated
04.01.2019 has been passed by the NGT without any
assessment of damage of environment whatsoever. The
Tribunal also did not notice its earlier order dated
25.03.2015 wherein penalty has already been imposed
on actual polluters, i.e., coal miners and
transporters based on Polluters Pay Principle for
which Fund, namely, Meghalaya Environment Protection
and Restoration Fund (hereinafter referred to as
“MEPRF”) has already been created. The NGT passed
order dated 04.01.2019 without considering the
concerned statutory provisions to determine as to who
is responsible for implementation of the mining
statutes and the environmental legislation in the
State of Meghalaya. The state of Meghalaya has
limited source of revenue and putting extra burden of
Rs.100 Crores shall shatter the economy of the state.
35
29. Shri Raju Ramachandran, learned senior counsel,
in support of appellant, Garo Hills Autonomous
District Council in Civil Appeal No. 10907 of 2018
submits that the NGT while passing order dated
31.08.2018 has ignored the Sixth Schedule of the
Constitution. By order dated 31.08.2018, the NGT
could not have constituted the committee. Referring
to Sixth Schedule of the Constitution, Shri Raju
Ramachandran submits that under para 2, District
Councils, Regional Councils have been constituted and
also Hills District Council is a Council created
under the Sixth Schedule of the constitution framed
under Article 244(2) and Article 275(1) of the
Constitution of India. The constitution of committee
by the NGT has virtually affected District Autonomous
Council from issues concerning administration of
forests and lands within the exclusive jurisdiction
of the council. The ban of coal mining has deprived
the appellant from major source of Revenue. Under
para 8 of Sixth Schedule, Autonomous District Council
is entitled to share the Revenue from minerals
royalty collected by the State Government. The
36
impugned order has been passed without hearing and
taking note of existence of shareholders or stake of
shareholders. Shri Raju Ramachandran further submits
that NGT has disposed of OA Nos.73/2014, 13/2014 and
186/2014 by order dated 31.08.2018 after this, it
could not have passed any order.
30. Learned counsel for the appellant in support of
C.A. No. 5272 of 2016 submits that the appeal filed
by the appellant is only for seeking protection of
the proprietary rights of its members over the coal
which was mined as per prevailing custom prior to
17.04.2014. It is submitted that by order dated
31.03.2016, NGT had taken the view that all coal
after 2016 shall vest in the State. The appellant had
previously approached this Court by filing
C.A.No.4793 of 2016 against the order dated
31.03.2016 wherein this Court granted the liberty to
the appellant to approach the NGT for filing
application for clarification of the order. The
application of the appellant for clarification was
rejected by the NGT without giving any reason. The
37
NGT had overreached the scope of its jurisdiction and
authority in directing for vesting of the coal
extracted by the members from their land in the
State. It is further submitted that MMDR Act, 1957
was enacted by the Parliament to regulate the mining
activities in the country which does not in any
manner purport to declare the proprietary rights to
the State in the minerals.
31. Mr. Ranjit Kumar, learned senior counsel in
support of C.A.(D) No.3067 of 2018 submits that the
Tribunal committed error in stopping the entire coal
mining in the State of Meghalaya. Referring to
Section 15 of NGT Act, 2010, Shri Ranjit Kumar
submits that relief, compensation and restitution can
be granted as provided in Section 15. It is submitted
that by stopping entire coal mining from 17.04.2014
the livelihood of appellant and several similarly
situated persons had been adversely affected. It is
submitted that the Tribunal ought to have lifted the
ban. Order impugned infringes right under Article 21
of the Constitution of India. The Tribunal has acted
38
beyond its power under Section 15 of NGT Act, 2010.
The finding of the Tribunal on mining that in the
State of Meghalaya mining is unregulated is not
correct, whereas, a miner is required to get
registered and it has to pay royalty fixed by the
State of Meghalaya.
32. Shri Ranjan Mukherjee, learned counsel appearing
for respondent No.2, State of Meghalaya in
C.A.No.3067(D) of 2019 submits that even if rat-hole
mining has been banned, all mining cannot be banned.
He submits that the Meghalaya Mines and Minerals
Policy, 2012 has been formulated with an aim to
facilitate systematic, scientific and planned
utilisation of mineral resources and to streamline
mineral based development of the State. The State of
Meghalaya has been created to follow the customary
rights and practices of coal mining in the Tribal
areas of Meghalaya. In this regard letter of Central
Government dated 02.07.1987 has also been relied. The
draft guidelines for coal mining activities in the
State has also been framed in the year 2015.
39
Although, NGT has directed Ministry of Environment
and Forests to look into the matter but no objection
has been communicated to the State except certain
miner discrepancies.
33. Shri A.S. Nadkarni, learned Additional Solicitor
General appearing for the Union of India submits that
provisions of MMDR Act, 1957 are also applicable in
the Tribal areas of State of Meghalaya. The request
submitted by the Government of Meghalaya for issuance
of Presidential Notification under Paragraph 12A(b)
of the Sixth Schedule of the Constitution of India
for exempting the State of Meghalaya from certain
provisions of the MMDR Act, 1957 has not been acceded
to. The Office Memorandum dated 12.03.2019 issued by
the Government of India, Ministry of Coal has been
referred to and relied by the learned Additional
Solicitor General in this regard. It is submitted
that no prior approval for mining rights in respect
of area containing coal has been given under MMDR
Act, 1957 by Ministry of Coal, Government of India
for the State of Meghalaya.
40
34. It is submitted that it is entirely
impermissible for the appellant or any other private
person to claim any rights for illegal or unlawful
mining of coal in derogation of the law in force in
the State of Meghalaya. It is further submitted that
generation of revenue would not be a ground for
claiming permission to carry out mining in
contravention/derogation of the law in force. A draft
guideline submitted by the State Government of
Meghalaya by letter dated 24.09.2015 was examined by
the Ministry of Coal, Government of India on which
decision was taken that the guidelines submitted by
the Government of Meghalaya were not in conformity
with the existing statutory provisions of MMDR Act,
1957. Hence, the State of Meghalaya may reframe the
guidelines in conformity with MMDR Act, 1957 and
submit. In the revised proposal dated 25.07.2016 the
State of Meghalaya had proposed certain amendments in
MMDR Act, 1957 and exemption from the application of
the MMDR Act, 1957 through a Presidential
notification under Para 12A(b) of the Sixth Schedule.
41
It had already been communicated by Central
Government that exemption from applicability of MMDR
Act, 1957 cannot be acceded to.
35. Shri Colin Gonsalves, learned senior counsel,
appearing as amicus curiae, has raised various
submissions. Learned amicus curiae has submitted a
Report in two volumes titled “ CURSE OF UNREGULATED
COAL MINING IN MEGHALAYA” , a citizen’s Report from
Meghalaya 01/12/2018. In Volume I under the head
‘INTRODUCTION’ the Report states:
“ INTRODUCTON
Meghalaya has a resource curse. Although,
we have been endowed with abundant forests
and minerals, these resources have not
contributed to the good of our society,
because they have been extracted without
any regulation or concern for the larger
common good. This unregulated, narrow,
self-interest based use of natural
resources has exacerbated socio-economic
inequality, destroyed the environment,
heightened criminality, and torn as under
our egalitarian tribal social fabric.
It also violates Section 39(b) of the
Constitution which provides that the
ownership and control of the material
resources of the community should be so
distributed so as to best subserve the
common good and, therefore, the State
cannot distribute the material resource of
the community in any way it likes. The
42
process of distribution must be guided by
the constitutional principles including the
doctrine of equality and larger public
good.
The National Green Tribunal’s landmark
order regarding Unregulated and illegal
coal mining in our state therefore came as
a wakeup call for Meghalaya society at
large. This order has been criticised and
appealed against by a small section of
locals most of who are coal mine owners,
transporters, politicians and
administrators who have ‘illegally’
benefitted out of this unregulated mining
and who want things to get back to business
as usual. Coal Miners and politicians who
are miners, truck owners, weigh bridge
operators etc. have been filed appeals with
the Honourable Supreme Court, asking the
Hon’ble Court to rescind NGT orders so that
mining can once again begin.”
36. Learned amicus curiae submits that State of
Meghalaya still continues with the illegal mining.
Shri Gonsalves submits that Section 4 of MMDR Act,
1957 by use of words “no person” clearly prohibits
mining operation without obtaining mining lease in
accordance with the Act. Referring to Section 5, he
submits that for Schedule A minerals permission of
Central Government is required which has not been
obtained. Shri Gonsalves submits that for mining, the
leases are required and permission be sought. He
43
submits that there are 53 mines per kilometre in
Tribal areas of Meghalaya. He submits that all
extracted coal which is claimed to be lying assessed
or unassessed in the State of Meghalaya is result of
illegal mining and Coal India Ltd. be directed to
take over the entire coal.
37. Shri Gonsalves has also referred to various
reports of Comptroller and Auditor General of India
which has been brought on record in Volume II – A
Citizen’s Report from Meghalaya 06/01/2019.
38. Shri Nidhesh Gupta, learned senior counsel,
appearing on behalf of private respondent in Civil
Appeal No.5272 of 2016 has refuted the submissions
raised by the learned counsel for the appellants.
Shri Nidhesh Gupta submits that as per Entry 54 of
List I regulation of mines and minerals development
has been declared by the Parliament under MMDR Act,
1957. Section 2, by declaration as contained in MMDR
Act, 1957, the State Government is denuded of all
legislative and executive powers under Entry 23 of
44
List II read with Article 162 of the Constitution of
India. Section 4 sub-section (1) makes it clear that
no person can undertake any reconnaissance,
prospecting or mining operations in any area, except
under and in accordance with the terms and conditions
of a reconnaissance permit or of a prospecting
licence. As per Section 5 sub-section (1) A State
Government shall not grant a reconnaissance permit,
prospecting licence or mining lease to any person
unless such person is an Indian National and
satisfies such conditions as may be prescribed. The
proviso to Section 5(1) provides that in respect of
any mineral specified in Part A and Part B of the
First Schedule, no reconnaissance permit, prospecting
licence or mining lease shall be granted except with
the previous approval of the Central Government. The
contention on behalf of the State of Meghalaya that
the MMDR Act, 1957 does not apply to State of
Meghalaya is based on an erroneous reading of the
statutory provisions.
45
39. Section 13 empowers the Central Government to
make rules for regulating the grant of reconnaissance
permits, prospecting licences and mining leases in
respect of land in which minerals vest in the
Government and also in respect of any land in which
the minerals vest in a person other than the
Government. In exercise of powers under Section 13 of
the Act, the Mineral Concession Rules, 1960 have been
framed.
40. Chapter V deals with the procedure for obtaining
a prospecting licence or a mining lease in respect of
a land in which the minerals vest in a person other
than the Government. The said Chapter contains
provisions from Rule 41 to Rule 52. Rule 41
stipulates that the provisions of the said Chapter
apply only to the grant of prospecting licences and
mining leases in respect of land in which minerals
vest exclusively in a person other than the
Government. Therefore, mining leases in respect of
land where minerals vest in a person other than the
Government are covered by the said Chapter and
46
matters concerning grant of prospecting licences and
mining leases are detailed therein.
41. As per Section 23C, the State Government is
empowered to make Rules for preventing illegal
mining, transportation and storage of minerals. No
Rules have been framed by the State of Meghalaya
under Section 23C. The contention on behalf of State
of Meghalaya that MMDR Act applies only in the cases
where minerals vest in Government, therefore, MMDR
Act does not apply in the State of Meghalaya, is
completely misconceived.
42. Learned counsel also relies on the stand taken
by the Union of India in the Status Report dated
24.07.2018. Shri Gupta submits that approximate price
of coal is Rs.10,000/- per metric ton. Referring to
notice inviting tenders by the State of Meghalaya, it
is submitted that amount of Rs.1,000/- per metric ton
was contemplated. It is submitted that selling the
coal on much low price is causing loss to Revenue as
well as loss to other stakeholders. The allegations
47
have been by Shri Gupta that sale of coal at such low
price raises suspicion of under hand dealing. It is
submitted that legal position be laid down by this
Court and the orders of the NGT be upheld.
43. In addition to above, we have also heard several
learned counsels who have filed IA for impleadment
and IAs for direction including direction to trans-
port coal belonging to them. We have heard Shri Sid-
dharth Luthra, Shri R. Basant, Smt. Meenakshi Arora,
Senior Advocates and other learned counsel.
44. On 10.05.2019, we had passed an order permitting
transportation of coal to the extent of 75,050 metric
ton which was balance quantity from 1,76,655 metric
ton of coal, for transportation of which this Court
had passed order on 04.12.2018. The order dated
10.05.2019 permitted transportation of the coal, for
which Transport challans had already been issued af-
ter 04.12.2018 under the terms and conditions as in-
dicated in the order dated 10.05.2019. In the order
dated 10.05.2019, we had also held that applicants
48
need not be impleaded, however, they were permitted
to intervene in the matter.
45. The counsel appearing for different applicants
claim transportation of different quantity of coal
which according to them has now been assessed. Still
some of the applicants claims transportation of the
coal which is yet to be assessed. In different appli-
cations, different quantities are claimed to be
transported which according to the applicant is lying
in different districts of the State of Meghalaya.
I.A.No.22981 of 2019 and I.A. No. 22991 of 2019 are
applications by an applicant claiming to be auction
purchaser. Learned counsel submitted that he was de-
clared highest bidder, he pleaded for extension of
time to deposit the amount but after the order dated
15.01.2019, he was not permitted to transport the
coal nor he could deposit the balance auction money.
46. Shri Ranjan Mukherjee, learned counsel appearing
for State of Meghalaya has filed an additional affi-
davit of Commissioner and Secretary to the Government
49
of Meghalaya, Mining and Geology Department dated
06.04.2019. In the affidavit, it is stated that in
pursuance of the order of NGT dated 31.08.2018, the
State Government vide notification dated 14.09.2018
has constituted a team to assist the Commissioner and
Secretary to deal with the directives given in para
13 of the order of the NGT. It is submitted that in
pursuance of the order of the State Government dated
14.09.2018, the members of the committee have carried
out assessment of unassessed extracted coal appearing
in the datasheet of inventory in different hills dis-
trict. The report dated 04.10.2018 of Deputy Commis-
sioner, west Khasi hills, is filed as Annexure A-3,
containing the statement of unassessed extracted coal
has been brought on record. Another report dated
22.10.2018 and 16.11.2018 of west Khasi hills dis-
trict containing the statement of assessment of
unassessed extracted coal has been brought on record.
By report dated 12.11.2018 of Deputy Commissioner,
South west Khasi hills, datasheet of coal inventory
has been brought on the record. Report dated
30.10.2018, Deputy Commissioner, South Garo hills,
50
has also been brought on record. There were reports
referring to different assessment carried out by the
committee according to the affidavit which has been
filed on behalf of the Commissioner and Secretary to
the Government of Meghalaya, the total quantity of
coal stock which has now been assessed in different
reports stands at 32,56,715 metric ton.
47. It is further submitted by learned counsel for
the State of Meghalaya that above assessment of coal
has been also verified by technical committees ap-
pointed by the State of Meghalaya. Certain reports of
technical committees have also been brought on the
record along with the affidavit.
48. Shri Colin Gonsalves, learned Amicus Curiae has
challenged the assessment made by the committees ap-
pointed by the State Government as well as verifica-
tion by technical committee report. It is submitted
by Shri Gonsalves that report of technical committee
wants to undo what has been done in the proceedings
before the tribunal and this Court. Learned Amicus
Curiae submits that for transportation, five exten-
51
sions were granted by NGT and four extensions were
granted by this Court. Shri Gonsalves referred to
Katakey committee report in support of his submis-
sions.
49. Shri Nidhesh Gupta, learned senior counsel, has
also refuted the claim of the different applicants as
well as the steps taken by the State of Meghalaya in
assessing the coal and verifying the same by techni-
cal committee. Shri Gupta submits that the coal which
is now claimed to be assessed is nothing but ille-
gally extracted coal. It is submitted that in pur-
suance of several orders passed by NGT and this Court
substantial transportation of coal has been permit-
ted, still the enormous quantity of coal is claimed
which is nothing but an excuse to obtain an order of
transportation of such illegally mined coal. It is
submitted that State of Meghalaya is hand in glove
with illegal miners. Shri Gupta submits that the cost
of winning coal by rat hole mining is negligible and
after payment of royalty of Rs.675/- and Rs.485/- to-
wards Meghalaya Environment Protection and Restora-
52
tion Fund i.e. total payment of Rs.1160/-, the coal
is transported. The market price of the coal is ap-
proximately Rs.10,000/- per metric ton. The claim of
different applicants with regard to unassessed coal
is false. It is submitted that all illegally mined
coal should be vested in the State and no permission
of transport as prayed by the different applicants be
granted by this Court. Learned senior advocate sub-
mits that all applications praying for different di-
rections deserve to be rejected.
50. Learned counsel for the parties in support of
their respective submissions have placed reliance on
various judgments of this Court which shall be
referred to while considering the submissions of the
parties.
51. From the submissions of the parties as noted
above and the materials on record in these appeals
following points arise for consideration.
52. POINTS FOR CONSIDERATION
1. Whether orders passed by the National Green
53
Tribunal are without jurisdiction being beyond
the purview of Sections 14, 15 and 16 of the
National Green Tribunal Act, 2010?
2. Whether provisions of Mines and Minerals
Development Regulation Act, 1957 are applicable
in Tribal areas within the State of Meghalaya,
included in Sixth Schedule of the Constitution?
3. Whether for mining the minerals from privately
owned/community owned land in hills districts of
Meghalaya, obtaining a mining lease is a
statutory requirement under the MMDR Act, 1957
and the Mineral Concession Rules, 1960?
4. Whether under the MMDR Act, 1957 and Mineral
Concession Rules, 1960, it is the State
Government, who is to grant lease for mining of
minerals in privately owned/community owned land
or it is the owner of the minerals, who is to
grant lease for carrying out mining operations?
5. Whether the State of Meghalaya has any statutory
control over the mining of coal from privately
54
owned/community owned land in hills districts of
State of Meghalaya?
6. Whether the power to allot land for mining
purposes is vested in Autonomous District
Councils?
7. Whether the order of National Green Tribunal
dated 17.04.2014 directing for complete ban on
mining is unsustainable?
8. Whether the complete ban on mining of coal in
the State of Meghalaya as directed by NGT
deserved to be vacated/modified in the interest
of State and Tribals?
9. Whether NGT had any jurisdiction to constitute
committees to submit reports, to implement the
orders of NGT, to monitor
storage/transportation; of minerals and to
prepare action plan for restoration of
environment?
10. Whether the NGT committed error in directing for
constitution of fund, namely, Meghalaya
55
Environment Protection and Restoration Fund?
11. Whether NGT by constituting Committees has
delegated essential judicial powers to the
Committees and has further encroached the
constitutional scheme of administration of
Tribal areas under Article 244(2) and Article
275(1) and Schedule VI of the Constitution?
12. Whether direction to deposit Rs.100/- crores by
the State of Meghalaya by order dated 04.01.2019
of NGT impugned in C.A.No.2968 of 2019 is
sustainable?
13. Whether NGT’s order dated 31.03.2016 that after
15.05.2016 all remaining coal shall vest in the
State of Meghalaya is sustainable?
14. Whether assessed and unassessed coal which has
already been extracted and lying in different
Districts of Meghalaya be permitted to be
transported and what mechanism be adopted for
disposal of such coal?
56
53. Now we proceed to consider the above points in
seriatim.
Point No.1
54. The State of Meghalaya submits that NGT while
imposing ban on mining and by forming committee and
creating a “Meghalaya Environment Protection and
Restoration Fund” has gone beyond its jurisdiction as
conferred on it by NGT Act, 2010. The Tribunal has no
inherent jurisdiction, its jurisdiction flow from
Sections 14, 15 and 16 of the Act.
55. It is relevant to notice few provisions of NGT
Act, 2010 to comprehend the jurisdiction vested with
the Tribunal. The National Green Tribunal Act, 2010
was enacted to provide for the effective and
expeditious disposal of cases relating to
environmental protection and conservation of forests
and other natural resources including enforcement of
any legal right relating to environment and giving
relief and compensation for damages to persons and
property and for matters connected therewith or
57
incidental thereto. Section 2 is definitions. Section
2(c)defines environment in the following manner:
“2(c) "environment" includes water, air and
land and the inter-relationship, which ex-
ists among and between water, air and land
and human beings, other living creatures,
plants, micro-organism and property;
56. Section 2(m) defines substantial question
relating environment which is to the following
effect:
“2(m) "substantial question relating to en-
vironment" shall include an instance where,
— (i) there is a direct violation of a spe-
cific statutory environmental obligation by
a person by which,— (A) the community at
large other than an individual or group of
individuals is affected or likely to be af-
fected by the environmental consequences;
or (B) the gravity of damage to the envi-
ronment or property is substantial; or (C)
the damage to public health is broadly mea-
surable; (ii) the environmental conse-
quences relate to a specific activity or a
point source of pollution;”
57. Chapter III of the Act deals with jurisdiction,
powers and proceedings of the Tribunal. Sections 14
and 15 which are relevant in the present case are as
follows:
“14. Tribunal to settle disputes.—(1) The
Tribunal shall have the jurisdiction over
all civil cases where a substantial ques-
tion relating to environment (including en-
58
forcement of any legal right relating to
environment), is involved and such question
arises out of the implementation of the en-
actments specified in Schedule I.
1. Ins. by Act 7 of 2017, s. 182 (w.e.f.
26-5-2017).
(2) The Tribunal shall hear the disputes
arising from the questions referred to in
sub-section (1) and settle such disputes
and pass order thereon.
(3) No application for adjudication of dis-
pute under this section shall be enter-
tained by the Tribunal unless it is made
within a period of six months from the date
on which the cause of action for such dis-
pute first arose:
Provided that the Tribunal may, if it is
satisfied that the applicant was prevented
by sufficient cause from filing the appli-
cation within the said period, allow it to
be filed within a further period not ex-
ceeding sixty days.
