Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Exploration and Research of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration 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 106 immediately before the commencement of this Act in the Union territory of Goa, Daman and Diu.”
100. The use of word no person in Section 4(1) is without an exception. There is nothing in Section 4(1) to indicate that restriction contained in Section 4(1) does not apply with regard to a person who is owner of the mine. Further, word ‘any area’ under Section 4(1) also has significance which does not have any exception. Further phrase ‘except under and in accordance with terms and condition with a mining lease granted under the Act’ are also significant which make the intent and purpose of prohibition clear and loud. Section 5 contains restriction on the grant of prospecting licences and mining lease in the following words:
5. Restrictions on the grant of prospecting licences or mining leases.― (1) A State Government shall not grant a reconnaissance permit, prospecting licence or mining lease to any person unless such person―
(a) is an Indian national, or company as defined in 1clause (20) of section 2 of the Companies Act, 2013 (18 of 2013)]; and
(b) satisfies such conditions as may be prescribed:
107 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 sub- section, 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 the area concerned:
Provided that a mining lease may be granted upon the filing of a mining plan in accordance with a system established by the State Government for preparation, certification, and monitoring of such plan, with the approval of the Central Government. 108
101. The proviso to Section 5(1) is relevant since it contains a further restriction that no mining lease shall be granted with regard to any minerals specified in Para A of First Schedule except with the previous approval of the Central Government. We in the present case are concerned with coal which is in Para A of First Schedule.
102. The next provision which is relevant is Section 13 which provides for Rule making power of Central Government in respect of minerals. Section 13 sub- section (1) and Section 13 sub-section (2) in so far as relevant in the present case are as follows:
“13. Power of Central Government to make rules in respect of minerals.―(1) The 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 109 permits, prospecting licences or mining leases in respect of land in which the minerals vest in the Government may be made and the fees to be paid therefor; ……………………………
(f) the procedure for obtaining 5 [a 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 6 [a permit, licence or lease may be granted or renewed;
…………………………”
103. When we read clause (a) and clause (f), it makes clear that the Rules can be made for grant of mining lease in respect of land in which minerals vest in the Government as well as in respect of any land in which minerals vest in person other than Government.
The statutory scheme, thus, is clear that lease can be granted with regard to both the categories of land, land in which Government is owner of minerals and land in which minerals vest in person other than Government. The Tribals, owners of the minerals shall expressly fall in Rule making power of the Government under Section 13(f).
110
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 an affidavit stating that he has–
(i) filed up-to-date income tax returns;111
(ii) paid the income tax assessed on him, and
(iii) paid the income tax on the basis of self-assessment as provided in the Income Tax Act, 1961 (43 of 1961). (2) Except with the previous approval of the Central Government, no prospecting licence or mining lease shall be granted in respect of any mineral specified in the First Schedule to the Act.”
105. The statutory scheme delineated by Section 13(2)(f) and the Minerals (Concession) Rules, 1960 clearly contemplate grant of mining lease, with regard to both the categories of land, that is, land in which minerals vest in the Government, and the land in which minerals vest in a person other than the Government. In statutory provisions there is no kind of exception as contended by the learned counsel of the appellant that when owner himself wants to win the minerals he does not require any mining lease. The submission is contrary to the express statutory scheme, in the event submission of appellant is accepted that with regard to minerals which vest in a private person no mining lease is required, the whole object of the Union by which it declared to have taken under its control 112 regulation of mines and development of minerals shall be frustrated.
106. Another limb of submission of the appellant needs to be noticed here. Shri Naphade submits that there is no concept of owner of a land granting lease to himself. He submits that concept of lease is well known and well recognised concept as contained in Section 105 of Transfer of Property Act. Section 105 of the Transfer of Property Act is as follows:
“Section 105. Lease defined. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined: The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.” 113
107. Halsbury’s Laws of England, Fourth Edition Para 321 defines nature of mining lease in 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 SRI TARKESHWAR SIO THAKUR JIU vs. DAR DASS DEY & CO. AND OTHERS, 1979(3) SCC 106, this Court held that term lease occurring in Section 3(C) of Act 67 of 1957 does not appear to have been used in the narrow technical sense in which it is defined in Section 105 of the Transfer of Property Act but it has all the characteristics of a lease as defined in the Transfer of Property Act. In paragraph 31 following was laid down:
114
“31. It is important to bear in mind that the term “lease” occurring in the definition of “mining lease” given in Section 3(c) of Act 67 of 1957 does not appear to have been used in the narrow technical sense in which it is defined in Section 105 of the Transfer of Property Act. But, as rightly pointed out by a Bench of the Calcutta High Court in Fala Krishna Pal v. Jagannath Marwari. a settlement of the character of a mining lease is everywhere in India regarded as “lease”.
A mining lease, therefore, may be meticulously and strictly satisfy in all cases, all the characteristics of a “lease” as defined in the Transfer of Property Act. Nevertheless, in the legal accepted sense, it has always been regarded as a lease in this country.”
109. This Court proceeded further to consider Section 105 of the Transfer of Property Act and opined following in paragraphs 37:
“37. A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a “right to enjoy immovable property” within the meaning of Section 105; more so, when — as in the instant case — it is coupled with a right to be in its exclusive khas possession for a specified period. The “right to enjoy immovable property” spoken of in Section 105, means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject-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 115 liabilities of lessors and lessees of immovable property.”
110. This Court further following the Nageshwar Bux Roy vs. Bengal Coal Co., LR (1930) 58 IA 29, in State of Karanataka and others vs. Subhash Rukmayya Guttedar and others, 1993 Supp.(3) 290 laid down following in paragraph 6:
“6………The question, therefore, is whether the grant of the right to extract the minor mineral from Government quarry is a lease or a licence and whether the contractor is liable to pay the royalty in respect of minor mineral extracted from the Government quarry.
Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. The normal connotation of the term lease is the preservation of the demised estate to be in occupation and enjoyment thereof for a specified period or in perpetuities for consideration; the corpus by user thereof does not disappear and at the expiry of the term or on termination the same is handed 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 116 mineral. Section 9 of the Mines and Minerals (Regulation & Development) Act, 1957 affords the guidance in this behalf. It says that the holder of a mining lease or agent, etc. is entitled to remove or consume the mineral. It would mean destruction of the estate leased out and appropriation thereof on payment of consideration i.e. royalty. Therefore, it is a right to enjoy immovable property within the meaning of Section 105 more so when, as in the instant case, it is coupled with a right to be in occupation or enter into possession for a specified period. Section 3(d) of the Act defines ‘mining operations’ to mean any operation undertaken for the purpose of winning any minerals. It is true that no right, title or interest has been created in the contractor over the mining area. But he has been permitted to remove and use the minor minerals in the execution of the works as its (sic his) right to enjoy immovable property spoken of in Section 105 which means the right to enjoy the property in the manner in which that property can be enjoyed. In Nageshwar Bux Roy v. Bengal Coal Co.1 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.” 117
111. The word mining lease has been given specific meaning under Act, 1957. It is well settled principle of interpretation that the provisions of an Act including definition of a term is to be interpreted in a manner which may advance the object of the legislation. The essential characteristic of mining lease is that it is granted for the purpose of undertaking mining operation and mining operation means any operation undertaken for the purpose of winning the mineral. Applying aforesaid definition in the Minerals (Concession) Rules, 1960 under Chapter V it cannot be said that no mining lease is contemplated with respect to land where mineral vests exclusively in a private person.
