TaxTMI 
TaxTMI 
2019 (7) TMI 1957
X X X X Extracts X X X X
X X X X Extracts X X X X
....Pal, Naresh Kumar Nagar, Avijit Roy, 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and workers have died. The Applicant had also brought before the Tribunal a detailed report of one Dr. O.P. Singh, Professor, Department of Environmental Studies, North-Eastern Hills University, Shillong, Meghalaya where entire aspects of the coal mining in the State of Meghalaya were discussed. The NGT admitted the application and took the view that illegal and unscientific mining neither can be held to be in the interest of people of the area, the people working in the mines nor in the interest of 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 2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to perform the functions assigned to it, hence, a new committee was constituted. The Tribunal from time to time issued various directions. We need to notice 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 prohibit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ogy and environment in question. Serious steps are required to be taken for cleaning polluted waterbodies and ensure that no further pollution is caused by this activity and the activity which would be permitted to be carried on finally including transportation of coal. On the basis of 'Polluter Pay Principle'. We direct that the State Government shall in addition to the royalty payable to it, shall also collect 10% on the market value of the coal for every consignment. Having heard the learned Counsel appearing for the parties and keeping in view the notifications of the Central Government dated 10.05.2012 and that of the State Government dated 22.06.2012, we may notice that in the report of Comptroller and Auditor General of India for the period ending 31st March, 2013 under 7.5.18 of Chapter 7 of which the invoice value of the coal has been taken Rs. 4850/- per metric tonne. Thus, we direct that the State Government shall in addition to the royalty payable to it, also collect 10% of the said market value of the coal per metric tonne from each person. The amount so collected shall be deposited in the account to be titled as 'Meghalaya Environment Protection a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eard counsel for the parties, it is directed that the Petitioners, as well as the Respondents, who have mined the coal, are permitted to transport the coal on payment of royalty and other fees as fixed by the National Green Tribunal (for short, 'the Tribunal') and other relevant status. The extracted coal can be transported from 1st October, 2016 till 31st May, 2017. It is further directed that no other extraction shall take place in the meantime. The finding of the Tribunal that the coal is vested in the State on the ground that it is illegally extracted coal, shall be adverted to at the time of final hearing. The miners shall keep the accounts and if, ultimately, it is held that the coal belongs to the State, they will refund the amount with interest. The quantum of interest shall be determined at the time of final hearing. Needless to say, these observations have been made without prejudice to the contentions to be raised by the learned Counsel for the parties. The tribunal can proceed with regard to the other aspects which are pending before it. The above order shows that question whether coal is vested in the State is to be gone into before the Hon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for which funds are available. We are of the view that for this task, it will appropriate that we constitute an independent Committee. This Committee will be headed by Justice B.P. Katakey, Former Judge of the Guwahati High Court with representatives from Central Pollution Control Board and Indian School of Mines, Dhanbad. 15. The Committee will take the following steps: * Take stock of all actions taken so far in this regard. * Prepare time bound action plan to deal with the issue and ensure its implementation. 16. The Committee may requisition services of such technical experts as may be necessary and may also carry out visits to 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to all the concerned authorities by e-mail for compliance. All pending matters will stand disposed of in above terms. List for consideration of the Report on 06th March, 2019. Order dated 04.01.2019 15. Justice Katakey submitted its report before the Tribunal on 02.01.2019. Committee's various proceedings which were part of the report were noticed in detail by the NGT. In paragraph 21 of the order following was noticed: 21. Under issue number D, it was noted that the Meghalaya State Pollution Control Board in its report in September, 1997 had noted that unplanned and unscientific coal mining activities were taking place. This had achieved dangerous dimensions in the last two decades creating ecological disturbance and adverse environmental impacts. This showed that though cognizance of the problem was taken in the year 1997, the problem continues even 20 years thereafter. The State Pollution Control Board had, in the year 1997, recommended steps to check illegal mining including generation of awareness, legislative measures, use of technology, carrying out of study but none of the recommendations were implemented even after 21 years. 16. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....trict Council aggrieved by the perpetual ban of coal mining by order dated 31.08.2018 without considering illegality of the ban in the first place. The Appellants are also aggrieved by appointment of State Government receiver/custodian of the extracted coal when there is no dispute of the ownership of the coal and further the question of vesting of the coal in the State is pending consideration in this Court in C.A. No. 5272 of 2016. 