STATE OF MEGHALAYA versus ALL DIMASA STUDENTS UNION, DIMA-HASAO DISTRICT COMMITTEE & ORS. on 3 July 2019

[2019] 8 S.C.R. 297

STATE OF MEGHALAYA

v.

ALL DIMASA STUDENTS UNION,

DIMA-HASAO DISTRICT COMMITTEE & ORS.(Civil Appeal No.10720 of 2018)

JULY 03, 2019

[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]

National Green Tribunal Act, 2010: ss.14, 15 and 16 –Jurisdiction of National Green Tribunal (NGT) – Orders by NGTimposing ban on mining – Whether orders passed by NGT werewithout jurisdiction being beyond the purview of ss.14, 15 and 16of the NGT Act, 2010 – Held: Cognizance was taken by NGT whenapplication O.A.73 of 2014 on 17.4.2014 was admitted and orderwas issued – There were clear allegation in the application thatinspite of various remedial measures set out in the report of expert,no proper and effective remedial measures were taken by theconcerned authorities of the State – The pleadings in theapplication clearly alleged environmental degradation due toillegal coal mining – It was further stated that inaction ofauthorities had resulted in violation of various enactmentsmentioned in Schedule I of the NGT Act, 2010 including the Water(Prevention and Control Pollution) Act, 1974, the Air (Preventionand Control of Pollution) Act, 1981 and the Environment(Protection) Act, 1986 – The allegations made in the applicationwere sufficient for NGT to exercise its jurisdiction as conferred bys.14 – Both the component as appearing in sub-section 1 of s.14,that is (i) substantial question relating to environment and (ii) suchquestion arises out of the implementation of the enactmentsspecified in Schedule I, were involved – NGT after adverting toO.A.No.73 of 2014 on 17.04.2014 had called for various reportsfrom different committees including State Pollution Control Board– It was not a case of mere allegation of environmentaldegradation by illegal and unregulated coal mining rather therewere materials on the record including the report of the experts, theMeghalaya State Pollution Control Board published in the monthof September, 1992, the report of Katakey committee appointed by

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ANGT by which environmental degradation of water, air and surfaceof the land was proved – Therefore, there was sufficient allegationregarding substantial questions relating to environment andviolation of enactments in Schedule I – There was no substance inthe appellant’s submission that NGT has no jurisdiction toentertain the case and pass orders – In cases pertaining toBenvironmental matter, the State has to act as facilitator and not asobstructionist – The submission for the State that NGT exceeded itsjurisdiction under ss.14 and 15 in entertaining O.A.No.73 of 2014is rejected – Constitution of India – Art.48A – Water (Preventionand Control Pollution) Act, 1974 – Air (Prevention and Control ofCPollution) Act, 1981 – Environment (Protection) Act, 1986.National Green Tribunal Act, 2010: s.19(1) – Under Or.26r.10A CPC, a Court can appoint commission for scientificinvestigation – This power can very well be exercised by the NGTalso – NGT while asking expert to give a report is not confined toDthe four corners of r.10A and its jurisdiction is not shackled bystrict terms of Or.21 r.10A by virtue of s.19(1) of the NGT Act – r.24of National Green Tribunal (Practice and Procedure) Rules, 2011empowers the Tribunal to make such orders or give such directionsas may be necessary or expedient to give effect to its order or tosecure the ends of justice – There is no lack of jurisdiction in NGTEin directing for appointment of a committee and to obtain a reportfrom a Committee – Code of Civil Procedure, 1908 – Or.26 r.10A –Commission/Committee – National Green Tribunal (Practice andProcedure) Rules, 2011 – r.24.

Land Laws: Land tenure system – Nature of land tenure inFthe Hills Districts of State of Meghalaya – In the Hills Districts ofState of Meghalaya, the most of the lands are either privately orcommunity owned in which State does not claim any right – The,private owners of the land as well as community owners have boththe surface right as well as sub-soil right – Thus, the tribals ownedGthe land and also owned the minerals – Constitution of India –Art.244, sub-clause (2) – Mines and Minerals.

Mines and Minerals Development Regulation Act, 1957:Applicability of the provisions of Act of 1957 in Tribal areas withinthe State of Meghalaya, included in Schedule VI of the ConstitutionH– Schedule VI of the Constitution is a provision for Administration of Tribal areas in the State of Meghalaya – There is nothing inSchedule VI which may indicate about the inapplicability of Act,1957 with regard to the Hills Districts of State of Meghalaya – Inthe report of the Comptroller and Auditor General of India for theyear ended 31[st] March, 2013 also it is clearly stated that Act, 1957is fully applicable for regulation of mines and regulation of mineralsin the State of Meghalaya – Moreover, there was no notificationissued by the President under Para 12A(b) of Schedule VI whichempowers the President, with respect to any Act of Parliament, bynotification, to direct that it shall not apply to an autonomous districtor an autonomous region in the State of Meghalaya, or shall applyto such district or region or any part thereof subject to suchexceptions or modifications as he may specify in the notification –Thus, there is nothing in Sixth Schedule of the Constitution whichmay indicate about the inapplicability of Act, 1957 with regard tothe Hills Districts of State of Meghalaya – Constitution of India –Schedule VI, Para 12A sub-clause (b) – Mines Act, 1952.

Mines and Minerals Development Regulation Act, 1957:Legislative competence of State of Meghalaya to frame MiningPolicy – Directions of NGT to the State of Meghalaya to frame policy– Propriety of – Held: Meghalaya Mines and Minerals Policy, 2012and Draft Guidelines of coal mining activities in the State framedby Mining and Geology Department of the Government – Policy of2012 contemplated regulatory regime for mining lease by the State– The Guidelines mentioned about the unregulated and unscientificmining being carried out in the State of Meghalaya – There can beno dispute to the preposition that in view of MMDR Act, 1957, thelegislative competence of State of Meghalaya under Entry 23 List IIstood denuded – However, under MMDR Act, 1957 as well as theMC Rules, 1960, several statutory obligations/jurisdictions havebeen conferred on the State of Meghalaya – When under aParliamentary enactment, State has been given some statutoryobligations, there is no lack of jurisdiction in the State to framepolicy to give effect to or implement the jurisdictions conferred onthe State by Parliamentary enactments – It is true that Mining Policyto be framed by the State has to confine to the jurisdiction conferredon it as per the MMDR Act, 1957 and the Rules framed thereunder– Several other aspects relating to mining like, rehabilitation, AB

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Areclamation and restoration have to be effectively implemented bythe State for which also, it may be required to frame a policy –Policy of 2012 was already framed by the State of Meghalaya, evenbefore directions were issued by the NGT – In pursuance of NGTdirections, it was draft guidelines of 2015, which were prepared byState of Meghalaya – Thus, direction of NGT to declare MiningBPolicy by the State of Meghalaya cannot be said to be withoutjurisdiction – However, the State in its Mining Policy can only includethose areas where it has jurisdiction under the MMDR Act, 1957and the Rules framed thereunder – Constitution of India – MineralConcession Rules, 1960.C

Mines and Minerals Development Regulation Act, 1957: s.4(1)– Whether the statute requires obtaining lease for winning theminerals in so far as mining of coal from privately owned land/community owned land are concerned – Held: For carrying outmining operations in privately owned land in hills districts ofDMeghalaya, obtaining a mining lease is a statutory requirementunder the MMDR Act, 1957 and the Rules, 1960 – MineralConcession Rules, 1960.

Mines and Minerals Development Regulation Act, 1957:Whether the power to allot land for mining purposes is vested inEAutonomous District Councils – Held: The District Council doesnot have any power to make any law with regard to grant of mininglease – The mining leases for winning the major minerals has to begranted in accordance with 1957 Act and Mineral Concession Rules,1960 – Khasi Hills District (Trading by Non Tribals) Regulation,1954 – United Khasi Jaintia Hills Autonomous District (ManagementFand Control of Forest) Rules, 1960 – Khasi Hills Autonomous District(Trading by Non Tribals) Rules, 1959,.

Mines and Minerals Development Regulation Act, 1957:Whether the order of NGT dated 17.04.2014 directing for completeban on mining is unsustainable – Held: The use of natural resourcesGplays major role in carrying out development – A fine balance hasto be maintained in utilisation of natural resources and itsconservation and preservation – By order of NGT dated 17.04.2014,the Rat hole mining/illegal mining was prohibited throughout theState of Meghalaya – In OA No.73 of 2014 in which said order was H

passed, sufficient materials were on record including experts reportwhich proved that illegal coal mining in the State of Meghalayawas degrading the environment – NGT after considering all pleasand materials affirmed order dated 17.04.2014 and refused towithdraw the ban – No error in the order of NGT reaffirming itsban order.

Mines and Minerals Development Regulation Act, 1957:Whether the complete ban on mining of coal in the State ofMeghalaya as directed by NGT deserved to be vacated/modified inthe interest of State and Tribals – Held: Tribals are the owners ofthe land who carry on mining of coal in their land by which theyearn their substantial livelihood – In event mining operations areundertaken by the tribals or other owners of hills districts ofMeghalaya in accordance with mining lease obtained from the Stateof Meghalaya as per 1957 Act and Rules, 1960, the ban order dated17.04.2014 of NGT shall not come in its way of carrying miningoperations – The ban order is for the illegal coal mining which wasrampant in the State of Meghalaya and the ban order cannot beextended to valid and legal mining as per 1957 Act and 1960 Rules– Mineral Concession Rules, 1960.

Mineral Concession Rules, 1960: Chapter V – Procedure forgrant of mining lease and authority/person, who is competent togrant such lease – Held: As per the statutory provisions containedin Rules, 1960, especially Chapter V, a mining lease for minerals,which belongs to a private owner or a community owner, it is notthe State Government, which is entitled to receive any applicationor grant any mining lease, but it is the private owner or communityowner, who is entitled to grant a lease for mining minerals ownedby them.

Mineral Concession Rules, 1960: Chapter IV and Chapter V– Distinction between – Chapter IV deals with grant of mining leasesin respect of land in which the minerals vest in the Government andChapter V deals with procedure for obtaining a prospecting licenceor mining lease in respect of land in which the minerals vest in aperson other than the Government – Procedure and manner ofapplying for mining lease and grant of lease as contained in ChapterIV is not made applicable to the procedure as given in Chapter V

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Aexcept that by virtue of r.45(i) certain conditions of mining lease ascontained in r.27 under Chapter IV are made applicable for mininglease under Chapter V.

Mineral Concession Rules, 1960: Chapter V – Whether theState of Meghalaya has any statutory control over the mining ofBcoal from privately owned/community owned land in Hills Districtsof State of Meghalaya – Held: State of Meghalaya has jurisdictionand power to ensure that no mining of coal should take place exceptwhen a mining lease is granted under the Rules, 1960 – The statutoryscheme delineated by s.13(2)(f) and the Rules, 1960 clearlycontemplate grant of mining lease, with regard to both the categoriesCof land, i.e., land in which minerals vest in the Government, and theland in which minerals vest in a person other than the Government– Mines and Minerals Development Regulation Act, 1957 –s.13(2)(f).

Mines and Minerals: Jurisdiction of NGT – Constitution ofDcommittee – Whether NGT had any jurisdiction to constitutecommittees to submit reports, to implement the orders of NGT, tomonitor storage/transportation; of minerals and to prepare actionplan for restoration of environment and whether the NGT committederror in directing for constitution of fund, namely, MeghalayaEEnvironment Protection and Restoration Fund – Held: There is nolack of jurisdiction in the NGT to direct for appointment of committeeor to obtain a report from a committee – A Fund has been constitutedby NGT, namely, “Meghalaya Environment Protection andRestoration Fund” – NGT could have passed any order or directionto secure ends of justice which power especially conferred by RuleF24 – Direction to constitute Fund is thus also saved under suchpower – National Green Tribunal Act, 2010.

Mines and Minerals: Judicial powers of NGT – Whether NGTby constituting Committees has delegated essential judicial powersto the Committees – Held: The various instances where the NGTGdirected for report or investigation and submission of report bycommittees were with the object of ensuring the implementation ofthe orders passed by it and to decide the environmental issues raisedbefore it – In no manner, constitution of committee can be said to be delegation of essential judicial powers of the NGT to the committee– The Katakey committee was constituted by NGT on 31.08.2018 –The constitution of the committee and its functions entrusted werewith the object to implement the orders passed by NGT – For therestoration of environment, NGT by its order dated 31.08.2018 hasdirected the committee to submit its action plan and reports bye-mail – NGT, thus, had kept complete control on all steps whichwere required to be taken by the committee and issued directionsfrom time to time – Thus, the submission that the essential judicialpowers of the NGT had been delegated to the committee is not tenable– The matter being pending before NGT of acts of the committee areunder direct control of NGT and if the committee oversteps in anydirection the same can very well be corrected by NGT on the matterbeing brought before it – National Green Tribunal Act, 2010.