112. The examination of a statutory scheme applicable in Tribal areas of State of Meghalaya shall not be complete unless we notice two more aspects, they are (i) the Mines Act, 1952 and the Regulations framed thereunder; (2) Environmental Protection Act, 1986 and the notification issued thereunder with regard to mining project.
118
113. The Mines Act, 1952 is an Act to amend and consolidate the law relating to the regulation of labour and safety of mines. The act contains various provisions regarding inspection of mining operation and management of mines. Section 16 provides a notice to be given to mining operations by the owner agent or manager of a mine. Section 16 is as follows:
“Section 16. Notice to be given of mining operations.-(1) The owner, agent or manager of a mine shall, before the commencement of any mining operation, give to the Chief 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 119 disputed that the provisions of the Mines Act, 1952 are applicable with regard to the coal mining in the State of Meghalaya. He, however, submits that there are no powers with the District Magistrate or State Officials under the Mines Act, 1952. Chapter II of the Mines Act, 1952 deals with Inspectors and Certifying Surgeons. Section 5(3) provided that the District Magistrate may exercise the powers and perform the duties of an Inspector subject to the general or special orders of the Central Government. Section 5(3) is as follows:-
“5(3) The district magistrate may exercise the powers and perform the duties of an Inspector subject to the general or special orders of the Central Government.”
115. The above provision clearly empowers the District Magistrate to exercise the powers and perform the duties of an Inspector but subject to general and special orders of Central Government, which means that there may be some restriction on the 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 120 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 above notification does not take away all the functions of the District Magistrate but restriction is with regard to area mentioned therein. As noted above, Section 16 obliged the owner, agent or manager of a mine to give notice before the commencement of any mining operation to the district magistrate of the district in which the mine is situate. Section 75 of the Mines Act, 1952 also 121 empowers the District Magistrate to institute prosecution against any owner, agent or manager for any offence under the Mines Act, 1952. Section 75 is as follows:-
“75. Prosecution of owner, agent or manager.--No prosecution 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 122 framed, namely, Coal Mines Regulations, 2017. Regulation 2(r) defines “District Magistrate”. The Regulations contain various regulatory provisions with regard to mines. Chapter II deals with returns, notices and records. Chapter IV deals with Inspectors and Mine Officials. The Regulations contain several regulatory provisions which need to be followed while working a mine by the owner or his agent. The enforcement of Mines Act, 1952 and the Regulations, 2017 have to be ensured in the public interest by the state of Meghalaya.
119. Now we come to the Environment (Protection) Act, 1986. A notification dated 14.09.2006 was issued by the Ministry of Environment and Forests in exercise of power under Section 3(3) of the Environment Protection Act, 1986. Section 3 of the Act, 1986 which provided for requirements of prior 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 123 for mining project requirement of minimum 5 hectares area was required for applicability of the project. Substituting Item No.1(a) of Notification dated 14.09.2006 a new notification dated 15.01.2016 has been issued. In place of Item No.1(a) new entry has been substituted in respect of coal mine lease which is to the following effect:
(1) (2) (3) (4) (5)
“1(a) (i) >50 ha of <50 ha of General
Mining mining lease mining Conditions
of areas in lease shall
minerals respect of area in apply
non-coal mine respect except:
lease of non-
(i) for
coal mine
project or
lease
activity
>150 ha of
<150 ha of mining
mining lease
of mining of minor
area in
lease minerals
respect of
area in of
coal mine
respect Category
lease
of coal ‘B2’(up to
lease 25 ha of
mining
Asbestos
lease
mining
area);
irrespective
of mining area
(ii) River
bed mining
projects
on account
of inter-
state
boundary.
124
120. If the project was under Category ‘A’,
environmental clearance is required from Ministry of Environment and Forests whereas as per new notification dated 15.01.2016 for project ‘B’ environmental clearance is required from State Environmental Assessment Authority with respect of coal mining lease area of less than or equal to 150 hectares. Now as per statutory regime brought in force by notification dated 15.01.2016 environmental clearance is required for a project of coal for mining of any extent of area. We have dealt with the notification dated 15.01.2016, since it was placed before us and submissions were made by learned counsel for the parties. The notification dated 15.01.2016 being a statutory provision shall operate on its own force and no order of any Court is required for enforcement of notification dated 15.01.2016. We have dealt the matter only in view to clarify the statutory regime pertaining to mining of coal.
125
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 deals with procedure for obtaining a prospecting licence or mining lease in respect of land in which the minerals vest in a person other than the Government. Chapter IV contains Rules 22 to 40 and 126 Chapter V contains Rules 41 to 52 and the procedure and manner of applying for mining lease and grant of lease as contained in Chapter IV is not made applicable to the procedure as given in Chapter V except that by virtue of Rule 45(i) certain conditions of mining lease as contained in Rule 27 under Chapter IV are made applicable for mining lease under Chapter V.
124. Rule 22(1) provides that an application for the grant of a mining lease in respect of land in which the minerals vest in the Government shall be made to the State Government in Form I through such officer or authority as the State Government may specify in this behalf. In Chapter V, there is no such rule, which requires making an application for lease to the State Government. There is a marked difference between the rules contained in Chapter IV 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) 127 provides that every mining lease may contain such other conditions, not being inconsistent with the provisions of the Act and these rules, as may be agreed upon between the parties. The above provision gives an indication that in the lease executed by Chapter V, the omission of word “State Government” in Rule 45(iii) is indicative of the fact that conditions, which are to be added has to be agreed upon between the parties. Most important rule to be noticed is Rule 45 in this context, which is to the following effect:-
“45. Conditions of mining lease : - Every mining lease shall be subject to the following conditions :-
(i) the provisions of clauses (b) to (l) and
(p) to (u) of sub-rule (1) of rule 27 shall apply to such leases with the modification that in clauses (c) and (d) for the words "State Government" the word "lessor" shall be substituted ;
(ia) mining operations shall be undertaken in accordance with the duly approved mining plan ;
(ii) Omitted.;
(iii) the 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;
(iv) if the lessee makes any default in payment of royalty as required by section 9 128 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 specified in sub-rules (1), (2) and (3), except the condition referred to in clause (f) of sub-rule (1), the State Government shall give notice to the lessee requiring him to pay the royalty or dead rent or remedy the breach, as the case may be, within sixty days from the date of the receipt of the notice and if the royalty or dead rent is not paid or the breach is not remedied within the said period, the State 129 Government may, without prejudice to any other proceedings that may be taken against him, determine the lease and forfeit the whole or part of the 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 130 Chapter V provides that previous approval of the Central Government to be obtained through State Government, which is to the following effect:-
“63. Previous approval of the Central Government to be obtained through State Government:- Where in any case previous approval of the Central Government is required under the Act or these rules, the application for such approval shall be made to the Central Government through the State Government .”