19. C.A. No. 10907 of 2018 is filed by Garo Hills Autonomous District Council which is aggrieved by the order of the Tribunal dated 31.08.2018 by which it has confirmed the ban on coal mining which was in force for over four years and further direction by the Tribunal to constitute a committee for the disposal of funds in excess of Rs. 400 crores. The Appellants are aggrieved by the above and alleged that the Tribunal failed to consider that constituting the committee without considering the roles and responsibilities of the District Council has the effect of virtually excluding the Council from issues concerning administration of forests and lands which are within the exclusive jurisdiction of the Council. The ban on coal mining has effectively clo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....spect of their different IAs. 23. Shri Shekhar Naphade, learned senior Counsel led the arguments on behalf of the State of Meghalaya. Shri Naphade submits that jurisdiction of NGT constituted under National Green Tribunal Act, 2010 is confined to Sections 14, 15 and 16. Section 16 is not attracted in the present case. Section 14 deals with original jurisdiction of NGT and it takes within its compass or all of civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and such question arises out of the implementation of the enactments specified in 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 holdin....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is submitted that administration of Tribal areas is to be governed as per Sixth Schedule of the Constitution of India and various orders passed by the NGT directly interfered in the administration of Tribal area which is vested in the Autonomous District Councils. It is submitted that NGT failed to consider the relevant statutory matrix including the provisions of Sixth Schedule and legislation framed by the Autonomous District Councils. It is submitted that NGT has no jurisdiction to constitute any committee for the purpose of enforcing its orders. The constitution of committees including constitution of Justice B.P. Katakey, former Judge of the Gauhati High Court by the impugned order dated 31.08.2018 is beyond the jurisdiction of NGT. The constitution of the committee is interference with the jurisdiction of Autonomous District Council. It is further submitted that NGT has also no jurisdiction to create any fund. The Tribunal by constituting the committee and by constituting a fund has created a parallel Government. The Tribunal not being a constitutional court it cannot issue a continuous mandamus. It is submitted that Tribunal although issued several directions to the State o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pment Rules, 1988, where cess can be charged by the State. 28. Shri Amrendra Sharan, learned senior Counsel appearing for the State of Meghalaya in C.A. No. 2968 of 2019 submits that NGT vide impugned order dated 04.01.2019 has directed the State of Meghalaya to deposit Rs. 100 crores as an interim measure which is wholly unsustainable. The NGT has passed the order dated 04.01.2019 relying on first interim report of the Committee headed by Justice B.P. Katakey, former Judge of the Gauhati High Court. The constitution of committee was itself beyond the jurisdiction of the NGT. Shri Sharan adopts the submissions made by Shri Naphade and in addition to those submissions, submits that order dated 04.01.2019 has been passed in violation of principles of natural justice since no opportunity was given to the State of Meghalaya to respond to the report of the committee used against 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 Trib....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rder dated 31.03.2016, NGT had taken the view that all coal after 2016 shall vest in the State. The Appellant had previously approached this Court by filing C.A. No. 4793 of 2016 against the order dated 31.03.2016 wherein this Court granted the liberty to the Appellant to approach the NGT for filing application for clarification of the order. The application of the Appellant for clarification was rejected by the NGT without giving any reason. The 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 st....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ely impermissible for the Appellant or any other private person to claim any rights for illegal or unlawful mining of coal in derogation of the law in force in the State of Meghalaya. It is further submitted that generation of revenue would not be a ground for claiming permission to carry out mining in contravention/derogation of the law in force. A draft guideline submitted by the State Government of Meghalaya by letter dated 24.09.2015 was examined by the Ministry of Coal, Government of India on which decision was taken that the guidelines submitted by the Government of Meghalaya were not in conformity with the existing statutory provisions of MMDR Act, 1957. Hence, the State of Meghalaya may reframe the guidelines in conformity with MMDR Act, 1957 and submit. In the revised proposal dated 25.07.2016 the State of Meghalaya had proposed certain amendments in MMDR Act, 1957 and exemption from the application of the MMDR Act, 1957 through a Presidential notification under Para 12A(b) of the Sixth Schedule. 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 counse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....alves submits that for mining, the leases are required and permission be sought. He submits that there are 53 mines per kilometre in Tribal areas of Meghalaya. He submits that all extracted coal which is claimed to be lying assessed or unassessed in the State of Meghalaya is result of illegal mining and Coal India Ltd. be directed to take over the entire coal. 37. Shri Gonsalves has also referred to various reports of Comptroller and Auditor General of India which has been brought on record in Volume II-A Citizen's Report from Meghalaya 06/01/2019. 