Mines and Minerals: Whether constitution of the committeeencroaches the constitutional scheme of the Tribal areas underArt.244(2) and Art.275(1) and Schedule VI of the Constitution –Para 3 of the Schedule VI enumerates the powers of the DistrictCouncil and Regional Council to make laws – The powers of theDistrict and Regional Councils are enumerated under Para 3 – Inthe directions of NGT to constitute committee for transportation ofextracted minerals or for preparing time bound action to deal withthe restoration of environment and to ensure its implementation,there is no interference in the powers of the District or RegionalCouncils – Action plan for restoration of environment is consequenceof NGT finding out that an unregulated coal mining has damagedenvironment and has caused the pollution including water pollution– It is not case of the appellant that District and Regional Councilshave framed any law for restoration of environment which is beingbreached by the committee or its acts – The District and RegionalCouncils are free to exercise all their powers and the committeeconstituted by NGT is only concerned with the Environmentaldegradation and illegal coal mining – The committees’ report ordirection of NGT in no manner encroaches upon the administrationof Tribal areas by the District and Regional Councils – Constitutionof India – Arts.244(2), 275(1).

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AMines and Minerals: Whether direction to deposit Rs.100/-crores by the State of Meghalaya by order dated 04.01.2019 ofNGT is sustainable – NGT by its order dated 04.01.2019 had directedthe State of Meghalaya to deposit an amount of Rs.100 Crores withthe Central Pollution Control Board, which was to be spent forrestoration of environment – The State of Meghalaya aggrieved byBthis direction filed appeal – Held: The amount, which has beendirected by NGT to be deposited by State of Meghalaya is neither apenalty nor a fine imposed on the State – The amount has beendirected to be deposited for carrying out steps regarding restorationof environment – The said amount cannot be said to be amount ofCdamages to be paid by the State – State of Meghalaya has verylimited source of revenue and putting an extra burden on the Stateof Meghalaya to make payment of Rs.100 Crores from its ownfinancial resources and budgetary amount may cause great hardshipto the State of Meghalaya – In the ends of justice, the direction ofNGT dated 04.01.2019 is modified to the extent that State is permittedDto transfer an amount of Rs.100 Crores from the amount lying in theMEPRF to the Central Pollution Control Board – The CentralPollution Control Board shall utilise the amount of Rs.100 Croresonly for restoration of the environment.

Mines and Minerals Development Regulation Act, 1957:Ess.4(1), 21 – Coal – Vesting in Government – Whether NGT’s orderdated 31.03.2016 that after 15.05.2016, all remaining coal shallvest in the State of Meghalaya is sustainable – By order dated31.03.2016, NGT had permitted transportation of coal till 15.5.2016

under terms and conditions as enumerated therein and furtherFcontemplated that no coal in any form whatsoever shall be permittedto be transported after 15.05.2016 on which date the entireremaining coal shall vest in the State Government and shall bedisposed of in accordance with law – Propriety of NGT’s order dated31.03.2016 – Held: Coal mining was illegally going on in the HillsDistrict of State of Meghalaya without there being any mining leaseG– The entire mining was, thus, is clear in contravention of s.4(1) ofAct, 1957 which attracted penalties under s.21 – The present is nota case where any kind of penalty was imposed on the miners exceptthat the amount of royalty as payable on mining of coal was collectedby the State as penalty – State Government has power under s.21(5)H

to recover from such person the minerals so raised, or, where suchmaterial has already been disposed of, the price thereof, and mayalso recover from such person, rent, royalty or tax, as the case maybe, but it is for State Government to exercise its power under s.21(5)by way of penalty – The NGT did not give any reason as to howcoal shall automatically vest in the State – The right of recovery ofmineral as contemplated under s.21(5) would not amount to saythat proprietary right of owner of the minerals is lost rather Stateunder s.21(5) exercises its power to recover the mineral which hasbeen raised without any lawful authority – Thus, coal extractedand lying in open after 15.05.2016 was not automatically vested inthe State and the owner of the coal or the person who has mined thecoal shall have the proprietary right in the mineral which shall notbe lost.

Mines and Minerals: Coal – Whether assessed and unassessedcoal which has already been extracted and lying in differentDistricts of Meghalaya be permitted to be transported – Mechanismto be adopted for disposal of such coal – Held: Coal being majormineral and useful for different industries and projects, appropriatedisposal of extracted coal is of a paramount importance – Entireextracted coal lying at various places is directed to be taken overby Coal India Ltd, a Government of India unit, who may dispose ofthe same as per its normal method of disposal – For all extractedcoal lying at different places, it is the State, which is thereceiver-cum-custodian of the coal – The State having carried outthe assessment of the coal lying in the said four districts includingthe details of the quantities and the details of owners being availablewith it, it may ensure that the entire coal are handed over to theCoal India Ltd., as per the mode and manner to be formulated byKatakey Committee, in consultation with officers of the Coal IndiaLtd. and State of Meghalaya – Commissioner and Secretary of theState in the Department of Mining and Geology alongwith theofficers of Coal India Ltd. are directed to deliberate with the Katakeycommittee to finalise a comprehensive plan for transportation andhanding over of the coal to Coal India Ltd. for disposal/auction asper rules of Coal India Ltd. – It is for the Coal India Ltd. to decideas to venue, where they shall receive the coal and finalise the processof disposal and auction of the coal – It shall be the duty of the State A

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Aof Meghalaya and its officers especially Deputy Commissioner ofthe area concerned to enter details of quantity of the coal, name ofthe owner and place from where it is collected – State of Meghalayashall be entitled to royalty and payment towards MERP Fund aswell as taxes out of the price of the coal – The Coal India Ltd. aftertaking its expenses for transportation with 10% of price of the coalBshall remit the entire amount to the State and State after deductingthe royalty and payment to the MERP Fund and taxes would payback the balance of the amount to the owner – The coal, which hasbeen seized by the State in illegal transportation or illegal miningfor which different cases have been registered by the State shall beCdealt by the State in accordance with s.21 of the Act, 1957 and onbeing satisfied, the State can take a decision to recover the entirequantity of coal so illegally raised without lawful authority and thesaid cases has to be separately dealt with in accordance with law –All I.A.s filed by different applicants seeking order of transportationof the different quantities disposed of – The Katakey committee inDconsultation with State of Meghalaya and officers of Coal IndiaLtd. would finalise appropriate mode and manner to affect thetransport and disposal of the coal in the above manner.

Conclusion

Mines Act, 1952: Mines Act, 1952 contains various provisionsregarding inspection of mining operation and management of minesE– The provisions of the Mines Act, 1952 are mandatory to be followedbefore working a mine – The regulations namely Coal MinesRegulations, 2017 also contains several regulatory provisions whichneed to be followed while working a mine by a mining lease holder– The enforcement of Mines Act, 1952 and the Regulations, 2017Fhave to be ensured by the State in the public interest.

Mines and Minerals: Coal mining in the Hills Districts of theState of Meghalaya – As per statutory regime brought in force bynotification dated 15.01.2016 issued under Environment(Protection) Act, 1986, environmental clearance is required for aGproject of coal for mining of any extent of area – While implementingstatutory regime for carrying mining operations in the Hills Districtsof the State of Meghalaya, the State of Meghalaya has to ensurecompliance of not only MMDR Act, 1957 but Mines Act, 1952 aswell as Environment (Protection) Act, 1986.

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STATE OF MEGHALAYA v. ALL DIMASA STUDENTS UNION,DIMA-HASAO DISTT COMMITTEE

Judicial Appreciation: Committee – Work appreciated – TheKatakey committee and its various members and participants havedone a commendable job in studying and examining various aspectsof environment in the State of Meghalaya and several valuablesuggestions have been given by the committee, which are also beingimplemented to mitigate the suffering of the citizens consequent tothe illegal coal mined.

Disposing of the appeals, the Court

HELD: Whether orders passed by the National GreenTribunal are without jurisdiction being beyond the purview ofSections 14, 15 and 16 of the National Green Tribunal Act, 2010?

1. The present is not a case of mere allegation of applicantof environmental degradation by illegal and unregulated coalmining rather there were materials on the record including thereport of the experts, the Meghalaya State Pollution ControlBoard published in the month of September, 1992, the report ofKatakey committee appointed by the Tribunal whereenvironmental degradation of water, air and surface of the landwas proved. Hence, there was sufficient allegation regardingsubstantial questions relating to environment and violation ofenactments in Schedule I. There were reports of the MeghalayaState Pollution Control Board before the State Governmentpointing out environmental degradation and the Tribunal havingtaken up the issue, the submission on behalf of the State that theTribunal has no jurisdiction is not expected from the StateGovernment who is under constitutional obligation to ensure cleanenvironment to all its citizens. In cases pertaining toenvironmental matter the State has to act as facilitator and not asobstructionist. The submission for the State that the Tribunalexceeded its jurisdiction under Sections 14 and 15 inentertaining O.A.No.73 of 2014 is rejected. [Paras 67, 68, 72][373-E-H; 376-A]

Techi Tagi Tara v. Rajendra Singh Bhandari andOthers (2018) 11 SCC 734 : [2017] 12 SCR 956 –distinguished.

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AWhether provisions of Mines and Minerals DevelopmentRegulation Act, 1957 are applicable in Tribal areas within theState of Meghalaya, included in Sixth Schedule of the Constitution?

2.1 By the North-Eastern Area Reorganisation Act, 1971,the State of Meghalaya was formed as independent full-fledgedBState. After the enforcement of the Constitution, the area, nowcomprised in the State of Meghalaya, was included in the State ofAssam, the Administration and control of which area was as perArticle 244 of the Constitution of India read with Sixth Scheduleof the Constitution. In so far as the land tenure in the HillsDistricts of Meghalaya, there is no substantial change after theCadvent of the Constitution. There was no payment system of landrevenue before the advent of the Constitution in the HillsDistricts of Meghalaya. [Para 73] [376-C-E]

2.2 The lands in the Khasi Hills District of Meghalaya comeunder two divisions Ri Raid and Ri Kynti. Ri raid lands areDcommunity lands which are set apart for the benefit and use ofentire community. Ri kynti lands are privately owned lands whichwere also owned by community as well as by individuals. Theowner of the re kynti land is an absolute proprietor. The tenuresystem in Jaintia Hills classified into two types of lands, namely,EHali / irrigated land and High land. Hali lands are furthercategorised in Raj land, service land, village puja land andprivate land. Proprietary right does not vest in the State inrespect to majority of lands which are either privately owned orowned by the Tribal community. No system of payment of landrevenue is prevalent in the Hills District of Meghalaya exceptFlands which belong to State. In the Hills Districts of State ofMeghalaya, the most of the lands are either privately orcommunity owned in which State does not claim any right. Thus,private owners of the land as well as community owners haveboth the surface right as well as sub-soil right. Tribals owned theGland and also owned the minerals, which is an inescapableconclusion. [Paras 73, 75] [376-E-G; 378-E-F]

Thressiamma Jacob and Others v. Geologist,Department of Mining and Geology and Others (2013)9 SCC 725 : [2013] 7 SCR 863 – referred to.

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Raja Anand Brahma Shah v. The State of Uttar Pradeshand OthersAIR 1967 SC 1081 : [1967] SCR 373 –followed.