15. Relief, compensation and restitution.—
(1) The Tribunal may, by an order, provide,
—
(a) relief and compensation to the vic-
tims of pollution and other environ-
mental damage arising under the en-
actments specified in the Schedule I
(including accident occurring while
handling any hazardous substance);
(b) for restitution of property damaged;
(c) for restitution of the environment
for such area or areas, as the Tri-
bunal may think fit.
59
(2) The relief and compensation and resti-
tution of property and environment referred
to in clauses (a), (b) and (c) of sub-sec-
tion (1) shall be in addition to the relief
paid or payable under the Public Liability
Insurance Act, 1991 (6 of 1991).
(3) No application for grant of any compen-
sation or relief or restitution of property
or environment under this section shall be
entertained by the Tribunal unless it is
made within a period of five years from the
date on which the cause for such compensa-
tion or relief first arose:
Provided that the Tribunal may, if it
is satisfied that the applicant was pre-
vented by sufficient cause from filing the
application within the said period, allow
it to be filed within a further period not
exceeding sixty days.
(4) The Tribunal may, having regard to the
damage to public health, property and envi-
ronment, divide the compensation or relief
payable under separate heads specified in
Schedule II so as to provide compensation
or relief to the claimants and for restitu-
tion of the damaged property or environ-
ment, as it may think fit.
(5) Every claimant of the compensation or
relief under this Act shall intimate to the
Tribunal about the application filed to,
or, as the case may be, compensation or re-
lief received from, any other court or au-
thority.”
58. The submission which has been pressed by the
State is that neither MMDR Act, 1957 nor Mines Act,
60
1952 is prescribed in Schedule I of the Act, hence,
coal mining is not within the purview of Schedule I
and not within the jurisdiction of the Tribunal. The
submission further is that for applicability of
Section 14 both the component of sub-section (1) of
Section 14 that (i) a substantial question relating
to environment and (ii) such question arises out of
the implementation of the enactments specified in
Schedule I has to be satisfied.
59. It is relevant to notice that before the NGT no
such plea was taken by the State of Meghalaya or any
of the parties questioning the jurisdiction of the
NGT. However, the issue being a jurisdictional issue,
we have permitted the learned counsel for the
appellant to raise the issue. The NGT took cognizance
when application, O.A.No.73 of 2014 on 17.04.2014 was
admitted and order was issued. The jurisdiction of
the Tribunal to entertain O.A.No.73 of 2014 has to be
found out from the case set up and pleadings in
O.A.No.73 of 2014 for which we need to scrutinise the
application. O.A.No.73 of 2014 has been brought on
record as Annexure - A3 in C.A.No.5272 of 2016. The
61
application was filed by one All Dimasa Students
Union Dima Hasao District Committee. In the
application following were the respondents:
1. The State of Meghalaya through the
Principal Secretary, Forest and Environment
Department, Government of Meghalaya,
Shillong. 2. The Chairperson, State
Pollution Control Board, Meghalaya,
Shillong. 3. The State of Assam through the
Principal Secretary, Forest and Environment
Department Government of Assam, Dispur.
4 .The Chairperson, State Pollution Control
Board, Assam, Dispur. 5. The Central
Pollution Control Board, Parvesh Bhawan,
East Arjun Nagar, Delhi – 110032 through
its Chairperson. 6. North Easter Electric
Power Corporation Ltd. through its Chairman
and Managing Director Brooklyn Compound,
Lower New Colony, Shillong – 793003.
Meghalaya.
60. Paragraph 3 of the application states the case
of the applicant and facts in brief. Paragraph 3 and
(I) to (VI) are as follows:
“3.The Applicant above named beg to
present the present Application to bring
to the notice of this Hon'ble Tribunal about
the adverse impact of unscientific
opencast mining operations being still
undertaken in the Jaintia Hills in
Meghalaya on the ecology and socio-
economy of the concerned area including
Dima Hasao District of Assam. It is
stated that the Acid Mine Drainage (for
(
short AMD') generated from the aforesaid
mining operations has resulted in making
the water of the river Kopili (an inter-
state river flowing through the State of
Meghalaya and Assam) and its tributaries
highly acidic which in turn has not only
caused serious far reaching damage to the
environment, water bodies, soil,
agriculture, economy, and industry of the
62
concerned area but also resulted in
causing erosion/corrosion of the critical
underwater Hydro Power Equipments of the
Kopili Hydro-Electric Project (for short
`KHEP') of the North-Eastern Electric
Power Corporation Ltd (for short
`NEEPC0') situated in Umrongso, Dima
Hasao, District of Assam in as much as
the
said acidic water is ultimately led to the
reservoirs of the said project.
FACTS IN BRIEF
I. That the Applicant is the Secretary of
the Dima Hasao Students Association and
filing the present Petition in a
representative capacity to espouse the
cause of the people of Dima Hasao,
Assam who are constantly and
continuously facing the adverse affect
of the aforesaid illegal
activities in the State of
Meghalaya.
II. That the Kopili River is an inter-
state river in North-East India that
flows through the States of Meghalaya
and Assam and is the largest south
bank tributary of the river Brahmapu-
tra in Assam, The Kopili river origi-
nates from the black mountains of Lum
Bah-bo Bah-Kong in Meghalaya and flows
north-west into the Brahmaputra Valley
in Assam. The said river demarcates
the Jaintia Hills in Meghalaya and
Dirria Hasao in Assam. The river flows
for a total length of 290 kms and has
a catchment area of 16, 420 Kms.
III. That the Kopili Hydro-Electric
Project (KHEP) of NEEPCO (a Government
of India undertaking)is one of the
pioneering Hydro-Electric Project in
the North Eastern Region of India. The
Kopili Hydro-Electric Plant is a 275
MW storage type hydro electric plant
consisting of two dams which have cre-
63
ated two reservoirs namely Kopili
reservoir is used in the Khandong
powerhouse through a 2759 metre tunnel
to generate power. The tail water
from this powerhouse is led to the
Umrong reservoir is used in Kopili
powerhouse through a 5473 metre tunnel
to generate power. Although, the dam,
powerhouse and residential colony of.
kopili Hydro Electric Planer (KHEP)
are located in the Dima Hasao Dis-
trict (formerly known as North Cachar
Hills District) of Assam, the catch-
ment and reservoirs are spread in two
states namely Meghalaya and Assam. It
is further stated that the Kopili
River and its tributaries feed water to
the reservoirs of the project. The Kharkor is a ma-
jor tributary of river Kopili and drains a
vast area of Jaintia Hills Districts of
Meghalaya. The Jaintia Hills being
well known for coal mining areas is
contributing acidic water in the
form of Acid Mine Drainage (AMD) to
the river Kharkor through its dif-
ferent tributaries such as Urn Pai,
Myntriang, Urn Ropang, Sarbang, Mostem
etc. as these streams drain through
the active and inactive coal mining
areas of Jaintia Hills. The acidic
water finally reaches to Khandong and
Umrong reservoirs of KHEP. As a re-
sult, the water of the reservoirs
has become highly acidic. The water
pollution in streams of catchment area
varies from brownish to reddish or-
ange. The same polluted water
through various tributaries of
rivers Kharkor and Kopili is perpet-
ually reaching to the reservoirs of
the KHEP. As a result, the water of
reservoirs has become highly acidic. In
recent years, it has been found that
acidity of reservoir water is a major
64
threat to equipments and machinery
due to corrosion/metal decay and
erosion. Components such as cooling
water header pipe, Bends, throttling
valves, pressure equalizer pipe of
turbine etc. made up of different met-
als and alloys are getting severely
affected and incurring high mainte-
nance cost.
IV. That the said adverse impact of the
aforesaid mining operation which has
not only affected the ecology and
socio-economy of
the area but also severely affected
the generation of hydro-electricity at
the Kopili Hydro-Electric Plant has been
subject matter of various studies. In
fact, a detailed project report of
pilot project for remediation of Acid
Mine Drainage (AMD) in the catchment
of Kopili River at the upstream of
Kopili Hydro Electric Plant (KHEP),
Umrongso, Dima Hasao, Assam was done
by Dr. O.P.Singh, Professor,
Department of Environmental Studies,
North-Eastern Hills University,
Shillong, Meghalaya. Similarly, a
detailed article based on detailed
investigation by Shri Pankaj Sharma and
others was published under the heading
"Acid mine discharge — Challenges met
in a hydro power project" in the
International Journal of
Environmental Sciences, Volume I,
No.6, 2011. Both the aforesaid
publications gives an in depth
analysis of the aforesaid problem as
well as suggests remedial measures to
improve the situation. However, it is
stated that no proper and effective
remedial measures have been taken by
the concerned authorities / State
Respondents to abort the aforesaid
65
menace and the ill-effect of the same
are still continuing and the same are
being constantly faced by the innocent
citizens / water bodies etc of the area
including the people of Dima Hasao
district of Assam. Copies of the detailed
project report of pilot project for
remediation of Acid Mine Drainage (AMD)
in the catchment of Kopili River at the
upstream of Kopili Hydro Electric Plant
(KHEP), Umrongso, Dima Hasao, Assam and
the article published under the heading
"Acid mine discharge — Challenges met in a
hydro power project" in the International
Journal of Environmental Sciences,
Volume I, No.6, 2011 are annexed
herewith and marked as ANNEXURE-P/1 &
P-2 respectively. The ill-effect of
the aforesaid operations has also
been the subject matter of news items in
various newspapers including one
published by the Assam Tribune on June,
20, 2012 under the heading "Concern
over contamination of Kopili Water"
and another one published in the
Telegraph on 20.06.2013 under the
heading "Two Kopili power units shut
down — Mining in Jaintia Hills affects
machines". Copies of the news items
published in the Assam Tribune dated
20.06.2012 and the Telegraph dated
20.06.2013 are annexed herewith and
marked as ANNEXURE - P/3 & - 4 P
respectively.”
61. In paragraph 3(V) the appellant has extracted a
report of one Dr. O.P. Singh, Professor, North-
Eastern Hills University, Shillong, Meghalaya.
Certain paragraphs of report stated that Acid Mine
66
Drainage(AMD) is the greatest environmental problem
of coal industry and main source of water pollution
in and around mining areas. The report mentioned that
AMD degrades the water quality of the area in terms
of lowering the pH of the surrounding water resources
and increasing the level of total suspended solids,
total dissolved solids and some heavy metals.
Following is the part of the paragraph 4.1.4 of the
report which is extracted in paragraph 3(V):
"4.1.4 Impact of AMD on Environment, Socio-
economy and Industry
Impact on Environment and Water
Resources: Acid mine drainage is the
greatest environmental problem of coal
mining industry and main source of water
pollution in and around mining areas.
The influx of untreated AMD into
streams severely degrades both water
quality and aquatic habitat turning
water unfit for desired uses and often
producing an environment devoid of most
aquatic life. AMD degrades the water
quality of the area in terms of lowering
the pH of the surrounding water resources and
increasing the level of total suspended
solids, total dissolved solids and some
heavy metals. Acidity and high
concentration of SO 4
2
; iron and other
metals prove to be toxic and corrosive to
most aquatic animals and plants.
Precipitate of iron hydroxide increases
the load of suspended solids which impair
light penetration and visibility
67
resulting into low productivity and
disruption of normal functioning of the
contaminated aquatic ecosystem. AMD can
also be toxic to vegetation when discharged
to the shallow soil water zones and
wetlands (Van Green et al., 1999; Singh
and Agrawal, 2004; Gosh, 1991).
Aquatic communities of rivers and
streams comprise of phytoplanktoris,
periphyton, macrophytes, zooplanktons,
invertebrates and vertebrate species. They
play important role in normal
functioning of the aquatic ecosystem
and are indicative of good health of
water bodies. Generally, a variety of
species with representatives of almost
all insect orders, including a high
diversity of insects belonging to the
taxonomic orders of Ephemeroptera
(mayflies), Plecoptera (stoneflies), and
Trichoptera (caddisflies) commonly
referred to as EPT taxa. Any physical,
chemical or biological change in water
bodies affects one or all species and
disturbs the normal functioning of the
aquatic ecosystem. Like many other
pollutants, AMID contamination causes a
reduction in the diversity and total
numbers, or abundance, of these aquatic
communities including benthic
macroinvertebrates, fishes, etc. As a
result, the community structure is altered
and water bodies affected by AMD possess a
lower percentage of EPT taxa (Campbell
et al., 2000). Moderate AMD
contamination eliminates the more
sensitive species whereas severely
contaminated conditions are characterized
by dominance of certain taxonomic
representatives of pollution tolerant
organisms.
68
As a consequence of depletion of aquatic
invertebrates, the fishes do not get
adequate supply of food and suffer
indirectly from AMD contamination AMD also
has direct effect on fishby causing various
physiological disturbances. However, the
primary cause of fish death in acid waters
is loss of sodium ions from the blbod. Less
availability of oxygen to the cells and
tissues leads to anoxia and death as acid
water increases the permeability of fish
gills to water, adversely affecting the
gill function. Severe anoxia occurs below
pH 4.2. Low H that is not directly lethal
may adversely affect fish growth rates and
reproduction.”
62. Further, paragraph 4.2.3 of the report dealt
with coal mining in Jaintia Hills and paragraph 4.2.4
dealt with impact of coal mining in Jaintia Hills and
paragraph 4.2.5 dealt with degradation of water
quality due to coal mining. Paragraphs 4.2.3, 4.2.4,
4.2.5 and 4.2.6 which were extracted in O.A.No.73 of
2014 are produced as below:
“ 4. 2.3 Coal Mining in Jaintia Hills
Extraction of coal has been taking place in
all three regions, however, 'major
production occurs in Jaintia Hills. The
mining activity in Jaintia Hills is a small
scale venture controlled by individuals
who own the land. Primitive mining
method commonly known as 'rat-hole'
mining is in practice in Meghalaya. In
this method the land is first cleared by
cutting and removing the ground vegetation and
69
2
then digging pits ranging from 5 to 100 m
into the ground to reach the coal seam.
Thereafter, tunnels are made into the seam
sideways to extract the coal which is
brought into the pit by using a conical
basket or a wheel barrow manually. Coal
seams are reached by excavating the side
edge of the hill slopes and then coal is
extracted through a horizontal tunnel.
The coal from the tunnel or pit is taken
out and dumped on nearby un-mined area,
from where it is carried to the larger
dumping places near highways for its
trade and transportation. Finally, the
coal is carried by trucks to the larger
dumping places near highways for its trade
and transportation. Entire road sides in
and around mining areas are used for
piling of coal which is a major source of
air, water and soil pollution. Off road
movement of trucks and other vehicles in
the area causes further damage to the
ecology of the area.
Every year new areas are brought under
mining and area under coal mining in
Jaintia Hills is increasing day-by-day as
shown in Figure 4,5."
"4.2.4 Impact of Coal Mining in
Jaintia Hills and Beyond
Mining operation, undoubtedly has
brought wealth and employment
opportunity in the area, but
simultaneously has led to extensive
environmental degradation and erosion of
traditional values in the society.
Environmental problems associated with
mining have been felt severely because of
the region's fragile ecosystems and
richness of biological and cultural
diversity. The indiscriminate and
unscientific mining and absence of post-
mining treatment and management of mined
70
areas are making the fragile ecosystems more
vulnerable to environmental degradation and leading
to large scale land cover/land use changes.
The current modus operandi of surface
mining in the area generates huge quantity
of mine spoil or overburden (consolidated
and unconsolidated materials overlying the
coal seam) in the form of gravels, rocks,
sand, soil etc. which are dumped over a
large area adjacent to the mine pits. The
dumping of overburden and coal
destroys the surrounding vegetation and
leads to severe soil and water pollution.
Large scale denudation of forest cover,
scarcity of water, pollution of air,
water and soil, and degradation of
agricultural lands are some of the
conspicuous environmental implications of
coal mining in Jaintia Hills.
Further, entire coal mining area of the
Jaintia Hills has become full of mine
pits and caves. These open, unfilled pits
are the places where surface water
percolates and disappears. As a result,
smaller streams and rivers of the area,
which served as life lines for the people,
are either completely disappearing from
the face of the earth or becoming
seasonal instead. Consequently, the
area is facing acute shortage of clean
drinking and irrigation water. Besides, a
vast area has become physically disfigured
due to haphazard dumping of overburden and
mined coal, and caving in of the ground and
subsidence of land.
Continuous discharge of Acid Mine Drainage
(AMD) and toxic chemicals from coal
mines, storage sites and exposed
overburden have polluted the river system
of the area. Acidic water on reaching to
land and agricultural fields has affected
the traditional agriculture and
agricultural productivity of the area (Das
71
Gupta et al, 2002; Swer and Singh, 2004)
"4.2.5 Degradation of Water Quality due to
Coal Mining
The water bodies of the area are the greatest
victims of the coal mining. The water bodies
are badly affected by contamination of Acid
Mines Drainage (AMD) originating from
mines and spoils, leaching of heavy
•
metals, organic enrichment and silting
by coal and sand particles. Pollution of
the safer is evidenced by the colour of
the water which in most of the rivers and
streams in the mining area varies from
brownish to reddish orange. Low pH
(between 2-3), high conductivity, high
concentration of sulphate, iron and toxic
heavy metals, low dissolved oxygen (DO)
and high BOD are some of the physic-
chemical and biological parameters
which' characterize the degradation of
water quality. Analysis of physic-
chemical and biological parameters of
water in the mining area shows severe
degradation of water quality.
The colour of the water in mining area
generally varies from brownish to reddish
orange. Siltation of coal particles,'
sand, soil etc. and contamination of
AMD and formation of iron hydroxide are
some of the major causes of change in
water colour. Formation of iron
hydroxides [Fe (CH) 3 1 is mainly
responsible for orange or red colour of
water in the mining areas. Iron
hydroxide is a yellowish insoluble
material commonly formed in water bodies
of the coalfields. It is this material
that stains streams and responsible for
red to orange color of water. When
elevated levels of iron are introduced
into natural waters, the iron is
oxidized and hydrolyzed, thereby forming
72
precipitate of iron hydroxides.
The water in coal mining areas has been
found highly acidic. The pH of streams and
rivers varies between 2.31 to 4.01. Solids
such as fine particles of coal, sand, mud
and other mineral particles were found
deposited at the bottom of the water
bodies. Besides, water was also found
turbid and coloured due to suspended
precipitates of iron hydroxides. D i s s o l v e d
o x y g e n w a s f o u n d t o b e l o w i n w a t e r
bodies of coat mining areas, the lowest
being 4.24 mg/L in river Rawaka and stream
Metyngka of Rymbai.
The waters of the mining areas have been
found containing sulphate concentration
between 78 to 168 mg/L. Electrical
conductivity is a rapid measure of the
total dissolved solids present in ionic
form. Water in coal mining areas was
found having high conductivity. Deposition
of silt at the bottom of the rivers and
streams is another important problem in
coal mining areas. Water bodies of the
mining area appear to contain various
types of organic matter which is
evident by low Dissolved Oxygen (D00
and high Biochemical Oxygen Demand(BOD).
As a result, the rivers, streams and
springs which had supported extremely
rich biodiversity and traditional
agriculture, and were source of potable
and irrigation water in the area have
become unfit for human consumption.
Further, there is an overall decline in
agricultural productivity due to
contamination of soil with coal particles,
seepage of Acid mines drainage and scarcity
of water. The water of many rivers and
streams have almost become devoid of aquatic
life".
73
4.2.6 Causes of Deterioration of Water
Quality
Major causes of deterioration of water
quality, as evidenced by above observations
are AMD discharge, siltation and organic
enrichment. As in any other coal mining
area, Acid Mine Drainage (AMD) is the
main source of water pollution in the coal
mining areas of Jaintia Hills. As
discussed in previous chapter, Amp is
formed by a series of complex geochemical
and microbial reactions that occur when
water comes in contact with pyrite (Iron
sulfide) found in coal and exposed rocks
of overburden. Iron sulfide in presence
of oxygen, water and bacteria forms sulphuric
acid, is referred to as AMD. In the process,
iron hydroxide, a yellowish orange precipitate is
also formed. The prercipitate of iron
hydroxide together with other contaminants
auses turbidity and changes in colour of
the water which reduces the penetration
of light and affects the aquatic life.
Extremely low pH conditions in the
water accelerate weathering and
dissolution of silicate and other rock
minerals, thereby causing the release
of other elements such as aluminium,
manganese, copper, cadmium etc. into the
water. Hence, water contaminated with AMD
is often coloured and turbid with
suspended solids, highly acidic (low
pH), and contains high concentration of
dissolved metals and other elements.
Most of the streams and rivers of Jaintia
Hills in coal mining areas are severely
contaminated with AMD and thus becomes
water has become highly acidic. The pH and
other parameters of some AMD affected
water bodies are summarized in Table
4.1.
Table 4.1: Summary of water quality
parameters in some Coal mining
74
rivers/reservoir.
| SI.<br>No. | Rivers/<br>Streams &<br>Location | Colour<br>of<br>Water | pH | Sulpha<br>te<br>conten<br>ts<br>(mg/L) | E<br>Conduct<br>ivity<br>(pS/Cm) |
|---|
| 1. | Myntriang | Light | 2.8 | 36 | 56 |
| 2. | Urn Pai | Brownish | 3.2 | 186 | 160 |
| 3. | Rawaka,<br>Rymbai | Reddish<br>brown | 2.31 | 166.5 | 135 |
| 4. | Kenai-um,<br>Rymbai | Reddish<br>brown | 2.66 | 144.0 | 74 |
| 5. | Metyngka,<br>R y m b a i | Reddish<br>b r o w n | 2.42 | 168.0 | 27 |
| 6. | Urn-<br>Mynkseh,<br>Ladrymbai | Brownish<br>orange | 3.52 | 118.7 | 67 |
| 7<br>. | Thwai-<br>Kungor,<br>Bapun | Brownish | 4.01 | 82.87 | 18 |
| 8. | Umkyrpon,<br>Khliehriat | Light<br>Orange | 3.67 | 161.3 | 37 |
| 9. | Waikhyrwi,<br>S u t n g a | Brownish | 3.96 | 78.69 | - |
| 10. | Um Roong | | 2.8 | 896 | 128 |
| 11. | Mostem | Brownish | 2.9 | 616 | 119 |
| 12. | Sarbang | Turbid | 3.35 | 150 | 32 |
| 13. | Um Lurem | Yellowish | 5.0 | 19 | 3 |
| 14. | Khongdong<br>Reservoir | Clear | 4.6 | 43 | 34 |
Source: Present study; GSI, 2006-7;
Biahwar, 2010
The results show that most of the rivers
in the coal mining areas of Jaintia Hills
are severely affected AMD as evident from
the lower pH values, higher sulphate
75
content and EC in water samples".