38. Shri Nidhesh Gupta, learned senior counsel, appearing on behalf of private Respondent in Civil Appeal No. 5272 of 2016 has refuted the submissions raised by the learned Counsel for the Appellants. Shri Nidhesh Gupta submits that as per Entry 54 of List I Regulation of mines and minerals development has been declared by the Parliament under MMDR Act, 1957. Section 2, by declaration as contained in MMDR Act, 1957, the State Government is denuded of all legislative and executive powers under Entry 23 of List II read with Article 162 of the Constitution of India. Section 4 Sub-section (1) makes it clear that no person can under....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2. Learned Counsel also relies on the stand taken by the Union of India in the Status Report dated 24.07.2018. Shri Gupta submits that approximate price of coal is Rs. 10,000/- per metric ton. Referring to notice inviting tenders by the State of Meghalaya, it is submitted that amount of Rs. 1,000/- per metric ton was contemplated. It is submitted that selling the coal on much low price is causing loss to Revenue as well as loss to other stakeholders. The allegations 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....0.2018, Deputy Commissioner, South Garo hills, has also been brought on record. There were reports referring to different assessment carried out by the committee according to the affidavit which has been filed on behalf of the Commissioner and Secretary to the Government of Meghalaya, the total quantity of coal stock which has now been assessed in different reports stands at 32,56,715 metric ton. 47. It is further submitted by learned Counsel for the State of Meghalaya that above assessment of coal has been also verified by technical committees 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 re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r the MMDR Act, 1957 and the Mineral Concession Rules, 1960? 4. Whether under the MMDR Act, 1957 and Mineral Concession Rules, 1960, it is the State Government, who is to grant lease for mining of minerals in privately owned/community owned land or it is the owner of the minerals, who is to grant lease for carrying out mining operations? 5. Whether the State of Meghalaya has any statutory control over the mining of coal from privately owned/community owned land in hills districts of State of Meghalaya? 6. Whether the power to allot land for mining purposes is vested in Autonomous District Councils? 7. Whether the order of National Green Tribunal dated 17.04.2014 directing for complete ban on mining is unsustainable? 8. Whether the complete ban on mining of coal in the State of Meghalaya as directed by NGT deserved to be vacated/modified in the interest of State and Tribals? 9. Whether NGT had any jurisdiction to constitute committees to submit reports, to implement the orders of NGT, to monitor storage/transportation; of minerals and to prepare action plan for restoration of environment? 10. Whether the NGT committed er....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cific statutory environmental obligation by a person by which,-- (A) the community at large other than an individual or group of individuals is affected or likely to be affected by the environmental consequences; or (B) the gravity of damage to the environment or property is substantial; or (C) the damage to public health is broadly measurable; (ii) the environmental consequences relate to a specific activity or a point source of pollution; 57. Chapter III of the Act deals with jurisdiction, powers and proceedings of the Tribunal. Sections 14 and 15 which are relevant in the present case are as follows: 14. Tribunal to settle disputes.--(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial 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 applicatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le I of the Act, hence, coal mining is not within the purview of Schedule I and not within the jurisdiction of the Tribunal. The submission further is that for applicability of Section 14 both the component of Sub-section (1) of Section 14 that (i) a substantial question relating to environment and (ii) such question arises out of the implementation of the enactments specified in Schedule I has to be satisfied. 59. It is relevant to notice that before the NGT no such plea was taken by the State of Meghalaya or any of the parties questioning the jurisdiction of the NGT. However, the issue being a jurisdictional issue, we have permitted the learned Counsel for the Appellant to raise the issue. The NGT took cognizance when application, O.A. No. 73 of 2014 on 17.04.2014 was admitted and order was issued. The jurisdiction of the Tribunal to entertain O.A. No. 73 of 2014 has to be found out from the case set up and pleadings in O.A. No. 73 of 2014 for which we need to scrutinise the application. O.A. No. 73 of 2014 has been brought on record as Annexure-A3 in C.A. No. 5272 of 2016. The application was filed by one All Dimasa Students Union Dima Hasao District Committee. In the applica....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ver in North-East India that flows through the States of Meghalaya and Assam and is the largest south bank tributary of the river Brahmaputra in Assam, The Kopili river originates from the black mountains of Lum Bah-bo Bah-Kong in Meghalaya and flows north-west into the Brahmaputra Valley in Assam. The said river demarcates the Jaintia Hills in Meghalaya and Dirria Hasao in Assam. The river flows for a total length of 290 kms and has a catchment area of 16, 420 Kms. III. That the Kopili Hydro-Electric Project (KHEP) of NEEPCO (a Government of India undertaking) is one of the pioneering Hydro-Electric Project in the North Eastern Region of India. The Kopili Hydro-Electric Plant is a 275 MW storage type hydro electric plant consisting of two dams which have 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 No....