2.3 Part X of the Constitution separately deals withScheduled and Tribal areas. Hills Districts of State of Meghalayawere treated to be Tribal area and were to be governed byArticle 244 sub-clause (2) read with Schedule VI. SixthSchedule of the Constitution contains ‘Provisions as to theAdministration of Tribal Areas in the States of Assam, Meghalaya,Tripura and Mizoram’. Paragraph 20 of Sixth Schedule refers toTribal areas and Part II of which consists of Khasi Hills District,Jaintia Hills District and Garo Hills District which have beenreferred as Autonomous Districts. [Paras 76, 77, 78] [378-G-H;379-C]

2.4 Mines and Minerals (Development and Regulation)Act, 1957 has been enacted to provide for development andregulation of mines and minerals under the control of the Union.The Act came into effect w.e.f. 01.06.1958. Para 12A sub-clause(b) Schedule VI of the Constitution empowers that the Presidentmay, with respect to any Act of Parliament, by notification, directthat it shall not apply to an autonomous district or anautonomous region in the State of Meghalaya, or shall apply tosuch district or region or any part thereof subject to suchexceptions or modifications as he may specify in the notification.No notification has been issued by the President under Para12A(b), although, the said Para 12A(b) is in the Constitution witheffect from 21.1.1972. Thus, there is nothing in Sixth Schedule ofthe Constitution which may indicate about the inapplicability ofAct, 1957 with regard to the Hills Districts of State of Meghalaya.The report of the Comptroller and Auditor General of India forthe year ended 31[st] March, 2013 clearly stated that Act, 1957 isfully applicable for regulation of mines and regulation of mineralsin the State of Meghalaya. [Paras 81 82, 83] [381-G-H; 382-C-E;383-D]

2.5 Clause 10 of the Mehghalaya Mines and MineralsPolicy, 2012 provides for “Regulatory Framework for MineDevelopment and Mining”. Sub-clause (b) of Clause 10 requiredthat application for mineral concession either fresh or renewal is A

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Ato be submitted to the State Government through the DeputyCommissioner of the District wherein the area applied for issituated, with NOC from District Council concerned and landowner. Clause 10 also refers to clearance of the PollutionControl Board of Meghalaya and other requirement. Sub-clause(l) further contemplated that order for grant of mineralBconcessions will be issued by the State Government, with theapproval of the Central Government wherever necessary. TheMining and Geology Department of the Government framed adraft guidelines for coal mining activity in the State which wereprepared after consultation with the Central Government. TheCdraft guidelines clearly mentions about the unregulated andunscientific mining being carried out in the State of Meghalaya.[Paras 85-87] [383-F-H; 384-A-B]

2.6 There can be no dispute to the preposition that in viewof MMDR Act, 1957, the legislative competence of State ofDMeghalaya under Entry 23 List II stood denuded. However,under the MMDR Act, 1957 as well as the Mineral ConcessionRules, 1960, several statutory obligations/jurisdictions have beenconferred on the State of Meghalaya. When under aParliamentary enactment, State has been given some statutoryobligations, there is no lack of jurisdiction in the State to frameEpolicy to give effect to or implement the jurisdictions conferredon the State by Parliamentary enactments. It is true that MiningPolicy to be framed by the State has to confine to the jurisdictionconferred on it as per the MMDR Act, 1957 and the Rules framedthereunder. There are other related issues concerning MiningFlike protection of environment and forests for which the Statehas to declare its policy for implementation of its objective.Several other aspects relating to mining like, rehabilitation,reclamation and restoration have to be effectively implementedby the State for which also, it may be required to frame a policy.Meghalaya Mines and Minerals Policy, 2012 was already framedGby the State of Meghalaya, even before directions were issuedby the NGT. In pursuance of NGT directions, it was draftguidelines of 2015, which were prepared by State of Meghalaya.Thus, direction of NGT to declare Mining Policy by the State of Meghalaya cannot be said to be without jurisdiction. However,the State in its Mining Policy can only include those areas whereit has jurisdiction under the MMDR Act, 1957 and the Rulesframed thereunder. A perusal of the entire Policy documentsindicate that Policy has been framed by the State as perthe Act, 1957 and Minerals (Concession) Rules, 1960.[Paras 89, 90, 91] [324-F-G; 385-A-E]

Whether for mining the minerals from privately owned/community owned land in hills districts of Meghalaya, obtaininga mining lease is a statutory requirement under the MMDR Act,1957 and the Mineral Concession Rules, 1960?

3.1 The Act, 1957 has been enacted in reference to Entry54 List I of Seventh Schedule. The Legislative power underEntry 23 is subject to the provision of List I with respect toregulation and development under the control of the Union. Whenthe Union has declared to have taken under its control theregulation of mines and development of minerals to the extentprovided in the Act, legislative power of the State to the aboveextent is denuded. Section 4 of the Act contains generalrestriction on undertaking prospecting and mining operation.Section 4 is couched in terms of an injunction. No person shallundertake any mining operations in any area, except under andin accordance with the terms and conditions of a reconnaissancepermit or of a prospecting licence or, as the case may be, of amining lease, granted under this Act and rules made thereunder.The use of word ‘no person’ in Section 4(1) is without anexception. There is nothing in Section 4(1) to indicate thatrestriction contained in Section 4(1) does not apply with regardto a person who is owner of the mine. Further, word ‘any area’under Section 4(1) also has significance which does not have anyexception. Further phrase ‘except under and in accordance withterms and condition with a mining lease granted under the Act’are also significant which make the intent and purpose ofprohibition clear and loud. [Paras 95, 97, 99, 100] [386-C-F;387-B; 388-A-B]

3.2 Section 5 contains restriction on the grant ofprospecting licences and mining lease. The proviso to Section A

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A5(1) contains a further restriction that no mining lease shall begranted with regard to any minerals specified in Para A of FirstSchedule except with the previous approval of the CentralGovernment. Coal is in Para A of First Schedule. Section 13provides for Rule making power of Central Government inrespect of minerals. Reading clause (a) and clause (f) of SectionB13(2) makes clear that the Rules can be made for grant of mininglease in respect of land in which minerals vest in theGovernment as well as in respect of any land in which mineralsvest in person other than Government. The statutory scheme,thus, is clear that lease can be granted with regard to both theCcategories of land, land in which Government is owner ofminerals and land in which minerals vest in person other thanGovernment. The Tribals, owners of the minerals shall expresslyfall in Rule making power of the Government under Section 13(2)(f). [Paras 100, 101, 103] [388-B; 389-B-C; 390-A-B]

D3.3 The Central Government in exercise of power underSection 13 has framed Rules, namely, Minerals (Concession)Rules, 1960. The statutory scheme delineated by Section 13(2)(f)and the Minerals (Concession) Rules, 1960 clearly contemplategrant of mining lease, with regard to both the categories of land,that is, land in which minerals vest in the Government, and theEland in which minerals vest in a person other than theGovernment. There is no exception that when owner himself wantsto win the minerals he does not require any mining lease.[Paras 104, 105] [390-C-D; 391-B]

Halsbury’s Laws of England, Fourth Edition Para 321F– referred to.

3.4 The word ‘mining lease’ has been given specificmeaning under Act, 1957. It is well settled principle ofinterpretation that the provisions of an Act including definition ofa term is to be interpreted in a manner which may advance theGobject of the legislation. The essential characteristic of mininglease is that it is granted for the purpose of undertaking miningoperation and mining operation means any operation undertakenfor the purpose of winning the mineral. Applying said definitionin the Minerals (Concession) Rules, 1960 under Chapter V, it H

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cannot be said that no mining lease is contemplated with respectto land where mineral vests exclusively in a private person.[Para 111] [394-E-F]

Sri Tarkeshwar Sio Thakur Jiu v. Dar Dass Dey & Co.and Others(1979) 3 SCC 106 ; State of Karnataka and Others v. Subhash Rukmayya Guttedar and Others(1993) 3 Suppl. SCC 290 – referred to 3.5 The Mines Act, 1952 is an Act to amend andconsolidate the law relating to the regulation of labour and safetyof mines. The Act contains various provisions regardinginspection of mining operation and management of mines.Section 18 contains duties and responsibilities of owners, agentsand managers. There are various other provisions in the MinesAct, 1952 which are mandatory to be followed before workingany mine. Section 16 obligates the owner, agent or manager of amine to give notice before the commencement of any miningoperation to the District Magistrate of the District in which themine is situate. Section 75 of the Mines Act, 1952 alsoempowers the District Magistrate to institute prosecution againstany owner, agent or manager for any offence under the MinesAct, 1952. In exercise of the power under Section 57 of MinesAct, 1952 a new set of regulations has been framed, namely, CoalMines Regulations, 2017. The Regulations contain severalregulatory provisions which need to be followed while working amine by the owner or his agent. The enforcement of Mines Act,1952 and the Regulations, 2017 have to be ensured in the publicinterest by the state of Meghalaya. [Paras 113, 114, 116, 118][394-H; 395-A-D; 396-E-F; 397-C-D]

3.6 Section 3 of the Environment Protection Act, 1986 pro-vided for requirements of prior environmental clearance withregard to projects enumerates therein. Notification dated14.09.2006 was issued by the Ministry of Environment andForests in exercise of power under Section 3(3) of theEnvironment Protection Act, 1986. Schedule to the notificationlisted the projects or activities requiring prior environmentalclearance. “Mining of minerals” included at Item No.1(a) but evenfor mining project requirement of minimum 5 hectares area wasrequired for applicability of the project. Substituting Item No.1(a)

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Aof Notification dated 14.09.2006 a new notification dated15.01.2016 has been issued. As per statutory regime brought inforce by notification dated 15.01.2016, environmental clearanceis required for a project of coal for mining of any extent of area.The notification dated 15.01.2016 being a statutory provision shalloperate on its own force and no order of any Court is required forBenforcement of notification dated 15.01.2016. Whileimplementing statutory regime for carrying mining operations inthe Hills District of the State of Meghalaya, the State of Meghalayahas to ensure compliance of not only MMDR Act, 1957 but MinesAct, 1952 as well as Environment (Protection) Act, 1986.C[Paras 119-121] [397-E-G; 398-F-H]

Whether under the MMDR Act, 1957 and MineralConcession Rules, 1960, it is the State Government, who is togrant lease for mining of minerals in privately owned/communityowned land or it is the owner of the minerals, who is to grant Dlease for carrying out mining operations?

4.1 Chapter IV of the Mineral Concession Rules, 1960deals with grant of mining leases in respect of land in which theminerals vest in the Government and Chapter V deals withprocedure for obtaining a prospecting licence or mining lease inErespect of land in which the minerals vest in a person other thanthe Government. Chapter IV contains Rules 22 to 40 andChapter V contains Rules 41 to 52 and the procedure andmanner of applying for mining lease and grant of lease as con-tained in Chapter IV is not made applicable to the procedure asgiven in Chapter V except that by virtue of Rule 45(i) certainFconditions of mining lease as contained in Rule 27 under Chap-ter IV are made applicable for mining lease under Chapter V.[Para 123] [399-C-D]

4.2 Rule 22(1) provides that an application for the grant ofa mining lease in respect of land in which the minerals vest in theGGovernment shall be made to the State Government in Form Ithrough such officer or authority as the State Government mayspecify in this behalf. In Chapter V, there is no such rule, whichrequires making an application for lease to the State Government. There is a marked difference between the rulescontained in Chapter IV and rules contained in Chapter V. Rule27(2) provides that a mining lease may contain such otherconditions as the State Government may deem necessaryinregard to the matters enumerated therein. Whereas Rule 45(iii)provides that every mining lease may contain such otherconditions, not being inconsistent with the provisions of the Actand these rules, as may be agreed upon between the parties.The above provision gives an indication that in the lease executedby Chapter V, the omission of word “State Government” in Rule45(iii) is indicative of the fact that conditions, which are to beadded has to be agreed upon between the parties. It is providedin Rule 45(i) that in clauses (c) and (d) of Rule 27 for the words“State Government” the word “lessor” shall be substituted, whichgives a clear indication that State Government is not a lessor in alease granted under Chapter V. [Paras 124, 125] [399-E-G;400-F]

4.3 Under Rule 27(5), if the lessee makes any default inthe payment of the royalty or the payment of dead rent orcommits breach of any of the conditions, the State Governmentshall give notice to the lessee and determine the lease andforfeit the whole or part of the security deposit. Whereas underrule 45(iv), the said power has been vested in the lessor, whichalso indicates that it is lessor, who will determine the lease andnot the State Government. Rule 47 provides for submission ofcopy of licence or lease to the State Government within threemonths of the grant of such licence or lease. Requirement ofsubmitting the licence or lease copy to the State Governmentindicate that the State Government is not the authority, who isgranting the lease, otherwise there was no requirement ofsubmitting a copy to the State Government, if it was contemplatedthat State Government shall grant the lease. [Para 126][401-B-E]

4.4 Prior to MMDR Act, 1957, earlier Central Legislationwhich was governing the field was Mines and Minerals(Regulation and Development) Act, 1948, under which rules havebeen framed by Central Government namely, Mineral A

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AConcession Rules, 1949. Rule 14 of Chapter III contemplatedapplication for prospecting license. Chapter IV of the Rules,1949 contained the heading “grant of Mining Lease in respect ofland in which the minerals belong to Government”. Theprovisions of Rule 27 of Chapter IV provide for application formining lease and there were several other rules under ChapterBIV, which in substance have been retained in Chapter IV of Rules,1960. Chapter V of Rules, 1949 contained the heading “grant ofmineral concessions by private persons.” The heading ofChapter V under Rules, 1960 is “procedure for obtaining aprospecting licence or mining lease in respect of land in whichCthe minerals vest in a person other than the Government.” Rule47 of Chapter V of Rules, 1949 provide for “conditions in amining lease”, which are in substance similar as Rule 45 of Rules,1960. Rule 47(iv) of the Rules, 1949 was akin to present Rule45(i) of the Rules, 1960. [Para 127] [401-G-H; 402-A-C]

