TMI Blog2019 (7) TMI 1957X X X X Extracts X X X X X X X X Extracts X X X X ..... dule of the Constitution? - HELD THAT:- 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 - 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. 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 - there is nothing in Sixth Schedule of the Constitution which in any manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity owner, who is entitled to grant a lease for mining minerals owned by them. Whether the State of Meghalaya has any statutory control over the mining of coal from privately owned/community owned land in hills districts of State of Meghalaya? - HELD THAT:- The State is 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 mining lease for winning the minerals - 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per 1957 Act and 1960 Rules. 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? - Whether the NGT committed error in directing for constitution of fund, namely, Meghalaya Environment Protection and Restoration Fund? - HELD THAT:- NGT could have passed any order or direction to secure ends of justice which power especially conferred by Rule 24, direction to constitute Fund is thus also saved under such power. 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? - HELD THAT:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower 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 - 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. 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? - HELD THAT:- 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 deduction of cost of transportation, the payment of royalty and payment to MERP fund and taxes plus 10% of value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Co., Vandana Sehgal, Japneet Kaur, Vriti Gujral, Pallavi Singh, Dileep Tandon, Neha Tandon, R.B. Phookan, Shailesh Madiyal, Subhro Sanyal, Soumya Roop Sanyal, Somesh Chandra Jha, Sameer Kumar, Heena Rohra, Nirnay Gupta and Kawaljit Singh Bhatia, Advs. JUDGMENT Ashok Bhushan, J. 1. 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 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 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvironment. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eatening 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 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 directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring 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 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 Produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h technical experts as may be necessary and may also carry out visits to 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erous 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 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 App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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: INTRODUCTION 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral learned counsels who have filed IA for impleadment and IAs for direction including direction to transport coal belonging to them. We have heard Shri Siddharth 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 after 04.12.2018 under the terms and conditions as indicated in the order dated 10.05.2019. In the order dated 10.05.2019, we had also held that applicants 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 applications, different quantities are claimed to be transported which according to the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Amicus Curiae has challenged the assessment made by the committees appointed by the State Government as well as verification 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 extensions were granted by NGT and four extensions were granted by this Court. Shri Gonsalves referred to Katakey committee report in support of his submissions. 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 technical committee. Shri Gupta submits that the coal which is now claimed to be assessed is nothing but illegally extracted coal. It is submitted that in pursuance of several orders passed by NGT and this Court substantial transportation of coal has been permitted, 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 Meghalay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I. 1. Ins. by Act 7 of 2017, Section 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 dispute under this Section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose: Provided that the Tribunal may, if it is satisfied that the Applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days. 15. Relief, compensation and restitution.-- (1) The Tribunal may, by an order, provide,-- (a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance); (b) for restitution of property damaged; (c) for restitution of the environmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 District (formerly known as North Cachar Hills District) of Assam, the catchment 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 major 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 different 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 result, the water of the reservoirs has become highly acidic. The water pollution in streams of catchment area varies from brownish to reddish orange. The same polluted wate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 P-4 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of certain taxonomic representatives of pollution tolerant organisms. 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 fish by causing various physiological disturbances. However, the primary cause of fish death in acid waters is loss of sodium ions from the blood. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Gupta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. 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 (DO) 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. 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Brownish 4.01 82.87 18 8. Umkyrpon, Khliehriat Light Orange 3.67 161.3 37 9. Waikhyrwi, Sutnga 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 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 AM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 degradati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny authority to check the adverse 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the land. It is further the case of the Appellant that in Hills Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 importin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Regional Councils to make laws.--(1) The Regional Council for an autonomous region in respect of all areas within such region and the District Council for an autonomous district in respect of all areas within the 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 agriculture or grazing or for residential or other non-agricultural purposes or for any other purpose likely to promote the interests of the inhabitants of any village or town: Provided that nothing in such laws shall prevent the compulsory acquisition of any land, whether occupied or unoccupied, for public purposes [by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Schedule, 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 extent 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 subject 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 Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department, Government of Meghalaya (GOM) are limited to collection of royalty on the minerals 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the environment, at the same time. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 Regulation of mines and the development of minerals to the extent hereinafter provided. 