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ications gives an in depth analysis of the aforesaid problem as well as suggests remedial measures to improve the situation. However, it is stated that no proper and effective remedial measures have been taken by the concerned authorities/State Respondents to abort the aforesaid menace and the ill-effect of the same are still continuing and the same are being constantly faced by the innocent citizens/water bodies etc of the area including the people of Dima Hasao district of Assam. Copies of the detailed project report of pilot project for remediation of Acid Mine Drainage (AMD) in the catchment of Kopili River at the upstream of Kopili Hydro Electric Plant (KHEP), Umrongso, Dima Hasao, Assam and the Article published under the heading "Acid mine discharge -- Challenges met in a hydro power project" in the International Journal of Environmental Sciences, Volume I, No. 6, 2011 are annexed herewith and marked as ANNEXURE-P/1 & P-2 respectively. The ill-effect of the aforesaid operations has also been the subject matter of news items in various newspapers including one published by the Assam Tribune on June, 20, 2012 under the heading "Concern over contamination of Kopili Water" and a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....system and are indicative of good health of water bodies. Generally, a variety of species with representatives of almost all insect orders, including a high diversity of insects belonging to the taxonomic orders of Ephemeroptera (mayflies), Plecoptera (stoneflies), and Trichoptera (caddisflies) commonly referred to as EPT taxa. Any physical, chemical or biological change in water bodies affects one or all species and disturbs the normal functioning of the aquatic ecosystem. Like many other pollutants, AMID contamination causes a reduction in the diversity and total numbers, or abundance, of these aquatic communities including benthic macroinvertebrates, fishes, etc. As a result, the community structure is altered and water bodies affected by AMD possess a lower percentage of EPT taxa (Campbell et al., 2000). Moderate AMD contamination eliminates the more sensitive species whereas severely contaminated conditions are characterized by dominance of certain taxonomic representatives of pollution tolerant organisms. 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 dire....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Mining operation, undoubtedly has brought wealth and employment opportunity in the area, but simultaneously has led to extensive environmental degradation and erosion of traditional values in the society. Environmental problems associated with mining have been felt severely because of the region's fragile ecosystems and richness of biological and cultural diversity. The indiscriminate and unscientific mining and absence of post-mining treatment and management of mined areas are making the fragile ecosystems more vulnerable to environmental degradation and leading to large scale land cover/land use changes. The current modus operandi of surface mining in the area generates huge quantity of mine spoil or overburden (consolidated and unconsolidated materials overlying the coal seam) in the form of gravels, rocks, sand, soil etc. which are dumped over a large area adjacent to the mine pits. The dumping of overburden and coal destroys the surrounding vegetation and leads to severe soil and water pollution. Large scale denudation of forest cover, scarcity of water, pollution of air, water and soil, and degradation of agricultural lands are some of the conspicuous environmental ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....elds. It is this material that stains streams and responsible for red to orange color of water. When elevated levels of iron are introduced into natural waters, the iron is oxidized and hydrolyzed, thereby forming precipitate of iron hydroxides. The water in coal mining areas has been found highly acidic. The pH of streams and rivers varies between 2.31 to 4.01. Solids such as fine particles of coal, sand, mud and other mineral particles were found deposited at the bottom of the water bodies. Besides, water was also found turbid and coloured due to suspended precipitates of iron hydroxides. Dissolved oxygen was found to be low in water bodies of coat mining areas, the lowest being 4.24 mg/L in river Rawaka and stream Metyngka of Rymbai. The waters of the mining areas have been found containing sulphate concentration between 78 to 168 mg/L. Electrical conductivity is a rapid measure of the total dissolved solids present in ionic form. Water in coal mining areas was found having high conductivity. Deposition of silt at the bottom of the rivers and streams is another important problem in coal mining areas. Water bodies of the mining area appear to contain various typ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m) 1. Myntriang Light 2.8 36 56 2. Urn Pai Brownish 3.2 186 160 3. Rawaka, Rymbai Reddish Brown 2.31 166.5 135 4. Kenai-um, Rymbai Reddish Brown 2.66 144.0 74 5. Metyngka, Rymbai Reddish brown 2.42 168.0 27 6. Urn Mynkseh, Ladrymbai Brownish Orange 3.52 118.7 67 7. Thwai Kungor, Bapun 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 AMD as evident from the lower pH values, higher sulphate content and EC in water samples. 63. Thus, there were clear allegations in the application that in spite of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in 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 degradation consequent to illegal coal mining. It was further stated that inaction of Respondent authorities has resulted in violation of various enactments mentioned....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 following recommendations were made to minimize the overall adverse environmental impacts of the mining activities: (a) To generate social awaren....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e. 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 has no jurisdiction is not expected from the State Government who is under const....