D4.5 Thus, the Chapter V of Rules, 1949 dealt with themining lease granted by private persons, i.e., the category wherethe minerals were not owned by the Government but was ownedby private persons. Chapter V of the Rules, 1960 containssubstantially similar provisions. Thus, Chapter V of Rules, 1960has to be treated to be dealing with minerals owned by privateEowners. The earlier statutory regime, which was enforced as perRules, 1949 made it amply clear that mineral concessions are tobe granted by private persons also, which is in substancesretained in Chapter V of Rules, 1960. Thus, mining lease to begranted as per Chapter V of Rules, 1960 is mining lease by theFowner of mineral and similar concept has to be borrowed andread in Chapter V. Absence of any procedure to make anapplication for mining lease to the State Government in ChapterV of the Rules, 1960 and lessor being the private persons andnot the State Government, clearly indicates that StateGovernment is not to grant the lease in respect of land ofGprivately owned/ community owned owners. [Para 128][402-F-H; 403-A]

4.6 Another reason for not providing any application toState Government for grant of mining lease in respect ofminerals, which vests in the private owners and communityH

owners is that; without consent or willingness of private owners/community owners of minerals, no authority is empowered togrant any mining lease with regard to minerals, of which he is theowner, it is the owner of the minerals may be private persons orcommunity owners, who is entitled to grant lease of minerals asper the provisions of Chapter V of Rules, 1960. As per thestatutory provisions contained in Rules, 1960 especiallyChapter V, a mining lease for minerals, which belongs to aprivate owner or a community owner, it is not the StateGovernment, which is entitled to receive any application or grantany mining lease, but it is the private owner or community owner,who is entitled to grant a lease for mining minerals owned bythem. [Paras 129, 130] [403-A-D]

Whether the State of Meghalaya has any statutory controlover the mining of coal from privately owned/community ownedland in hills districts of State of Meghalaya?

5.1 As per Rule 42(2), except with the previous approvalof the Central Government, no prospecting licence or mininglease shall be granted in respect of any mineral specified in theFirst Schedule to the Act. Thus, previous approval of CentralGovernment is mandatory before grant of mining lease of coal.Rule 63 provides that the approval of the Central Governmenthas to be obtained through the State Government. Thus, theState Government has to be aware that any previous approval ofthe Central Government for mining coal has been obtained ornot. Thus, restriction being statutory and without any exceptionState Government cannot say that it has no role to play withregard to mining of coal. Rule 50 empowers the StateGovernment with the approval of the Central Government todirect the parties concerned not to undertake any miningoperations, if it has reasons to believe that the grant or transferof mining lease is in contravention of any of the provisions ofChapter V. Thus, when mining operations of coal are beingconducted without prior approval of Central Government, Stateis not powerless to direct the parties not to undertake anyprospective mining operations in the area. The power given underRule 50 is not only enabling power, but is a statutory obligationon the State to exercise the power in the public interest. Rule 52

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Agives the State Government ample power to prosecute andpunish mining leases or his transferees or assignees on violationof the rules or contravention of any of the provisions of ChapterV, which is ample power to the State to ensure that the Act isfaithfully followed. The State was advised by the Comptrollerand Auditor General of India in its report ended 31[st] March, 2013Bin para 4.5.1 to regulate mining by following Mines and Minerals(Development and Regulation) Act, 1957. [Para 133-136][404-C-E, H; 405-A-B, E-G]

5.2 The State is thus well aware of its statutory obligationwhich is reflected in Mining Policy of 2012 and Draft Guidelines,C2015 but still before this Court their contention that no mininglease is to be obtained for privately owned/community owned landin Hills District of State of Meghalaya is unacceptable and not ina good spirit. Our country being governed by the Constitution ofIndia, all the States are to implement Parliamentary Acts in true Dspirit and in the present case the State having been advised timeand again by Comptroller and Auditor General and being wellaware of its statutory obligation it comes ill from the State tocontend before this Court that there is no requirement of mininglease for winning the minerals. [Para137] [405-H; 406-A-C]

EWhether the power to allot land for mining purposes isvested in Autonomous District Councils?

6.1 Para 3 of Schedule VI of the Constitution enumeratesthe power of District Council and Regional Council to make laws.Certain legislation framed by District Council are the Khasi HillsFDistrict (Trading by Non Tribals) Regulation, 1954, the UnitedKhasi Jaintia Hills Autonomous District (Management andControl of Forest) Rules, 1960, the Khasi Hills Autonomous Dis-trict (Trading by Non Tribals) Rules, 1959, all framed in exerciseof power under para 3 of Sixth Schedule. The power to make lawentrusted to Autonomous District Council under para 3 ofGSchedule VI is power to make law referable to List 2 and List 3of the Seventh Schedule. With regard to regulation anddevelopment of mineral, the Union has made declaration bySection 2 of 1957 Act and the power of the State Legislature isdenuded in that respect. The logical corollary of the aboveHprinciple is that power of Autonomous District Council shall also be denuded in so far as regulation and development of mineralsto the extent which is covered by 1957 Act. Rule 4 of UnitedKhasi Jaintia Hills District (Trading by non Tribals) Rules,1959,which contemplates form of licence and one of the licencereferred to is under Rule 4 is licence in Form E.[Paras 138, 139] [406-F-H; 407-A-B]

6.2 The United Khasi Jaintia Hills District (Trading byNon-Tribal) Rules, 1959 has been repealed insofar as Jaintia HillsDistricts are concerned by the Jaintia Hills Autonomous District(Trading by Non-Tribal) Regulation Act, 2011. Rules, 1959 is stillin force in Khasi Hills Autonomous Districts, since, no otherregulations have been placed repealing the Rules, 1959.Regulations, 2011 have nothing to do with the mining of coal.Paragraph 9 of the Schedule VI confines to the licences or leasesof minerals granted by Government of the State. Schedule VIwhich constitute the District Councils and Regional Councilsenumerates their powers. Para 9 only deals with share of theroyalties to District Councils as agreed upon between theGovernment of the State and the District Councils. Furtherparagraph 12(A)(a) itself contemplates that any law made byDistrict Council or Regional Council which is repugnant to anylaw of the State shall be void. Thus, the status of law made byDistrict Council or Regional councils has to give way to the lawmade by the State. There can be no doubt that District Counciland Regional Council cannot make any law which may berepugnant to the provisions of the Parliamentary Act. Thus,District Council does not have any power to make any law withregard to grant of mining lease. The mining leases for winningthe major minerals has to be granted in accordance with 1957Act and Mineral Concession Rules, 1960. [Paras 140-144][407-E-F; 408-B, G-H; 409-A-B]

Whether the order of National Green Tribunal dated17.04.2014 directing for complete ban on mining is unsustainable?

Whether the complete ban on mining of coal in the State ofMeghalaya as directed by NGT deserved to be vacated/modifiedin the interest of State and Tribals?

7.1 The use of natural resources plays major role incarrying out development. A fine balance has to be maintained in A

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Autilisation of natural resources and its conservation andpreservation. One cannot be sacrificed for the interest of other.The concept of Sustainable Development has been evolved andis being pursued. By order of NGT dated 17.04.2014, the Rathole mining/illegal mining was prohibited throughout the State ofMeghalaya. In OA No.73 of 2014 in which said order was passed,Bsufficient materials were brought on the record including expertsreport which proved that illegal coal mining in the State ofMeghalaya is degrading the environment. There is no error inthe order of NGT reaffirming its ban order in the facts of thecase. The revenue earned by the State from coal mining playsCsubstantial part in the economy of the State. It is also amplydemonstrated from the record that tribals are the owners of theland who carry on mining of coal in their land by which they earntheir substantial livelihood. [Paras 146, 147, 150] [409-F-G;410-D-E; 412-B-C]

DState of Tamil Nadu v. M/s Hind Stone and Others(1981) 2 SCC 205 : [1981] 2 SCR 742 – relied on.

Lafarge Umiam Mining (pvt.) Ltd. v. Union of India &Others(2011) 7 SCC 338 : [2011] 7 SCR 954 –Ereferred to.

7.2 Although the manner in which the mining is beingcarried out by the tribals cannot be approved which is clearly inviolation of statutory regime under 1957 Act and 1960 Rules butin event the mining is carried out by tribals or their assignees asFper the provisions of 1957 Act and 1960 Rules, there can be noobjections in carrying such mining under the regulation andcontrol of State of Meghalaya and the ban order dated 17.04.2014of the tribunal shall not come in its way of carrying miningoperations. The ban order is for the illegal coal mining which wasrampant in the State of Meghalaya and cannot be extended toGvalid and legal mining as per 1957 Act and 1960 Rules.[Para 151] [412-D-F]

Whether NGT had any jurisdiction to constitute committeesto submit reports, to implement the orders of NGT, to monitorstorage/transportation; of minerals and to prepare action planH

for restoration of environment? Whether the NGT committederror in directing for constitution of fund, namely, MeghalayaEnvironment Protection and Restoration Fund?

8.1 Sub-section (1) of Section 19 of NGT Act providesthat Tribunal shall not be bound by the procedure laid down bythe Code of Civil Procedure but shall be guided by the principlesof natural justice. What sub-section (1) meant to convey is thatTribunal is not shackled with the procedure laid down by the CPCfor conducting its proceedings. Sub-section (2) of Section 19empowers the Tribunal, powers to regulate its own procedure.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 laiddown by the CPC” is not akin to saying that procedure as laiddown by the CPC is in no manner relevant to the Tribunal.Further, Section 19(1) also does not mean that Tribunal cannotfollow any procedure given in the CPC. One provision of CPCinserted by Act 104 of 1976 with effect from 01.02.1977 is OrderXXVI, which is relevant for present inquiry. [Para 154][414-E-G]

8.2 Rule 10A of Order XXVI CPC provides that where anyquestion arising in a suit involves any scientific investigation whichcannot, in the opinion of the Court, be conveniently conductedbefore the Court, the Court may, if it thinks necessary orexpedient in the interests of justice so to do, issue a commissionto such person as it thinks fit, directing him to inquire into suchquestion and report thereon to the Court. Rule 10A is enablingpower to the courts to obtain report from such persons as it thinksfit when any question involves with the scientific investigation.The powers under Rule 10A which are to be exercised by theCourt can very well be used by the NGT to obtain reports byexperts. The NGT as per the statutory scheme of the NGT hasto decide several complex questions pertaining to pollution andenvironment. The scientific investigation and report by expertsare necessary requirement in appropriate cases to come tocorrect conclusion to find out measures to remedy the pollutionand environment. There is no dearth of jurisdiction in the NGT

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Ato appoint a committee to submit a report. While asking expertto give a report the NGT is not confined to the four corners ofRule 10A rather its jurisdiction is not shackled by strict terms ofOrder 26 Rule 10A s per Section 19(1). [Para 155] [415-C-E]

8.3 Under Section 35 of the NGT Act, 2010, CentralBGovernment is empowered to make rule for carrying out theprovisions of the Act. Rules have been framed in exercise ofpowers under Section 35, namely, National Green Tribunal(Practice and Procedure) Rules, 2011. The said Rules have beenframed in exercise of powers under Section 4(4) as well asSection 35. The Rules, 2011 are Rules also for practices andCprocedure of the Tribunal. [Para 156] [415-F-G]

8.5 Rule 24 empowers the Tribunal to make such ordersor give such directions as may be necessary or expedient to giveeffect to its order or to secure the ends of justice. Rule 24 giveswide powers to the Tribunal to secure the ends of justice. RuleD24 vests special power to Tribunal to pass orders and issuedirections to secure ends of justice. Use of words ‘may’, ‘suchorders’, ‘gives such directions’, ‘as may be necessary orexpedient’, ‘to give effect to its orders’, ‘order to prevent abuseof process’, are words which enable the Tribunal to pass ordersEand the above words confer wide discretion. [Para 157][416-B-C]

8.4 The enabling powers give to the Tribunal under Rule24 is for purpose and object to decide the subjects which are tobe examined, decided and an appropriate relief is to be grantedFby the Tribunal. Further, subjects contain wide range of subjectswhich require technical and scientific inputs. The Tribunal canpass such orders as it may think fit necessary or expedient tosecure ends of justice. The object for which said power is givenis not far to seek. To fulfil objective of the NGT Act, 2010. NGThas to exercise a wide range of jurisdiction and has to possessGvide range of powers to do justice in a given case. The power isgiven to exercise for the benefit of those who have right for cleanenvironment which right they have to establish before theTribunal. The power given to the Tribunal is coupled with duty toexercise such powers for achieving the objects. There is no lack H

of jurisdiction in the NGT to direct for appointment of committeeor to obtain a report from a committee in given facts of the case.[Para 159, 160, 161] [416-E-H; 417-D]

L. Hirday Narain v. Income Tax Officer, Bareilly(1970) 2 SCC 355 : [1971] 3 SCR 683 – relied on.

Professor Justice G.P. Singh in Principles of StatutoryInterpretation, 14[th] Edition – referred to.