127. Our above conclusion is reinforced when we look into the statutory regime regarding grant of mining lease as per the Mineral Concession Rules, which were in force prior to enforcement of Mineral Concession Rules, 1960. Prior to MMDR Act, 1957, earlier Central Legislation which was governing the field was Mines and Minerals (Regulation and Development) Act, 1948, under which rules have been framed by Central Government namely, Mineral Concession Rules, 1949. Rule 14 of Chapter III contemplated application for prospecting license. Chapter IV of the Rules, 1949 contained the heading “grant of Mining Lease in respect of land in which the minerals belong to Government”. The provisions of Rule 27 of Chapter IV provide for 131 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
(iv) the provisions of clauses (i), (ii),
(iii), (iv), (v), (vii), (viii), (ix), (x), (xi0 and (xv) of sub-rule (1) of rule 41 shall apply to such lease with the modification that in clauses (ii), (iii), (iv) and (xv) for the words "State Government" the word "lessor" shall be substituted;
XXXXXXXXX” 132
128. Thus, the Chapter V of Rules, 1949 dealt with the mining lease granted by private persons, i.e., the category where the minerals were not owned by the Government but was owned by private persons. Chapter V of the Rules, 1960 contains substantially similar provisions. Thus, Chapter V of Rules, 1960 has to be treated to be dealing with minerals owned by private owners. The earlier statutory regime, which was enforced as per Rules, 1949 made it amply clear that mineral concessions are to be granted by private persons also, which is in substances retained in Chapter V of Rules, 1960. Thus, mining lease to be 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.133
129. Another reason for not providing any application to State Government for grant of mining lease in respect of minerals, which vests in the private owners and community owners is that; without consent or willingness of private owners/community owners of minerals, no authority is empowered to grant any mining lease with regard to minerals, of which he is the owner, it is the owner of the minerals may be private persons or community owners, who is entitled to grant lease of minerals as per the provisions of Chapter V of Rules, 1960.
130. We, thus, conclude that as per the statutory provisions contained in Rules, 1960 especially Chapter V, a mining lease for minerals, which belongs to a private owner or a community owner, it is not the State Government, which is entitled to receive any application or grant any mining lease, but it is the private owner or community owner, who is entitled to grant a lease for mining minerals owned by them. Issue No.4 is answered accordingly.
134Point No.5
131. Shri Shekhar Naphade, learned senior counsel appearing for the State of Meghalaya has submitted that State of Meghalaya has no control over the mining of the coal by owners of the minerals since it is the owners, who have right to carry on mining, which has been traditionally going on in the State of Meghalaya for last several decades. To find out as to whether State of Meghalaya has any statutory control over the mining operations in State of Meghalaya, which is going on for last several decades, we have to examine the statutory provisions governing the field.
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:- 135
“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 an affidavit stating that he has–
(i) filed up-to-date income tax returns;
(ii) paid the income tax assessed on him, and
(iii) paid the income tax on the basis of self-assessment as provided in the Income Tax Act, 1961 (43 of 1961).
(2) Except with the previous approval of the Central Government, no prospecting licence or mining lease shall 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 136 statutory and without any exception State Government cannot say that it has no role to play with regard to mining of coal. All applications for previous approval of Central Government has to be routed through State Government. There are other rules in Chapter V itself, which provides for control of the State government in the mining of coal. Rule 50 empowers the provision for prohibition of working of mines by the State Government, which is to the following effect:-
“50. Prohibition of working of mines:- If the State Government has reason to believe that the grant or transfer of a prospecting licence or a mining lease or of any right, title or interest in such licence or lease is in contravention of any of the provisions of this chapter, the State Government may, after giving the parties an opportunity to represent their views and with the approval of the Central Government, direct the parties concerned not to undertake any prospecting or mining operations in the area to which the licence or lease relates.”
134. The above rule empowers the State Government with the approval of the Central Government to direct the parties concerned not to undertake any mining operations, if it has reasons to believe that the grant or transfer of mining lease is in contravention of any of the provisions of Chapter V. Thus, when mining 137 operations of coal are being conducted without prior approval of Central Government, State is not powerless to direct the parties not to undertake any prospective mining operations in the area. The power given under Rule 50 is not only enabling power, but is a statutory obligation on the State to exercise the power in the public interest. Rule 51 requires a mining lease to furnish to the State Government such returns and statements as may be prescribed. Rule 52 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 extend to five thousand rupees or both.” 138
135. Rule 52 gives the State Government ample power to prosecute and punish mining leases or his transferees or assignees on violation of the rules or contravention of any of the provisions of Chapter V, which is ample power to the State to ensure that the Act is faithfully followed.
136. The State was advised by the Comptroller and 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 139 District of State of Meghalaya is unacceptable and not in a good spirit. Our country being governed by the Constitution of India all the States are to implement Parliamentary Acts in true spirit and in the present case the State having been advised time and again by Comptroller and Auditor General and being well aware of its statutory obligation as noticed above it comes ill from the State to contend before this Court that there is no requirement of mining lease for winning the minerals. The above stand of the State taken before this Court gives the impression that instead of implementing the Parliamentary enactment and regulatory regime for mineral regulation some vested interests wants to continue the illegal regime of illegal mining to the benefit of the few persons which is unacceptable and condemnable. We, thus, conclude that the State of Meghalaya has jurisdiction and power to ensure that no mining of coal should take place except when a mining lease granted under Mineral Concession Rules, 1960, Chapter V, as discussed above. 140 Point No.6
138. One more point which needs to be considered is as to whether power to allot land for mining purpose is vested in Autonomous District Council? The submission on behalf of one of the Autonomous District Council which is the appellant before us as well as on behalf of State of Meghalaya is that Autonomous District Council being constitutional authority 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, 141 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 denuded in that respect. The logical corollary of the above principle is that power of Autonomous District Council shall also be denuded in so far as regulation and development of minerals to the extent which is covered by 1957 Act. We may refer to one Rule 4 of United Khasi Jaintia Hills District (Trading by non Tribals) Rules,1959, which 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 142 First Schedule on payment of prescribed license fee subject to the conditions specified in the license..