X X X X Extracts X X X X
X X X X Extracts X X X X
....overnment to appoint professionals and experience persons to the key positions in the State Pollution Control Board cannot be classified as a primary dispute over which the NGT could have jurisdiction. Following was laid down in paragraph 21: 21. As far as we are concerned, in the context of the Act, a dispute would be the assertion of a right or an interest or a claim met by contrary claims on the other side. In other words, the dispute must be one of substance and not of form and it appears to us that the appointments that we are concerned with are not "disputes" as such or even disputes for the purposes of the Act -- they could be disputes for a constitutional court to resolve through a writ of quo warranto, but certainly not for the NGT to venture into. The failure of the State Government to appoint professional and experienced persons to key positions in the SPCBs or the failure to appoint any person at all might incidentally result in an ineffective implementation of the Water Act and the Air Act, but this cannot be classified as a primary dispute over which the NGT would have jurisdiction. Such a failure might be of a statutory obligation over which, in the present ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....laya 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 Districts of State of Meghalaya in land which is privately owned by t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itled 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 importing into it what neither party could have imagined. It wa....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Government of the S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Regional Council in the State of Meghalaya with respect to any matter specified in subparagraph (1) of paragraph 3 of this Schedule or if any provision of any Regulation made by a District Council or a Regional Council in that State under paragraph 8 or paragraph 10 of this 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 Regulati....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the State Government has no ownership over the minerals. The activities of the Mining & Geology (M&G) Department, Government of Meghalaya (GOM) are limited to collection of royalty on the minerals 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 Stat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Mining Lease. The MCDR, 1988 lays down guidelines for ensuring mining on a scientific basis, while conserving 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 93. We need to scan through the statutory scheme of Act, 1957 to find out as to whether Parliamentary legislation requires obtaining lease for winning the minerals in so far as mining of coal from privately owned land/community owned land are concerned? 94. Section 2 of the Act, 1957 contains declaration to the following effect: 2. Declaration as to expediency of Union Control.-- It is hereby declared that it is expedient in the public interest that the Union should take under its control the 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 Unio....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited., a Government company within the meaning 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and Section 13 Sub-section (2) in so far as relevant in the present case are as follows: 13. Power of Central Government to make Rules in respect of minerals.--(1) The Central Government may, by notification in the Official Gazette, make Rules for regulating the grant of reconnaissance permits, prospecting licences and mining leases in respect of minerals and for purposes 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 Claus....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... which minerals vest in a person other than the Government. In statutory provisions there is no kind of exception as contended by the learned Counsel of the Appellant that when owner himself wants to win the minerals he does not require any mining lease. The submission is contrary to the express statutory scheme, in the event submission of Appellant is accepted that with regard to minerals which vest in a private person no mining lease is required, the whole object of the Union by which it declared to have 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 mon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....heless, in the legal accepted sense, it has always been regarded as a lease in this country. 109. This Court proceeded further to consider Section 105 of the Transfer of Property Act and opined following in paragraphs 37: 37. A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a "right to enjoy immovable property" within the meaning of Section 105; more so, when -- as in the instant case -- it is coupled with a right to be in its exclusive khas possession for a specified period. The "right to enjoy immovable property" spoken of in Section 105, means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject-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, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... v. Bengal Coal Co. Lord Macmillan speaking for the Board held that: In considering the character and effect of acts of possession in the case of a mineral field, it is necessary to bear in mind the nature of the subject and the possession of which it is susceptible. Owing to the inaccessibility of minerals in the earth, it is not possible to take actual physical possession at once of a whole mineral field: it can be occupied only by extracting the minerals and until the whole minerals are exhausted the physical occupation must necessarily be partial. 