8.5 A Fund has been constituted by the Tribunal, namely,“Meghalaya Environment Protection and Restoration Fund”.The NGT could have passed any order or direction to secureends of justice which power especially conferred by Rule 24 di-rection to constitute Fund is thus also saved under such power.[Paras 162, 163] [417-E; 418-D-E]

Whether NGT by constituting Committees has delegatedessential judicial powers to the Committees and has furtherencroached the constitutional scheme of administration of Tribalareas under Article 244(2) and Article 275(1) and Schedule VI ofthe Constitution?

9.1 The Tribunal by its various directions has asked forreports from State officials and the committees. The variousinstances where the NGT directed for report or investigationand submission of report by committees were with the object ofensuring the implementation of the orders passed by it and todecide the environmental issues raised before it. In no mannerconstitution of committee can be said to be delegation ofessential judicial powers of the NGT to the committee. TheKatakey committee was constituted by the Tribunal on31.08.2018. The Constitution of the committee and its functionsentrusted were with the object to implement the orders passedby the Tribunal. For the restoration of environment, NGT videits order dated 31.08.2018 has directed the committee to submitits action plan and reports by e-mail. The Tribunal, thus, had keptcomplete control on all steps which were required to be taken bythe committee and issued directions from time to time. Thus,the submission of the appellant that the essential judicial powers A

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Aof the NGT had been delegated to the committee is not tenable.Looking to the enormous work of restoration of environmentwhich has to be supervised on the spot the committee wasconstituted. However, the State is always at liberty to obtainparticular direction if aggrieved by any act of the committee. Thematter being pending before the Tribunal of acts of theBcommittee are under direct control of the Tribunal and if thecommittee oversteps in any direction the same can very well becorrected by the Tribunal on the matter being brought before it.[Para 165-167] [418-G-H; 419-A, D-H; 420-A]

9.2. It is not case of the appellant that District andCRegional Councils have framed any law for restoration ofenvironment which is being breached by the committee or itsacts. The District and Regional Councils are free to exercise alltheir powers and the committee constituted by the Tribunal isonly concerned with the Environmental degradation and illegal Dcoal mining. The committees’ report or direction of the Tribunalin no manner encroaches upon the administration of Tribal areasby the District and Regional Councils. [Para 168] [420-D-E]

Whether direction to deposit Rs.100/- crores by the Stateof Meghalaya by order dated 04.01.2019 of NGT impugned inEC.A.No.2968 of 2019 is sustainable?

10.1 The NGT by its order dated 31.08.2018 constituted acommittee headed by Justice B.P. Katakey, Former Judge ofGauhati High Court with representatives from Central PollutionControl Board and Indian School of Mines, Dhanbad. TheFcommittee visited different sites, held various meetings, variouspresentations were also made before the committee by MeghalayaState Pollution Control Board and other bodies namely NorthEastern Centre for Technology Application and Reach, NorthEastern Space Application Centre. The committee observed thatthe coal mining activities which includes the extraction of coalGand transportation is going on in the State of Meghalaya, at leastin East Jaintia Hills District, where such mining activities aremost, despite the ban imposed by the NGT by its order dated17.4.2014. The fact that on 13.12.2018, 15 coal mine workers were trapped in an ongoing coal mining operation, who all havebeen reported to be dead itself proves beyond any doubt thatorder dated 17.04.2014 banning mining in the entire State ofMeghalaya was neither been enforced nor serious endeavourswere taken by the State or its authorities to save theenvironmental pollution. With regard to restoration of theenvironment and restoration of the victims, action plans wereformulated by the committee. [Paras 169, 171, 174] [420-E-F;421-C-E; 422-E-F; 423-C-D]

10.2 The report being placed on website on 31.12.2018itself, there was no question of serving copy of the report of thecommittee to the Stakeholders. Additional Chief Secretary ofthe Government of Meghalaya was himself the Member Secretaryand Coordinator of the committee under the orders of the Tribunaldated 19.09.2018. All proceedings of the committee, its meetingsand minutes, were with the knowledge and participation of thecoordinator/ Additional Chief Secretary of the State of Meghalaya.A perusal of the direction to deposit Rs.100/- crores by the Stateof Meghalaya by order dated 04.01.2019, indicates that althoughthe State of Meghalaya was present and was heard but no kind ofobjection was raised regarding acceptability of the report. Thereport obtained by the NGT through the committee was to takeeffective steps towards protection of environmental pollution andfor restoration of damaged environment. Pollution of the variousrivers and streams and steps for treating the acidic water wasurgently required. Several presentations before the committeewere also made and different steps regarding restoration ofenvironment were to be taken as noticed and indicated in thereport of the committee. The NGT by its order dated 25.03.2015constituted a fund namely ‘Meghalaya Environment Protectionand Restoration Fund’ to be maintained by the State under thedirect control of the Chief Secretary of the State of Meghalaya. Itis reiterated in the report of the committee that an amount ofRs.433 Crores is already lying in the said fund, which has notbeen spent. [Paras 176-177] 423-F-H; 424-A-C]

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Aimposed on the State. The amount has been directed to bedeposited for carrying out steps regarding restoration ofenvironment. The said amount cannot be said to be amount ofdamages to be paid by the State. State of Meghalaya has verylimited source of revenue and putting an extra burden on theState of Meghalaya to make payment of Rs.100 Crores from itsBown financial resources and budgetary amount may cause greathardship to the State of Meghalaya. Ends of justice be served inmodifying the direction of NGT dated 04.01.2019 to the extentthat State is permitted to transfer an amount of Rs.100 Croresfrom the amount lying in the MEPRF to the Central PollutionCControl Board. The Central Pollution Control Board as directedby NGT shall utilise the said amount of Rs.100 Crores only forrestoration of the environment. [Para 179] [424-D-G]

Whether NGT’s order dated 31.03.2016 that after15.05.2016 all remaining coal shall vest in the State of Meghalaya Dis sustainable?

11. The mining of coal in contravention of Section 4(1)invites penalties as enumerated in Section 21. The present isnot a case where any kind of penalty has been imposed on theminers except that the amount of royalty as payable on mining ofEcoal is being collected by the State as penalty. It is true that theState Government has power under Section 21(5) to recover fromsuch person the minerals so raised, or, where such material hasalready been disposed of, the price thereof, and may also recoverfrom such person, rent, royalty or tax, as the case may be, but itis for the State Government to exercise its power under SectionF21(5) by way of penalty. The NGT has not given any reason as tohow coal shall automatically vest in the State. The right ofrecovery of mineral as contemplated under Section 21(5) doesnot amount to say that proprietary right of owner of the mineralsis lost rather State under Section 21(5) exercises its power toGrecover the mineral which has been raised without any lawfulauthority. Thus, coal extracted and lying in open after 15.05.2016was not automatically vested in the State and the owner of thecoal or the person who has mined the coal shall have theproprietary right in the mineral which shall not be lost. [Para 182[[486-E-H]H

Whether assessed and unassessed coal which has alreadybeen extracted and lying in different Districts of Meghalaya bepermitted to be transported and what mechanism be adopted fordisposal of such coal?

12.1 Several I.A.s were filed by different applicantsseeking direction to transport already extracted coal lying atdifferent places in hills districts of State of Meghalaya. The StateGovernment itself came with a case that huge quantity of coal inthe four hills districts, which has been extracted is lying waitingfor orders of transportation. In the instant case, illegal coalmining is going on in spite of ban by NGT by its order dated17.04.2014. The Katakey committee report has also opined thatall the extracted coal lying in different districts is a coal, whichhas been illegally mined after the imposition of ban by the orderdated 17.04.2014. All coals being illegally mined, the State isfully entitled to impose a penalty, i.e., to realise the royalty andthe amount of MEPR Fund. The coal being major mineral anduseful for different industries and projects, appropriate disposalof extracted coal is also of a paramount importance.[Paras 183, 184, 185] [427-A; 429-D; 430-A]

12.2 Entire extracted coal lying at various places is directedto be taken over by Coal India Ltd, a Government of India unit,who may dispose of the same as per its normal method ofdisposal and proceeds be distributed as per directions issued bythis Court hereinafter. The NGT has already directed that for allextracted coal lying at different places, it is the State, which isthe receiver-cum-custodian of the coal. The State having carriedout the assessment of the coal lying in the said four districtsincluding the details of the quantities and the details of ownersbeing available with it, it may ensure that the entire coal arehanded over to the Coal India Ltd., as per the mode and mannerto be formulated by Katakey Committee, in consultation withofficers of the Coal India Ltd. and State of Meghalaya. TheKatakey committee and its various members and participantshave done a commendable job in studying and examining variousaspects of environment in the State of Meghalaya and severalvaluable suggestions have been given by the committee, which A

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Aare also being implemented to mitigate the suffering of thecitizens consequent to the illegal coal mined. [Paras 186, 187][430-A-E]12.3 Commissioner and Secretary of the State in theDepartment of Mining and Geology alongwith the officers of CoalBIndia Ltd. are directed to deliberate with the Katakeycommittee to finalise a comprehensive plan for transportationand handing over of the coal to Coal India Ltd. for disposal/auction as per rules of Coal India Ltd. Disposal/auction by CoalIndia Ltd. shall be beneficial to both the owners of the mines aswell as to the State of Meghalaya. It is for the Coal India Ltd. toCdecide as to venue, where they shall receive the coal, i.e., eitherat any of its depot or any other place in State of Meghalaya and itis for the Coal India Ltd. to finalise the process of disposal andauction of the coal. It shall be the duty of the State of Meghalayaand its officers especially Deputy Commissioner of the area Dconcerned to enter details of quantity of the coal, name of theowner and place from where it is collected. Coal India Ltd. shallalso take steps to ensure weighment of the coal when it isreceived by it and since all consequent steps regarding disposal,price grade of the coal shall be determined as per the weight of the coal received by the Coal India Ltd. from different places.EThe expenses of transportation shall be borne by the State ofMeghalaya, Coal India Ltd. or by both, which expenses shall bedeductible from the price received of the coal. The State ofMeghalaya shall be entitled to royalty and payment towards MERPFund as well as taxes out of the price of the coal. After deductionFof cost of transportation, the payment of royalty and payment toMERP fund and taxes plus 10% of value of the coal to be givento Coal India Ltd. for the above exercise, balance amount shallbe disbursed to the owner of the coal towards its price, whichdisbursement shall be the responsibility of the State. The CoalIndia Ltd. after taking its expenses for transportation with 10%Gof price of the coal shall remit the entire amount to the State andit is for the State after deducting the royalty and payment to theMERP Fund and taxes to pay back the balance of the amount tothe owner. The coal, which has been seized by the State inillegal transportation or illegal mining for which different casesH

have been registered by the State shall, however, be dealt by theState in accordance with Section 21 of the Act, 1957 and on beingsatisfied, the State can take a decision to recover the entirequantity of coal so illegally raised without lawful authority and thesaid cases has to be separately dealt with in accordance with law.Thus, all I.A.s filed by different applicants seeking order oftransportation of the different quantities stand disposed of in viewof the directions as given above. The Katakey committee inconsultation with State of Meghalaya and officers of Coal IndiaLtd. would finalise appropriate mode and manner to affect thetransport and disposal of the coal in the above manner.[Paras 188-190] [430-E-H; 431-A-D]

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No.10720of 2018

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From the Judgment and Order dated 31.08.2018 of the NationalGreen Tribunal at New Delhi in Original Application No. 73 of 2014

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Civil Appeal Nos. 10611/2018, 10907/2018, 5272/2016, 2968/2019, Civil Appeal No.5295 of 2019 @ D. No.3067/2018.