. . . . ”
140. It is relevant to notice that the United Khasi Jaintia Hills District (Trading by Non-Tribal) Rules, 1959 has been repealed insofar as Jaintia Hills Districts are concerned by the Jaintia Hills Autonomous District (Trading by Non-Tribal) Regulation Act, 2011, Section 18. Rules, 1959 is still in force in Khasi Hills Autonomous Districts, since, no other regulations have been placed before us repealing the Rules, 1959. In Regulations, 2011, one aspect needs to be noted in Section 2, which is definition clause. By clause
(viii), “trade” has been defined, which is to the following effect:-
“(viii) "Trade" means any trade involving buying and selling or business for profit and includes exchange of goods or commodities or business or import, export and transport of goods/commodities or entry of goods into market for sale or trade and business such as construction works or other work rendered by the contractor or his agent and it also includes person and persons engaged by such contractor or agent or any other profession or vocation such as barber, cobbler, tailoring, cattle rearing (which include piggery, goatary, poultry) milk and dairy 143 products, automobiles making or repairing, electrician, furniture makers, pharmacist, physician, transport and any other similar vocation or profession and the term "trade" and "trading" shall be construed accordingly.”
141. The grant of licenses contemplated by Regulations are only with respect to the “trade” as defined in 2(viii). The entire Regulations do not refer 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.144
(2) If any dispute arises as to the share of such royalties to be made over to a District Council, it shall be referred to the Governor for determination and the amount determined by the Governor in his discretion shall be deemed to be the amount payable under sub- paragraph(1) of this paragraph to the District Council and the decision of the Governor shall be final.”
143. Para 9(1) confines to the licences or leases of minerals granted by government of the State. Schedule VI which constitute the District Councils and Regional Councils enumerates their powers. Para 9 refers to licences or leases for extraction of 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 145 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 versus M/s Hind Stone and others, 1981 (2) SCC 205, speaking through Chinnappa Reddy,J., has made following weighty observations: -
“6. Rivers, Forests, Minerals and such other resources constitute a Nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation. It is recognised by Parliament. Parliament has declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals. It has enacted the Mines and Minerals (Regulation and Development) Act, 1957.....” 146
146. No one can dispute the underlying object in the above observations of this Court. The use of natural resources also plays major role in carrying out development. A fine balance has to be maintained in utilisation of natural resources and its conservation and preservation. One cannot be sacrificed for the interest of other. The concept of Sustainable Development has been evolved and is being pursued. In this context, reference be made to the three-Judge Bench judgment of this Court in Lafarge Umiam Mining (pvt.) Ltd. Versus Union of India & Others, 2011(7) SCC
338. In para 75, following legal position was noticed:
-
“75. Universal human dependence on the use of environmental resources for the most basic needs renders it impossible to refrain from altering the environment. As a result, environmental conflicts are ineradicable and environmental protection is always a matter of degree, inescapably requiring choices as to the appropriate level of environmental protection and the risks which are to be regulated. This aspect is recognised by the concepts of “sustainable development”. It is equally well settled by the decision of this Court in Narmada Bachao Andolan Vs. Union of India that environment has different facets and care of the environment is an ongoing process. These concepts rule out the formulation of an across-the-board principle 147 as it would depend on the facts of each case whether diversion in a given case should be permitted or not, barring “no go” areas (whose identification would again depend on undertaking of due diligence exercise). In such cases, the margin of appreciation doctrine would apply.”
147. Now we come back to the order of NGT dated 17.04.2014 by which Tribunal prohibited the Rathole mining/illegal mining throughout the State of Meghalaya. We have 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 148 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 <IP_ADDRESS> of the report is as follows: -
“<IP_ADDRESS> Pollution of rivers due to Acid Mine Drainage from coal mines Based on media reports relating to pollution of Lukha river in Jaintia Hills, the Meghalaya State Pollution Board (MSPCB) conducted (November 2011) an investigation to ascertain the water quality of the Lukha River and its feeding streams in Jaintia Hills District vis-a-vis a similar investigation carried out in February 2007. For this purpose, eight water and sediment samples were collected from the same sampling locations investigated during 2007. The findings are as follows: -
Table 1.6 Station pH Iron(mg/I) Sulphate(mg/I) BIS norms BIS norms:0.3 BIS 6.5-8.5 norms:200.0 2007 2011 2007 2011 2007 2011 St.1 3.0 2.7 3.6 6.2 254.0 566.5 St.2 7.5 5.0 0.13 5.4 13.4 305.0 St.3 6.8 7.3 0.17 0.4 62.0 8.69 St.4 4.5 4.3 0.46 4.8 211.8 265.0 St.5 6.3 5.0 0.32 1.2 188.8 200.0 St.6 4.3 6.2 0.372 0.26 192.1 118.2 St.7 7.9 8.2 1.35 0.18 99.0 29.04 St.8 7.8 8.1 0.3 0.28 101.5 45.6 149 The water quality characteristics in terms of pH, Sulphate and Iron concentrations with respect to Stations 1,2,4 and 5 indicated that there is significant deterioration of water quality in comparison to that of the year 2007 the major cause of which was the AMD from coal mining in these areas.
The investigation made by the MSPCB further revealed that the river water on the entire stretch of the sampling locations was not suitable for drinking purpose......”
149. Tribunal being satisfied from the materials on record has issued the order dated 17.04.2014 which cannot be faulted in the facts and materials which are on record in the present case. One more fact in the above context need to be noticed i.e. after the order dated 17.04.2014, several applicants including the appellants of Civil Appeal No.5272 of 2016 filed application for vacating the ban which was not 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 150 withdraw the ban. We do not find any error in the order of NGT reaffirming its ban order in the facts of the present case. But the question which has been raised by the appellant before this Court is that whether the complete ban as imposed by the NGT deserves to be vacated or modified in the interest of the State and tribals. The revenue earned by the State from coal mining plays substantial part in the economy of the State. It is also amply demonstrated from the record that tribals are the owners of the land who carry on mining of coal in their land by which they earn their substantial livelihood.
151. Though as discussed above the manner in which the mining is being carried out by the tribals cannot be approved which is clearly in violation of statutory regime under 1957 Act and 1960 Rules but in event the mining is carried out by tribals or their 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 151 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 the illegal coal mining which was rampant in the State of Meghalaya and the ban order cannot be extended to valid and legal mining as per 1957 Act and 1960 Rules.
Point Nos.9 and 10
152. The appellants contend that the NGT has no jurisdiction to constitute any committee. The NGT vide its different orders has constituted different committees for submitting reports for different purposes. The Constitution of which committees are sought to be challenged on the ground that the NGT has no jurisdiction to constitute a committee. Similarly, order of the Tribunal directing for constituting a fund, namely, Meghalaya Environment Protection and Restoration Fund has been challenged on the ground that 152 the Tribunal has no jurisdiction to constitute any fund.
153. What are the powers and jurisdiction of the Tribunal given under the National Green Tribunal Act, 2010 has to be looked into to consider the above submission? In so far as jurisdiction of the Tribunal is concerned, we have already noticed Sections 14, 15, and 16 of the Act. Section 19 of the Act deals with procedure and powers of the of the Tribunal. Section 19 which is relevant for the present case is as follows:
“19. Procedure and powers of Tribunal. – (1). The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice. (2). Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure.
(3). The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872.
(4). The Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;153
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decision;
(g) dismissing an application for default or deciding it ex parte;
(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte;
(i) pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act;
(j) pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I;
(k) any other matter which may be prescribed.