111. The word mining lease has been given specific meaning under Act, 1957. It is well settled principle of interpretation that the provisions of an Act including definition of a term is to be interpreted in a manner which may advance the object of the legislation. The essential characteristic of mining lease is that it is granted for the purpose of undertaking mining operation and mining operation means any operation undertaken for the purpose of winning the mineral. Applying aforesaid definition in the Minerals (Concession) Rules, 1960 under Chapter V it cannot be said that no mining lease is contemplated with respect to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of an Inspector but subject to general and special orders of Central Government, which means that there may be some restriction on the power of the District Magistrate as directed by Central Government. In this context, Shri Naphade has referred to a notification dated 18.09.1953 issued under Sub-section 3 of Section 5 of the Mines Act, 1952, which is to the following effect: 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cise of power Under Section 3(3) of the Environment Protection Act, 1986. Section 3 of the Act, 1986 which provided for requirements of prior environmental clearance with regard to projects enumerates therein. Schedule to the notification listed the projects or activities requiring prior environmental clearance. "Mining of minerals" included at Item No. 1(a) but even for mining project requirement of minimum 5 hectares area was required for applicability of the project. Substituting Item No. 1(a) of Notification dated 14.09.2006 a new notification dated 15.01.2016 has been issued. In place of Item No. 1(a) new entry has been substituted in respect of coal mine lease which is to the following effect: (1) (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 min....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r Chapter IV are made applicable for mining lease under Chapter V. 124. Rule 22(1) provides that an application for the grant of a mining lease in respect of land in which the minerals vest in the Government shall be made to the State Government in Form I through such officer or authority as the State Government may specify in this behalf. In Chapter V, there is no such rule, which requires making an application for lease to the State Government. There is a marked difference between the Rules contained in Chapter IV 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ut prejudice to any other proceedings that may be taken against him, determine the lease and forfeit the whole or part of the security deposit. 126. Under Rule 27(5), if the lessee makes any default in the payment of the royalty or the payment of dead rent or commits breach of any of the conditions, the State Government shall give notice to the lessee and determine the lease and forfeit the whole or part of the security deposit. Whereas under Rule 45(iv), the said power has been vested in the lessor, which also indicates that it is lessor, who will determine the lease and not the State Government. Other provisions of Chapter V also support the above conclusion. Rule 47 provides for submission of copy of licence or lease to the State 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 Governm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ersons, i.e., the category where the minerals were not owned by the Government but was owned by private persons. Chapter V of the Rules, 1960 contains substantially similar provisions. Thus, Chapter V of Rules, 1960 has to be treated to be dealing with minerals owned by private owners. The earlier statutory regime, which was enforced as per Rules, 1949 made it amply clear that mineral concessions are to be granted by private persons also, which is in substances retained in Chapter V of Rules, 1960. Thus, mining lease to be 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....all be granted in respect of any mineral specified in the First Schedule to the Act. 133. As per Rule 42(2), except with the previous approval of the Central Government, no prospecting licence or mining lease shall be granted in respect of any mineral specified in the First Schedule to the Act. Thus, previous approval of Central Government is mandatory before grant of mining lease of coal. Rule 63 provides that the approval of the Central Government has to be obtained through the State 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 Gov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wed. 136. The State was advised by the Comptroller and Auditor General of India in its report ended 31st March, 2013 in para 4.5.1 that to regulate mining by following Mines and Minerals (Development and Regulation) Act, 1957. Para 7.5.8 of the same report has made the following as recommendation No. 1: Recommendation No. 1: The M & G Department should take necessary measures to regulate mining in the State in accordance with the provisions of the MMDR Act and Rules thereunder. 137. The State is thus well aware of its statutory obligation which is reflected in Mining Policy of 2012 and Draft Guidelines, 2015 but still before this Court their contention that no mining lease is to be obtained for privately owned/community owned land in Hills District of State of Meghalaya is unacceptable and not in a good spirit. Our country being governed by the Constitution of India all the States are to implement Parliamentary Acts in true spirit and in the present case the State having been advised time and again by Comptroller and Auditor General and being well aware of its statutory obligation as noticed above it comes ill from the State to contend before this Court that there is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y non Tribals) Rules, 1959, which contemplates form of licence and one of the licence referred to is under Rule 4 is licence in Form E. Rule 4 is as follows: 4. Form of License.