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A.N.S. Nadkarni, ASG, Shekhar Naphade, Raju Ramachandran,Amrendra Sharan, Colin Gonsalves, Sanjay R. Hegde, Anupam Lal Das,Nidhesh Gupta, Ms. Meenakshi Arora, R. Basant, Siddharth Luthra, H

ASr. Advs., Amit Kumar, AG (State of Meghalaya), Sammarth Khanna,Ms. Ekta Gupta, Ms. Sukriti Bhatnagar, Durga Dutt, Shaurya Sahay,Atul Kumar, Ms. Rekha Bakshi, T.K. Nayak, Prakash Singh Negi, ChetanJoshi, Ms. Laxmi Iyer, Abhikalp Pratap Singh, Kumar Abhishek, AvijitMani Tripathi, Yoginder Handoo, P. Yobin, Prashant Bhatnagar, Saurabh,Prithvi Pal, Naresh Kumar Nagar, Amit Kumar, Avijit Roy, V. SenthilBKumar, Satish Kumar, Theerthe Gowda N.M., G.Sughumaran,Ms. Arunima Dwivedi, Pranay Ranjan, Ms. Suhasini Sen, Gurmeet SinghMakker, Tayenjam Momo Singh, Ms. T. Archana, Ranjan Mukherjee,S. Bhowmick, K.V. Kharlyngdoh, Deniel Stone Lyngdoh, UpendraMishra, Dr. Gajendra Pal Singh, Ms. Olivia Bang, Satya Mitra, ArvindCKumar Sharma, Ahanthem Henry, A. Rohen Singh, Vivek Kumar,Phillemon N., Kumar Mihir, Ms. Aruna Mathur, Ms. Anuradha Arputham,Avneesh Arputham, Ms. Geetanjali, M/s. Arputham Aruna and Co,Ms. Vandana Sehgal, Ms. Japneet Kaur, Ms. Vriti Gujral, Ms. PallaviSingh, Dileep Tandon, Ms. Neha Tandon, R.B. Phookan, ShaileshMadiyal, Subhro Sanyal, Ms. Soumya Roop Sanyal, Somesh ChandraDJha, Sameer Kumar, Ms. Heena Rohra, Nirnay Gupta, Kawaljeet SinghBhatia, Advs. for the appearing parties.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1.Natural resources of the country areEnot meant to be consumed only by the present generation of men orwomen of the region where natural resources are deposited. Thesetreasures of nature are for all generations to come and for intelligent useof the entire country. The present generation owes a duty to preserveand conserve the natural resources of the nation so that it may be usedin the best interest of coming generations as well and for the country asFa whole.

2. These appeals have been filed challenging various orders passedby National Green Tribunal wherein several directions were issued,measures to be taken to check and combat the unregulated coal miningin Tribal areas of State of Meghalaya which coal mining resulted notGonly loss of lives but damaged the environment of the area.

Details of appeals

3. Civil Appeal Nos. 10720 of 2018, 10611 of 2018 and 10907 of2018 have been filed against order dated 31.08.2018 passed by theHNational Green Tribunal, Principal Bench, New Delhi. Civil Appeal

No.5272 of 2016 has been filed by KA Hima Nongstoin Land Owners,Coal Traders and Producers Association against the order dated10.05.2016 of the National Green Tribunal, Principal Bench, New Delhi.Civil Appeal (Diary No.3067) of 2018 has been filed by Lber Lalooagainst order dated 25.03.2015 of National Green Tribunal, PrincipalBench, New Delhi and Civil Appeal No.2968 of 2019 has been filedagainst order dated 04.01.2019 of National Green Tribunal, PrincipalBench, New Delhi by which State of Meghalaya has been directed todeposit Rs.100 crores with the Central Pollution Control Board.

4. All the appeals having been filed against the orders of NationalGreen Tribunal (NGT), it is necessary to notice the details of variousproceedings before the NGT to appreciate the grievances raised in theappeals. The Gauhati High Court on the basis of a News item to theeffect that on 06.07.2012, 30 coal labourers were trapped inside a coalmine at Nongalbibra in the District of South Garo Hill and 15 of themdied inside the coal mine, registered PIL suo moto No.(SH) 3 of 2012.Vide order dated 10.12.2012 of the Gauhati High Court the matter wasdirected to be transferred to NGT in which notice was issued by theTribunal on 30.01.2013. Transferred matter was registered as OriginalApplication NO.11(THC)/2012.All Dimasa Students Union Dima HasaoDistrict Committee filed an Original Application No.73 of 2014 beforeNational Green Tribunal, Principal Bench making serious complaints withregard to rat-hole mining operation, which has been going on in JaintiaHills in the State of Meghalaya for last many years without beingregulated by any law. It was alleged that in the course of rat-hole coalmining by flooding water several employees and workers have died.The applicant had also brought before the Tribunal a detailed report ofone Dr. O.P. Singh, Professor, Department of Environmental Studies,North-Eastern Hills University, Shillong, Meghalaya where entireaspects of the coal mining in the State of Meghalaya were discussed.The NGT admitted the application and took the view that illegal andunscientific miningneither can be held to be in the interest of people ofthe area,the people working in the mines nor in the interest ofenvironment. After hearing applicant, the Tribunal on 17.04.2014 passedan order directing the Chief Secretary of Meghalaya, Director Generalof Police, State of Meghalaya to ensure that rat-hole mining/illegalmining is stopped forthwith throughout the State of Meghalaya and anyillegal transport of coal shall not take place until further orders passed by

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Athe Tribunal. After the passing of the order dated 17.04.2014 variousapplications were filed before the Tribunal by different Associations andpersons claiming interest in the subject matter of the application.Application No. 317/2019 was filed by Western Coal Miners andExporters Association for being impleaded in O.A. No.73 of 2014, whichwas allowed. Another application M.A.No.306 of 2014 was filed byBKhasi Hills District Autonomous District Council, Shillong, East KhasiHills District, Meghalaya (one of the appellants before us) for impleadmentclaiming to be a constitutional body and entitled in the sharing primarilyof the royalty on the coal produced/mined, which application wasallowed.C5. The Tribunal clubbed O.A.No.13 of 2014, O.A.No.73 of 2014and O.A.No.11(THC)/2012. Miscellaneous applications were filedbefore the Tribunal praying for vacating the order dated 17.04.2014.Against order dated 17.04.2014, C.A.No.5756 of 2014 was filed by acoal mine owner. The miscellaneous application was also filed by theDState Coordination Committee of the Jaintia Hills District, Meghalaya(one of the appellants before us) for their impleadment, which wasallowed. This Court dismissed the Civil Appeal filed against the orderdated 17.04.2014 passed by the Tribunal, however, granted liberty to theappellant to approach the Tribunal for modification of the order. TheTribunal also noticed in its order dated 09.06.2014 that there has beenEserious air, water and environmental pollution being caused by theillegal, unregulated and indiscriminate rat-hole mining being carried on invarious parts of the State of Meghalaya. Serious pollution to theupstream was also noticed. The Tribunal, however, noticed that thereare documents on record to show that right from the year 2003, thereFhas been serious air and water pollution in the mining areas of Meghalayawhich is injurious and has not only resulted in degradation ofenvironment, particularly the streams and underground water, but hasalso seriously jeopardised the human health. It was further noticed thatTransportation of coal in an illegal, unregulated, indiscriminate andunscientific manner has resulted in serious diseases to the people. TheGreport of the Committee dated 09.06.2014 was noticed by the Tribunal.By order dated 09.06.2014 while permitting the transportation of thealready extracted coal lying in open near the mining sites, constituted acommittee for supervising such transportation. Various other directionswere issued to the committee as well as to the State and its authorities.H

6. By a subsequent order dated 01.08.2014 the Tribunal noticedthat the committee earlier constituted by order dated 09.06.2014 failedto perform the functions assigned to it, hence, a new committee wasconstituted. The Tribunal from time to time issued various directions.We need to notice four orders passed by the Tribunal in detail which aresubject matter of challenge in these appeals. The orders which aresubject matter in these appeals are orders dated 25.03.2015, 10.05.2016,31.08.2018 and 04.01.2019.

Order dated 25.03.2015

Order dated 25.03.2015

7. In order dated 25.03.2015 NGT noticed that the rampant,illegal, unscientific and life-threatening mining activity, particularly rathole mining is going on in the State of Meghalaya for years. The NGTnoticed the report of Commissioner appointed by it and opined that inspite of order dated 17.04.2014 fresh mining was going on. The Tribunalalso noticed that State of Meghalaya has promulgated a Mining Policyof 2012 which does not deal with rat hole mining. The State Governmentwas also directed to formulate and declare Mining Policy and Guidelinesfor the State of Meghalaya to deal with all aspects of mining, whichPolicy was yet to see the light of the day. The Tribunal also noticed thatthe order of the Tribunal has been violated by illegal mining despitecomplete prohibitory orders. It was noticed that the State Governmenthas found as many as 73 cases of illegal transportation of coal in oneDistrict. Further, 15 more cases of specific violation of the NGT ordershad already been registered by the State Government. In all 11 Districtsof State of Meghalaya, 308 cases of violation have been registered anda total number of 605 trucks and 2675.63 tonnes of coal has been seized.The stand of the State for a non-compliance and its inability to complywith the direction was also noticed to the following effect:

“(a) Lack of forces of carry out counter insurgency operationsand implementation of NGT orders.

(b) The State Government proposes to approach the CentralGovernment for claiming an exemption, in terms of para 12A(b)of the VIth Schedule of the Constitution of India and from thecondition of previous approval of the Central Government underthe Mine and Mineral Rule Regulation Act, 1957 in respect ofreconnaissance, prospecting and mining of coal and from theoperations of Coal Mines Nationalisation Act.”

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A8. The Tribunal issued directions that the Additional Secretary,North East in the Ministry of Home, Central Government shall, within aperiod of two weeks, hold a meeting with the Chief Secretary of theState of Meghalaya and other concerned Authorities and consider theproposal of the State of Meghalaya. The Tribunal also expressed itsdisapproval for the conduct of the State in not formulating appropriateBPolicy and Guidelines. The Tribunal further observed that the mining inthe State cannot be permitted, unless appropriate policy is prepared bythe State Government.

9. The Tribunal also noticed that there is huge environmentaldegradation and pollution of the water in the State of Meghalaya andCobserved that serious steps are required to be taken for cleaningpolluted waterbodies, with the above objective the Tribunal authorisedthe State Government to collect 10% on the market value of the coal inaddition to the royally payable to it. In this regard following directionswere issued:D “It is also undisputable that there has been huge environmentaldegradation and pollution of the waterbody in the State ofMeghalaya, because of this illegal, unscientific mining. No onehas even thought of restoration of the area in question, to bring tosome extent, if not completely, restoration of ecology andEenvironment in question. Serious steps are required to be takenfor cleaning polluted waterbodies and ensure that no furtherpollution is caused by this activity and the activity which would bepermitted to be carried on finally including transportation of coal.On the basis of `Polluter Pay Principle’. We direct that the StateGovernment shall in addition to the royalty payable to it, shall alsoFcollect 10% on the market value of the coal for every consignment.Having heard the learned Counsel appearing for the parties andkeeping in view the notifications of the Central Government dated10.05.2012 and that of the State Government dated 22.06.2012,we may notice that in the report of Comptroller and AuditorGGeneral of India for the period ending 31st March, 2013 under7.5.18 of Chapter 7 of which the invoice value of the coal hasbeen taken Rs. 4850/- per metric tonne.

Thus, we direct that the State Government shall in addition tothe royalty payable to it, also collect 10% of the said market value

of the coal per metric tonne from each person. The amount socollected shall be deposited in the account to be titled as ‘MeghalayaEnvironment Protection and Restoration Fund’ to be maintainedby the State under the direct control of the Chief Secretary of theState of Meghalaya.

This amount shall only be used for restoration of environment andfor necessary remedial and preventive measures in regard toenvironment and matters related thereto.”

10. Certain other directions were issued by the Tribunal videorder dated 25.03.2015.

Order dated 10.05.2016

11. Order dated 10.05.2016 has been challenged by KA HimaNongstoin Land Owners, Coal Traders and Producers Association. TheNGT vide its order dated 23.12.2015 had permitted transportation ofcoal for the period till 15.05.2016. By order dated 31.03.2016, NGTrefused to further extend the time for transportation and directed thatafter 15.05.2016 all extracted coal shall vest in the State. Aggrievedagainst order dated 31.03.2016 KA Hima Nongstoin Land Owners, CoalTraders and Producers Association filed C.A.No.4793 of 2016 beforethis Court, which was disposed of by granting liberty to the appellant tofile application before the NGT. Pursuant to the liberty granted by thisCourt M.A.No.427 of 2016 was filed before the NGT. By order dated10.05.2016 applications, M.A. Nos.400 and 427 of 2016 were dismissed.By the same order the State of Meghalaya was directed to place onrecord the exact current quantity of coal and value thereof including thestatus of the coal lying and mined anywhere in the State of Meghalayaas on 01.04.2015 and the exact quantity of coal lying as on 16.05.2016.The state was also directed to submit its proposal as to how the Stateshall deal with the coal that is vested in the State primarily for thereasons that entire coal is illegally extracted coal.