63. Thus, there were clear allegations in the
application that in spite of various remedial
measures set out in the report no proper and
effective remedial measures have been taken by the
concerned authorities of the State of Meghalaya.
Paragraph 3(VI) is as follows:
“ 3(VI). That the various remedial measures
are set out in detail in paragraphs 4.4,
4.5, 5, 5.1 and 5.2 and other relevant
paragraphs of the said report. However,
to the best of knowledge of the
Applicant, no proper and effective
remedial
measures have been undertaken by the
concerned authorities till date and the
innocent citizens/ water bodies etc. of
the concerned areas including that of Dima
Hasao District in Assam continue to be
subjected to the ill-effect of the
aforesaid illegal mining operation in the
State of Meghalaya. That apart,
continuous and irreparable damage on the
environment, water, soil, agriculture
etc. in the concerned areas including
Dima Hasao district of Assam are also
continuing as a result of the said illegal
mining operations in Jaintia Hills in
the State of Meghalaya.”
64. Ground A of the application is also relevant to
be reproduced which is to the following effect:
76
“GROUNDS
A. that the aforementioned illegal mining
operations in the Jaintia Hills in the
State of Meghalaya have not only caused
serious and irreparable damage to the
ecology, water bodies and the socio-
economy of the concerned areas
including of Dima Hasao district of
Assam but has also resulted in serious
erosion/corrosion of the underwater plants
and machineries and equipments of the
Kopili Hydro Power Project of the North
Eastern Electric Power Corporation of
India (a Government of India
undertaking), The ill-effect of the said
mining operation has been highlighted in
detail in the aforementioned detailed
project report by Dr. O.P.Singh,
Professor, North-Eastern Hills University
as well as the said article published
in the International Journal of
Environmental Sciences. Though remedial
measures were suggested in both the
aforesaid studies, to the best of the
knowledge of the Applicant, no proper
and effective remedial measures have been
undertaken by the Respondents herein and the
ill-effect of the said activities are still
continuing to the detriment of the
ecology, water bodied and socio-economy
of the concerned areas including Dima
Hasao district of Assam. It is most
respectfully submitted that the total
inaction on the part of the Respondents
herein in spite of detailed study on the
subject with remedial suggestions are
totally inexcusable and show the total
callous attitude of the State
Respondents The menace of illegal
opencast mining operations in the Jaintia
Hills in Meghalaya is still continuing to
the detriment of the ecology and socio-
economic of the concerned areas including
Dime Hasao district of Assam and as such,
77
warrants, in the most respectful
submissions of the Applicant, immediate
intervention by this Hon'ble Tribunal.
The aforesaid inaction has resulted in
violation of the various enactments
mentioned in Schedule I of the National
Green Tribunal Act 2010 including the
Water (Prevention and Control of
Pollution) Act, 1974, the Air
(Prevention and Control of Pollution)
Act, 1981 and the Environment (Protection)
Act 1986 apart from infringing the
fundamental rights of the Applicant under
Article 14 and 21 of the Constitution of
India.”
65. The pleadings in O.A.No.73 of 2014 as extracted
above clearly and categorically alleged environmental
degradation consequent to illegal coal mining. It was
further stated that inaction of respondent
authorities has resulted in violation of various
enactments mentioned in Schedule I of the NGT Act,
2010 including the Water (Prevention and Control
Pollution) Act, 1974, the Air (Prevention and Control
of Pollution) Act, 1981 and the Environment
(Protection) Act, 1986. The application O.A.No.73 of
2014 thus has clearly made out allegations which were
sufficient for the Tribunal to exercise its
jurisdiction as conferred by Section 14. Both the
component as appearing in sub-section 1 of Section 14
78
that is (i) substantial question relating to
environment and (ii) such question arises out of the
implementation of the enactments specified in
Schedule I, were involved.
66. The NGT after adverting to the application
O.A.No.73 of 2014 on 17.04,2014 has undertaken
different proceedings and asked for various reports
from different committees including State Pollution
Control Board. By order dated 31.08.2018, the NGT had
appointed a committee headed by Justice B.P. Katakey,
former Judge of the Gauhati High Court which
consisted of Prof. Ashok K. Singh, Rajiv Gandhi Chair
Professor, Department of Environmental Science &
Engineering representative from Indian School of
Mines, Dhanbad IIT(ISM), Dhanbad (826004), Dr.
Shantanu Kumar Dutta, Scientist ‘D’ representative of
Central Pollution Control Board. The said committee
submitted interim report on 31.12.2018 and on the
subject “Whether coal mining activities as well as
dumping of coal results in adverse environmental
effect, if so, the nature and extent thereof?” has
79
been dealt with in Issue No.(D) in the following
manner:
“Issue No.(D) Whether coal mining
activities as well as dumping of coal
results in adverse environmental effect, if
so, the nature and extent thereof?
(i) The Meghalaya State Pollution Control
Board in the month of September, 1997
published a report entitled “ENVIRONMENTAL
IMPACT OF COAL MINING IN JAINTIA HILLS
DISTRICT”. The then Chairman of the said
Board, in his foreword, has admitted
unplanned and unscientific coal mining
activities in the State for more than
hundred years, which achieved dangerous
dimensions since last two decades and are
creating ecological disturbances and
negative environmental impacts, to the
extent that the very existence of
biological life is threatened in the coal
mining areas of the State. It has also been
admitted that no systematic efforts to
study such impacts have so far been made by
any institution. The then Member Secretary
of the Board, in the preface, has projected
the adverse impacts on the environment
because of the coal mining activities. The
pH level of in water almost all the rivers
and streams was found to be below the
required level. In some rivers and streams,
the pH level was found to be as low as 2.4.
The Meghalaya State Pollution Control
Board, in the said report, has observed
that the random discharge of AMD and acidic
run offs from -40- the coal storage areas
have also made the rivers, streams and even
ground waters highly acidic. The ambient
air quality of the coal mining and coal
storage areas was also found to be degraded
to certain extent. The Board, therefore,
observed that – “The uncontrolled and
80
unscientific coal mining operations in
Jaintia Hills District have already created
massive ecological disturbances and
environmental degradation because presently
neither any pollution control measures are
adopted by the miners nor any sincere
efforts are made for reclamation of the
mine land”. In the said report, the
following recommendations were made to
minimize the overall adverse environmental
impacts of the mining activities:-
(a) To generate social awareness among
the public in general and the miners in
particular about the adverse
environmental impacts and the health
hazards associated with such
unscientific and unplanned coal mining
activities.
(b) Preparation of the inventory of the
mine owners, areas under mining and rate
of land use change to get the first hand
knowledge about the quantum of the
efforts required for better management
of these activities.
(c) To enforce suitable legislations on
the lines of the National Mineral Policy
immediately for exploitation of coal in
most sustainable manner.
(d) To engage expert institution for
finding out the most suited technologies
for the coal exploitation with
appropriate pollution control measures
in order to ensure that the environment
as a whole is not subjected to further
degradation.
(e) To engage the expert institution for
finding out the suitable ways for
rehabilitation of the mined land in
phase manner so that the scarce land
81
resources can be brought back to
productive uses.
(f) To look for the alternative
transport facilities to control
vehicular pollution.
(g) To identify the suitable location
for the storage of coal for sale with
adequate facilities to treat dump run
offs.
(h) To study the aspect of the presence
of trace elements in the surface and
ground water because the low pH values
increase the dissolution power of water.
Large numbers of trace elements are
always associated with the coal which
gets dissolved in low pH waters. These
trace elements are serious health
hazards even in very low concentrations.
(i) To introduce lucrative schemes for
the aforestation in the most affected
areas.
(j) To develop the State Mineral Policy
with the interaction of Government
Agencies, Social Institutions, Local
Elders and the Miners, keeping in view
the specific land ownership system of
the State. Nothing of the above
recommendations have been implemented so
far.
(ii) It is, therefore, evident that apart
from the water, air pollution, there is
degradation of surface land because of the
coal mining activities in the State of
Meghalaya. Despite publication of the said
report by the Meghalaya State Pollution
Control Board as back as in the year 1997,
no steps appeared to have been taken by any
authority to check the adverse
82
environmental affect and also to remedy the
same.”
67. The present is not a case of mere allegation of
applicant of environmental degradation by illegal and
unregulated coal mining rather there were materials
on the record including the report of the experts,
the Meghalaya State Pollution Control Board published
in the month of September, 1992, the report of
Katakey committee appointed by the Tribunal where
environmental degradation of water, air and surface
of the land was proved.
68. Hence, there was sufficient allegation regarding
substantial questions relating to environment and
violation of enactments in Schedule I. We fail to see
any substance in the submission of the learned
counsel for the appellant that NGT has no
jurisdiction to entertain the case and pass orders.
During submission, learned counsel for the appellant
has not even referred to application which was filed
by the applicant in O.A.No.73/2014. There were
reports of the Meghalaya State Pollution Control
83
Board before the State Government pointing out
environmental degradation and the Tribunal having
taken up the issue, the submission on behalf of the
State that the Tribunal has no jurisdiction is not
expected from the State Government who is under
constitutional obligation to ensure clean environment
to all its citizens. In cases pertaining to
environmental matter the State has to act as
facilitator and not as obstructionist. Article 48A of
the Constitution provides:
| “48A. Protection and improvement of envi | | - |
|---|
| ronment and safeguarding of forests and | | |
| wild life The State shall endeavour to pro | | - |
| tect and improve the environment and to | | |
| safeguard the forests and wild life of the | | |
| country.” | | |
69. Learned counsel for the appellant has placed
reliance on the judgment of this Court in Techi Tagi
Tara versus Rajendra Singh Bhandari and others,
2018(11) SCC 734 . This Court had occasion to consider
Section 14,15 and 2(m) of the National Green Tribunal
Act, 2010, which involves the question of
jurisdiction of NGT. The nature of order passed by
NGT which was challenged before this court has been
84
noticed in para 1 of the judgment, which is to the
following effect:-
“1. This batch of appeals is directed
against the judgment and order dated 24-8-
2016 passed by the National Green Tribunal,
Principal Bench, New Delhi (for short “the
NGT”) in Rajendra Singh Bhandari v. State
1
of Uttarakhand . On a reading of the
judgment and order passed by the NGT, it is
quite clear that the Tribunal was perturbed
and anguished that some persons appointed
to the State Pollution Control Boards (for
short “SPCBs”) did not have, according to
the NGT, the necessary expertise or
qualifications to be members or
Chairpersons of such high-powered and
specialised statutory bodies and therefore
did not deserve their appointment or
nomination. While we fully commiserate with
the NGT and share the pain and anguish, we
are of the view that the Tribunal has, at
law, exceeded its jurisdiction in directing
the State Governments to reconsider the
appointments and in laying down guidelines
for appointment to the SPCBs, however well-
meaning they might be. Therefore, we set
aside the decision of the NGT, but note
that a large number of disconcerting facts
have been brought out in the judgment which
need serious consideration by those in
authority, particularly the State
Governments that make appointments or
nominations to the SPCBs. Such appointments
should not be made casually or without due
application of mind considering the duties,
functions and responsibilities of the
SPCBs.”
85
70. In the above background, this Court held that
the failure of the State Government to appoint
professionals and experience persons to the key
positions in the State Pollution Control Board cannot
be classified as a primary dispute over which the NGT
could have jurisdiction. Following was laid down in
paragraph 21: -
“ 21. As far as we are concerned, in the
context of the Act, a dispute would be the
assertion of a right or an interest or a
claim met by contrary claims on the other
side. In other words, the dispute must be
one of substance and not of form and it
appears to us that the appointments that we
are concerned with are not “disputes” as
such or even disputes for the purposes of
the Act — they could be disputes for a
constitutional court to resolve through a
writ of quo warranto, but certainly not for
the NGT to venture into. The failure of the
State Government to appoint professional
and experienced persons to key positions in
the SPCBs or the failure to appoint any
person at all might incidentally result in
an ineffective implementation of the Water
Act and the Air Act, but this cannot be
classified as a primary dispute over which
the NGT would have jurisdiction. Such a
failure might be of a statutory obligation
over which, in the present context and not
universally, only a constitutional court
would have jurisdiction and not a statutory
body like the NGT. While we appreciate the
anxiety of the NGT to preserve and protect
the environment as a part of its statutory
functions, we cannot extend these concepts
to the extent of enabling the NGT to
86
consider who should be appointed as a
Chairperson or a member of any SPCB or who
should not be so appointed.”
71. The issue involved in the above case was
entirely different which did not directly pertain to
environmental degradation. Whether NGT has
jurisdiction to entertain a particular cause is a
question which depends on the facts of each case. To
find out as to whether NGT has jurisdiction to
entertain a case, the case set up before the Tribunal
has to be looked into to answer the question. The
judgment of Techi Tagi Tara (supra) was on its own
facts and does not help the appellant in the present
case.
72. In view of the foregoing discussion, we reject
the submission of the learned counsel for the State
that the Tribunal exceeded its jurisdiction under
Sections 14 and 15 in entertaining the application
O.A.No.73 of 2014. We also record our dis-approval to
the stand taken by the State in this regard.
87
Point No.2
73. Before we proceed to consider the above points,
first of all, we need to notice the nature of land
tenure in the Hills Districts of State of Meghalaya.
Learned counsel for the parties are not at variance
on the question of nature of land tenure in the Hills
Districts of State of Meghalaya. By the North-Eastern
Area Reorganisation Act, 1971 the State of Meghalaya
was formed as independent full-fledged State. After
the enforcement of the Constitution the area, now
comprised in the State of Meghalaya, was included in
the State of Assam, the Administration and control of
which area was as per Article 244 of the Constitution
of India read with Sixth Schedule of the
Constitution. In so far as the land tenure in the
Hills Districts of Meghalaya, there is no substantial
change after the advent of the Constitution. There
was no payment system of land revenue before the
advent of the Constitution in the Hills Districts of
Meghalaya. Learned counsel for the parties have
referred to various materials pertaining to the land
tenure system prevalent in the Hills Districts of
88
State of Meghalaya. The lands in the Khasi Hills
District of Meghalaya come under two divisions Ri
Raid and Ri Kynti . Ri raid lands are community lands
which are set apart for the benefit and use of entire
community. Ri kynti lands are privately owned lands
which were also owned by community as well as by
individuals. The owner of the re kynti land is an
absolute proprietor. The tenure system in Jaintia
Hills classified into two types of lands, namely,
Hali /irrigated land and High land . Hali lands are
further categorised in Raj land, service land,
village puja land and private land. Proprietary right
does not vest in the State in respect to majority of
lands which are either privately owned or owned by
the Tribal community. No system of payment of land
revenue is prevalent in the Hills District of
Meghalaya except lands which belong to State. For the
purposes of present case where the submission of the
appellant is that land in which mining operations of
coal is being done are lands belonging to Tribals who
are owners of the land as well as of the sub-soil, we
proceed with the assumption that Tribal is the owner
89
of the land. It is further the case of the appellant
that in Hills Districts of State of Meghalaya in land
which is privately owned by the Tribal or community
owned, the Tribals or the community or the clan are
owners of both surface right and sub-soil. It is the
case of the appellant that the State does not have
any right in sub-soil or minerals. The judgment of
this in Thressiamma Jacob and others vs. Geologist,
Department of Mining and Geology and others, 2013(9)
SCC 725 , is relied on. This Court in the above case
had occasion to consider the question of ownership of
sub-soil/mineral rights in reference to genmom lands
in Malabar area of the State of Madras. Holder of the
genmom rights also claimed not only as proprietor of
the soil but the owner of the minerals in the soil.
This Court laid down following in paragraph 58:
“58 . For the abovementioned reasons, we are
of the opinion that there is nothing in the
law which declares that all mineral
wealth/subsoil rights vest in the State, on
the other hand, the ownership of
subsoil/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. In the instant
appeals, no such deprivation is brought to
our notice and therefore we hold that the
90
appellants are the proprietors of the
minerals obtaining in their lands. We make
it clear that we are not making any
declaration regarding their liability to
pay royalty to the State as that issue
stands referred to a larger Bench.”
74. A Constitution Bench of this Court in Raja Anand
Brahma Shah vs. The State of Uttar Pradesh and
others, AIR 1967 SC 1081, had laid down that prima
facie owner of a surface of the land is entitled to
everything beneath the land unless there is an
express or implied reservation in the grant. In
paragraph 13 following has been laid down:
“13 . In our opinion, a reading of the two
sanads supports the case of the appellant
that there is no reservation of mineral
rights in favour of the Government. The
expression used in the sanad of 1803 A.D.
is “You ought to consider him the Raja of
immovable jagir and of mahal and everything
appertaining thereto belongs to him.” In
effect, the grant to the Raja in the two
sanads is a grant of the lands comprised in
the mahal of Agori and everything
appertaining thereto and as a matter of
construction the grant must be taken to be
not only of the land but also of everything
beneath or within the land. Prima facie the
owner of a surface of the land is entitled
ex jure to everything beneath the land and
in the absence of any reservation in the
grant minerals necessarily pass with the
rights to the surface ( Halsbury’s Laws of
England , 3rd Edn., Vol. 26, p. 325). In
91
other words, a transfer of the right to the
surface conveys right to the minerals
underneath unless there is an express or
implied reservation in the grant. A
contract therefore to sell or grant a lease
of land will generally include mines,
quarries and minerals beneath or within it
( Mitchell v. Mosley ). It is manifest that
when the sanad was executed in favour of
the Raja the Government made over the land
with all its capabilities to the Raja and
merely imposed on him a fixed sum of
revenue in lieu of all the rights the
Government had as a proprietor of the soil.
When neither of the parties knew
undiscovered minerals underneath the land
and the idea of reservation never entered
their minds it cannot be held that there
was any implied reservation in the grant.
Nor can afterwards a distinction be drawn
between the various rights that may exist
on the land for the purpose of qualifying
the original grant and importing into it
what neither party could have imagined. It
was argued on behalf of the respondents
that the assessment was made on the
agricultural income, but this circumstance
cannot derogate from the rights conveyed to
the Raja in the two sanads because no
restriction was placed on the use of the
land and the use by the Raja was not
limited to agriculture.”
75. Thus, looking to the nature of the land tenure
as applicable in the Hills Districts of State of
Meghalaya, the most of the lands are either privately
or community owned in which State does not claim any
right. Thus, private owners of the land as well as
92
community owners have both the surface right as well
as sub-soil right. We are, thus, of the opinion that
Tribals owned the land and also owned the minerals,
which is an inescapable conclusion. We, thus, proceed
to examine the issues on the premise that in
privately owned land or community land minerals also
vest in the owner. We first need to consider as to
whether the provisions of MMRD Act, 1957 are
applicable in the Tribal area of Hills District of
State of Meghalaya.
76. Part X of the Constitution separately deals with
Scheduled and Tribal areas. Hills Districts of State
of Meghalaya were treated to be Tribal area and were
to be governed by Article 244 sub-clause (2) read
with Schedule VI. Provisions of Article 244 after
formation of State of Meghalaya is as follows:
“Article 244. Administration of Scheduled
Areas and Tribal Areas.- (1) The provisions
of the Fifth Schedule shall apply to the
administration and control of the Scheduled
Areas and Scheduled Tribes in any State
other than the States of Assam, Meghalaya,
Tripura and Mizoram.
(2) The provisions of the Sixth Schedule
shall apply to the administration of the
93
tribal areas in the State of Assam,
Meghalaya, Tripura and Mizoram.”
77. Sixth Schedule of the Constitution contains
‘Provisions as to the Administration of Tribal Areas
in the States of Assam, Meghalaya, Tripura and
Mizoram’. Paragraph 20 of Sixth Schedule refers to
Tribal areas and Part II of which consists of Khasi
Hills District, Jaintia Hills District and Garo Hills
District which have been referred as Autonomous
Districts. Sixth Schedule Para 1(1) is as follows:
“1. Autonomous districts and autonomous
regions.- (1)Subject to the provisions of
this paragraph, the tribal areas in each
item of Parts I, II and IIA and in Part III
of the table appended to paragraph 20 of
this Schedule shall be an autonomous
district.
78. Para 2 of Sixth Schedule provides for
Constitution of District Councils and Regional
Councils. Para 3 provides for powers of the District
Councils and Regional Councils to make laws which is
to the following effect:
“3. Powers of the District Councils and Re-
gional Councils to make laws .—(1) The Re-
gional Council for an autonomous region in
respect of all areas within such region and
the District Council for an autonomous dis-
trict in respect of all areas within the
94
district except those which are under the
authority of Regional Councils, if any,
within the district shall have power to
make laws with respect to—
(a) the allotment, occupation or use, or
the setting apart, of land, other
than any land which is a reserved
forest for the purposes of agricul-
ture or grazing or for residential or
other non-agricultural purposes or
for any other purpose likely to pro-
mote the interests of the inhabitants
of any village or town:
Provided that nothing in such
laws shall prevent the compulsory ac-
quisition of any land, whether occu-
pied or unoccupied, for public pur-
poses 1 [by the Government of the
State concerned] in accordance with
the law for the time being in force
authorising such acquisition;
(b) the management of any forest not be-
ing a reserved forest;
(c) the use of any canal or water-course
for the purpose of agriculture;
(d) the regulation of the practice of
jhum or other forms of shifting cul-
tivation;
(e) the establishment of village or town
committees or councils and their pow-
ers;
(f) any other matter relating to village
or town administration, including
village or town police and public
health and sanitation;
(g) the appointment or succession of
Chiefs or Headmen;
(h) the inheritance of property;
95
(i) marriage and divorce;
(j) social customs.