- .... (5) License in form 'E' shall be issued for the mining of minerals and the sale or purchase of minerals accruing from the autonomous district and for the import of minerals into the autonomous district for sale therein as specified in Part 'E' of the First Schedule on payment of prescribed license fee subject to the conditions specified in the license.. . . . . 140. It is relevant to notice that the United Khasi Jaintia Hills District (Trading by Non-Tribal) Rules, 1959 has been repealed insofar as Jaintia Hills 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: ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or extraction of minerals granted by the Government of the State. Para 9 only deals with share of the royalties to District Councils as agreed upon between the Government of the State and the District Councils. Further paragraph 12(A)(a) itself contemplates that any law made by District Council or Regional Council which is repugnant to any law of the State shall be void. Thus, the status of law made by District Council or Regional councils has to give way to the law made by the State. There can be no doubt that District Council and Regional Council cannot make any law which may be repugnant to the provisions of the Parliamentary Act. 144. We, thus, are of the view that District 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve noticed above that in OA No. 73 of 2014 wherein the above order was passed, sufficient materials were brought on the record including experts report which proved that illegal coal mining in the State of Meghalaya is degrading the environment. The Court also noticed the report of Professor Dr. O.P. Singh which noticed that the Meghalaya Pollution Control 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 (Novem....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 assignees as per the provisions of 1957 Act and 1960 Rules, there can be no objections in carrying such mining under the Regulation and control of State of Meghalaya. We thus clarify that in event mining operations are undertaken by the tribals or other owners of hills districts of Meghalaya in accordance with mining lease obtained from the State of Meghalaya as per 1957 Act and Mineral Concessions Rule, 1960, the ban order dated 17.04.2014 of the tribunal shall not come in its way of carrying mining operations. The ban order is for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s decision; (g) dismissing an application for default or deciding it ex parte; (h) setting aside any order of dismissal of any application for default or any order passed by it ex parte; (i) pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act; (j) pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I; (k) any other matter which may be prescribed. 5. All proceedings before the Tribunal shall be deemed to be the judicial proceedings within the meaning of Sections 193, 219 and 228 for the purposes of Section 196 of the Indian Penal Code and the Tribunal shall be deemed to be a civil court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. 154. Sub-section (1) of Section 19 provides that Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure but shall be guided by the principles of natural justice. What Sub-section (1) meant to convey is that Tribu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tions 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 Act. Rules have been framed in exercise of powers Under Section 35, namely, National Green Tribunal (Practice and Procedure) Rules, 2011. The said Rules have been framed in exercise of powers Under Section 4(4) as well as Section 35. The Rules, 2011 are Rules also for practices and procedure of the Tribunal. Rule 24 which is relevant for the present case is as follows: Section (sic Rule) 24. Order and direction....
X X X X Extracts X X X X
X X X X Extracts X X X X
....55, where this Court was examining provision empowering authority to do something. This Court laid down in paragraph 14: 14. The High Court observed that Under Section 35 of the Indian Income Tax Act, 1922, the jurisdiction of the Income Tax Officer is discretionary. If thereby it is intended that the Income Tax Officer has discretion to exercise or not to exercise the power to rectify, that view is in our judgment erroneous. Section 35 enacts that the Commissioner or Appellate Assistant Commissioner or the Income Tax Officer may rectify any mistake apparent from the record. If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right -- public or private -- of a citizen. 161. We, thus, are of the considered opinion that there is no lack of j....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 implementation of the orders passed by it and to decide the environmental issues raised before it. In no manner constitution of committee can be said to be delegation of essential judicial powers of the NGT to the committee. 166. Now, we come to the Katakey committee which was constituted by the Tribunal on 31.08.2018. In paragraphs 14 and 15, the Tribunal while directing for constitution of com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....areas. We revert back to the Sixth Schedule of the Constitution. Para 3 of the Sixth Schedule enumerates the powers of the District Council and Regional Council to make laws. The powers of the District and Regional Councils are enumerated under paragraph 3. In the directions of the Tribunal to constitute committee for transportation of extracted minerals or for preparing time bound action to deal with the restoration of environment and to ensure its implementation, there is no interference in the powers of the District or Regional Councils. Action plan for restoration of environment is consequence of Tribunal finding out that an unregulated coal mining has damaged environment and has caused the pollution including water pollution. It is not case of the Appellant that