5. All proceedings before the Tribunal shall be deemed to be the judicial proceedings within the meaning of sections 193, 219 and 228 for the purposes of section 196 of the Indian Penal Code and the Tribunal shall be deemed to be a civil court for the 154 purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.”
154. Sub-section (1) of Section 19 provides that Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure but shall be guided by the principles of natural justice. What sub-section (1) meant to convey is that Tribunal is not shackled with the procedure laid down by the CPC for conducting its proceedings. Sub-section (2) of Section 19 empowers the Tribunal, powers to regulate its own procedure. Section 19(2) confers vide powers on the Tribunal in so far as its procedure is concerned. Section 19(4) vests some powers as are vested in civil court, while trying a suit, in respect of matters enumerated therein. The use of expression “shall not be bound by the procedure laid down by the CPC” is not akin to saying that procedure as laid down by the CPC is in no manner relevant to the Tribunal. Further, Section 19(1) also does not mean that Tribunal cannot follow any procedure given in the CPC. One provision of CPC inserted by Act 104 of 1976 with effect from 01.02.1977 is Order XXVI, which is 155 relevant for present inquiry. Order XXVI Rule 10A provides as follows:
“Order XXVI Rule 10A.Commission for scientific investigations"- (1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.
(2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.”
155. Rule 10A provides that where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon 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 156 with the scientific investigation. The powers under Rule 10A which are to be exercised by the Court can very well be used by the NGT to obtain reports by experts. The NGT as per the statutory scheme of the NGT has to decide several complex questions pertaining to pollution and environment. The scientific investigation and report by experts are necessary requirement in appropriate cases to come to correct conclusion to find out measures to remedy the pollution and environment. We do not, thus, find any dearth of jurisdiction in the NGT to appoint a committee to submit a report. We may further say that while asking expert to give a report the NGT is not confined to the four corners of Rule 10A rather its jurisdiction is not shackled by strict terms of Order 26 Rule 10A s per Section 19(1) as noticed above.
156. There is one more provision which throws considerable light on the above. Under Section 35 of the NGT Act, 2010 Central Government is empowered to 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 157 and Procedure) Rules, 2011. The said Rules have been framed in exercise of powers under Section 4(4) as well as Section 35. The Rules, 2011 are Rules also for practices and procedure of the Tribunal. Rule 24 which is relevant for the present case is as follows:
“Section 24. Order and directions in certain cases.- The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice.”
157. Rule 24 empowers the Tribunal to make such orders or give such directions as may be necessary or expedient to give effect to its order or to secure the ends of justice. Rule 24 gives vide powers to the Tribunal to secure the ends of justice. Rule 24 vests special power to Tribunal to pass orders and issue directions to secure ends of justice. Use of words ‘may’, ‘such orders’, ‘gives such directions’, ‘as may be necessary or expedient’, ‘to give effect to its orders’, ‘order to prevent abuse of process’, are words which enable the Tribunal to pass orders and the above words confer vide discretion.
158
158. Professor Justice G.P. Singh, in Principles of Statutory Interpretation, 14th Edition while dealing with enabling word says:
“Ordinarily, the words ‘May’ and ‘It shall be lawful’ are not words of compulsion. They are enabling words and they only confer capacity, power or authority and imply discretion. “They are both used in a statute to indicate that something may be done which prior to it could not be done”. The use of words ‘Shall have power” also connotes the same idea.”
159. The enabling powers give to the Tribunal under Rule 24 is for purpose and object to decide the subjects which are to be examined, decided and an appropriate relief is to be granted by the Tribunal. Further, subjects contain 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 159 benefit of those who have right for clean environment which right they have to establish before the Tribunal. The power given to the Tribunal is coupled with duty to exercise such powers for achieving the objects. In this regard reference is made to judgment of this Court in L. Hirday Narain vs. Income Tax Officer, Bareilly, 1970(2) SCC 355, where this Court was examining provision empowering authority to do something. This Court laid down in paragraph 14:
“14. The High Court observed that under Section 35 of the Indian Income Tax. Act, 1922, the jurisdiction of the Income Tax Officer is discretionary. If thereby it is intended that the Income Tax Officer has discretion to exercise or not to exercise the power to rectify, that view is in our judgment erroneous. Section 35 enacts that the Commissioner or Appellate Assistant Commissioner or the Income Tax Officer may rectify any mistake apparent from the record. If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a 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.” 160
161. We, thus, are of the considered opinion that there is no lack of jurisdiction in the NGT to direct for appointment of committee or to obtain a report from a committee in given facts of the case.
162. Now coming to the challenge to the Fund which has been constituted by the Tribunal, namely, “Meghalaya Environment Protection and Restoration Fund”, it is useful to notice the observation of the Tribunal in its order dated March 25, 2015 by which the said Fund was created. The reasons for constitution of Fund are self-explanatory which are to the following effect:
“It is also undisputable that there has been huge environmental degradation and pollution of the waterbody in the State of Meghalaya, because of this illegal, unscientific mining. No one has even thought of restoration of the area in question, to bring to some 16 extent, if not completely, restoration of ecology and environment in question. Serious steps are required to be 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 161 appearing for the parties and keeping in view the notifications of the Central Government dated 10.05.2012 and that of the State Government dated 22.06.2012, we may notice that in the report of Comptroller and Auditor General of India for the period ending 31st March, 2013 under 7.5.18 of Chapter 7 of which the invoice value of the coal has been taken Rs. 4850/- per metric tonne. Thus, we direct that the State Government shall in addition to the royalty payable to it, also collect 10% of the said market value of the coal per metric tonne from each person. The amount so collected shall be deposited in the account to be titled as ‘Meghalaya Environment Protection and Restoration Fund’ to be maintained by the State under the direct control of the Chief Secretary of the State of Meghalaya.
This amount shall only be used for restoration of environment and for necessary remedial and preventive measures in regard to environment and matters related thereto”
163. As noticed above the NGT could have passed any order or direction to secure ends of justice which power especially conferred by Rule 24 as noticed above, direction to constitute Fund is thus also saved under such power.
Point No.11
164. In respect of constitution of committee by the Tribunal there are two other limbs of submission; that, 162 (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 committee headed by Justice B.P. Katakey directed:
“14. Only last question which remains is of restoration of the environment and 163 rehabilitation of the victims for which funds are available. We are of the view that for this task, it will appropriate that we constitute an independent Committee. This Committee will be headed by Justice B.P. Katoki, Former Judge of the Guwahati 8 Item Nos. 06 to 10 August 31, 2018 R 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.”