(2) In this paragraph, a “reserved forest”
means any area which is a reserved forest
under the Assam Forest Regulation, 1891, or
under any other law for the time being in
force in the area in question. (3) All laws
made under this paragraph shall be submit-
ted forthwith to the Governor and, until
assented to by him, shall have no effect.”
79. Para 9 of the Sixth Schedule which is relevant
for the present case is as follows:
“9. Licences or leases for the purpose of
prospecting for, or extraction of, miner-
als.—(1) Such share of the royalties accru-
ing each year from licences or leases for
the purpose of prospecting for, or the ex-
traction of, minerals granted by the Gov-
ernment of the State] in respect of any
area within an autonomous district as may
be agreed upon between the Government of
the State] and the District Council of such
district shall be made over to that Dis-
trict Council.
(2) If any dispute arises as to the share
of such royalties to be made over to a Dis-
trict Council, it shall be referred to the
Governor for determination and the amount
determined by the Governor in his discre-
tion shall be deemed to be the amount
payable under sub-paragraph (1) of this
paragraph to the District Council and the
decision of the Governor shall be final.”
80. Para 12A which is relevant for Meghalaya is as
follows:
96
“12A. Application of Acts of Parliament and
of the Legislature of the State of Megha-
laya to autonomous districts and autonomous
regions in the State of Meghalaya. —
Notwithstanding anything in this Constitu-
tion, —
(a) if any provision of a law made by a
District or Regional Council in the State
of Meghalaya with respect to any matter
specified in subparagraph (1) of paragraph
3 of this Schedule or if any provision of
any regulation made by a District Council
or a Regional Council in that State under
paragraph 8 or paragraph 10 of this Sched-
ule, is repugnant to any provision of a law
made by the Legislature of the State of
Meghalaya with respect to that matter,
then, the law or regulation made by the
District Council or, as the case may be,
the Regional Council whether made before or
after the law made by the Legislature of
the State of Meghalaya, shall, to the ex-
tent of repugnancy, be void and the law
made by the Legislature of the State of
Meghalaya shall prevail;
(b) the President may, with respect to any
Act of Parliament, by notification, direct
that it shall not apply to an autonomous
district or an autonomous region in the
State of Meghalaya, or shall apply to such
district or region or any part thereof sub-
ject to such exceptions or modifications as
he may specify in the notification and any
such direction may be given so as to have
retrospective effect.
81. Now, we revert back to Mines and Minerals
(Development and Regulation) Act, 1957. Act, 1957 has
been enacted to provide for development and
97
regulation of mines and minerals under the control of
the Union. Section 1 of the Act is as follows:
“Section 1. Short title, extent and com-
mencement. ―(1) This Act may be called the
Mines and Minerals (Development and Regula-
tion) Act, 1957.
(2) It extends to the whole of India.
(3) It shall come into force on such date3
as the Central Government may, by notifica-
tion in the Official Gazette, appoint.”
82. The Act came into effect w.e.f. 01.06.1958.
Whether there are any indications in the Sixth
Schedule or any other provision of the law by which
it can be contended that Act, 1957 is not applicable
in Hills District of Tribal areas of State of
Meghalaya? We may first refer to Sixth Schedule of
the Constitution which is a provision for
Administration of Tribal areas in the State of
Meghalaya. Para 12A sub-clause (b) empowers that the
President may, with respect to any Act of Parliament,
by notification, direct that it shall not apply to an
autonomous district or an autonomous region in the
State of Meghalaya, or shall apply to such district
or region or any part thereof subject to such
98
exceptions or modifications as he may specify in the
notification. No notification has been issued by the
President under Para 12A(b) of the VIth Schedule of
the Constitution, although, the said Para 12A(b) is
in the Constitution with effect from 21.1.1972. Thus,
there is nothing in Sixth Schedule of the
Constitution which may indicate about the
inapplicability of Act, 1957 with regard to the Hills
Districts of State of Meghalaya. At this juncture, we
may also notice the report of the Comptroller and
st
Auditor General of India for the year ended 31
March, 2013. In para 7.5.1 the report mentions:
“7.5.1. Introduction
Meghalaya is endowed with sizeable deposits
of valuable minerals like coal, limestone,
uranium, granite and clay. Minerals being
valuable resource, the extraction needs to
be maximised through scientific methods of
mining with aim to ensure extraction and
utilisation of minerals. Besides, most of
the mineral reserves are in areas which are
under forest cover and hence, mining in the
State has environmental implications. In
Meghalaya, individual and local communities
have ownership over the land and the
minerals and barring a few reserve forest
areas, the State Government has no
ownership over the minerals. The activities
of the Mining & Geology (M&G) Department,
Government of Meghalaya (GOM) are limited
to collection of royalty on the minerals
99
exported outside the State besides
geological investigation/exploration of
minerals. The Mines and Minerals
(Development and Regulation) Act, 1957 lays
down the legal framework for regulation of
mines and development of minerals. The
Mineral Concession Rules, 1960 and the
Mineral Conservation and Development Rules,
1988 were accordingly framed under the MMDR
Act framed for conservation and systematic
development of minerals and for regulating
grant of permits, licences and leases. The
GOM has introduced the Meghalaya Mineral
Cess Act, 1988 to mobilise additional
revenue. Further with a view to
facilitating systematic, scientific and
planned utilisation of mineral resources
and to streamline mineral based development
of the State, the Meghalaya Mines and
Mineral Policy, 2012 has also been notified
with effect from 5 November 2012.”
83. The Comptroller and Auditor General has clearly
stated that Act, 1957 is fully applicable for
regulation of mines and regulation of minerals in the
State of Meghalaya.
84. Learned counsel for the State of Meghalaya has
also filed before us along with an affidavit of Joint
Secretary of Government of Meghalaya, Mining and
Geology Department dated 13.04.1018 by which
Meghalaya Mines and Minerals Policy, 2012 issued by
the Government of Meghalaya as well as draft
100
guidelines of coal mining activities in the State
prepared in the year 2015 has been brought on the
record.
85. Clause 10 of the Policy provides for “Regulatory
Framework for Mine Development and Mining”. Sub-
clause b) of Clause 10 required application for
mineral concession either fresh or renewal is to be
submitted to the State Government through the Deputy
Commissioner of the District wherein the area applied
for is situated and with NOC from District Council
concerned and land owner. Clause 10 also refers to
clearance of the Pollution Control Board of Meghalaya
and other requirement. Sub-clause (l) further
contemplated that order for grant of mineral
concessions will be issued by the State Government,
with the approval of the Central Government wherever
necessary. Thus, the Policy of 2012 contemplated
regulatory regime for mining lease by the State. The
Mining and Geology Department of the Government had
framed a draft guidelines for coal mining activity in
101
the State which has also been brought on record along
with the above affidavit dated 13.04.2018.
86. The above guidelines were prepared after in
consultation with the Central Government.
87. The above draft guidelines prepared by the State
clearly mentions about the unregulated and
unscientific mining being carried out in the State of
Meghalaya. The Policy Guidelines of Coal Mining which
is part of the guidelines also contains following
statement:
“The Mines Act, 1952 and the Mines and
Minerals (Development and Regulation) Act,
1957 (MMDR), together with the rules and
regulations framed under them constitute
the basic laws governing the mining sector
in India. While the Mines Act, 1952 governs
the health and safety of the workers, the
MMDR Act, 1957 (including all amendments)
lays down the legal frame work for the
regulation of mines and development of all
minerals other than petroleum and natural
gas. The relevant rules in force under the
MMDR Act, 1957 are the Mineral Concession
Rules (MCR), 1960 outlines the procedures
and conditions for obtaining a Prospecting
Licence or Mining Lease. The MCDR, 1988
lays down guidelines for ensuring mining on
a scientific basis, while conserving the
environment, at the same time.
102
Apart from the mining statutes, which also
govern environment in mines, India has
elaborate environment statutes for
protection of environment in mining.”
88. One submission of Shri Naphade with respect to
direction of NGT to frame mining policy by the State
also needs consideration. Shri Naphade submits that
the State of Meghalaya having no legislative
competence with regard to major minerals, National
Green Tribunal could not have directed the State of
Meghalaya to frame Mining Policy.
89. There can be no dispute to the preposition that
in view of MMDR Act, 1957, the legislative competence
of State of Meghalaya under Entry 23 List II stands
denuded. However, under the MMDR Act, 1957 as well
as the Mineral Concession Rules, 1960, several
statutory obligations/jurisdictions have been
conferred on the State of Meghalaya, which shall be
referred to later in this judgment.
103
90. When under a Parliamentary enactment, State has
been given some statutory obligations, there is no
lack of jurisdiction in the State to frame policy to
give effect to or implement the jurisdictions
conferred on the State by Parliamentary enactments.
It is true that Mining Policy to be framed by the
State has to confine to the jurisdiction conferred on
it as per the MMDR Act, 1957 and the Rules framed
thereunder. There are other related issues
concerning Mining like protection of environment and
forests for which the State has to declare its policy
for implementation of its objective. Several other
aspects relating to mining like, rehabilitation,
reclamation and restoration have to be effectively
implemented by the State for which also, it may be
required to frame a policy. We may further notice
that Meghalaya Mines and Minerals Policy, 2012 was
already framed by the State of Meghalaya, even before
directions were issued by the NGT. In pursuance of
NGT directions, it was draft guidelines of 2015,
which were prepared by State of Meghalaya. We, thus,
are of the view that direction of NGT to declare
104
Mining Policy by the State of Meghalaya cannot be
said to be without jurisdiction. However, the State
in its Mining Policy can only include those areas
where it has jurisdiction under the MMDR Act, 1957
and the Rules framed thereunder.
91. A perusal of the entire Policy documents
indicate that Policy has been framed by the State as
per the Act, 1957 and Minerals (Concession) Rules,
1960.
92. The Government of Meghalaya has also made a
request to the Government of India in the year 2015
for issuance of Presidential notification under Para
12A(b) of Sixth Schedule for exempting State of
Meghalaya from certain provisions of the MMDR Act,
1957. After several deliberations, the Union of India
has communicated through its O.M. dated 12.03.2019
that it is not possible to accede to the request of
the Government of Meghalaya for issuance of
Presidential notification under Para 12A(b) of Sixth
Schedule. Thus, the request made by the State of
105
Meghalaya to issue exemption has not also been
acceded to. The request of the State of Meghalaya
that exemption be granted by Presidential
notification under Para 12A(b) itself expresses
recognition of the State of Meghalaya that provisions
of Act, 1957 are applicable. We, thus, conclude that
there is nothing in Sixth Schedule of the
Constitution which in any manner exclude the
applicability of Act, 1957 in the Tribal areas of
Hills District of State of Meghalaya.
Point No.3
93. We need to scan through the statutory scheme of
Act, 1957 to find out as to whether Parliamentary
legislation requires obtaining lease for winning the
minerals in so far as mining of coal from privately
owned land/community owned land are concerned?
94. Section 2 of the Act, 1957 contains declaration
to the following effect:
“2. Declaration as to expediency of Union
Control.― It is hereby declared that it is
expedient in the public interest that the
Union should take under its control the
106
regulation of mines and the development of
minerals to the extent hereinafter pro-
vided.”
95. The Act, 1957 has been enacted in reference to
Entry 54 List I of Seventh Schedule to the following
effect:
“Entry 54. Regulation of mines and mineral
development to the extent to which such
regulation and development under the
control of the Union is declared by
Parliament by law to be expedient in the
public interest.”
96. At this juncture, we may notice Entry 23 of List
II which is to the following effect:
“Entry 23. Regulation of mines and mineral
development subject to the provisions of
List I with respect to regulation and
development under the control of the
Union.”
97. The Legislative power under Entry 23 is subject
to the provision of List I with respect to regulation
and development under the control of the Union. When
the Union has declared to have taken under its
control the regulation of mines and development of
minerals to the extent provided in the Act.
Legislative power of the State to the above extent is
107
denuded. Learned counsel for the appellant have also
very fairly not disputed the position in law.
98. Section 3 of the Act contains definition clause.
Section 3(c) defines mining lease and Section 3(d)
defines a mining operation which are to the following
effect:
“Section 3(c) “mining lease” means a lease
granted for the purpose of undertaking
mining operations, and includes a sub-lease
granted for such purpose;
Section 3(d) “mining operations” means any
operations undertaken for the purpose of
winning any mineral;”
99. Section 4 of the Act contains general
restriction on undertaking prospecting and mining
operation. Section 4 is couched in terms of an
injunction. No person shall undertake any mining
operations in any area, except under and in
accordance with the terms and conditions of a
reconnaissance permit or of a prospecting licence or,
as the case may be, of a mining lease, granted under
this Act and rules made thereunder. Sub-section (1)
108
of Section 4 is relevant in the present case which is
as follows:
4. Prospecting or mining operations to be
under licence or lease. ―(1) No person
shall undertake any reconnaissance,
prospecting or mining operations in any
area, except under and in accordance with
the terms and conditions of a reconnais-
sance permit or of a prospecting licence
or, as the case may be, of a mining lease,
granted under this Act and the rules made
thereunder:
Provided that nothing in this sub-sec-
tion shall affect any prospecting or mining
operations undertaken in any area in accor-
dance with terms and conditions of a
prospecting licence or mining lease granted
before the commencement of this Act which
is in force at such commencement:
Provided further that nothing in this
sub-section shall apply to any prospecting
operations undertaken by the Geological
Survey of India, the Indian Bureau of
Mines, the Atomic Minerals Directorate for
Exploration and Research of the Department
of Atomic Energy of the Central Government,
the Directorates of Mining and Geology of
any State Government (by whatever name
called), and the Mineral Exploration Corpo-
ration Limited., a Government company
within the meaning of clause (45) of sec-
tion 2 of the Companies Act, 2013 (18 of
2013), and any such entity that may be no-
tified for this purpose by the Central Gov-
ernment]:
Provided also that nothing in this sub-
section shall apply to any mining lease
(whether called mining lease mining conces-
sion or by any other name) in force immedi-
109
ately before the commencement of this Act
in the Union territory of Goa, Daman and
Diu.”
100. The use of word no person in Section 4(1) is
without an exception. There is nothing in Section
4(1) to indicate that restriction contained in
Section 4(1) does not apply with regard to a person
who is owner of the mine. Further, word ‘any area’
under Section 4(1) also has significance which does
not have any exception. Further phrase ‘except under
and in accordance with terms and condition with a
mining lease granted under the Act’ are also
significant which make the intent and purpose of
prohibition clear and loud. Section 5 contains
restriction on the grant of prospecting licences and
mining lease in the following words:
5. Restrictions on the grant of prospecting
licences or mining leases. ― (1) A State
Government shall not grant a reconnaissance
permit, prospecting licence or mining lease
to any person unless such person―
(a) is an Indian national, or company
as defined in 1clause (20) of sec-
tion 2 of the Companies Act, 2013
(18 of 2013)]; and
(b) satisfies such conditions as may be
prescribed:
110
Provided that in respect of any mineral
specified in Part A and Part B of the First
Schedule, no reconnaissance permit,
prospecting licence or mining lease shall
be granted except with the previous ap-
proval of the Central Government.
Explanation. ―For the purposes of this sub-
section, a person shall be deemed to be an
Indian national,―
(a) in the case of a firm or other asso-
ciation of individuals, only if all
the members of the firm or members
of the association are citizens of
India; and
(b) in the case of an individual, only
if he is a citizen of India.
(2) No mining lease shall be granted by
the State Government unless it is satisfied
that―
(a) there is evidence to show the exis-
tence of mineral contents in the
area for which the application for a
mining lease has been made in accor-
dance with such parameters as may be
prescribed for this purpose by the
Central Government;
(b) there is a mining plan duly approved
by the Central Government, or by the
State Government, in respect of such
category of mines as may be speci-
fied by the Central Government, for
the development of mineral deposits
in the area concerned:
Provided that a mining lease may be
granted upon the filing of a mining plan in
accordance with a system established by the
State Government for preparation, certifi-
cation, and monitoring of such plan, with
the approval of the Central Government.
111
101. The proviso to Section 5(1) is relevant since it
contains a further restriction that no mining lease
shall be granted with regard to any minerals
specified in Para A of First Schedule except with the
previous approval of the Central Government. We in
the present case are concerned with coal which is in
Para A of First Schedule.
102. The next provision which is relevant is
Section 13 which provides for Rule making power of
Central Government in respect of minerals. Section 13
sub-section (1) and Section 13 sub-section (2) in so
far as relevant in the present case are as follows:
“ 13. Power of Central Government to make
rules in respect of minerals. ―(1) The Cen-
tral Government may, by notification in the
Official Gazette, make rules for regulating
the grant of reconnaissance permits,
prospecting licences and mining leases in
respect of minerals and for purposes con-
nected therewith.
(2) In particular, and without prejudice to
the generality of the foregoing power, such
rules may provide for all or any of the
following matters, namely:―
(a) the person by whom, and the manner in
which, applications for reconnaissance
112
permits, prospecting licences or mining
leases in respect of land in which the
minerals vest in the Government may be
made and the fees to be paid therefor;
……………………………
(f) the procedure for obtaining 5 [a recon-
naissance permit, a prospecting licence
or a mining lease] in respect of any
land in which the minerals vest in a
person other than the Government and
the terms on which, and the conditions
subject to which, such 6 [a permit, li-
cence or lease may be granted or re-
newed;
…………………………”
103. When we read clause (a) and clause (f), it
makes clear that the Rules can be made for grant of
mining lease in respect of land in which minerals
vest in the Government as well as in respect of any
land in which minerals vest in person other than
Government. The statutory scheme, thus, is clear that
lease can be granted with regard to both the
categories of land, land in which Government is owner
of minerals and land in which minerals vest in person
other than Government. The Tribals, owners of the
minerals shall expressly fall in Rule making power of
the Government under Section 13(f).
113
104. The Central Government in exercise of power
under Section 13 has framed Rules, namely, Minerals
(Concession) Rules, 1960. Chapter IV of the Rules
contains a heading “Grant of Mining Lease in respect
of land the Minerals vest in the Government”. Rules
22 to 40 contain various provisions under Chapter IV.
Chapter V has a separate heading which is “ Procedure
for obtaining a prospecting licence or mining lease
in respect of land in which the minerals vest in a
person other than the Government ”. Thus, Chapter V
contains provisions for grant of lease in respect of
minerals which vest in the person other than the
Government. Rules 41 and 42 which are relevant are
quoted below:
“41. Applicability of this chapter : - The
provisions of this chapter shall apply only
to the grant of prospecting licences and
mining leases in respect of land in which
the minerals vest exclusively in a person
other than the Government.
42. Restrictions on the grant of prospect-
ing licence and mining lease: - (1) No
prospecting licence or mining lease shall
be granted to any person unless he has
filed an affidavit stating that he has–
(i) filed up-to-date income tax re-
turns;
114
(ii) paid the income tax assessed on
him, and
(iii) paid the income tax on the basis
of self-assessment as provided in
the Income Tax Act, 1961 (43 of
1961). (2) Except with the previ-
ous approval of the Central Gov-
ernment, no prospecting licence
or mining lease shall be granted
in respect of any mineral speci-
fied in the First Schedule to the
Act.”
105. The statutory scheme delineated by Section
13(2)(f) and the Minerals (Concession) Rules, 1960
clearly contemplate grant of mining lease, with
regard to both the categories of land, that is, land
in which minerals vest in the Government, and the
land in which minerals vest in a person other than
the Government. In statutory provisions there is no
kind of exception as contended by the learned counsel
of the appellant that when owner himself wants to win
the minerals he does not require any mining lease.
The submission is contrary to the express statutory
scheme, in the event submission of appellant is
accepted that with regard to minerals which vest in a
private person no mining lease is required, the whole
object of the Union by which it declared to have
115
taken under its control regulation of mines and
development of minerals shall be frustrated.
106. Another limb of submission of the appellant
needs to be noticed here. Shri Naphade submits that
there is no concept of owner of a land granting lease
to himself. He submits that concept of lease is well
known and well recognised concept as contained in
Section 105 of Transfer of Property Act. Section 105
of the Transfer of Property Act is as follows:
“Section 105. Lease defined. A lease of
immovable property is a transfer of a right
to enjoy such property, made for a certain
time, express or implied, or in perpetuity,
in consideration of a price paid or
promised, or of money, a share of crops,
service or any other thing of value, to be
rendered periodically or on specified
occasions to the transferor by the
transferee, who accepts the transfer on
such terms.
Lessor, lessee, premium and rent
defined: The transferor is called the
lessor, the transferee is called the
lessee, the price is called the premium,
and the money, share, service or other
thing to be so rendered is called the
rent.”
116
107. Halsbury’s Laws of England, Fourth Edition
Para 321 defines nature of mining lease in the fol-
lowing manner:
“ 321. Nature of mining lease. A lease may
be granted of land or any part of land, and
since minerals are a part of the land it
follows that a lease can be granted of the
surface of the land and the minerals below,
or of the surface alone, or of the minerals
alone. It has been said that a contract for
the working and getting of minerals,
although for convenience called a mining
lease, is not in reality a lease at all in
the sense in which one speaks of an
agricultural lease, and that such a
contract, properly considered, is really a
sale of a portion of the land at a price
payable by instalments, that is, by way of
rent or royalty, spread over a number of
years.”