District and Regional Councils have framed any law for restoration of environment which is being breached by the committee or its acts. The District and Regional Councils are free to exercise all their powers and the committee constituted by the Tribunal is only concerned with the Environmental degradation and illegal coal mining. The committees' report or direction of the Tribunal in no manner encroaches upon the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ate 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 become highly acidic in nature with pH value of 2.7 since 1991-92 due to presence of high percentage of sulphur in coal, which reacts after mixing with oxygen in air and water giving rise to AMD problem. No difference of pH level of water in rivers, streams and mine drains have been noticed during monsoon. (iv) pH level of water in springs, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....act 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, there is no question of serving copy of the report of the committee to the Stakeholders. It is further relevant to notice that Additional Chief Secretary of the Government of Meghalaya was himself the Member Secretary and Coordinator of the committee under the orders of the Tribunal dated 19.09.2018. All proceedin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g 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 that NGT could not have directed for vesting of coal in the State. The submission is that members of the Appellant-association have proprietary rights in the coal with which they could not be divested by the Tribunal. We have already held that private owners of the land are also owners of the minerals and the miner....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 may be, but it is for the State Government to exercise its power Under Section 21(5) by way of penalty. The NGT has not given any reason as to how coal shall automatically vest in the State. The right of recovery of mineral as contemplated Under Section 21(5) does not amount....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hich 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 2,14,145.55 4. South Garo Hills District 12,834.00 10,841.00 Total 24,14,878.63 23,25,663.54" (iv) From the aforesaid District wise break up of extracted coal, which was un-inventorised, it appears that the quantity of such coal was highest in East Jaintia Hills District, where the Deputy Commissioner, as noticed above, has admitted ongoing coal mining activities despite the ban imposed by the Hon'ble NGT vide order dated 17.04.2014. The stand ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dhesh 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 Respondents in C.A. No. 5272 of 2016 has submitted that the State auctioned coal on a meagre price, whereas market rate of the coal is approximately Rs. 10,000/- per MT. In the present case, we have noticed that illegal coal mining is going on in spite of ban by NGT by its order dated 17.04.2014. The Katakey committee report has also opined that all the extracted coal lying in different districts is a coal, which has been illegally mined after the imposition of ban by the order dated 17.04.2014. All coals being illegally mined, the State is fully entitled to impose a penalty, i.e., to realise the royalty and the amount of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l, 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 towards MERP Fund as well as taxes out of the price of the coal. After deduction of cost of transportation, the payment of royalty and payment to MERP fund and taxes plus 10% of value of the coal to be given to Coal India Ltd. for the above exercise, balance amount shall be disbursed to the owner of the coal towards its price, which disbursement shall be the responsibility of the State. The Coal India Ltd. after taking its expenses for transportation with 10% of price of the coal shall remit the entire amount to the State and it is for the State after deducting the royalty and payment to the MERP Fund and taxes to pay ba....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 in the notification. No notification has been issued by the President Under Section 12A(b). There is nothing in Sixth Schedule of the Constitution which may indicate about the inapplicability of Act, 1957 with regard to the Hills Districts of State of Meghalaya. 6) There is nothing in Section 4(1) of 1957 Act to indicate that restriction contained in Section 4(1) does not apply with regard to privately owned/community owned land in Hills Districts of Meghalaya. Further, word 'any area' Under Section 4(1) also has significance which does not have any exception. Further phra....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 way of carrying mining operations. 14) Under Order 26 Rule 10A of the Civil Procedure Code, a Court can appoint commission for scientific investigation. The power which can be exercised by a Court Under Order 26 Rule 10A of Code of Civil Procedure can very well be exercised by the NGT also. The NGT while asking expert to give a report is not confined to the four corners of Rule 10A and its jurisdiction is not shackled by strict terms of Order 21 Rule 10A by virtue of 19(1) of the NGT Act. 15) Rule 24 of National Green Tribun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 districts of Meghalaya be directed to be taken over by Coal India Ltd. is accepted. The Coal India Ltd. may dispose of the same as per its normal method of disposal and proceeds be dealt with as per directions issued. 22) The State having carried out the assessment of the coal lying in the aforesaid four districts including the details of the quantities and the details of owners being available with it, it may ensure that entire coal is handed over to the Coal India Ltd., as per the mode and....