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of Clause (45) of Section 2 of the Companies Act, 2013 (18 of 2013), and any such entity that may be notified for this purpose by the Central Government]: Provided also that nothing in this Sub-section shall apply to any mining lease (whether called mining lease mining concession or by any other name) in force immediately 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gazette, make Rules for regulating the grant of reconnaissance permits, prospecting licences and mining leases in respect of minerals and for purposes connected 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 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 [a reconnaissance 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 [a permit, licence or lease may be granted or renewed; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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-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 v. Bengal Coal Co., LR (1930) 58 IA 29, in State of Karnataka and others v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake 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 aspects, they are (i) the Mines Act, 1952 and the Regulations framed thereunder; (2) Environmental Protection Act, 1986 and the notification issued there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect: New Delhi, the 18th 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irement 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) (3) (3) (4) (5) 1(a) (i) Mining of minerals 50 ha of mining lease areas in respect of non-coal mine lease 150 ha of mining lease area in respect of coal mine lease Asbestos mining irrespective of mining area 50 ha of mining lease area in respect of noncoal mine lease 150 ha of mining lease area in respect of coal lease General Conditions shall apply except: (i) for project or activity of mining of minor minerals of Category B2 (up to 25 ha of mining lease area); (ii) River bed mining projects on account of interstate boundary. 120. If the project was under Category &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rals 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 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 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 Government to be obtained through State Government: Where in any case previous approval of the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rals 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edule 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 Government. 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, restriction 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 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 provisions of this chapter, the State Government may, after giving the parties an opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erals 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 Districts are concerned by the Jaintia Hills Autonomous 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 commodities or business or import, export and transport of goods/commodities or entry of goods into market for sale or trade and business such as construction works or other work rendered by the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Council does not have any power to make any law with regard to grant of mining lease. The mining leases for winning the major minerals has to be granted in accordance with 1957 Act and Mineral Concession Rules, 1960. POINT NOS. 7 8 145. This Court in State of Tamil Nadu v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrol Board in the year 1997 has submitted the report about the environmental pollution consequent to illegal mining. 148. Learned Amicus Curiae has invited our attention to report of Comptroller and Auditor General for the year ending 31st March, 2013, where the Comptroller and Auditor General has noticed that due to Acid Mine Drainage several locations of Lukha River were severally polluted. The report also referred to investigation by the Meghalaya State Pollution Control Board in November 2011 and noticed that no effective 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: Table 152 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equently the NGT permitted transportation of coal till 15.05.2016 and directed 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 committees 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 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 deserves 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 statutory regime under 1957 Act and 1960 Rules but in event the mining is carried out by tribals or their assignee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) summoning and enforcing the attendance of any person and examining him on oath; (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 purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quire into such question and report thereon 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 as 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 make Rule for carrying out the provisions of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter being pending before the Tribunal of acts of the committee are under direct control of the Tribunal and if the committee 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 committee: 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 presentation, found the following: (i) Continuation of coal mine activities for a long time in an unplanned and unscientific manner as well as without any pollution control measures. (ii) Such mining activities are generating huge ecological disturbances and negative environmental impacts. (iii) Water in rivers and streams in the mining areas have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Case No. 15(12)/2018 Under Section 188/304A/34 Indian Penal Code 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 operation, 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 endeavours 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 committee. 175. The first submission raised by Shri Amrendra Sharan challenging the order is violation of principles 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, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel 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 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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 disposed 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 Sl. No. Name of District Declared Quantity in MT Assessed Quantity in MT 1. East Jaintia Hills District 15,46,687.00 13,22,379.00 2. West Khasi Hills District 7,29,757.00 7,78,297.99 3. South-West Khasi Hills District 1,25,600.63 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al committee submitted their report, which have been brought on the record alongwith the Additional Affidavit verifying the assessed quantities. In the affidavit of the 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 extracted is lying waiting for orders of transportation. 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 illegal mined coal has also been assessed and State also supports the claim of transportation of the applicants on the guise that coal lying in open is an environmental hazard. 185. Shri Nidhesh Gupta, learned senior Counsel appearing for private Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Ltd. shall be beneficial to both the owners of the mines as well as to the State of Meghalaya. 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 Commissioner 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 determined as per the weight of the coal received by the Coal India Ltd. from different places. 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 toward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Meghalaya State Pollution Control Board, the report of Katakey committee, which all proved environmental degradation of water, air and surface. 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 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. 4) According to the land tenure system 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. 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 region 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lease for mining of coal as per provisions of Chapter V of Rules, 1960 after obtaining previous approval of the Central Government through the State Government. 11) The State of Meghalaya has ample power and jurisdiction under the Act, 1957 and Rules, 1960 to check, control and prohibit coal mining operations in Hill Districts of State of Meghalaya. 12) The Union having made declaration by Section 2 of 1957 Act taking under its control Regulation 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 undertaken in privately owned/community owned land in Hills Districts of Meghalaya in accordance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n directed by NGT to be deposited by State of Meghalaya is neither 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 finances 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 Meghalaya. 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 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 distr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018, Civil Appeal No. 10907 of 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 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 assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