108. This Court had occasion to consider the
concept of mining lease under Act, 1957 in SRI
TARKESHWAR SIO THAKUR JIU vs. DAR DASS DEY & CO. AND
OTHERS, 1979(3) SCC 106, this Court held that term
lease occurring in Section 3(C) of Act 67 of 1957
does not appear to have been used in the narrow
technical sense in which it is defined in Section 105
of the Transfer of Property Act but it has all the
characteristics of a lease as defined in the
117
Transfer of Property Act . In paragraph 31 following
was laid down:
“31 . It is important to bear in mind that
the term “lease” occurring in the
definition of “mining lease” given in
Section 3( c ) of Act 67 of 1957 does not
appear to have been used in the narrow
technical sense in which it is defined in
Section 105 of the Transfer of Property
Act. But, as rightly pointed out by a Bench
of the Calcutta High Court in Fala Krishna
Pal v. Jagannath Marwari . a settlement of
the character of a mining lease is
everywhere in India regarded as “lease”. A
mining lease, therefore, may be
meticulously and strictly satisfy in all
cases, all the characteristics of a “lease”
as defined in the Transfer of Property Act.
Nevertheless, in the legal accepted sense,
it has always been regarded as a lease in
this country.”
109. This Court proceeded further to consider
Section 105 of the Transfer of Property Act and
opined following in paragraphs 37:
“37. A right to carry on mining operations
in land to extract a specified mineral and
to remove and appropriate that mineral, is
a “right to enjoy immovable property”
within the meaning of Section 105; more so,
when — as in the instant case — it is
coupled with a right to be in its exclusive
khas possession for a specified period. The
“right to enjoy immovable property” spoken
of in Section 105, means the right to enjoy
the property in the manner in which that
property can be enjoyed. If the subject-
118
matter of the lease is mineral land or a
sand-mine, as in the case before us, it can
only be enjoyed and occupied by the lessee
by working it, as indicated in Section 108,
Transfer of Property Act, which regulates
the rights and liabilities of lessors and
lessees of immovable property.”
110. This Court further following the Nageshwar
Bux Roy vs. Bengal Coal Co., LR (1930) 58 IA 29, in
State of Karanataka and others vs. Subhash Rukmayya
Guttedar and others, 1993 Supp.(3) 290 laid down
following in paragraph 6:
“6……… The question, therefore, is whether
the grant of the right to extract the minor
mineral from Government quarry is a lease
or a licence and whether the contractor is
liable to pay the royalty in respect of
minor mineral extracted from the Government
quarry. Section 105 of the Transfer of
Property Act defines a lease of immovable
property as a transfer of a right to enjoy
such property made for a certain time,
express or implied, or in perpetuity, in
consideration of a price paid or promised,
or of money, a share of crops, service or
any other thing of value, to be rendered
periodically or on specified occasions to
the transferor by the transferee, who
accepts the transfer on such terms. The
normal connotation of the term lease is the
preservation of the demised estate to be in
occupation and enjoyment thereof for a
specified period or in perpetuities for
consideration; the corpus by user thereof
does not disappear and at the expiry of the
term or on termination the same is handed
119
over to the lessor subject to the terms of
the contract, express or implied. A right
to carry on mining operations in the land
on surface or sub-soil is to extract the
specified quantity of the minerals found
therein, to remove and appropriate that
mineral. Section 9 of the Mines and
Minerals (Regulation & Development) Act,
1957 affords the guidance in this behalf.
It says that the holder of a mining lease
or agent, etc. is entitled to remove or
consume the mineral. It would mean
destruction of the estate leased out and
appropriation thereof on payment of
consideration i.e. royalty. Therefore, it
is a right to enjoy immovable property
within the meaning of Section 105 more so
when, as in the instant case, it is coupled
with a right to be in occupation or enter
into possession for a specified period.
Section 3( d ) of the Act defines ‘mining
operations’ to mean any operation
undertaken for the purpose of winning any
minerals. It is true that no right, title
or interest has been created in the
contractor over the mining area. But he has
been permitted to remove and use the minor
minerals in the execution of the works as
its ( sic his) right to enjoy immovable
property spoken of in Section 105 which
means the right to enjoy the property in
the manner in which that property can be
enjoyed. In Nageshwar Bux Roy v. Bengal
1
Coal Co. Lord Macmillan speaking for the
Board held that:
“In considering the character and
effect of acts of possession in the
case of a mineral field, it is
necessary to bear in mind the nature
of the subject and the possession of
which it is susceptible. Owing to the
inaccessibility of minerals in the
120
earth, it is not possible to take
actual physical possession at once of
a whole mineral field: it can be
occupied only by extracting the
minerals and until the whole minerals
are exhausted the physical occupation
must necessarily be partial.”
111. The word mining lease has been given specific
meaning under Act, 1957. It is well settled principle
of interpretation that the provisions of an Act
including definition of a term is to be interpreted
in a manner which may advance the object of the
legislation. The essential characteristic of mining
lease is that it is granted for the purpose of
undertaking mining operation and mining operation
means any operation undertaken for the purpose of
winning the mineral. Applying aforesaid definition in
the Minerals (Concession) Rules, 1960 under Chapter V
it cannot be said that no mining lease is
contemplated with respect to land where mineral vests
exclusively in a private person.
112. The examination of a statutory scheme
applicable in Tribal areas of State of Meghalaya
shall not be complete unless we notice two more
121
aspects, they are (i) the Mines Act, 1952 and the
Regulations framed thereunder; (2) Environmental
Protection Act, 1986 and the notification issued
thereunder with regard to mining project.
113. The Mines Act, 1952 is an Act to amend and
consolidate the law relating to the regulation of
labour and safety of mines. The act contains various
provisions regarding inspection of mining operation
and management of mines. Section 16 provides a notice
to be given to mining operations by the owner agent
or manager of a mine. Section 16 is as follows:
“Section 16. Notice to be given of mining
operations.- (1) The owner, agent or manager
of a mine shall, before the commencement of
any mining operation, give to the Chief In-
spector, the Controller, Indian Bureau of
Mines and the district magistrate of the
district in which the mine is situate, no-
tice in writing in such form and containing
such particulars relating to the mine as
may be prescribed.
(2) Any notice given under sub-section
(1) shall be so given as to reach the per-
sons concerned at least one month before
the commencement of any mining operation.”
114. Section 18 contains duties and
responsibilities of owners, agents and managers.
122
There are various other provisions in the Mines Act,
1952 which are mandatory to be followed before
working any mine. Learned counsel for the appellant
has not disputed that the provisions of the Mines
Act, 1952 are applicable with regard to the coal
mining in the State of Meghalaya. He, however,
submits that there are no powers with the District
Magistrate or State Officials under the Mines Act,
1952. Chapter II of the Mines Act, 1952 deals with
Inspectors and Certifying Surgeons. Section 5(3)
provided that the District Magistrate may exercise
the powers and perform the duties of an Inspector
subject to the general or special orders of the
Central Government. Section 5(3) is as follows:-
“5(3) The district magistrate may exercise
the powers and perform the duties of an
Inspector subject to the general or special
orders of the Central Government.”
115. The above provision clearly empowers the
District Magistrate to exercise the powers and
perform the duties of an Inspector but subject to
general and special orders of Central Government,
which means that there may be some restriction on the
123
power of the District Magistrate as directed by
Central Government. In this context, Shri Naphade has
referred to a notification dated 18.09.1953 issued
under sub-section 3 of Section 5 of the Mines Act,
1952, which is to the following effect:-
th
“New Delhi, the 18 September, 1953
S.R.O. 1789 – In pursuance of sub-section 3
of section 5 of the Mines Act, 1952 (XXXV
of 1952), the Central Government hereby
directs that in exercising the powers and
performing the duties of an Inspector, the
District Magistrate shall not, without
prior reference to the Chief Inspector,
take direct action or issue any order in
respect of any matter solely connected with
the technical direction, management or
supervision of any mine, even though such
direction, management or supervision may
appear to him to be dangerous or defective.
[No.M-41(370 52.]
P.N. SHARMA, Under Secy.”
116. The restriction as is apparent from the above
notification is with regard to matters solely
connected with the technical direction, management or
supervision of any mine. The above notification does
not take away all the functions of the District
Magistrate but restriction is with regard to area
mentioned therein. As noted above, Section 16
obliged the owner, agent or manager of a mine to give
124
notice before the commencement of any mining
operation to the district magistrate of the district
in which the mine is situate. Section 75 of the
Mines Act, 1952 also empowers the District Magistrate
to institute prosecution against any owner, agent or
manager for any offence under the Mines Act, 1952.
Section 75 is as follows:-
| “75. Prosecution of owner, agent or man | | | - |
|---|
| ager.-- | | No prosecution shall be instituted | |
| against any owner, agent or manager for any | | | |
| offence under this Act except at the in | | | - |
| stance of the Chief Inspector or of the | | | |
| district magistrate or of an Inspector au | | | - |
| thorised in this behalf by general or spe | | | - |
| cial order in writing by the Chief Inspec | | | - |
| tor; | | | |
| Provided that the Chief Inspector or the | | |
|---|
| district magistrate or the Inspector as so | | | |
| authorised shall, before instituting such | | | |
| prosecution, satisfy himself that the | | | |
| owner, agent or manager had failed to exer | | | - |
| cise all due diligence to prevent the com | | | - |
| mission of such offence. | | | |
| Provided further that in respect of an | | |
|---|
| offence committed in the course of the | | | |
| technical direction and management of a | | | |
| mine, the district magistrate shall not in | | | - |
| stitute any prosecution against an owner, | | | |
| agent or manager without the previous ap | | | - |
| proval of the Chief Inspector.” | | | |
117. We, thus, do not accept the submission of
Shri Naphade that District Magistrate has no
125
jurisdiction under the Mines Act, 1952 to take any
action.
118. In exercise of the power under Section 57 of
Mines Act, 1952 a new set of regulations has been
framed, namely, Coal Mines Regulations, 2017.
Regulation 2(r) defines “District Magistrate”. The
Regulations contain various regulatory provisions
with regard to mines. Chapter II deals with returns,
notices and records. Chapter IV deals with Inspectors
and Mine Officials. The Regulations contain several
regulatory provisions which need to be followed while
working a mine by the owner or his agent. The
enforcement of Mines Act, 1952 and the Regulations,
2017 have to be ensured in the public interest by the
state of Meghalaya.
119. Now we come to the Environment (Protection)
Act, 1986. A notification dated 14.09.2006 was issued
by the Ministry of Environment and Forests in
exercise of power under Section 3(3) of the
Environment Protection Act, 1986. Section 3 of the
Act, 1986 which provided for requirements of prior
126
environmental clearance with regard to projects
enumerates therein. Schedule to the notification
listed the projects or activities requiring prior
environmental clearance. “Mining of minerals”
included at Item No.1(a) but even for mining project
requirement of minimum 5 hectares area was required
for applicability of the project. Substituting Item
No.1(a) of Notification dated 14.09.2006 a new
notification dated 15.01.2016 has been issued. In
place of Item No.1(a) new entry has been substituted
in respect of coal mine lease which is to the
following effect:
| (1) | (2) | (3) | (4) | (5) |
|---|
| “1(a) | (i)<br>Mining<br>of<br>minerals | >50 ha of<br>mining lease<br>areas in<br>respect of<br>non-coal mine<br>lease<br>>150 ha of<br>mining lease<br>area in<br>respect of<br>coal mine<br>lease<br>Asbestos<br>mining<br>irrespective<br>of mining area | <50 ha of<br>mining<br>lease<br>area in<br>respect<br>of non-<br>coal mine<br>lease<br><150 ha<br>of mining<br>lease<br>area in<br>respect<br>of coal<br>lease | General<br>Conditions<br>shall<br>apply<br>except:<br>(i) for<br>project or<br>activity<br>of mining<br>of minor<br>minerals<br>of<br>Category<br>‘B2’(up to<br>25 ha of<br>mining<br>lease<br>area); |
127
| | | | (ii) River<br>bed mining<br>projects<br>on account<br>of inter-<br>state<br>boundary. |
|---|
120. If the project was under Category ‘A’,
environmental clearance is required from Ministry of
Environment and Forests whereas as per new
notification dated 15.01.2016 for project ‘B’
environmental clearance is required from State
Environmental Assessment Authority with respect of
coal mining lease area of less than or equal to 150
hectares. Now as per statutory regime brought in
force by notification dated 15.01.2016 environmental
clearance is required for a project of coal for
mining of any extent of area. We have dealt with the
notification dated 15.01.2016, since it was placed
before us and submissions were made by learned
counsel for the parties. The notification dated
15.01.2016 being a statutory provision shall operate
on its own force and no order of any Court is
required for enforcement of notification dated
128
15.01.2016. We have dealt the matter only in view to
clarify the statutory regime pertaining to mining of
coal.
121. While implementing statutory regime for
carrying mining operations in the Hills District of
the State of Meghalaya, the State of Meghalaya has to
ensure compliance of not only MMDR Act, 1957 but
Mines Act, 1952 as well as Environment
(Protection)Act, 1986.
Point No.4
122. We having held that for carrying out mining
operations in privately owned and community owned
land in Hills Districts of Meghalaya, obtaining a
mining lease is a mandatory requirement for carrying
out the mining, we have to examine the procedure for
grant of such mining lease and the authority/person,
who is competent to grant such lease.
123. Chapter IV of the Mineral Concession Rules,
1960 deals with grant of mining leases in respect of
land in which the minerals vest in the Government and
129
Chapter V deals with procedure for obtaining a
prospecting licence or mining lease in respect of
land in which the minerals vest in a person other
than the Government. Chapter IV contains Rules 22 to
40 and Chapter V contains Rules 41 to 52 and the
procedure and manner of applying for mining lease and
grant of lease as contained in Chapter IV is not made
applicable to the procedure as given in Chapter V
except that by virtue of Rule 45(i) certain
conditions of mining lease as contained in Rule 27
under Chapter IV are made applicable for mining lease
under Chapter V.
124. Rule 22(1) provides that an application for
the grant of a mining lease in respect of land in
which the minerals vest in the Government shall be
made to the State Government in Form I through such
officer or authority as the State Government may
specify in this behalf. In Chapter V, there is no
such rule, which requires making an application for
lease to the State Government. There is a marked
difference between the rules contained in Chapter IV
130
and rules contained in Chapter V, few of which are
relevant to notice for the purposes of this case.
Rule 27(2) provides that a mining lease may contain
such other conditions as the State Government may
deem necessary in regard to the matters enumerated
therein. Whereas Rule 45(iii) provides that every
mining lease may contain such other conditions, not
being inconsistent with the provisions of the Act and
these rules, as may be agreed upon between the
parties. The above provision gives an indication
that in the lease executed by Chapter V, the omission
of word “State Government” in Rule 45(iii) is
indicative of the fact that conditions, which are to
be added has to be agreed upon between the parties.
Most important rule to be noticed is Rule 45 in this
context, which is to the following effect:-
“ 45. Conditions of mining lease : - Every
mining lease shall be subject to the fol-
lowing conditions :-
(i) the provisions of clauses (b) to (l)
and (p) to (u) of sub-rule (1) of rule 27
shall apply to such leases with the modifi-
cation that in clauses (c) and (d) for the
words "State Government" the word "lessor"
shall be substituted ;
131
(ia) mining operations shall be undertaken
in accordance with the duly approved mining
plan ;
(ii) Omitted.;
(iii) the lease may contain such other con-
ditions, not being inconsistent with the
provisions of the Act and these rules, as
may be agreed upon between the parties;
(iv) if the lessee makes any default in
payment of royalty as required by section 9
or commits a breach of any of the condi-
tions of the lease, the lessor shall give
notice to the lessee requiring him to pay
the royalty or remedy the breach, as the
case may be, within sixty days from the
date of the receipt of the notice and if
the royalty is not paid or the breach is
not remedied within such period, the lessor
without prejudice to any proceeding that
may be taken against the lessee determine
the lease;
(v) the lessee may determine the lease at
any time by giving not less than one year’s
notice in writing to lessor.”
125. It is provided in Rule 45(i) that in clauses
(c) and (d) of Rule 27 for the words “State
Government” the word “lessor” shall be substituted,
which gives a clear indication that State Government
is not a lessor in a lease granted under Chapter V.
Rule 27(5) and Rule 45(iv) is also relevant to
notice. Rule 27(5) provides as follows:-
132
”27(5) If the lessee makes any default in
the payment of royalty as required under
section 9 or payment of dead rent as re-
quired under section 9A or commits a breach
of any of the conditions specified in sub-
rules (1), (2) and (3), except the condi-
tion referred to in clause (f) of sub-rule
(1), the State Government shall give notice
to the lessee requiring him to pay the roy-
alty or dead rent or remedy the breach, as
the case may be, within sixty days from the
date of the receipt of the notice and if
the royalty or dead rent is not paid or the
breach is not remedied within the said pe-
riod, the State Government may, without
prejudice to any other proceedings that may
be taken against him, determine the lease
and forfeit the whole or part of the secu-
rity deposit.”
126. Under Rule 27(5), if the lessee makes any
default in the payment of the royalty or the payment
of dead rent or commits breach of any of the
conditions, the State Government shall give notice to
the lessee and determine the lease and forfeit the
whole or part of the security deposit. Whereas under
rule 45(iv), the said power has been vested in the
lessor, which also indicates that it is lessor, who
will determine the lease and not the State
Government. Other provisions of Chapter V also
support the above conclusion. Rule 47 provides for
submission of copy of licence or lease to the State
133
Government within three months of the grant of such
licence or lease. Requirement of submitting the
licence or lease copy to the State Government
indicate that the State Government is not the
authority, who is granting the lease, otherwise there
was no requirement of submitting a copy to the State
Government, if it was contemplated that State
Government shall grant the lease. Rule 63 in Chapter
V provides that previous approval of the Central
Government to be obtained through State Government,
which is to the following effect:-
“63. Previous approval of the Central Gov-
ernment to be obtained through State Gov-
ernment:- Where in any case previous ap-
proval of the Central Government is re-
quired under the Act or these rules, the
application for such approval shall be made
to the Central Government through the State
Government .”
127. Our above conclusion is reinforced when we
look into the statutory regime regarding grant of
mining lease as per the Mineral Concession Rules,
which were in force prior to enforcement of Mineral
Concession Rules, 1960. Prior to MMDR Act, 1957,
earlier Central Legislation which was governing the
134
field was Mines and Minerals (Regulation and
Development) Act, 1948, under which rules have been
framed by Central Government namely, Mineral
Concession Rules, 1949. Rule 14 of Chapter III
contemplated application for prospecting license.
Chapter IV of the Rules, 1949 contained the heading
“grant of Mining Lease in respect of land in which
the minerals belong to Government”. The provisions
of Rule 27 of Chapter IV provide for application for
mining lease and there were several other rules under
Chapter IV, which in substance have been retained in
Chapter IV of Rules, 1960. Chapter V of Rules, 1949
contained the heading “grant of mineral concessions
by private persons.” As noted above, the heading of
Chapter V under Rules, 1960 is “procedure for
obtaining a prospecting licence or mining lease in
respect of land in which the minerals vest in a
person other than the Government.” Rule 47 of
Chapter V of Rules, 1949 provide for “conditions in a
mining lease”, which are in substance similar as Rule
45 of Rules, 1960. Rule 47(iv) of the Rules, 1949
135
was akin to present Rule 45(i) of the Rules, 1960.
Rule 47(iv) of the Rules, 1949 is as follows:-
“ 47. Conditions of mining lease : - A min-
ing lease granted by a private person shall
be subject to the following condition:-
XXXXXXX
(iv) the provisions of clauses (i),
(ii), (iii), (iv), (v), (vii), (viii),
(ix), (x), (xi0 and (xv) of sub-rule (1) of
rule 41 shall apply to such lease with the
modification that in clauses (ii), (iii),
(iv) and (xv) for the words "State Govern-
ment" the word "lessor" shall be substi-
tuted;
XXXXXXXXX”
128. Thus, the Chapter V of Rules, 1949 dealt with
the mining lease granted by private persons, i.e.,
the category where the minerals were not owned by the
Government but was owned by private persons. Chapter
V of the Rules, 1960 contains substantially similar
provisions. Thus, Chapter V of Rules, 1960 has to be
treated to be dealing with minerals owned by private
owners. The earlier statutory regime, which was
enforced as per Rules, 1949 made it amply clear that
mineral concessions are to be granted by private
persons also, which is in substances retained in
Chapter V of Rules, 1960. Thus, mining lease to be
136
granted as per Chapter V of Rules, 1960 is mining
lease by the owner of mineral and similar concept has
to be borrowed and read in Chapter V as noted above.
Absence of any procedure to make an application for
mining lease to the State Government in Chapter V of
the Rules, 1960 and lessor being the private persons
and not the State Government, clearly indicates that
State Government is not to grant the lease in respect
of land of privately owned/community owned owners.
129. Another reason for not providing any
application to State Government for grant of mining
lease in respect of minerals, which vests in the
private owners and community owners is that; without
consent or willingness of private owners/community
owners of minerals, no authority is empowered to
grant any mining lease with regard to minerals, of
which he is the owner, it is the owner of the
minerals may be private persons or community owners,
who is entitled to grant lease of minerals as per the
provisions of Chapter V of Rules, 1960.
130. We, thus, conclude that as per the statutory
provisions contained in Rules, 1960 especially
137
Chapter V, a mining lease for minerals, which belongs
to a private owner or a community owner, it is not
the State Government, which is entitled to receive
any application or grant any mining lease, but it is
the private owner or community owner, who is entitled
to grant a lease for mining minerals owned by them.
Issue No.4 is answered accordingly.
Point No.5
131. Shri Shekhar Naphade, learned senior counsel
appearing for the State of Meghalaya has submitted
that State of Meghalaya has no control over the
mining of the coal by owners of the minerals since it
is the owners, who have right to carry on mining,
which has been traditionally going on in the State of
Meghalaya for last several decades. To find out as
to whether State of Meghalaya has any statutory
control over the mining operations in State of
Meghalaya, which is going on for last several
decades, we have to examine the statutory provisions
governing the field.
138
132. We have already held that provisions of MMRD
Act, 1957 and Mineral Concession Rules, 1960 are
applicable in the Hills Districts of the State of
Meghalaya. We, in the present case, are concerned
with the mining of coal, which is a major mineral as
per the Act, 1957 and Mineral Concession Rules, 1960.