167. The Constitution of the committee and its functions entrusted were with the object to implement the orders passed by the Tribunal. The Tribunal has already directed for preparing a scheme for the restoration of the environment and ecology. The environment and ecology restoration plan was submitted before the Tribunal along with the affidavit dated 03.10.2017 as has been noticed in the order dated 02.01.2018 of the NGT. In the constitution of Katakey committee, thus, it cannot be said that essential judicial functions were delegated to the committee by the Tribunal. For the restoration of environment NGT 164 vide its order dated 31.08.2018 has directed the committee to submit its action plan and reports by e- mail. The Tribunal, thus, had kept complete control on all steps which were required to be taken by the committee and issued directions from time to time. We, thus, do not accept the submission of the appellant that the essential judicial powers of the NGT had been delegated to the committee. Looking to the enormous work of restoration of environment which has to be supervised on the spot the committee was constituted. We, however, observe that the State is always at liberty to obtain particular direction if aggrieved by any act of the committee. The matter being pending before the Tribunal of acts of the committee are under direct control of the Tribunal and if the committee 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 3 165 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 166 encroaches upon the administration of Tribal areas by the District and Regional Councils.
Point No.12
169. The NGT vide its order dated 04.01.2019 directed the State of Meghalaya to deposit an amount of Rs.100 Crores with the Central Pollution Control Board, which was to be spent for restoration of environment. The State of Meghalaya aggrieved by above direction has filed Civil Appeal No.2968 of 2019. We have already noticed the submission of Shri Amrendra Sharan, Senior Advocate.
170. Shri Colin Gonsalves, learned Amicus Curiae has refuted the submissions made by the learned counsel for the appellant. It is submitted that despite the specific ban on coal mining by order dated 17.04.2014 in the entire State, illegal coal mining had been going on, which was proved from the reports and pictures referred to in the report. The State is responsible and constitutionally obligated to provide clean environment to every citizen. They having entirely failed to stop the illegal mining, which is cause of degradation of pollution including pollution of river 167 streams, the Tribunal has rightly directed the State of Meghalaya to deposit Rs.100 Crores. Shri Gonsalves submits that in spite of State Pollution Control Board as well as Comptroller Auditor General having invited the attention of the State of Meghalaya towards serious pollution especially in the river water, no steps were taken by the State of Meghalaya. It is further submitted that restoration of environment requires carrying out various projects and unless the State provides for necessary fund and finances, the restoration of damaged environment 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 168 Secretary to Government of Meghalaya was made the Member Secretary/Coordinator for proper functioning of the committee. The committee visited different sites, held various meetings, various presentations were also made before the committee by Meghalaya State Pollution Control Board and other bodies namely North Eastern Centre for Technology Application and Reach, North Eastern Space Application Centre. In Para 12(g), following has been stated by the committee:-
“12(g) Presentation was also made by the Meghalaya State Pollution Control Board on the coal mine activities and its impact on the land used, water quality, air quality, ecology as well as socio-economic impact. The Committee, on the basis of the said presentation, found the following:-
(i) Continuation of coal mine activities for a long time in an unplanned and unscientific manner as well as without any pollution control measures.
(ii) Such mining activities are generating huge ecological disturbances and negative environmental impacts.
(iii) Water in rivers and streams in the mining areas have 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.169
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, taps water and hand pumps also found to be less than permissible limit of drinking water standards.
(v) Absence of biological life in the water bodies.
(vi) Ambient air quality of the coal mining areas and coal storage areas exceeds the National Ambient Air Quality Standards on few occasions.
(vii) Requirement of urgent steps to be taken to generate social awareness about the adverse environmental impacts and the health hazards associated with unplanned and unscientific coal mining activities.
172. Action plans for restoration of environment were also discussed and finalised.
173. On detailed discussion on Issue No.(A), committee with details including photographs and maps observed following:-
“(vi) From the aforesaid materials available before the Committee, it is, therefore, evident that the coal mining activities, which includes the extraction of coal and transportation, is going on in the State of 170 Meghalaya, at least in East Jaintia Hills District, where such mining activities are most, despite the ban imposed by the Hon’ble NGT vide its order dated 17.04.2014. Very sincere and honest efforts are required on the part of the State Government to stop the mining activities, which are going on. Such mining activities are going on without adopting any safety measures for the workers and without caring for adverse environmental affect. A sincere desire to stop such illegal mining activities is also necessary on the part of the State and Central Government agencies for implementation and monitoring of health, safety and environmental regulations.
(vii) The result of ongoing un-abetted illegal mining, despite the ban imposed by the NGT, is the very tragic incident occurred very recently on 13.12.2018 in a coal mine in Ksan Village near Lytein River under Saipung Police Station in East Jaintia Hills District, where 15(fifteen) coal mine workers are reported trapped, while they were working in the mine. Unfortunately, none of them so far could be rescued. For the said incident, Saipung Police Station Case No.15(12)/2018 under Section 188/304A/34 IPC read with Section 3(2)(d) of PDPP Act and Section 21(1) of MM(R&D) Act against the coal mine owner has been registered. A Magisterial enquiry to find out the facts and circumstances leading to the said incident, has also been directed.”
174. The fact that on 13.12.2018, 15 coal mine workers were trapped in an ongoing coal mining operation, who all have been reported to be dead itself proves beyond any shade of doubt that order dated 171 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 proceedings of the committee, its meetings and minutes, were with the knowledge and participation of the 172 coordinator/ Additional Chief Secretary of the State of Meghalaya.
177. A perusal of the order dated 04.01.2019, which is impugned in the appeal indicates that although learned counsel for the State of Meghalaya was present and was heard but no kind of objection was raised regarding acceptability of the report. The report obtained by the NGT through the committee was to take effective steps towards protection of environmental pollution and for restoration of damaged environment. Pollution of the various rivers and streams and steps for treating the acidic water was urgently required. Several presentations before the committee were also made and different steps regarding restoration of environment were to be taken as noticed and indicated in the report of the committee. As noticed above, the NGT vide its order dated 25.03.2015 constituted a fund namely ‘Meghalaya Environment Protection and Restoration Fund’ to be maintained by the State under the direct control of the Chief Secretary of the State of Meghalaya. It is reiterated in the report of the 173 committee that an amount of Rs.433 Crores is already lying in the said fund, which has not been spent.
178. Learned counsel for the appellant has laid much emphasis that there had been no calculation of the extent of damage nor Tribunal could have arrived at on the amount of damages to the extent of Rs.100 Crores, which was directed to be deposited by the 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 174 financial resources and budgetary amount may cause great hardship to the State of Meghalaya. Ends of justice be served in modifying the direction of NGT dated 04.01.2019 to the extent that State is permitted to transfer an amount of Rs.100 Crores from the amount lying in the MEPRF to the Central Pollution Control Board. The Central Pollution Control Board as directed by the Tribunal (NGT) shall utilise the aforesaid amount of Rs.100 Crores only for restoration of the environment. The appeal is thus, partly allowed to the above extent.
Point No.13
180. Vide order dated 31.03.2016, the NGT had permitted transportation of coal till 15.5.2016 under terms and conditions as enumerated therein. The order dated 31.3.2016 further contemplated that no coal in any form whatsoever shall be permitted to be transported after 15.05.2016 on which date the entire remaining coal shall vest in the State Government and shall be disposed of in accordance with law. 175
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 minerals belong to the owners/Tribals. We have also found that coal mining was illegally going on unregulated by any statutory law in the Hills District of State of Meghalaya without there being any mining lease. The entire mining was, thus, is clear in contravention of Section 4(1) of Act, 1957 which attracted penalties under Section 21. Section 21 of the Act is as follows:
“21. Penalties.―(1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees per hectare of the area.