Order dated 31.08.2018

12. On 31.08.2018, the Tribunal noticing the earlier proceedingsalso noted that few issues are pending before this Court arising out oforders passed by the Tribunal. In paragraph 10 of the order followinghas been noticed:

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“10. At this stage, we may note that following issues are pendingbefore the Hon’ble Supreme Court arising out of orders passedby this Tribunal:

i) Civil Appeal No(s). 5272/2016 titled as Ka Hima NongstoinLand Owners, Coal Traders and Producers Association Vs.All Dimasa Students Union, Dima Hasao District Commit-tee and Ors., wherein following order was passed on21.09.2016:

“Having heard counsel for the parties, it is directed that thepetitioners, as well as the respondents, who have mined thecoal, are permitted to transport the coal on payment of royaltyand other fees as fixed by the National Green Tribunal (forshort, ‘the Tribunal’) and other relevant status. The extractedcoal can be transported from 1st October, 2016 till 31st May,2017. It is further directed that no other extraction shall takeplace in the meantime.

The finding of the Tribunal that the coal is vested in the Stateon the ground that it is illegally extracted coal, shall be advertedto at the time of final hearing. The miners shall keep theaccounts and if, ultimately, it is held that the coal belongs to theState, they will refund the amount with interest. The quantumof interest shall be determined at the time of final hearing.Needless to say, these observations have been made withoutprejudice to the contentions to be raised by the learned counselfor the parties. The tribunal can proceed with regard to theother aspects which are pending before it.”

The above order shows that question whether coal is vestedin the State is to be gone into before the Hon’ble Supreme Court.

Thereafter, on 28.03.2018, by the said order, time fortransporting already extracted coal was extended up to 31.05.2018but it was clear that no further extraction shall be allowed.

ii) Civil Appeal Diary No. 3067/2018 titled as Lber LalooVs. All Dimasa Students Union, Dima Hasao District Committeeand Ors., raising the question whether ban on mining can becontinued. We are informed that in the said matter, the issue ofmining plan has also been raised.”

13. The Tribunal further directed that ban on rat hole mining shallcontinue subject to further orders of this Court. Ban on transportation ofextracted coal will also continue subject to further orders. Followingdirections were issued in paragraph 13:

“13. Accordingly, we direct that orders of ban of rat-hole miningwill continue, subject to further orders of the Hon’ble SupremeCourt. Ban of transportation of the already mined material willalso continue subject to further orders of the Hon’ble SupremeCourt. The State of Meghalaya will be the receiver/custodian ofthe available extracted coal as on date, subject to further ordersof the Hon’ble Supreme Court. If any further coal not so farrecorded in the inventory is available, a separate inventory maybe made and if it is found that the extraction was illegal, royalty interms of orders already passed may also be collected. This maybe determined by the Secretary of Mining of the State ofMeghalaya. While one view is that there is extracted coal and notaccounted for, the other view put forward that it is result of illegalmining. This aspect may be gone into by the Secretary of Mining,State of Meghalaya in the first instance. The same becross-checked by a joint team of representatives of CentralPollution Control Board and Indian School of Mines, Dhanbad.”

14. The Tribunal also deliberated on restoration of theenvironment and rehabilitation of the victims for which funds wereavailable. The Tribunal constituted a committee headed by Justice B.P.Katakey, Former Judge of the Gauhati High Court with representativesfrom Central Pollution Control Board and Indian School of Mines,Dhanbad. Paragraphs 14 to 28 of the order are relevant in this contextwhich are as follows:

“14. Only last question which remains is of restoration of theenvironment and rehabilitation of the victims for which funds areavailable. We are of the view that for this task, it will appropriatethat we constitute an independent Committee. This Committeewill be headed by Justice B.P. Katakey, Former Judge of theGuwahati High Court with representatives from Central PollutionControl 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.

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· Prepare time bound action plan to deal with the issue and ensureits implementation.

16. The Committee may requisition services of such technicalexperts as may be necessary and may also carry out visits to siteswhenever necessary. They will be entitled to all logistic supportfor performing these functions which shall be provided under thedirections of the Chief Secretary, Meghalaya.

17. The Committee may also set up website for receiving andgiving information on subject.

18. The Committee may also involve educational institutions forawareness and feedback about results.

19. All authorities concerned in the State of Meghalaya shallcooperate and coordinate with the Committee. The Committeecan seek such technical assistance as may be required from anyrelevant authority.

20. The Chief Secretary, Meghalaya to provide all facilities tosaid Committee to perform its functions. The Committee maysend its periodical reports to the Tribunal by e-mail [REDACTED].

21. The Committee may assume its charge within two weeksfrom today. The Committee may prepare Action Plan which shallhave targets of ensuring compliance. It may meet at such intervalsas considered appropriate but twice in every month and fix targetsfor compliance.

22. The Committee will be free to take up all incidental issues.The committee will be free to seek any further directions fromthis Tribunal by e-mail.

23. The Chief Secretary of State of Meghalaya may determineremuneration of the Chairman in consultation with him and theChief Secretary of the State of Meghalaya will also provide alllogistic support including security if needed for their properfunctioning.

25. The Committee will be entitled to take the help of the technicalexperts in execution of this order. The Committee may frame its

action plan for implementation within one month from today andimplementation may be completed within six months as far aspossible. The timelines may be laid down. A copy of the actionplan may be sent to this Tribunal by e-mail at [REDACTED], reports may be sent at least once in two months. TheCommittee may also assess the damage to the environment aswell as to the individuals as already suggested in the Report.

27. The State of Meghalaya will make available all the relevantrecords to the Committee for the purpose. The State will alsodetermine the remuneration to be paid to the Chairman of theCommittee in consultation with him within one month from today.

28. The Committee will be at liberty to take technical assistancefrom any quarter which may be facilitated by the State ofMeghalaya. The Committee may also supervise any issue arisingout of receivership/custodianship of the already extracted coal,including any environmental issues which any arise out of storageof the extracted material and the steps required to be taken forthe purpose.

The Report of the Committee may be furnished to this Tribunalby e-mail at [REDACTED].

A copy of this order may be sent to all the concerned authoritiesby e-mail for compliance.

All pending matters will stand disposed of in above terms.

List for consideration of the Report on 06th March, 2019.”

Order dated 04.01.2019

15. Justice Katakey submitted its report before the Tribunal on02.01.2019. Committee’s various proceedings which were part of thereport were noticed in detail by the NGT. In paragraph 21 of the orderfollowing was noticed:

“21. Under issue number D, it was noted that the MeghalayaState Pollution Control Board in its report in September, 1997 hadnoted that unplanned and unscientific coal mining activities weretaking place. This had achieved dangerous dimensions in the lasttwo decades creating ecological disturbance and adverse

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Aenvironmental impacts. This showed that though cognizance ofthe problem was taken in the year 1997, the problem continueseven 20 years thereafter. The State Pollution Control Board had,in the year 1997, recommended steps to check illegal miningincluding generation of awareness, legislative measures, use oftechnology, carrying out of study but none of the recommendationsBwere implemented even after 21 years.”

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16. The Tribunal after considering the report of the committeeand other materials on record came to the conclusion that the State ofMeghalaya had failed to perform its duties to act on therecommendation of the report of the Meghalaya State Pollution ControlCBoard submitted in the year 1997. The Tribunal opined that interim amountbe deposited towards restoration of the environment. Paragraphs 31 to33 are as follows:

“31. Paying capacity and the amount which may act as deterrentto prevent further damage is also well recognised. Net PresentValue of the ecological services foregone and cost of damage toenvironment and pristine ecology, the cost of illegal mined material,and the cost of mitigation and restoration are also relevant factors.The Committee may go into these aspects to determine the finalfigure.

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32. We are satisfied that having regard to the totality of factualsituation emerging from the record, damages required to berecovered are not, prima facie, less than Rs. 100 Crores.Accordingly, by way of an interim measure, we require the Stateof Meghalaya to deposit Rs. 100 crores within two months withthe CPCB in this regard.

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33. We have already noted the extent of damage found and thevalue of the illegally mined material, apart from clandestine miningfor which sufficient material is not available. The State hadcollected, as noted in the earlier order, royalty of Rs. 400 croreswhich by now must be higher figure.”

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17. The State of Meghalaya has filed two appeals beingC.A.No.10720 of 2018 and C.A.No.2968 of 2019. C.A.No.10720 of2018 has been filed questioning the order dated 31.08.2018 passed bythe Tribunal by which the Tribunal directed that order of the ban of H

rat-hole mining will continue and further constituted Justice B.P. Katakeycommittee to take steps for restoration of the environment andrehabilitation of the victims. The other Civil Appeal No.2968 of 2019 hasbeen filed by the State of Madhya Pradesh questioning the order dated04.01.2019 by which State of Meghalaya was directed to depositinterim amount of Rs.100 crores towards restoration of theenvironment.

18. Against the same order dated 31.08.2018 two other appealshave been filed being C.A.No.10611 of 2018 by the State CoordinationCommittee of Coal Owners, Miners and Dealers Forum andC.A.No.10907 of 2018 by Garo Hills Autonomous District Councilaggrieved by the perpetual ban of coal mining by order dated 31.08.2018without considering illegality of the ban in the first place. The appellantsare also aggrieved by appointment of State Government receiver/custodian of the extracted coal when there is no dispute of the owner-ship of the coal and further the question of vesting of the coal in theState is pending consideration in this Court in C.A.No.5272 of 2016.

19. C.A.No.10907 of 2018 is filed by Garo Hills AutonomousDistrict Council which is aggrieved by the order of the Tribunal dated31.08.2018 by which it has confirmed the ban on coal mining which wasin force for over four years and further direction by the Tribunal toconstitute a committee for the disposal of funds in excess of Rs.400crores. The appellants are aggrieved by the above and alleged that theTribunal failed to consider that constituting the committee withoutconsidering the roles and responsibilities of the District Council has theeffect of virtually excluding the Council from issues concerningadministration of forests and lands which are within the exclusivejurisdiction of the Council. The ban on coal mining has effectively closedthe doors on a major source of revenue for the functioning of theDistrict Council, which is empowered in terms of Sixth Schedule of theConstitution to collect taxes.

20. C.A.No.5272 of 2016 by KAHima Nongstoin Land Owners,Coal Traders and Producers Association has been filed against orderdated 10.05.2016 by which Miscellaneous Applications No.400 and 420of 2016 were dismissed. The appellants had prayed for modification andclarification and/or recall of the final order dated 31.03.2016 by whichTribunal directed for vesting of the duly assessed already extracted coal A

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Awith the State of Meghalaya and refusing to extend the time fortransportation of the already extracted coal. The appellants claim forpropriety rights of its members over such coal, which were mined as perprevailing custom prior to 17.04.2014.

21. Now, remains appeal being Civil Appeal of 2019(@ DiaryBNo.3067 of 2018) filed on behalf of the Lber Laloo. The appellant hasfiled this appeal against the order dated 25.03.2015. Aggrieved by theblanket ban on mining activities imposed in the State of Meghalaya bythe NGT which, according to the appellant, is adversely affecting thelives and livelihood of the miners in the State of Meghalaya. As a resultof ban on coal mining large number of the families are affected in theCState of Meghalaya, who are dependent for their livelihood on coalmining.

Submissions

22. We have heard Shri Shekhar Naphade, learned seniorDcounsel, Shri Amrendra Sharan, learned senior counsel, Shri Amit Kumar,Advocate General, for the State of Meghalaya. We also heard Shri RanjanMukherjee appearing for the State of Meghalaya. Shri Ranjit Kumar,learned senior counsel, appearing for the appellant in C.A. Diary No.3067of 2018 and Shri Raju Ramachandran, learned senior counsel, appearingfor the appellant in C.A.No.10907/2018. Shri Colin Gonsalves, learnedEsenior counsel has been heard as amicus curiae. We have also heardlearned counsel for respondent No.1 in C.A. No.5272 of 2016 (whowas the applicant before the NGT). Shri Nidhesh Gupta, learned seniorcounsel has been heard for the private respondents in C.A.No.5272 of2016. Shri A.N.S. Nadkarni, learned Additional Solicitor General hasbeen heard for the Union of India. We have also heard other learnedFcounsel who were permitted to intervene in the matter and raise variousarguments in respect of their different IAs.