Rule 42 of Chapter V of the Rules, 1960 provides for
restrictions on the grant of prospecting licence and
mining lease, which is to the following effect:-
“ 42. Restrictions on the grant of prospect-
ing licence and mining lease:- (1) No
prospecting licence or mining lease shall
be granted to any person unless he has
filed an affidavit stating that he has–
(i) filed up-to-date income tax returns;
(ii) paid the income tax assessed on him,
and
(iii) paid the income tax on the basis of
self-assessment as provided in the
Income Tax Act, 1961 (43 of 1961).
(2) Except with the previous approval of
the Central Government, no prospecting li-
cence or mining lease shall be granted in
respect of any mineral specified in the
First Schedule to the Act.”
139
133. As per Rule 42(2), except with the previous
approval of the Central Government, no prospecting
licence or mining lease shall be granted in respect
of any mineral specified in the First Schedule to the
Act. Thus, previous approval of Central Government
is mandatory before grant of mining lease of coal.
Rule 63 provides that the approval of the Central
Government has to be obtained through the State Gov-
ernment. Thus, the State Government has to be aware
that any previous approval of the Central Government
for mining coal has been obtained or not. Thus, re-
striction being statutory and without any exception
State Government cannot say that it has no role to
play with regard to mining of coal. All applications
for previous approval of Central Government has to be
routed through State Government. There are other
rules in Chapter V itself, which provides for control
of the State government in the mining of coal. Rule
50 empowers the provision for prohibition of working
of mines by the State Government, which is to the
following effect:-
“50. Prohibition of working of mines: - If
the State Government has reason to believe
140
that the grant or transfer of a prospecting
licence or a mining lease or of any right,
title or interest in such licence or lease
is in contravention of any of the provi-
sions of this chapter, the State Government
may, after giving the parties an opportu-
nity to represent their views and with the
approval of the Central Government, direct
the parties concerned not to undertake any
prospecting or mining operations in the
area to which the licence or lease re-
lates.”
134. The above rule empowers the State Government
with the approval of the Central Government to direct
the parties concerned not to undertake any mining op-
erations, if it has reasons to believe that the grant
or transfer of mining lease is in contravention of
any of the provisions of Chapter V. Thus, when min-
ing operations of coal are being conducted without
prior approval of Central Government, State is not
powerless to direct the parties not to undertake any
prospective mining operations in the area. The power
given under Rule 50 is not only enabling power, but
is a statutory obligation on the State to exercise
the power in the public interest. Rule 51 requires a
mining lease to furnish to the State Government such
returns and statements as may be prescribed. Rule 52
141
provides for penalty, which is to the following ef-
fect:-
“52. Penalty:- (1) If the holder of a
prospecting licence or a mining lease or
his transferee or assignee fails, without
sufficient cause, to furnish the documents
or information, or returns referred to in
rule 46, rule 47, rule 48, or rule 51, or
acts in any manner in contravention of rule
49 or rule 50, he shall be punishable with
imprisonment for a term which may extend to
one year or fine which may extend to five
thousand rupees or with both.
(2) If any person grants or transfers or
obtains a prospecting licence or mining
lease or any right, title or interest
therein, in contravention of any of the
provisions of this chapter, he shall be
punishable with imprisonment which may ex-
tend to one year or fine which may extend
to five thousand rupees or both.”
135. Rule 52 gives the State Government ample power
to prosecute and punish mining leases or his trans-
ferees or assignees on violation of the rules or con-
travention of any of the provisions of Chapter V,
which is ample power to the State to ensure that the
Act is faithfully followed.
136. The State was advised by the Comptroller and
st
Auditor General of India in its report ended 31
142
March, 2013 in para 4.5.1 that to regulate mining by
following Mines and Minerals (Development and
Regulation) Act, 1957. Para 7.5.8 of the same report
has made the following as recommendation No.1:
“Recommendation No.1: The M&G Department
should take necessary measures to regulate
mining in the State in accordance with the
provisions of the MMDR Act and Rules
thereunder.”
137. The State is thus well aware of its statutory
obligation which is reflected in Mining Policy of
2012 and Draft Guidelines, 2015 but still before this
Court their contention that no mining lease is to be
obtained for privately owned/community owned land in
Hills District of State of Meghalaya is unacceptable
and not in a good spirit. Our country being governed
by the Constitution of India all the States are to
implement Parliamentary Acts in true spirit and in
the present case the State having been advised time
and again by Comptroller and Auditor General and
being well aware of its statutory obligation as
noticed above it comes ill from the State to contend
before this Court that there is no requirement of
143
mining lease for winning the minerals. The above
stand of the State taken before this Court gives the
impression that instead of implementing the
Parliamentary enactment and regulatory regime for
mineral regulation some vested interests wants to
continue the illegal regime of illegal mining to the
benefit of the few persons which is unacceptable and
condemnable. We, thus, conclude that the State of
Meghalaya has jurisdiction and power to ensure that
no mining of coal should take place except when a
mining lease granted under Mineral Concession Rules,
1960, Chapter V, as discussed above.
Point No.6
138. One more point which needs to be considered is
as to whether power to allot land for mining purpose
is vested in Autonomous District Council? The submis-
sion on behalf of one of the Autonomous District
Council which is the appellant before us as well as
on behalf of State of Meghalaya is that Autonomous
District Council being constitutional authority con-
144
stituted under Schedule VI of the Constitution has
legislative and administrative power. Reference to
various legislation framed by Autonomous District
Council which received the assent of the Governor has
also been relied on. Para 3 of Schedule VI enumerates
the power of District Council and regional council to
make laws which we have extracted above.
139. Certain legislation framed by District Council
has also been referred namely the Khasi Hills Dis-
trict (Trading by Non Tribals) Regulation, 1954, the
United Khasi Jaintia Hills Autonomous District (Man-
agement and Control of Forest) Rules, 1960. The Khasi
Hills Autonomous District (Trading by Non Tribals)
Rules, 1959, all framed in exercise of power under
para 3 of Sixth Schedule. The power to make law en-
trusted to Autonomous District Council under para 3
of Schedule VI is power to make law referable to List
2 and List 3 of the Seventh Schedule. We have already
noticed above that with regard to regulation and de-
velopment of mineral, the Union has made declaration
by Section 2 of 1957 Act and the power of the State
145
Legislature is denuded in that respect. The logical
corollary of the above principle is that power of Au-
tonomous District Council shall also be denuded in so
far as regulation and development of minerals to the
extent which is covered by 1957 Act. We may refer to
one Rule 4 of United Khasi Jaintia Hills District
(Trading by non Tribals) Rules,1959, which contem-
plates form of licence and one of the licence re-
ferred to is under Rule 4 is licence in Form E. Rule
4 is as follows:
"4. Form of License.-
....
(5) License in form 'E' shall be issued for
the mining of minerals and the sale or
purchase of minerals accruing from the
autonomous district and for the import of
minerals into the autonomous district for
sale therein as specified in Part 'E' of
the First Schedule on payment of prescribed
license fee subject to the conditions
specified in the license..
. . . . ”
140. It is relevant to notice that the United Khasi
Jaintia Hills District (Trading by Non-Tribal) Rules,
1959 has been repealed insofar as Jaintia Hills Dis-
tricts are concerned by the Jaintia Hills Autonomous
146
District (Trading by Non-Tribal) Regulation Act,
2011, Section 18. Rules, 1959 is still in force in
Khasi Hills Autonomous Districts, since, no other
regulations have been placed before us repealing the
Rules, 1959. In Regulations, 2011, one aspect needs
to be noted in Section 2, which is definition clause.
By clause (viii), “trade” has been defined, which is
to the following effect:-
“(viii) "Trade" means any trade involving
buying and selling or business for profit
and includes exchange of goods or commodi-
ties or business or import, export and
transport of goods/commodities or entry of
goods into market for sale or trade and busi-
ness such as construction works or other work
rendered by the contractor or his agent and
it also includes person and persons engaged
by such contractor or agent or any other
profession or vocation such as barber, cob-
bler, tailoring, cattle rearing (which in-
clude piggery, goatary, poultry) milk and
dairy products, automobiles making or re-
pairing, electrician, furniture makers,
pharmacist, physician, transport and any
other similar vocation or profession and the
term "trade" and "trading" shall be con-
strued accordingly.”
141. The grant of licenses contemplated by Regula-
tions are only with respect to the “trade” as defined
in 2(viii). The entire Regulations do not refer to
147
any kind of trade in mining of coal or mining opera-
tions. Thus, the Regulations, 2011 have nothing to
do with the mining of coal.
142. Constitutional provisions of Schedule VI are
also relevant to be noticed. Paragraph 9 of the
Schedule VI refers to Licences or leases for the pur-
pose of prospecting for, or extraction of, minerals.
Para 9 is as follows: -
“9. Licences or leases for the purpose of
prospecting for, or extraction of,
minerals. -
(1) Such share of the royalties accruing
each year from licences or leases for the
purpose of prospecting for, or the
extraction of, minerals granted by [the
Government of the State] in respect of any
area within an autonomous district as may
be agreed upon between [the Government of
the State] and the District Court of such
district shall be made over to that
District Council.
(2) If any dispute arises as to the share
of such royalties to be made over to a
District Council, it shall be referred to
the Governor for determination and the
amount determined by the Governor in his
discretion shall be deemed to be the amount
payable under sub-paragraph(1) of this
paragraph to the District Council and the
decision of the Governor shall be final.”
148
143. Para 9(1) confines to the licences or leases
of minerals granted by government of the State.
Schedule VI which constitute the District Councils
and Regional Councils enumerates their powers. Para
9 refers to licences or leases for extraction of min-
erals granted by the Government of the State. Para 9
only deals with share of the royalties to District
Councils as agreed upon between the Government of the
State and the District Councils. Further paragraph
12(A)(a) itself contemplates that any law made by
District Council or Regional Council which is repug-
nant to any law of the State shall be void. Thus, the
status of law made by District Council or Regional
councils has to give way to the law made by the
State. There can be no doubt that District Council
and Regional Council cannot make any law which may be
repugnant to the provisions of the Parliamentary Act.
144. We, thus, are of the view that District Coun-
cil does not have any power to make any law with re-
gard to grant of mining lease. The mining leases for
winning the major minerals has to be granted in ac-
149
cordance with 1957 Act and Mineral Concession Rules,
1960.
POINT NOS. 7 & 8
145. This Court in State of Tamil Nadu versus M/s
Hind Stone and others, 1981 (2) SCC 205, speaking
through Chinnappa Reddy,J., has made following
weighty observations: -
“6. Rivers, Forests, Minerals and such
other resources constitute a Nation's
natural wealth. These resources are not to
be frittered away and exhausted by any one
generation. Every generation owes a duty to
all succeeding generations to develop and
conserve the natural resources of the
nation in the best possible way. It is in
the interest of mankind. It is in the
interest of the nation. It is recognised by
Parliament. Parliament has declared that it
is expedient in the public interest that
the Union should take under its control the
regulation of mines and the development of
minerals. It has enacted the Mines and
Minerals (Regulation and Development) Act,
1957.....”
146. No one can dispute the underlying object in
the above observations of this Court. The use of nat-
ural resources also plays major role in carrying out
development. A fine balance has to be maintained in
utilisation of natural resources and its conservation
150
and preservation. One cannot be sacrificed for the
interest of other. The concept of Sustainable Devel-
opment has been evolved and is being pursued. In this
context, reference be made to the three-Judge Bench
judgment of this Court in Lafarge Umiam Mining (pvt.)
Ltd. Versus Union of India & Others, 2011(7) SCC 338.
In para 75, following legal position was noticed: -
“75. Universal human dependence on the use
of environmental resources for the most
basic needs renders it impossible to
refrain from altering the environment. As a
result, environmental conflicts are
ineradicable and environmental protection
is always a matter of degree, inescapably
requiring choices as to the appropriate
level of environmental protection and the
risks which are to be regulated. This
aspect is recognised by the concepts of
“sustainable development”. It is equally
well settled by the decision of this Court
in Narmada Bachao Andolan Vs. Union of
India that environment has different facets
and care of the environment is an ongoing
process. These concepts rule out the
formulation of an across-the-board
principle as it would depend on the facts
of each case whether diversion in a given
case should be permitted or not, barring
“no go” areas (whose identification would
again depend on undertaking of due
diligence exercise). In such cases, the
margin of appreciation doctrine would
apply.”
151
147. Now we come back to the order of NGT dated
17.04.2014 by which Tribunal prohibited the Rathole
mining/illegal mining throughout the State of Megha-
laya. We have noticed above that in OA No.73 of 2014
wherein the above order was passed, sufficient mate-
rials were brought on the record including experts
report which proved that illegal coal mining in the
State of Meghalaya is degrading the environment. The
Court also noticed the report of Professor Dr.O.P.S-
ingh which noticed that the Meghalaya Pollution Con-
trol Board in the year 1997 has submitted the report
about the environmental pollution consequent to ille-
gal mining.
148. Learned Amicus Curiae has invited our atten-
tion to report of Comptroller and Auditor General for
st
the year ending 31 March, 2013, where the Comptrol-
ler and Auditor General has noticed that due to Acid
Mine Drainage several locations of Lukha River were
severally polluted. The report also referred to in-
vestigation by the Meghalaya State Pollution Control
Board in November 2011 and noticed that no effective
152
steps were taken to control AMD. Paragraph 7.5.23.1
of the report is as follows: -
“7.5.23.1 Pollution of rivers due to Acid
Mine Drainage from coal mines
Based on media reports relating to
pollution of Lukha river in Jaintia Hills,
the Meghalaya State Pollution Board (MSPCB)
conducted (November 2011) an investigation
to ascertain the water quality of the Lukha
River and its feeding streams in Jaintia
Hills District vis-a-vis a similar
investigation carried out in February 2007.
For this purpose, eight water and sediment
samples were collected from the same
sampling locations investigated during
2007. The findings are as follows: -
| Station | pH<br>BIS norms<br>6.5-8.5 | | Iron(mg/I)<br>BIS norms:0.3 | | Sulphate(mg/I)<br>BIS<br>norms:200.0 | |
|---|
| 2007 | 2011 | 2007 | 2011 | 2007 | 2011 |
| St.1 | 3.0 | 2.7 | 3.6 | 6.2 | 254.0 | 566.5 |
| St.2 | 7.5 | 5.0 | 0.13 | 5.4 | 13.4 | 305.0 |
| St.3 | 6.8 | 7.3 | 0.17 | 0.4 | 62.0 | 8.69 |
| St.4 | 4.5 | 4.3 | 0.46 | 4.8 | 211.8 | 265.0 |
| St.5 | 6.3 | 5.0 | 0.32 | 1.2 | 188.8 | 200.0 |
| St.6 | 4.3 | 6.2 | 0.372 | 0.26 | 192.1 | 118.2 |
| St.7 | 7.9 | 8.2 | 1.35 | 0.18 | 99.0 | 29.04 |
| St.8 | 7.8 | 8.1 | 0.3 | 0.28 | 101.5 | 45.6 |
The water quality characteristics in terms
of pH, Sulphate and Iron concentrations
with respect to Stations 1,2,4 and 5
indicated that there is significant
deterioration of water quality in
153
comparison to that of the year 2007 the
major cause of which was the AMD from coal
mining in these areas.
The investigation made by the MSPCB further
revealed that the river water on the entire
stretch of the sampling locations was not
suitable for drinking purpose......”
149. Tribunal being satisfied from the materials on
record has issued the order dated 17.04.2014 which
cannot be faulted in the facts and materials which
are on record in the present case. One more fact in
the above context need to be noticed i.e. after the
order dated 17.04.2014, several applicants including
the appellants of Civil Appeal No.5272 of 2016 filed
application for vacating the ban which was not ac-
ceded to by the Tribunal. Subsequently the NGT per-
mitted transportation of coal till 15.05.2016 and di-
rected that after 15.05.2016, all coal within the
State of Meghalaya shall vest in the State.
150. The tribunal after considering all pleas and
materials including reports submitted by the commit-
tees affirmed the order dated 17.04.2014 and refused
to withdraw the ban. We do not find any error in the
order of NGT reaffirming its ban order in the facts
154
of the present case. But the question which has been
raised by the appellant before this Court is that
whether the complete ban as imposed by the NGT de-
serves to be vacated or modified in the interest of
the State and tribals. The revenue earned by the
State from coal mining plays substantial part in the
economy of the State. It is also amply demonstrated
from the record that tribals are the owners of the
land who carry on mining of coal in their land by
which they earn their substantial livelihood.
151. Though as discussed above the manner in which
the mining is being carried out by the tribals cannot
be approved which is clearly in violation of statu-
tory regime under 1957 Act and 1960 Rules but in
event the mining is carried out by tribals or their
assignees as per the provisions of 1957 Act and 1960
Rules, there can be no objections in carrying such
mining under the regulation and control of State of
Meghalaya. We thus clarify that in event mining oper-
ations are undertaken by the tribals or other owners
of hills districts of Meghalaya in accordance with
155
mining lease obtained from the State of Meghalaya as
per 1957 Act and Mineral Concessions Rule, 1960, the
ban order dated 17.04.2014 of the tribunal shall not
come in its way of carrying mining operations. The
ban order is for the illegal coal mining which was
rampant in the State of Meghalaya and the ban order
cannot be extended to valid and legal mining as per
1957 Act and 1960 Rules.
Point Nos.9 and 10
152. The appellants contend that the NGT has no
jurisdiction to constitute any committee. The NGT
vide its different orders has constituted different
committees for submitting reports for different
purposes. The Constitution of which committees are
sought to be challenged on the ground that the NGT
has no jurisdiction to constitute a committee.
Similarly, order of the Tribunal directing for
constituting a fund, namely, Meghalaya Environment
Protection and Restoration Fund has been challenged
on the ground that the Tribunal has no jurisdiction
to constitute any fund.
156
153. What are the powers and jurisdiction of the
Tribunal given under the National Green Tribunal Act,
2010 has to be looked into to consider the above
submission? In so far as jurisdiction of the Tribunal
is concerned, we have already noticed Sections 14,
15, and 16 of the Act. Section 19 of the Act deals
with procedure and powers of the of the Tribunal.
Section 19 which is relevant for the present case is
as follows:
“19. Procedure and powers of Tribunal. –
( 1). The Tribunal shall not be bound by the
procedure laid down by the Code of Civil
Procedure, 1908 but shall be guided by the
principles of natural justice.
(2). Subject to the provisions of this
Act, the Tribunal shall have power to
regulate its own procedure.
(3). The Tribunal shall also not be bound
by the rules of evidence contained in the
Indian Evidence Act, 1872.
(4). The Tribunal shall have, for the
purposes of discharging its functions under
this Act, the same powers as are vested in
a civil court under the Code of Civil
Procedure, 1908, while trying a suit, in
respect of the following matters, namely:-
(a) summoning and enforcing the
attendance of any person and
examining him on oath;
157
(b) requiring the discovery and
production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of
sections 123 and 124 of the Indian
Evidence Act, 1872, requisitioning
any public record or document or copy
of such record or document from any
office;
(e) issuing commissions for the
examination of witnesses or
documents;
(f) reviewing its decision;
(g) dismissing an application for
default or deciding it ex parte;
(h) setting aside any order of
dismissal of any application for
default or any order passed by it ex
parte ;
(i) pass an interim order
(including granting an injunction or
stay) after providing the parties
concerned an opportunity to be heard,
on any application made or appeal
filed under this Act;
(j) pass an order requiring any
person to cease and desist from
committing or causing any violation
of any enactment specified in
Schedule I;
(k) any other matter which may be
prescribed.
5. All proceedings before the Tribunal
shall be deemed to be the judicial
proceedings within the meaning of sections
193, 219 and 228 for the purposes of
158
section 196 of the Indian Penal Code and
the Tribunal shall be deemed to be a civil
court for the purposes of section 195 and
Chapter XXVI of the Code of Criminal
Procedure, 1973.”
154. Sub-section (1) of Section 19 provides that
Tribunal shall not be bound by the procedure laid
down by the Code of Civil Procedure but shall be
guided by the principles of natural justice. What
sub-section (1) meant to convey is that Tribunal is
not shackled with the procedure laid down by the CPC
for conducting its proceedings. Sub-section (2) of
Section 19 empowers the Tribunal, powers to regulate
its own procedure. Section 19(2) confers wide powers
on the Tribunal in so far as its procedure is
concerned. Section 19(4) vests some powers as are
vested in civil court, while trying a suit, in
respect of matters enumerated therein. The use of
expression “shall not be bound by the procedure laid
down by the CPC” is not akin to saying that procedure
as laid down by the CPC is in no manner relevant to
the Tribunal. Further, Section 19(1) also does not
mean that Tribunal cannot follow any procedure given
159
in the CPC. One provision of CPC inserted by Act 104
of 1976 with effect from 01.02.1977 is Order XXVI,
which is relevant for present inquiry. Order XXVI
Rule 10A provides as follows:
“Order XXVI Rule 10A. Commission for
scientific investigations"- (1) Where any
question arising in a suit involves any
scientific investigation which cannot, in
the opinion of the Court, be conveniently
conducted before the Court, the Court may,
if it thinks it necessary or expedient in
the interests of justice so to do, issue a
commission to such person as it thinks fit,
directing him to inquire into such question
and report thereon to the Court.
(2) The provisions of rule 10 of this Order
shall, as far as may be, apply in relation
to a Commissioner appointed under this rule
as they apply in relation to a Commissioner
appointed under rule 9.”