(2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees, or with both, and in the case of a continuing contravention, with additional fine which may extend to fifty thousand rupees for every day during which such 176 contravention continues after conviction for the first such contravention.
(3) Where any person trespasses into any land in contravention of the provisions of sub- section (1) of section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land. (4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral tool, equipment, 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), 177 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 to say that proprietary right of owner of the minerals is lost rather State under Section 21(5) exercises its power to recover the mineral which has been raised without any lawful authority. We, thus, are of the view that 178 coal extracted and lying in open after 15.05.2016 was not automatically vested in the State and the owner of the coal or the person who has mined the coal shall have the proprietary right in the mineral which shall not be lost.
Point No.14
183. Several I.A.s have been filed by different applicants seeking direction to transport already extracted coal lying at different places in hills districts of State of Meghalaya. Different applicants may claim to different quantities of coal situate at different places. By our order dated 10.05.2019, we have already permitted transportation of balance coal to the extent of 75050 MTs for which challans were already issued after the order of this Court dated 04.12.2018. The above quantity of said 75050 MTs. was balance quantity out of 176655 Mts., for transportation of which order was passed by this Court on 04.12.2018. In addition to the aforesaid quantity, claim with regard to different quantities by different applicants has been laid. It is not necessary for the purpose of the present case to notice different quantities and 179 claims of different persons for transportation. After the order of the NGT dated 31.08.2018, the State of Meghalaya has constituted committees to assist the Commissioner and Secretary, Mining and Geology to prepare a separate inventory with regard 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 180 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. Name of Declared Assessed No. District Quantity in Quantity in MT MT
1. East Jaintia 15,46,687.00 13,22,379.00 Hills District
2. West Khasi 7,29,757.00 7,78,297.99 Hills District
3. South-West 1,25,600.63 2,14,145.55 Khasi Hills District
4. South Garo 12,834.00 10,841.00 Hills District Total 24,14,878.63 23,25,663.54”
(iv) From the aforesaid District wise break up of extracted coal, which was un-
inventorised, it appears that the quantity of such coal was highest in East Jaintia Hills District, where the Deputy Commissioner, as noticed above, has admitted ongoing coal mining activities despite the ban imposed by the Hon’ble NGT vide order dated 17.04.2014. The stand of the Government that the quantity of coal, as reflected in the aforesaid chart were mined prior to the said ban, appears to be not acceptable, in view of the aforesaid admission of the Deputy Commissioner and also what the Committee has noticed during its field visit on 12.11.2018. It seems that there is an attempt to show the freshly mined coal, i.e. the coal mined after the ban imposed by the Hon’ble NGT, as the coal left out from the assessment and remained un-inventorised though mined prior to the said ban. The Committee also 181 apprehends that such freshly mined coal may be transported taking advantage of the order dated 04.12.2018 passed by the Hon’ble Supreme Court.
(v) The Hon’ble NGT vide its order dated 31.08.2018 given the responsibility of going through the said issue to the Secretary of Mining, State of Meghalaya in the first instance and to be cross-checked by the Joint Team of representatives of the Central Pollution Control Board and India School of Mines, Dhanbad. As reported, no such cross- check has so far been made.”
184. The State of Meghalaya has filed additional affidavit dated 06.04.2019 of Commissioner and Secretary to the Government of Meghalaya, Mining and Geology Department, where details of assessments made by committees appointed by the State of Meghalaya has been brought on the record. In the affidavit, it has also been stated that a technical committee was also constituted to perform the verification of the assessments made by the Deputy Commissioners of respective districts. As per the affidavit, assessment of extracted coal stocks in above four districts is 32,56,715 MTs whereas in the report submitted by Katakey committee, the said figure in the above four districts is 23,25,663.54 MTs. Technical committee 182 submitted their report, which have been brought on the record alongwith the Additional Affidavit verifying the assessed quantities. In the affidavit of the Commissioner and Secretary, it has also been sated that the technical committees have submitted that it is difficult to define with certainty that which coal was mined prior to ban in 2014 and mined after 2014. From the above it is clear that the State Government itself has come with a case that huge quantity of coal in the four hills districts, which has been extracted is lying waiting for orders of transportation. Learned Amicus Curiae and Shri Nidhesh Gupta, learned senior counsel have refuted the claim made by the applicants as well as the State of Meghalaya. It is submitted by learned Amicus Curiae that in fact State is not making any effort to stop the illegal mining, in spite of the ban of 17.04.2014, illegal mining of coal has been permitted and now such illegal mined coal has also been assessed and State also supports the claim of transportation of the applicants on the guise that coal lying in open is an environmental hazard. 183
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 MEPR Fund. The coal being major mineral and useful for different industries and projects, appropriate disposal of extracted coal is also of a paramount importance.
186. We accept the suggestion of learned Amicus Curiae that entire extracted coal lying at various places be directed to be taken over by Coal India Ltd, a Government of India unit, who may dispose of the same 184 as per its normal method of disposal and proceeds be distributed as per directions issued by this Court hereinafter. The NGT has already directed that for all extracted coal lying at different places, it is the State, which is the receiver-cum-custodian of the coal. The State having carried out the assessment of the coal lying in the aforesaid four districts including the details of the quantities and the details of owners being available with it, it may ensure that the entire coal are handed over to the Coal India Ltd., as per the mode and manner to be formulated by Katakey Committee, in consultation with officers of the Coal India Ltd. and State of Meghalaya.
187. The Katakey committee and its various members and participants have done a commendable job in studying and examining various aspects of environment in the State of Meghalaya and several valuable suggestions have been given by the committee, which are also being implemented to mitigate the suffering of the citizens consequent to the illegal coal mined. 185
188. We direct that Commissioner and Secretary of the State in the Department of Mining and Geology alongwith the officers of Coal India Ltd. may deliberate with the Katakey committee to finalise a comprehensive plan for transportation and handing over of the coal to Coal India Ltd. for disposal/auction as per rules of Coal India Ltd. Disposal/auction by Coal India Ltd. shall be beneficial to both the 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 186 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 back the balance of the amount to the owner.
187
189. Another aspect of the matter is also to be noticed. The coal, which has been seized by the State in illegal transportation or illegal mining for which different cases have been registered by the State, is not to be dealt with as directed above. The said seized coal shall be dealt by the State in accordance with Section 21 of the Act, 1957 and on being satisfied, the State can take a decision to recover the entire quantity of coal so illegally raised without lawful authority and the said cases has to be separately dealt with in accordance with law.
