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2019 (7) TMI 1957
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...., V. Senthil Kumar, Satish Kumar, Theerthe Gowda N.M., G. Sughumaran, Arunima Dwivedi, Pranay Ranjan, Suhasini Sen, Gurmeet Singh Makker, Tayenjam Momo Singh, T. Archana, Ranjan Mukherjee, S. Bhowmick, K.V. Kharlyngdoh, Deniel Stone Lyngdoh, Upendra Mishra, Gajendra Pal Singh, Olivia Bang, Satya Mitra, Arvind Kumar Sharma, Ahanthem Henry, A. Rohen Singh, Vivek Kumar, Phillembn N., Kumar Mihir, Aruna Mathur, Anuradha Arputham, Avneesh Arputham, Geetanjali, Advs., Arputham Aruna and 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 ....
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....ought 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 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. ....
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....ew committee was constituted. The Tribunal from time to time issued various directions. We need to notice 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 that the State Government has ....
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....ng 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 Ch....
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....mitted 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 31.05.20....
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....ce 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 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 perio....
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....mittee'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 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....
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....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 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 Miscellaneou....
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....inal 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 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 Meg....
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....rovisions 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 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 iss....
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....d 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 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 0....
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.... the Appellant for clarification was rejected by the NGT without giving any reason. The 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 beyond its power Under Section 15 of NGT Act, 2010. The findin....
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....mitted 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. 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 end....
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.... 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 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 ma....
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.... as well as loss to other stakeholders. The allegations 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 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 ap....
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....itted by learned Counsel for the State of Meghalaya that above assessment of coal has been also verified by technical committees appointed 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 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 p....
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....ty 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 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. ....
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....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 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 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....
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....r 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 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, Shil....
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....storage type hydro electric plant consisting of two dams which have created 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 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 t....
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....cle 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 & 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 o....
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....cted 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. 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 w....
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....e 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 overburde....
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....ntration 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 (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 m....
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....wer pH values, higher sulphate 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 repr....
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....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 subsection 1 of Section 14 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 represe....
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.... 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 resources can be brought back to productive uses. (f) To look for the alternative transport facilities to control vehicular pollution. (g) To ide....
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....ent 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 environment and safeguarding of forests and wild life The State shall endeavour to protect 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 v. 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 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 of Uttarakhand. On a reading of the judgment and order passed by....
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....text 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 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 b....
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....r 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 v. 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 subsoil/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 Appellants are the proprietors of the minerals obtaining in t....
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....espondents 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 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 ....
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....ising such acquisition; (b) the management of any forest not being 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 cultivation; (e) the establishment of village or town committees or councils and their powers; (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; (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 submitted 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, minerals.-- (1) Such share of the royalties accruing each year from licences or leas....
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....tle, extent and commencement. --(1) This Act may be called the Mines and Minerals (Development and Regulation) Act, 1957. (2) It extends to the whole of India. (3) It shall come into force on such date 3 as the Central Government may, by notification 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 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 t....
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....d Minerals Policy, 2012 issued by the Government of Meghalaya as well as draft 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 (1) 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 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 i....
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....r. 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 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 iss....
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....he Act. Legislative power of the State to the above extent is 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) 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 recon....
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....3 (18 of 2013)]; and (b) satisfies such conditions as may be prescribed: 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 approval of the Central Government. Explanation. --For the purposes of this subsection, a person shall be deemed to be an Indian national,-- (a) in the case of a firm or other association 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 existence of mineral contents in the area for which the application for a mining lease has been made in accordance 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 specified by the Central Government, for the development of mineral deposits in....
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....bals, owners of the minerals shall expressly fall in Rule making power of the Government Under Section 13(f). 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 prospecting licence and mining lease: (1) No prospecting licence or mining lease shall be granted to any person unless he has filed a....
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....the following 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 in Sri Tarkeshwar Sio Thakur Jiu v. Dar Dass Dey & Co. and Ors., 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 Transfer of Property Act. In paragraph 31 following was laid d....
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....mised, 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 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 i....
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....n 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 Inspector, the Controller, Indian Bureau of Mines and the district magistrate of the district in which the mine is situate, notice 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 persons concerned at least one month before the commencement of any mining operation. 114. Section 18 contains duties and responsibilities of owners, agents and managers. 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 Off....
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....shall be instituted against any owner, agent or manager for any offence under this Act except at the instance of the Chief Inspector or of the district magistrate or of an Inspector authorised in this behalf by general or special order in writing by the Chief Inspector; 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 exercise all due diligence to prevent the commission 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 institute any prosecution against an owner, agent or manager without the previous approval of the Chief Inspector. 117. We, thus, do not accept the submission of Shri Naphade that District Magistrate has no 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 re....
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....e 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 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 Chapter V dea....
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....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 conditions 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: 27(5) If the lessee makes any default in the payment of royalty as required Under Section 9 or payment of dead rent as required Under Section 9A or commits a breach of any of the conditions spe....
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....ve 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 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 mining lease granted by a private person shall be subject to the following condition: XXXXXXX ....
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....31. 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. 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 prospecting licence and mining lease: (1) No prospecting licence or mining lease shall be granted to any person unless he has filed ....
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....r 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 provides for penalty, which is to the following effect: 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 extend to one year or fine which may e....
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....alf of State of Meghalaya is that Autonomous District Council being constitutional authority constituted 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 District (Trading by Non Tribals) Regulation, 1954, the United Khasi Jaintia Hills Autonomous District (Management 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 entrusted 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 development of mineral, the Union has made declaration by Section 2 of 1957 Act and the power of the State Legislature is denude....
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....r to any kind of trade in mining of coal or mining operations. 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 purpose 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 fi....
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....d 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 case....
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....omparison 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 acceded to by the Tribunal. Subsequently 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 ra....
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....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; (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 applic....
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....ssue 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 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 ....
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....e 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 vide 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, 2010. NGT has to exercise a wide range of jurisdiction and has to possess vide 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 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: ....
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....pearing 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 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. Po....
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....1.08.2018 has directed the committee to submit its action plan and reports by email. 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 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 ....
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....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 cannot 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, although, it was required to take steps for restoration of environment. 171. The NGT vide its order dated 31.08.2018 constituted a committee headed by Justice B.P. Katakey, Former Judge of Gauhati High Court with representatives 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 th....
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....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 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 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 enforce....
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...., which was directed to be deposited by the 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 deposited 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 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....
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....(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, vehicle or any other thing shall be liable to be seized by an officer or authority specially 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 order of the court competent to take cognizance 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 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) sha....
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....egard to coal not so far recorded in the inventory available with the NGT. In pursuance of said direction, as contained in paragraph No. 13 of the order, steps were taken and various committees had made certain assessments with regard to different quantities of coal lying in four Hills Districts of State of Meghalaya. Katakey committee Report dated 31.12.2018 has in chart noticed the different quantities 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 paragraph 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 ....
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.... 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 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 app....
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....r 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 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 bo....
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....legal 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. 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 Meghal....
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.... 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 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 A....
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....aches upon the administration 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 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....