155. Rule 10A provides that where any question
arising in a suit involves any scientific
investigation which cannot, in the opinion of the
Court, be conveniently conducted before the Court,
the Court may, if it thinks necessary or expedient
in the interests of justice so to do, issue a
commission to such person as it thinks fit, directing
him to inquire into such question and report thereon
160
to the Court. Rule 10A is enabling power to the
courts to obtain report from such persons as it
thinks fit when any question involves with the
scientific investigation. The powers under Rule 10A
which are to be exercised by the Court can very well
be used by the NGT to obtain reports by experts. The
NGT as per the statutory scheme of the NGT has to
decide several complex questions pertaining to
pollution and environment. The scientific
investigation and report by experts are necessary
requirement in appropriate cases to come to correct
conclusion to find out measures to remedy the
pollution and environment. We do not, thus, find any
dearth of jurisdiction in the NGT to appoint a
committee to submit a report. We may further say that
while asking expert to give a report the NGT is not
confined to the four corners of Rule 10A rather its
jurisdiction is not shackled by strict terms of Order
26 Rule 10A s per Section 19(1) as noticed above.
156. There is one more provision which throws
considerable light on the above. Under Section 35 of
the NGT Act, 2010 Central Government is empowered to
161
make rule for carrying out the provisions of the Act.
Rules have been framed in exercise of powers under
Section 35, namely, National Green Tribunal (Practice
and Procedure) Rules, 2011. The said Rules have been
framed in exercise of powers under Section 4(4) as
well as Section 35. The Rules, 2011 are Rules also
for practices and procedure of the Tribunal. Rule 24
which is relevant for the present case is as follows:
“ Section 24. Order and directions in
certain cases.- The Tribunal may make such
orders or give such directions as may be
necessary or expedient to give effect to
its order or to prevent abuse of its
process or to secure the ends of justice.”
157.
Rule 24 empowers the Tribunal to make such
orders or give such directions as may be necessary or
expedient to give effect to its order or to secure
the ends of justice. Rule 24 gives wide powers to the
Tribunal to secure the ends of justice. Rule 24 vests
special power to Tribunal to pass orders and issue
directions to secure ends of justice. Use of words
‘may’, ‘such orders’, ‘gives such directions’, ‘as
may be necessary or expedient’, ‘to give effect to
its orders’, ‘order to prevent abuse of process’, are
162
words which enable the Tribunal to pass orders and
the above words confer wide discretion.
158. Professor Justice G.P. Singh , in Principles of
th
Statutory Interpretation, 14 Edition while dealing
with enabling word says:
“Ordinarily, the words ‘May’ and ‘It shall
be lawful’ are not words of compulsion.
They are enabling words and they only
confer capacity, power or authority and
imply discretion. “They are both used in a
statute to indicate that something may be
done which prior to it could not be done”.
The use of words ‘Shall have power” also
connotes the same idea.”
159.
The enabling powers give to the Tribunal under
Rule 24 is for purpose and object to decide the
subjects which are to be examined, decided and an
appropriate relief is to be granted by the Tribunal.
Further, subjects contain wide range of subjects
which require technical and scientific inputs. The
Tribunal can pass such orders as it may think fit
necessary or expedient to secure ends of justice.
160.
The object for which said power is given is
not far to seek. To fulfil objective of the NGT Act,
163
2010. NGT has to exercise a wide range of
jurisdiction and has to possess wide range of powers
to do justice in a given case. The power is given to
exercise for the benefit of those who have right for
clean environment which right they have to establish
before the Tribunal. The power given to the Tribunal
is coupled with duty to exercise such powers for
achieving the objects. In this regard reference is
made to judgment of this Court in L. Hirday Narain
vs. Income Tax Officer, Bareilly, 1970(2) SCC 355,
where this Court was examining provision empowering
authority to do something. This Court laid down in
paragraph 14:
“ 14 . The High Court observed that under
Section 35 of the Indian Income Tax. Act,
1922, the jurisdiction of the Income Tax
Officer is discretionary. If thereby it is
intended that the Income Tax Officer has
discretion to exercise or not to exercise
the power to rectify, that view is in our
judgment erroneous. Section 35 enacts that
the Commissioner or Appellate Assistant
Commissioner or the Income Tax Officer may
rectify any mistake apparent from the
record. If a statute invests a public
officer with authority to do an act in a
specified set of circumstances, it is
imperative upon him to exercise his
authority in a manner appropriate to the
case when a party interested and having a
164
right to apply moves in that behalf and
circumstances for exercise of authority are
shown to exist. Even if the words used in
the statute are prima facie enabling the
Courts will readily infer a duty to
exercise power which is invested in aid of
enforcement of a right — public or private
— of a citizen.”
161. We, thus, are of the considered opinion that
there is no lack of jurisdiction in the NGT to direct
for appointment of committee or to obtain a report
from a committee in given facts of the case.
162. Now coming to the challenge to the Fund which
has been constituted by the Tribunal, namely,
“Meghalaya Environment Protection and Restoration
Fund”, it is useful to notice the observation of the
Tribunal in its order dated March 25, 2015 by which
the said Fund was created. The reasons for
constitution of Fund are self-explanatory which are
to the following effect:
“It is also undisputable that there has
been huge environmental degradation and
pollution of the waterbody in the State of
Meghalaya, because of this illegal, unsci-
entific mining. No one has even thought of
restoration of the area in question, to
bring to some 16 extent, if not completely,
restoration of ecology and environment in
question. Serious steps are required to be
165
taken for cleaning polluted waterbodies and
ensure that no further pollution is caused
by this activity and the activity which
would be permitted to be carried on finally
including transportation of coal. On the
basis of `Polluter Pay Principle’. We di-
rect that the State Government shall in ad-
dition to the royalty payable to it, shall
also collect 10% on the market value of the
coal for every consignment. Having heard
the learned Counsel appearing for the par-
ties and keeping in view the notifications
of the Central Government dated 10.05.2012
and that of the State Government dated
22.06.2012, we may notice that in the re-
port of Comptroller and Auditor General of
India for the period ending 31st March,
2013 under 7.5.18 of Chapter 7 of which the
invoice value of the coal has been taken
Rs. 4850/- per metric tonne. Thus, we di-
rect that the State Government shall in ad-
dition to the royalty payable to it, also
collect 10% of the said market value of the
coal per metric tonne from each person. The
amount so collected shall be deposited in
the account to be titled as ‘Meghalaya En-
vironment Protection and Restoration Fund’
to be maintained by the State under the di-
rect control of the Chief Secretary of the
State of Meghalaya.
This amount shall only be used for restora-
tion of environment and for necessary reme-
dial and preventive measures in regard to
environment and matters related thereto”
163. As noticed above the NGT could have passed any
order or direction to secure ends of justice which
power especially conferred by Rule 24 as noticed
166
above, direction to constitute Fund is thus also
saved under such power.
Point No.11
164. In respect of constitution of committee by the
Tribunal there are two other limbs of submission;
that, (1) NGT by constituting committees has
delegated essential judicial power to the committee;
(2) the Constitution of committees encroaches the
constitutional scheme of administration of Tribal
areas under Article 244(2) read with Sixth Schedule
of the Constitution.
165. The Tribunal vide its various directions has
asked for reports from State officials and the
committees. The various instances where the NGT
directed for report or investigation and submission
of report by committees were with the object of
ensuring the implementation of the orders passed by
it and to decide the environmental issues raised
before it. In no manner constitution of committee can
be said to be delegation of essential judicial powers
of the NGT to the committee.
167
166. Now, we come to the Katakey committee which
was constituted by the Tribunal on 31.08.2018. In
paragraphs 14 and 15, the Tribunal while directing
for constitution of committee headed by Justice B.P.
Katakey directed:
“14. Only last question which remains is of
restoration of the environment and rehabil-
itation of the victims for which funds are
available. We are of the view that for this
task, it will appropriate that we consti-
tute an independent Committee. This Commit-
tee will be headed by Justice B.P. Katoki,
Former Judge of the Guwahati 8 Item Nos. 06
to 10 August 31, 2018 R High Court with
representatives from Central Pollution Con-
trol Board and Indian School of Mines,
Dhanbad.
15. The Committee will take the following
steps:
Take stock of all actions taken so far in
this regard.
Prepare time bound action plan to deal
with the issue and ensure its implementa-
tion.”
167. The Constitution of the committee and its
functions entrusted were with the object to implement
the orders passed by the Tribunal. The Tribunal has
already directed for preparing a scheme for the
restoration of the environment and ecology. The
environment and ecology restoration plan was
168
submitted before the Tribunal along with the
affidavit dated 03.10.2017 as has been noticed in the
order dated 02.01.2018 of the NGT. In the
constitution of Katakey committee, thus, it cannot be
said that essential judicial functions were delegated
to the committee by the Tribunal. For the restoration
of environment NGT vide its order dated 31.08.2018
has directed the committee to submit its action plan
and reports by e-mail. The Tribunal, thus, had kept
complete control on all steps which were required to
be taken by the committee and issued directions from
time to time. We, thus, do not accept the submission
of the appellant that the essential judicial powers
of the NGT had been delegated to the committee.
Looking to the enormous work of restoration of
environment which has to be supervised on the spot
the committee was constituted. We, however, observe
that the State is always at liberty to obtain
particular direction if aggrieved by any act of the
committee. The matter being pending before the
Tribunal of acts of the committee are under direct
control of the Tribunal and if the committee
169
oversteps in any direction the same can very well be
corrected by the Tribunal on the matter being brought
before it.
168. Now, we come to the second limb, that the
constitution of the committee encroaches the
constitutional scheme of the Tribal areas. We revert
back to the Sixth Schedule of the Constitution. Para
3 of the Sixth Schedule enumerates the powers of the
District Council and Regional Council to make laws.
The powers of the District and Regional Councils are
enumerated under paragraph 3. In the directions of
the Tribunal to constitute committee for
transportation of extracted minerals or for preparing
time bound action to deal with the restoration of
environment and to ensure its implementation, there
is no interference in the powers of the District or
Regional Councils. Action plan for restoration of
environment is consequence of Tribunal finding out
that an unregulated coal mining has damaged
environment and has caused the pollution including
water pollution. It is not case of the appellant that
District and Regional Councils have framed any law
170
for restoration of environment which is being
breached by the committee or its acts. The District
and Regional Councils are free to exercise all their
powers and the committee constituted by the Tribunal
is only concerned with the Environmental degradation
and illegal coal mining. The committees’ report or
direction of the Tribunal in no manner encroaches
upon the administration of Tribal areas by the
District and Regional Councils.
Point No.12
169. The NGT vide its order dated 04.01.2019 di-
rected the State of Meghalaya to deposit an amount of
Rs.100 Crores with the Central Pollution Control
Board, which was to be spent for restoration of envi-
ronment. The State of Meghalaya aggrieved by above
direction has filed Civil Appeal No.2968 of 2019. We
have already noticed the submission of Shri Amrendra
Sharan, Senior Advocate.
170. Shri Colin Gonsalves, learned Amicus Curiae
has refuted the submissions made by the learned coun-
sel for the appellant. It is submitted that despite
the specific ban on coal mining by order dated
171
17.04.2014 in the entire State, illegal coal mining
had been going on, which was proved from the reports
and pictures referred to in the report. The State is
responsible and constitutionally obligated to provide
clean environment to every citizen. They having en-
tirely failed to stop the illegal mining, which is
cause of degradation of pollution including pollution
of river streams, the Tribunal has rightly directed
the State of Meghalaya to deposit Rs.100 Crores.
Shri Gonsalves submits that in spite of State Pollu-
tion Control Board as well as Comptroller Auditor
General having invited the attention of the State of
Meghalaya towards serious pollution especially in the
river water, no steps were taken by the State of
Meghalaya. It is further submitted that restoration
of environment requires carrying out various projects
and unless the State provides for necessary fund and
finances, the restoration of damaged environment can-
not be undertaken. It is further submitted that
State had collected huge fund Rs.4,33,07,26,731/-,
which amount had not been spent by the State, al-
172
though, it was required to take steps for restoration
of environment.
171. The NGT vide its order dated 31.08.2018 con-
stituted a committee headed by Justice B.P. Katakey,
Former Judge of Gauhati High Court with representa-
tives from Central Pollution Control Board and Indian
School of Mines, Dhanbad . By subsequent order dated
19.09.2018 issued by the Tribunal, additional Chief
Secretary to Government of Meghalaya was made the
Member Secretary/Coordinator for proper functioning
of the committee. The committee visited different
sites, held various meetings, various presentations
were also made before the committee by Meghalaya
State Pollution Control Board and other bodies namely
North Eastern Centre for Technology Application and
Reach, North Eastern Space Application Centre. In
Para 12(g), following has been stated by the commit-
tee:-
“12(g) Presentation was also made by the
Meghalaya State Pollution Control Board on
the coal mine activities and its impact on
the land used, water quality, air quality,
ecology as well as socio-economic impact.
The Committee, on the basis of the said
173
presentation, found the following:-
(i) Continuation of coal mine activities
for a long time in an unplanned and
unscientific manner as well as with-
out any pollution control measures.
(ii) Such mining activities are generating
huge ecological disturbances and neg-
ative environmental impacts.
(iii) Water in rivers and streams in the
mining areas have become highly
acidic in nature with pH value of 2.7
since 1991-92 due to presence of high
percentage of sulphur in coal, which
reacts after mixing with oxygen in
air and water giving rise to AMD
problem. No difference of pH level of
water in rivers, streams and mine
drains have been noticed during mon-
soon.
(iv) pH level of water in springs, taps
water and hand pumps also found to be
less than permissible limit of drink-
ing water standards.
(v) Absence of biological life in the wa-
ter bodies.
(vi) Ambient air quality of the coal min-
ing areas and coal storage areas ex-
ceeds the National Ambient Air Qual-
ity Standards on few occasions.
(vii) Requirement of urgent steps to be
taken to generate social awareness
about the adverse environmental im-
pacts and the health hazards associ-
174
ated with unplanned and unscientific
coal mining activities.
172. Action plans for restoration of environment
were also discussed and finalised.
173. On detailed discussion on Issue No.(A), com-
mittee with details including photographs and maps
observed following:-
“(vi) From the aforesaid materials
available before the Committee, it is,
therefore, evident that the coal mining
activities, which includes the extraction
of coal and transportation, is going on in
the State of Meghalaya, at least in East
Jaintia Hills District, where such mining
activities are most, despite the ban
imposed by the Hon’ble NGT vide its order
dated 17.04.2014. Very sincere and honest
efforts are required on the part of the
State Government to stop the mining
activities, which are going on. Such mining
activities are going on without adopting
any safety measures for the workers and
without caring for adverse environmental
affect. A sincere desire to stop such
illegal mining activities is also necessary
on the part of the State and Central
Government agencies for implementation and
monitoring of health, safety and
environmental regulations.
(vii) The result of ongoing un-abetted
illegal mining, despite the ban imposed by
the NGT, is the very tragic incident
occurred very recently on 13.12.2018 in a
coal mine in Ksan Village near Lytein River
175
under Saipung Police Station in East
Jaintia Hills District, where 15(fifteen)
coal mine workers are reported trapped,
while they were working in the mine.
Unfortunately, none of them so far could be
rescued. For the said incident, Saipung
Police Station Case No.15(12)/2018 under
Section 188/304A/34 IPC read with Section
3(2)(d) of PDPP Act and Section 21(1) of
MM(R&D) Act against the coal mine owner has
been registered. A Magisterial enquiry to
find out the facts and circumstances
leading to the said incident, has also been
directed.”
174. The fact that on 13.12.2018, 15 coal mine
workers were trapped in an ongoing coal mining opera-
tion, who all have been reported to be dead itself
proves beyond any shade of doubt that order dated
17.04.2014 banning mining in the entire State of
Meghalaya was neither been enforced nor serious en-
deavours were taken by the State or its authorities
to save the environmental pollution. With regard to
restoration of the environment and restoration of the
victims, action plans were formulated by the commit-
tee.
175. The first submission raised by Shri Amrendra
Sharan challenging the order is violation of princi-
176
ples of natural justice. The report dated 31.12.2018
of the committee itself in issue No. f(iv) noticed: -
“Website has been opened and all the
proceedings of the Committee are uploaded
in the said website. ”
176. The report being placed on website on
31.12.2018 itself, there is no question of serving
copy of the report of the committee to the Stakehold-
ers. It is further relevant to notice that Addi-
tional Chief Secretary of the Government of Meghalaya
was himself the Member Secretary and Coordinator of
the committee under the orders of the Tribunal dated
19.09.2018. All proceedings of the committee, its
meetings and minutes, were with the knowledge and
participation of the coordinator/ Additional Chief
Secretary of the State of Meghalaya.
177. A perusal of the order dated 04.01.2019, which
is impugned in the appeal indicates that although
learned counsel for the State of Meghalaya was
present and was heard but no kind of objection was
raised regarding acceptability of the report. The
report obtained by the NGT through the committee was
177
to take effective steps towards protection of envi-
ronmental pollution and for restoration of damaged
environment. Pollution of the various rivers and
streams and steps for treating the acidic water was
urgently required. Several presentations before the
committee were also made and different steps regard-
ing restoration of environment were to be taken as
noticed and indicated in the report of the committee.
As noticed above, the NGT vide its order dated
25.03.2015 constituted a fund namely ‘Meghalaya Envi-
ronment Protection and Restoration Fund’ to be main-
tained by the State under the direct control of the
Chief Secretary of the State of Meghalaya. It is re-
iterated in the report of the committee that an
amount of Rs.433 Crores is already lying in the said
fund, which has not been spent.
178. Learned counsel for the appellant has laid
much emphasis that there had been no calculation of
the extent of damage nor Tribunal could have arrived
at on the amount of damages to the extent of Rs.100
Crores, which was directed to be deposited by the
178
State of Meghalaya with the Central Pollution Control
Board.
179. We are of the view that the amount, which has
been directed by NGT to be deposited by State of
Meghalaya is neither a penalty nor a fine imposed on
the State. The amount has been directed to be de-
posited for carrying out steps regarding restoration
of environment. We further agree with the submission
of the learned counsel for the appellant that the
said amount cannot be said to be amount of damages to
be paid by the State. We further find force in the
submission of the learned counsel for the appellant
that State of Meghalaya has very limited source of
revenue and putting an extra burden on the State of
Meghalaya to make payment of Rs.100 Crores from its
own financial resources and budgetary amount may
cause great hardship to the State of Meghalaya. Ends
of justice be served in modifying the direction of
NGT dated 04.01.2019 to the extent that State is per-
mitted to transfer an amount of Rs.100 Crores from
the amount lying in the MEPRF to the Central Pollu-
179
tion Control Board. The Central Pollution Control
Board as directed by the Tribunal (NGT) shall utilise
the aforesaid amount of Rs.100 Crores only for
restoration of the environment. The appeal is thus,
partly allowed to the above extent.
Point No.13
180. Vide order dated 31.03.2016, the NGT had
permitted transportation of coal till 15.5.2016 under
terms and conditions as enumerated therein. The order
dated 31.3.2016 further contemplated that no coal in
any form whatsoever shall be permitted to be
transported after 15.05.2016 on which date the entire
remaining coal shall vest in the State Government and
shall be disposed of in accordance with law.
181. The main grievance of the appellant is that
NGT could not have directed for vesting of coal in
the State. The submission is that members of the
appellant-association have proprietary rights in the
coal with which they could not be divested by the
Tribunal. We have already held that private owners of
180
the land are also owners of the minerals and the
minerals belong to the owners/Tribals. We have also
found that coal mining was illegally going on
unregulated by any statutory law in the Hills
District of State of Meghalaya without there being
any mining lease. The entire mining was, thus, is
clear in contravention of Section 4(1) of Act, 1957
which attracted penalties under Section 21. Section
21 of the Act is as follows:
“ 21. Penalties. ―(1) Whoever contravenes the
provisions of sub-section (1) or sub-sec-
tion (1A) of section 4 shall be punishable
with imprisonment for a term which may ex-
tend to five years and with fine which may
extend to five lakh rupees per hectare of
the area.
(2) Any rule made under any provision of
this Act may provide that any contravention
thereof shall be punishable with imprison-
ment for a term which may extend to two
years or with fine which may extend to five
lakh rupees, or with both, and in the case
of a continuing contravention, with addi-
tional fine which may extend to fifty thou-
sand rupees for every day during which such
contravention continues after conviction
for the first such contravention.
(3) Where any person trespasses into any
land in contravention of the provisions of
sub-section (1) of section 4, such tres-
passer may be served with an order of evic-
tion by the State Government or any author-
ity authorised in this behalf by that Gov-
181
ernment and the State Government or such
authorised authority may, if necessary, ob-
tain the help of the police to evict the
trespasser from the land.
(4) Whenever any person raises, transports
or causes to be raised or transported,
without any lawful authority, any mineral
from any land, and, for that purpose, uses
any tool, equipment, vehicle or any other
thing, such mineral tool, equipment, vehi-
cle or any other thing shall be liable to
be seized by an officer or authority spe-
cially empowered in this behalf. (4A) Any
mineral, tool, equipment, vehicle or any
other thing seized under sub-section (4),
shall be liable to be confiscated by an or-
der of the court competent to take cog-
nizance of the offence under sub-section
(1) and shall be disposed of in accordance
with the directions of such court.
(5) Whenever any person raises, without any
lawful authority, any mineral from any
land, the State Government may recover from
such person the mineral so raised, or,
where such mineral has already been dis-
posed of, the price thereof, and may also
recover from such person, rent, royalty or
tax, as the case may be, for the period
during which the land was occupied by such
person without any lawful authority.
(6) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of
1974), an offence under sub-section (1)
shall be cognizable.”
182. The mining of coal in contravention of Section
4(1) invites penalties as enumerated in Section 21.
The present is not a case where any kind of penalty
182
has been imposed on the miners except that the amount
of royalty as payable on mining of coal is being
collected by the State as penalty. It is true that
the State Government has power under Section 21(5) to
recover from such person the minerals so raised, or,
where such material has already been disposed of, the
price thereof, and may also recover from such person,
rent, royalty or tax, as the case may be, but it is
for the State Government to exercise its power under
Section 21(5) by way of penalty. The NGT has not
given any reason as to how coal shall automatically
vest in the State. The right of recovery of mineral
as contemplated under Section 21(5) does not amount
to say that proprietary right of owner of the
minerals is lost rather State under Section 21(5)
exercises its power to recover the mineral which has
been raised without any lawful authority. We, thus,
are of the view that coal extracted and lying in open
after 15.05.2016 was not automatically vested in the
State and the owner of the coal or the person who has
mined the coal shall have the proprietary right in
the mineral which shall not be lost.