190. We, thus, are of the view that all I.A.s filed by different applicants seeking order of transportation of the different quantities stand disposed of in view of the directions as given above. Let the Katakey committee in consultation with State of Meghalaya and officers of Coal India Ltd. finalise appropriate mode and manner to affect the transport and disposal of the coal in the above manner.
188Conclusions: -
191. From the foregoing discussions we arrived at following conclusions:-
1) The application O.A.No.73 of 2014 has clearly made out allegations which were sufficient for the Tribunal to exercise its jurisdiction as conferred by Section 14 of the National Green Tribunal Act, 2010. Both the component as appearing in sub-section 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 present.
2) The allegations of the applicant of O.A.No.73 of 2014 of environmental degradation by illegal 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 189 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 190 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 phrase “except under and in accordance with terms and condition with a mining lease granted under the 191 Act” are also significant which make the intent and purpose of prohibition clear and loud.
7) The statutory scheme delineated by Section 13(2)(f) and the Minerals (Concession) Rules, 1960 clearly contemplate grant of mining lease, with regard to both the categories of land, i.e., land in which minerals vest in the Government, and the land in which minerals vest in a person other than the Government.
8) The Mines Act, 1952 contains various provisions regarding inspection of mining operation and management of mines. The provisions of The Mines Act, 1952 are mandatory to be followed before working a mine. The regulations namely Coal Mines Regulations, 2017 also contains several regulatory provisions which need to be followed while working a mine by a mining lease holder. The enforcement of Mines Act, 1952 and the Regulations, 2017 have to be ensured by the State in the public interest.
192
9) As per statutory regime brought in force by notification dated 15.01.2016 issued under Environment (Protection) Act, 1986, environmental clearance is required for a project of coal for mining of any extent of area. While implementing statutory regime for carrying mining operations in the Hills Districts of the State of Meghalaya, the State of Meghalaya has to ensure compliance of not only MMDR Act, 1957 but Mines Act, 1952 as well as Environment (Protection)Act, 1986.
10) In Hill District of State of Meghalaya for carrying coal mining operations in privately owned/community owned land it is not the State Government which shall grant the mining lease under Chapter V of Rules, 1960, but it is the private owner/community owner of the land, who is also the owner of the mineral, who shall grant lease for mining of coal as per provisions of Chapter V of Rules, 1960 after obtaining 193 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 194 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 CPC can very well be exercised by the NGT also. The NGT while asking expert to give a report is not confined to the four corners of Rule 10A and its jurisdiction is not shackled by strict terms of Order 21 Rule 10A by virtue of 19(1) of the NGT Act.
15) Rule 24 of National Green Tribunal (Practice and Procedure) Rules, 2011 empowers the Tribunal to make such orders or give such 195 directions as may be necessary or expedient to give effect to its order or to secure the ends of justice. The power given to the Tribunal is coupled with duty to exercise such powers for achieving the objects. There is no lack of jurisdiction in NGT in directing for appointment of a committee and to obtain a report from a Committee.
16) The direction to constitute a fund namely “Meghalaya Environment Protection and Restoration Fund”, is also saved under the above power.
17) NGT by directing for constitution of committee has not delegated essential judicial functions. The Tribunal had kept complete control on all steps which were required to be taken by the committees and has issued directions from time to time. The State is always at liberty to obtain appropriate directions if aggrieved by any act of the committee. The matter being 196 pending before the Tribunal all 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.
18) NGT by issuing direction to constitute the committee for transportation of the extracting mineral, for preparing time bound action plan to deal with the restoration of environment and to ensure its implementation does not in any manner interfere with the powers of the District or Regional Councils. The District and Regional Councils are free to exercise all their powers and committee constituted by the Tribunal is only concerned with the Environmental degradation and illegal coal mining. The committees report or direction of the Tribunal in no manner encroaches upon the administration of Tribal areas by the District and Regional Councils.
197
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. 198
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 manner to be formulated by Katakey Committee in 199 consultation with officers of the Coal India Ltd. and the State of Meghalaya.
23) It is for Coal India Ltd. to decide as to venue, where they shall receive the coal, i.e., either at any of its depot or any other place in the State of Meghalaya and it is for the Coal India Ltd. to finalise the process of disposal and auction of the coal. It shall be the duty of the State of Meghalaya and its 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. All concerned shall take steps to ensure weighment of the coal when it is received by Coal India Ltd.
24) The expenses of transportation shall be borne by the State of Meghalaya, Coal India Ltd. or by both, which expenses shall be deductible from the price received of the coal. The State of Meghalaya shall be entitled to royalty and 200 payment towards MERP Fund as well as taxes out of the price of the coal. After deducting its expenses for transportation with 10% of price of the coal, the Coal India Ltd. shall remit the balance amount to the State and it is for the State after deducting the royalty and payment to the MERP Fund and taxes to pay back balance the amount to the owner.
25) The coal which has been seized by the State in illegal transportation and illegal mining for which different cases have been registered by the State, is not to be dealt with as directed above. The seized coal shall be dealt by the State in accordance with Section 21 of the Act, 1957 and on being satisfied, the State can take a decision to recover the entire quantity of coal so illegally raised without lawful authority.
201
192. In view of the foregoing discussions and conclusions, all these appeals are decided in the following manner: -
1) Civil Appeal No. 10720 of 2018, Civil Appeal No. 10611 of 2018, Civil Appeal No. 10907 of 2018 and Civil Appeal No………………of 2019 (arising out of Civil Appeal Diary No. 3067 of 2018) are dismissed subject to declaration and clarification of law as made above.
2) Civil Appeal No. 5272 of 2016 is allowed setting aside the order of NGT dated 31.03.2016 to the extent it declared that all extracted coal after 15.05.2016 shall vest in the State of Meghalaya.
3) Civil Appeal No. 2968 of 2019 is partly allowed permitting the State of Meghalaya to transfer the amount of Rs.100 Crores to Central Pollution Control Board from the Meghalaya Environment Protection and Restoration Fund which amount shall be used by Central Pollution Control Board only for restoration of Environment.
4) All I.As. seeking direction for transportation 202 of coal are disposed of directing: -
i) All extracted coal as assessed by State of Meghalaya lying in different districts of State of Meghalaya which as per order of NGT is in custody of State of Meghalaya shall be handed over to Coal India Ltd. for proper disposal.
ii) The Katakey Committee after discussion with Coal India Ltd. and State of Meghalaya shall formulate a mechanism for transport, weighment of all assessed coal.
iii) The Coal India Ltd. shall auction the coal so received by it as per its best judgment and remit the proceed to State to the extent as directed above.
iv) All coal seized by the State for which cases have already been registered shall be dealt by the State in accordance with Section 21 of 1957 Act.
193. Before we close, we record our appreciation for valuable assistance rendered by learned counsel for the 203 parties which enable us to decide several important issues in these appeals. We also record our appreciation for assistance rendered by learned Amicus Curiae Shri Colin Gonsalves, Senior Advocate.
......................J.
( ASHOK BHUSHAN ) ......................J.
( K.M. JOSEPH ) New Delhi, July 03,2019