183
Point No.14
183. Several I.A.s have been filed by different ap-
plicants seeking direction to transport already ex-
tracted coal lying at different places in hills dis-
tricts of State of Meghalaya. Different applicants
may claim to different quantities of coal situate at
different places. By our order dated 10.05.2019, we
have already permitted transportation of balance coal
to the extent of 75050 MTs for which challans were
already issued after the order of this Court dated
04.12.2018. The above quantity of said 75050 MTs.
was balance quantity out of 176655 Mts., for trans-
portation of which order was passed by this Court on
04.12.2018. In addition to the aforesaid quantity,
claim with regard to different quantities by differ-
ent applicants has been laid. It is not necessary
for the purpose of the present case to notice differ-
ent quantities and claims of different persons for
transportation. After the order of the NGT dated
31.08.2018, the State of Meghalaya has constituted
committees to assist the Commissioner and Secretary,
Mining and Geology to prepare a separate inventory
184
with regard to coal not so far recorded in the inven-
tory available with the NGT. In pursuance of said
direction, as contained in paragraph No.13 of the or-
der, steps were taken and various committees had made
certain assessments with regard to different quanti-
ties of coal lying in four Hills Districts of State
of Meghalaya. Katakey committee Report dated
31.12.2018 has in chart noticed the different quanti-
ties as was informed by letter dated 13.11.2018 to
Commissioner and Secretary to the Government of
Meghalaya. While dealing with issue No.3, in para-
graph Nos.(iii), (iv) and (v), following has been
stated:-
“(iii) The Commissioner & Secretary to the
Government of Meghalaya, Mining & Geology
Department, in the ATR submitted on
13.11.2018 has stated about the
availability of 176655 MTs of already
inventorised coal for transportation, which
has also been reflected in the order dated
04.12.2018 passed by the Hon’ble Supreme
Court. The Commissioner & Secretary, in the
said ATR, has also stated that 23,25,663.54
MTs of coal, other than those inventorized
coal, remained un-inventorized and
available for transportation, district-wise
break up of which is as follows:-
“REPORT ON EXTRACTED COAL REFLECTED AS
UN-ASSESSED OR NIL IN THE INVENTORY
APPROVED BY NGT
185
| Sl.<br>No. | Name of<br>District | Declared<br>Quantity in<br>MT | Assessed<br>Quantity in<br>MT |
|---|
| 1. | East Jaintia<br>Hills District | 15,46,687.00 | 13,22,379.00 |
| 2. | West Khasi<br>Hills District | 7,29,757.00 | 7,78,297.99 |
| 3. | South-West<br>Khasi Hills<br>District | 1,25,600.63 | 2,14,145.55 |
| 4. | South Garo<br>Hills District | 12,834.00 | 10,841.00 |
| Total | 24,14,878.63 | 23,25,663.54” |
(iv) From the aforesaid District wise break
up of extracted coal, which was un-
inventorised, it appears that the quantity
of such coal was highest in East Jaintia
Hills District, where the Deputy
Commissioner, as noticed above, has
admitted ongoing coal mining activities
despite the ban imposed by the Hon’ble NGT
vide order dated 17.04.2014. The stand of
the Government that the quantity of coal,
as reflected in the aforesaid chart were
mined prior to the said ban, appears to be
not acceptable, in view of the aforesaid
admission of the Deputy Commissioner and
also what the Committee has noticed during
its field visit on 12.11.2018. It seems
that there is an attempt to show the
freshly mined coal, i.e. the coal mined
after the ban imposed by the Hon’ble NGT,
as the coal left out from the assessment
and remained un-inventorised though mined
prior to the said ban. The Committee also
apprehends that such freshly mined coal may
be transported taking advantage of the
order dated 04.12.2018 passed by the
Hon’ble Supreme Court.
(v) The Hon’ble NGT vide its order dated
31.08.2018 given the responsibility of
186
going through the said issue to the
Secretary of Mining, State of Meghalaya in
the first instance and to be cross-checked
by the Joint Team of representatives of the
Central Pollution Control Board and India
School of Mines, Dhanbad. As reported, no
such cross-check has so far been made.”
184. The State of Meghalaya has filed additional
affidavit dated 06.04.2019 of Commissioner and Secre-
tary to the Government of Meghalaya, Mining and Geol-
ogy Department, where details of assessments made by
committees appointed by the State of Meghalaya has
been brought on the record. In the affidavit, it has
also been stated that a technical committee was also
constituted to perform the verification of the as-
sessments made by the Deputy Commissioners of respec-
tive districts. As per the affidavit, assessment of
extracted coal stocks in above four districts is
32,56,715 MTs whereas in the report submitted by
Katakey committee, the said figure in the above four
districts is 23,25,663.54 MTs. Technical committee
submitted their report, which have been brought on
the record alongwith the Additional Affidavit verify-
ing the assessed quantities. In the affidavit of the
187
Commissioner and Secretary, it has also been sated
that the technical committees have submitted that it
is difficult to define with certainty that which coal
was mined prior to ban in 2014 and mined after 2014.
From the above it is clear that the State Government
itself has come with a case that huge quantity of
coal in the four hills districts, which has been ex-
tracted is lying waiting for orders of transporta-
tion. Learned Amicus Curiae and Shri Nidhesh Gupta,
learned senior counsel have refuted the claim made by
the applicants as well as the State of Meghalaya. It
is submitted by learned Amicus Curiae that in fact
State is not making any effort to stop the illegal
mining, in spite of the ban of 17.04.2014, illegal
mining of coal has been permitted and now such ille-
gal mined coal has also been assessed and State also
supports the claim of transportation of the appli-
cants on the guise that coal lying in open is an en-
vironmental hazard.
185. Shri Nidhesh Gupta, learned senior counsel ap-
pearing for private respondents in C.A. No.5272 of
188
2016 has submitted that the State auctioned coal on a
meagre price, whereas market rate of the coal is ap-
proximately Rs.10,000/- per MT. In the present case,
we have noticed that illegal coal mining is going on
in spite of ban by NGT by its order dated 17.04.2014.
The Katakey committee report has also opined that all
the extracted coal lying in different districts is a
coal, which has been illegally mined after the impo-
sition of ban by the order dated 17.04.2014. All
coals being illegally mined, the State is fully enti-
tled to impose a penalty, i.e., to realise the roy-
alty and the amount of MEPR Fund. The coal being ma-
jor mineral and useful for different industries and
projects, appropriate disposal of extracted coal is
also of a paramount importance.
186. We accept the suggestion of learned Amicus Cu-
riae that entire extracted coal lying at various
places be directed to be taken over by Coal India
Ltd, a Government of India unit, who may dispose of
the same as per its normal method of disposal and
proceeds be distributed as per directions issued by
189
this Court hereinafter. The NGT has already directed
that for all extracted coal lying at different
places, it is the State, which is the receiver-cum-
custodian of the coal. The State having carried out
the assessment of the coal lying in the aforesaid
four districts including the details of the quanti-
ties and the details of owners being available with
it, it may ensure that the entire coal are handed
over to the Coal India Ltd., as per the mode and man-
ner to be formulated by Katakey Committee, in consul-
tation with officers of the Coal India Ltd. and State
of Meghalaya.
187. The Katakey committee and its various members
and participants have done a commendable job in
studying and examining various aspects of environment
in the State of Meghalaya and several valuable sug-
gestions have been given by the committee, which are
also being implemented to mitigate the suffering of
the citizens consequent to the illegal coal mined.
188. We direct that Commissioner and Secretary of
the State in the Department of Mining and Geology
190
alongwith the officers of Coal India Ltd. may delib-
erate with the Katakey committee to finalise a com-
prehensive plan for transportation and handing over
of the coal to Coal India Ltd. for disposal/auction
as per rules of Coal India Ltd. Disposal/auction by
Coal India Ltd. shall be beneficial to both the own-
ers of the mines as well as to the State of Megha-
laya. Receiving fair value of the coal should be a
concern of both the owners and State. It is for the
Coal India Ltd. to decide as to venue, where they
shall receive the coal, i.e., either at any of its
depot or any other place in State of Meghalaya and it
is for the Coal India Ltd. to finalise the process of
disposal and auction of the coal. It goes without
saying that it shall be the duty of the State of
Meghalaya and its officers especially Deputy Commis-
sioner of the area concerned to enter details of
quantity of the coal, name of the owner and place
from where it is collected. Coal India Ltd. shall
also take steps to ensure weighment of the coal when
it is received by it and since all consequent steps
regarding disposal, price grade of the coal shall be
191
determined as per the weight of the coal received by
the Coal India Ltd. from different places. The ex-
penses of transportation shall be borne by the State
of Meghalaya, Coal India Ltd. or by both, which ex-
penses shall be deductible from the price received of
the coal. The State of Meghalaya shall be entitled
to royalty and payment towards MERP Fund as well as
taxes out of the price of the coal. After deduction
of cost of transportation, the payment of royalty and
payment to MERP fund and taxes plus 10% of value of
the coal to be given to Coal India Ltd. for the above
exercise, balance amount shall be disbursed to the
owner of the coal towards its price, which disburse-
ment shall be the responsibility of the State. The
Coal India Ltd. after taking its expenses for trans-
portation with 10% of price of the coal shall remit
the entire amount to the State and it is for the
State after deducting the royalty and payment to the
MERP Fund and taxes to pay back the balance of the
amount to the owner.
189. Another aspect of the matter is also to be no-
ticed. The coal, which has been seized by the State
192
in illegal transportation or illegal mining for which
different cases have been registered by the State, is
not to be dealt with as directed above. The said
seized coal shall be dealt by the State in accordance
with Section 21 of the Act, 1957 and on being satis-
fied, the State can take a decision to recover the
entire quantity of coal so illegally raised without
lawful authority and the said cases has to be sepa-
rately dealt with in accordance with law.
190. We, thus, are of the view that all I.A.s filed
by different applicants seeking order of transporta-
tion of the different quantities stand disposed of in
view of the directions as given above. Let the
Katakey committee in consultation with State of
Meghalaya and officers of Coal India Ltd. finalise
appropriate mode and manner to affect the transport
and disposal of the coal in the above manner.
Conclusions: -
193
191. From the foregoing discussions we arrived at
following conclusions:-
1) The application O.A.No.73 of 2014 has clearly
made out allegations which were sufficient for
the Tribunal to exercise its jurisdiction as
conferred by Section 14 of the National Green
Tribunal Act, 2010. Both the component as ap-
pearing in sub-section 1 of Section 14 that is
(i) substantial question relating to environ-
ment and (ii) such question arises out of the
implementation of the enactments specified in
Schedule I, were present.
2) The allegations of the applicant of O.A.No.73
of 2014 of environmental degradation by ille-
gal and unregulated coal mining were fully
proved from materials on the record including
the report of the experts, report of the
Meghalaya State Pollution Control Board, the
report of Katakey committee, which all proved
environmental degradation of water, air and
surface.
194
3) The stand taken on behalf of the State of
Meghalaya before this Court that the Tribunal
has no jurisdiction cannot be approved. The
State Government is under constitutional obli-
gation to ensure clean environment to all its
citizens. In cases pertaining to environmental
matter, the State has to act as facilitator
and not as obstructionist.
4) According to the land tenure system as appli-
cable in the Hills Districts of State of
Meghalaya, the most of the lands are either
privately or community owned in which State
does not claim any right. The private owners
of the land as well as community owners have
both the surface right as well as sub-soil
rights.
5) Para 12A sub-clause (b) of Sixth Schedule of
the Constitution empowers that the President
may, with respect to any Act of Parliament, by
notification, direct that it shall not apply
to an autonomous district or an autonomous re-
195
gion in the State of Meghalaya, or shall apply
to such district or region or any part thereof
subject to such exceptions or modifications as
he may specify in the notification. No notifi-
cation has been issued by the President under
Section 12A(b). There is nothing in Sixth
Schedule of the Constitution which may indi-
cate about the inapplicability of Act, 1957
with regard to the Hills Districts of State of
Meghalaya.
6) There is nothing in Section 4(1) of 1957 Act
to indicate that restriction contained in Sec-
tion 4(1) does not apply with regard to pri-
vately owned/community owned land in Hills
Districts of Meghalaya. Further, word ‘any
area’ under Section 4(1) also has significance
which does not have any exception. Further
phrase “except under and in accordance with
terms and condition with a mining lease
granted under the Act” are also significant
196
which make the intent and purpose of prohibi-
tion clear and loud.
7) The statutory scheme delineated by Section
13(2)(f) and the Minerals (Concession) Rules,
1960 clearly contemplate grant of mining
lease, with regard to both the categories of
land, i.e., land in which minerals vest in the
Government, and the land in which minerals
vest in a person other than the Government.
8) The Mines Act, 1952 contains various provi-
sions regarding inspection of mining operation
and management of mines. The provisions of The
Mines Act, 1952 are mandatory to be followed
before working a mine. The regulations namely
Coal Mines Regulations, 2017 also contains
several regulatory provisions which need to be
followed while working a mine by a mining
lease holder. The enforcement of Mines Act,
1952 and the Regulations, 2017 have to be en-
sured by the State in the public interest.
197
9) As per statutory regime brought in force by
notification dated 15.01.2016 issued under En-
vironment (Protection) Act, 1986, environmen-
tal clearance is required for a project of
coal for mining of any extent of area. While
implementing statutory regime for carrying
mining operations in the Hills Districts of
the State of Meghalaya, the State of Meghalaya
has to ensure compliance of not only MMDR Act,
1957 but Mines Act, 1952 as well as Environ-
ment (Protection)Act, 1986.
10) In Hill District of State of Meghalaya for
carrying coal mining operations in privately
owned/community owned land it is not the State
Government which shall grant the mining lease
under Chapter V of Rules, 1960, but it is the
private owner/community owner of the land, who
is also the owner of the mineral, who shall
grant lease for mining of coal as per provi-
sions of Chapter V of Rules, 1960 after ob-
198
taining previous approval of the Central Gov-
ernment through the State Government.
11) The State of Meghalaya has ample power and ju-
risdiction under the Act, 1957 and Rules, 1960
to check, control and prohibit coal mining op-
erations in Hill Districts of State of Megha-
laya.
12) The Union having made declaration by Section 2
of 1957 Act taking under its control regula-
tion and development of mineral, the power of
Autonomous District Council to legislate on
the subject shall also be denuded as that of
the State Legislature.
13) In event the mining is carried out by a mining
lease holder as per the provisions of Act,
1957 and Rules, 1960 with an approved mining
plan there can be no objections in carrying of
such mining operations under the regulation
and control of the State of Meghalaya. We
clarify that in event mining operations are
199
undertaken in privately owned/community owned
land in Hills Districts of Meghalaya in accor-
dance with mining lease with approved mining
plan as per Act, 1957 and Mineral Concessions
Rule, 1960, the ban order dated 17.04.2014 of
the tribunal of the NGT shall not come in way
of carrying mining operations.
14) Under Order 26 Rule 10A of the Civil Procedure
Code, a Court can appoint commission for sci-
entific investigation. The power which can be
exercised by a Court under Order 26 Rule 10A
of CPC can very well be exercised by the NGT
also. The NGT while asking expert to give a
report is not confined to the four corners of
Rule 10A and its jurisdiction is not shackled
by strict terms of Order 21 Rule 10A by virtue
of 19(1) of the NGT Act.
15) Rule 24 of National Green Tribunal (Practice
and Procedure) Rules, 2011 empowers the Tri-
bunal to make such orders or give such direc-
tions as may be necessary or expedient to give
200
effect to its order or to secure the ends of
justice. The power given to the Tribunal is
coupled with duty to exercise such powers for
achieving the objects. There is no lack of ju-
risdiction in NGT in directing for appointment
of a committee and to obtain a report from a
Committee.
16) The direction to constitute a fund namely
“Meghalaya Environment Protection and Restora-
tion Fund”, is also saved under the above
power.
17) NGT by directing for constitution of committee
has not delegated essential judicial func-
tions. The Tribunal had kept complete control
on all steps which were required to be taken
by the committees and has issued directions
from time to time. The State is always at lib-
erty to obtain appropriate directions if ag-
grieved by any act of the committee. The mat-
ter being pending before the Tribunal all acts
of the committee are under direct control of
201
the Tribunal and if the committee oversteps in
any direction the same can very well be cor-
rected by the Tribunal on the matter being
brought before it.
18) NGT by issuing direction to constitute the
committee for transportation of the extracting
mineral, for preparing time bound action plan
to deal with the restoration of environment
and to ensure its implementation does not in
any manner interfere with the powers of the
District or Regional Councils. The District
and Regional Councils are free to exercise all
their powers and committee constituted by the
Tribunal is only concerned with the Environ-
mental degradation and illegal coal mining.
The committees report or direction of the Tri-
bunal in no manner encroaches upon the admin-
istration of Tribal areas by the District and
Regional Councils.
19) The amount which has been directed by NGT to
be deposited by State of Meghalaya is neither
202
a penalty nor a fine imposed on the State of
Meghalaya. We accept the submissions of the
learned counsel for the appellant that State
of Meghalaya has very limited source of fi-
nances and putting an extra burden on the
State of Meghalaya to make payment of Rs. 100
Crores from its own financial resources may
cause great hardship to the State of Megha-
laya. Ends of justice be served in modifying
the direction of NGT dated 04.01.2019 to the
extent that State is permitted to transfer an
amount of Rs. 100 Crores from the amount lying
in the MEPRF to the Central Pollution Control
Board. The Central Pollution Control Board as
directed by the Tribunal shall utilize the
aforesaid amount of Rs.100 Crores only for
restoration of the environment in the State of
Meghalaya.
20) The coal extracted and lying in open after
15.05.2016 does not automatically vest in the
State of Meghalaya and the owner of the coal
203
or the person who has mined the coal shall
have the proprietary right in the mineral
which shall not be lost.
21) The suggestion of learned Amicus Curiae that
entire extracted coal lying at various places
in hills districts of Meghalaya be directed to
be taken over by Coal India Ltd. is accepted.
The Coal India Ltd. may dispose of the same as
per its normal method of disposal and proceeds
be dealt with as per directions issued.
22) The State having carried out the assessment of
the coal lying in the aforesaid four districts
including the details of the quantities and
the details of owners being available with it,
it may ensure that entire coal is handed over
to the Coal India Ltd., as per the mode and
manner to be formulated by Katakey Committee
in consultation with officers of the Coal In-
dia Ltd. and the State of Meghalaya.
204
23) It is for Coal India Ltd. to decide as to
venue, where they shall receive the coal,
i.e., either at any of its depot or any other
place in the State of Meghalaya and it is for
the Coal India Ltd. to finalise the process of
disposal and auction of the coal. It shall be
the duty of the State of Meghalaya and its of-
ficers especially Deputy Commissioner of the
area concerned to enter details of quantity of
the coal, name of the owner and place from
where it is collected. All concerned shall
take steps to ensure weighment of the coal
when it is received by Coal India Ltd.
24) The expenses of transportation shall be borne
by the State of Meghalaya, Coal India Ltd. or
by both, which expenses shall be deductible
from the price received of the coal. The State
of Meghalaya shall be entitled to royalty and
payment towards MERP Fund as well as taxes out
of the price of the coal. After deducting its
expenses for transportation with 10% of price
205
of the coal, the Coal India Ltd. shall remit
the balance amount to the State and it is for
the State after deducting the royalty and pay-
ment to the MERP Fund and taxes to pay back
balance the amount to the owner.
25) The coal which has been seized by the State in
illegal transportation and illegal mining for
which different cases have been registered by
the State, is not to be dealt with as directed
above. The seized coal shall be dealt by the
State in accordance with Section 21 of the
Act, 1957 and on being satisfied, the State
can take a decision to recover the entire
quantity of coal so illegally raised without
lawful authority.
192. In view of the foregoing discussions and con-
clusions, all these appeals are decided in the fol-
lowing manner: -
1) Civil Appeal No. 10720 of 2018, Civil Appeal
No. 10611 of 2018, Civil Appeal No. 10907 of
206
2018 and Civil Appeal No………………of 2019 (arising
out of Civil Appeal Diary No. 3067 of 2018)
are dismissed subject to declaration and
clarification of law as made above.
2) Civil Appeal No. 5272 of 2016 is allowed
setting aside the order of NGT dated
31.03.2016 to the extent it declared that all
extracted coal after 15.05.2016 shall vest in
the State of Meghalaya.
3) Civil Appeal No. 2968 of 2019 is partly
allowed permitting the State of Meghalaya to
transfer the amount of Rs.100 Crores to
Central Pollution Control Board from the
Meghalaya Environment Protection and
Restoration Fund which amount shall be used by
Central Pollution Control Board only for
restoration of Environment.
4) All I.As. seeking direction for transportation
of coal are disposed of directing: -
i) All extracted coal as assessed by State of
Meghalaya lying in different districts of
207
State of Meghalaya which as per order of
NGT is in custody of State of Meghalaya
shall be handed over to Coal India Ltd.
for proper disposal.
ii) The Katakey Committee after discussion
with Coal India Ltd. and State of
Meghalaya shall formulate a mechanism for
transport, weighment of all assessed coal.
iii) The Coal India Ltd. shall auction the coal
so received by it as per its best judgment
and remit the proceed to State to the
extent as directed above.
iv) All coal seized by the State for which
cases have already been registered shall
be dealt by the State in accordance with
Section 21 of 1957 Act.
193. Before we close, we record our appreciation
for valuable assistance rendered by learned counsel
for the parties which enable us to decide several im-
portant issues in these appeals. We also record our
208
appreciation for assistance rendered by learned Ami-
cus Curiae Shri Colin Gonsalves, Senior Advocate.
......................J.
( ASHOK BHUSHAN )
......................J.
( K.M. JOSEPH )
New Delhi,
July 03,2019