23. Shri Shekhar Naphade, learned senior counsel led thearguments on behalf of the State of Meghalaya. Shri Naphade submitsGthat jurisdiction of NGT constituted under National Green Tribunal Act,2010 is confined to Sections 14,15 and 16. Section 16 is not attracted inthe present case. Section 14 deals with original jurisdiction of NGT andit takes within its compass or all of civil cases where a substantialquestion relating to environment (including enforcement of any legal rightrelating to environment) is involved and such question arises out of theH

implementation of the enactments specified in Schedule I. Thejurisdiction depends upon two conditions which are required to besatisfied cumulatively and they are: (1) substantial question whichrelatesto environment and (2) implementation of the enactments specified inSchedule I. It is submitted thatMines and Minerals (Development andRegulation)Act, 1957(hereinafter referred to as “MMDR Act, 1957”)notbeing specified in Schedule I, the National Green Tribunal could nothave exercised jurisdiction to examine violation of MMDR Act, 1957. Itis submitted that the NGT committed error in holding that the coalmining in State of Meghalaya is unregulated. The NGT proceeded onerroneous premise that the Tribals of Meghalaya cannot do coal miningwithout obtaining lease from the State Government. It is submitted thatTribals who are owners of the land are also owners of the sub-soil andthe minerals in the land. The land in the State of Meghalaya wasproperty of men and villages. The Khasi Hills, Jaintia Hills and GaroHills have different land tenure system of their own, which does notprovide for vesting of land or minerals in the State right frompre-Independence period.

24. Shri Naphade submits that the ownership of minerals vestswith the owner of the land unless the owner of the land is deprived ofthe same by some valid process of law, for example, the provisioncontained in Land Revenue Codes of different States, whichcategorically state that the ownership of minerals exclusively vests inthe State Government. However, in the State of Meghalaya, there existsno such law that deprives the owner of the land from owning theminerals beneath it.

25. Shri Naphade submits that under MMDR Act, 1957, Statehas no legislative or executive power with regard to coal, which is amajor mineral. It can neither exercise any jurisdiction of granting anymining lease to the Tribals nor it has any jurisdiction to frame any miningpolicy. It is submitted that the provisions of the MMDR Act deal withlease and prospecting licence. The Tribals of Meghalaya are owners ofthe minerals located in their land. Since they are the owners, there is noquestion of they being required to obtain either a prospecting licence ora mining lease. The concepts of lease and licence necessarily involveminimum two parties to the transaction- in case of a license, there has tobe a licensor and licensee. The owner of minerals cannot give licenceor lease to himself or grant a prospecting licence. The State is not the

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Aowner of the minerals and, therefore, it cannot on its own grantprospecting licence or lease as it has no proprietary right in respect ofsuch minerals. State can neither be a licensor nor a lessor in suchsituation.26. Shri Naphade reiterates that the whole premise of NGT thatBthe coal mining in the State of Meghalaya is unregulated is fullyerroneous. Referring to north-eastern area under which the State ofMeghalaya was established as full-fledged State, it is submitted thatadministration of Tribal areas is to be governed as per Sixth Schedule ofthe Constitution of India and various orders passed by the NGT directlyinterfered in the administration of Tribal area which is vested in theCAutonomous District Councils. It is submitted that NGT failed toconsider the relevant statutory matrix including the provisions of SixthSchedule and legislation framed by the Autonomous District Councils. Itis submitted that NGT has no jurisdiction to constitute any committee forthe purpose of enforcing its orders. The constitution of committeesDincluding constitution of Justice B.P. Katakey, former Judge of the GauhatiHigh Court by the impugned order dated 31.08.2018 is beyond thejurisdiction of NGT. The constitution of the committee is interferencewith the jurisdiction of Autonomous District Council. It is furthersubmitted that NGT has also no jurisdiction to create any fund. TheTribunal by constituting the committee and by constituting a fund hasEcreated a parallel Government. The Tribunal not being a constitutionalcourt it cannot issue a continuous mandamus. It is submitted thatTribunal although issued several directions to the State of Meghalaya toframe mining policy whereas the State has no jurisdiction regardingframing of mining policy under MMDR Act, 1957, the State is denudedFwith any legislative powers with regard to regulation and developmentof minerals, which have been declared by the Union to have taken underits control. Referring to EIA notification dated 14.09.2006 issued underEnvironment Protection Act, 1986, he submitted that environmentclearance for mining was required only when area of mining was morethan five hectares. In Tribal areas of State of Meghalaya, mining areaGconsists of small area which being not more than five hectares, therewas no requirement of obtaining an environment clearance. He does notdispute that after 15.01.2016 by the EIA notification now therequirement of area of being not more than five hectares having beendeleted environment clearance is required as on date with regard toH

carrying mining operations. The Tribals are dependent for theirlivelihood on coal mining and, therefore, by complete ban on coal miningwith effect from 17.04.2014, large number of Tribals are deprived fromtheir livelihood and it is obligatory for the State to espouse the cause ofthe Tribals, who individually were not before the NGT. There being nojurisdiction in the State of Meghalaya to grant mining lease as perspecial nature of land tenure in the Tribal areas of State of Meghalayaand further minerals are not vested in the State of Meghalaya, the NGTerred in holding that State has failed to carry on its obligation and failedto check coal mining in the State of Meghalaya, it is CentralGovernment which have all jurisdiction and authorities under Act, 1957to make necessary Rules and issue necessary directions and State alonecannot be blamed. Referring to Minerals Concession Rules, 1960 framedunder Section 13 of MMDR Act, 1957, it is submitted that even thoughRule 13(f) refers to mining application with regard to land of whichminerals vest in persons other than the Government, he submits that thisprovision shall not apply for owner when he himself carries on themining, the question of taking lease may arise when ownerof the landgive land to some other person to mine the minerals.

27. Shri Naphade, however, submits that the provisions of theMines Act, 1952 are applicable and have to be complied with. Hereferred to the Mineral Conservation and Development Rules, 1988,where cess can be charged by the State.

28. Shri Amrendra Sharan, learned senior counsel appearing forthe State of Meghalaya in C.A. No.2968 of 2019 submits that NGT videimpugned order dated 04.01.2019 has directed the State of Meghalayato deposit Rs. 100 crores as an interim measure which is whollyunsustainable. The NGT has passed the order dated 04.01.2019 relyingon first interim report of the Committee headed by Justice B.P. Katakey,former Judge of the Gauhati High Court. The constitution of committeewas itself beyond the jurisdiction of the NGT. Shri Sharan adopts thesubmissions made by Shri Naphade and in addition to those submissions,submits that order dated 04.01.2019 has been passed in violation ofprinciples of natural justice since no opportunity was given to the Stateof Meghalaya to respond to the report of the committee used against itfor imposing a penalty of Rs.100 crores. The order impugned has beenmade by the NGT contrary to the findings recorded in the report of the A

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Acommittee of Justice B.P. Katakey. The impugned order dated 04.01.2019has been passed by the NGT without any assessment of damage ofenvironment whatsoever. The Tribunal also did not notice its earlierorder dated 25.03.2015 wherein penalty has already been imposed onactual polluters, i.e., coal miners and transporters based on PollutersPay Principle for which Fund, namely, Meghalaya EnvironmentBProtection and Restoration Fund (hereinafter referred to as “MEPRF”)has already been created. The NGT passed order dated 04.01.2019without considering the concerned statutory provisions to determine asto who is responsible for implementation of the mining statutes and theenvironmental legislation in the State of Meghalaya. The state ofCMeghalaya has limited source of revenue and putting extra burden ofRs.100 Crores shall shatter the economy of the state.

29. Shri Raju Ramachandran, learned senior counsel, in supportof appellant, Garo Hills Autonomous District Council in Civil Appeal No.10907 of 2018 submits that the NGT while passing order dated 31.08.2018

Dhas ignored the Sixth Schedule of the Constitution. By order dated31.08.2018, the NGT could not have constituted the committee.Referring to Sixth Schedule of the Constitution, Shri Raju Ramachandransubmits that under para 2, District Councils, Regional Councils havebeen constituted and also Hills District Council is a Council created underthe Sixth Schedule of the constitution framed under Article 244(2) andEArticle 275(1) of the Constitution of India. The constitution ofcommittee by the NGT has virtually affected District Autonomous Councilfrom issues concerning administration of forests and lands within theexclusive jurisdiction of the council. The ban of coal mining has deprived the appellant from major source of Revenue. Under para 8 of SixthFSchedule, Autonomous District Council is entitled to share the Revenuefrom minerals royalty collected by the State Government. The impugnedorder has been passed without hearing and taking note of existence ofshareholders or stake of shareholders. Shri Raju Ramachandran furthersubmits that NGT has disposed of OA Nos.73/2014, 13/2014 and 186/2014 by order dated 31.08.2018after this, it could not have passed anyGorder.

30. Learned counsel for the appellant in support of C.A. No. 5272of 2016 submits that the appeal filed by the appellant is only for seekingprotection of the proprietary rights of its members over the coal which H

was mined as per prevailing custom prior to 17.04.2014. It is submittedthat by order dated 31.03.2016, NGT had taken the view that all coalafter 2016 shall vest in the State. The appellant had previously approachedthis Court by filing C.A.No.4793 of 2016 against the order dated31.03.2016 wherein this Court granted the liberty to the appellant toapproach the NGT for filing application for clarification of the order.The application of the appellant for clarification was rejected by theNGT without giving any reason. The NGT had overreached the scopeof its jurisdiction and authority in directing for vesting of the coalextracted by the members from their land in the State. It is furthersubmitted that MMDR Act, 1957 was enacted by the Parliament toregulate the mining activities in the country which does not in anymanner purport to declare the proprietary rights to the State in theminerals.

31. Mr. Ranjit Kumar, learned senior counsel in support of C.A.(D)No.3067 of 2018 submits that the Tribunal committed error in stoppingthe entire coal mining in the State of Meghalaya. Referring to Section 15of NGT Act, 2010, Shri Ranjit Kumar submits that relief, compensationand restitution can be granted as provided in Section 15. It is submittedthat by stopping entire coal mining from 17.04.2014 the livelihood ofappellant and several similarly situated persons had been adverselyaffected. It is submitted that the Tribunal ought to have lifted the ban.Order impugned infringes right under Article 21 of the Constitution ofIndia. The Tribunal has acted beyond its power under Section 15 ofNGT Act, 2010. The finding of the Tribunal on mining that in the State ofMeghalaya mining is unregulated is not correct,whereas, a miner isrequired to get registered and it has to pay royalty fixed by the State ofMeghalaya.

32. Shri Ranjan Mukherjee, learned counsel appearing forrespondent No.2, State of Meghalaya in C.A.No.3067(D) of 2019submits that even if rat-hole mining has been banned, all mining cannotbe banned. He submits that the Meghalaya Mines and Minerals Policy,2012 has been formulated with an aim to facilitate systematic, scientificand planned utilisation of mineral resources and to streamline mineralbased development of the State. The State of Meghalaya has beencreated to follow the customary rights and practices of coal mining inthe Tribal areas of Meghalaya. In this regard letter of Central

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AGovernment dated 02.07.1987 has also been relied. The draft guidelinesfor coal mining activities in the State has also been framed in the year2015. Although, NGT has directed Ministry of Environment and Foreststo look into the matter but no objection has been communicated to theState except certain miner discrepancies.

B33. Shri A.S. Nadkarni, learned Additional Solicitor Generalappearing for the Union of India submits that provisions of MMDR Act,1957 are also applicable in the Tribal areas of State of Meghalaya. Therequest submitted by the Government of Meghalaya for issuance ofPresidential Notification under Paragraph 12A(b) of the Sixth Scheduleof the Constitution of India for exempting the State of Meghalaya fromCcertain provisions of the MMDR Act, 1957 has not been acceded to.The Office Memorandum dated 12.03.2019 issued by the Governmentof India, Ministry of Coal has been referred to and relied by the learnedAdditional Solicitor General in this regard. It is submitted that no priorapproval for mining rights in respect of area containing coal has beenDgiven under MMDR Act, 1957 by Ministry of Coal, Government ofIndia for the State of Meghalaya.

34. It is submitted that it is entirely impermissible for the appellantor any other private person to claim any rights for illegal or unlawfulmining of coal in derogation of the law in force in the State of Meghalaya.EIt is further submitted that generation of revenue would not be a groundfor claiming permission to carry out mining in contravention/derogationof the law in force. A draft guideline submitted by the State Governmentof Meghalaya by letter dated 24.09.2015 was examined by the Ministryof Coal, Government of India on which decision was taken that theguidelines submitted by the Government of Meghalaya were not inFconformity with the existing statutory provisions of MMDR Act, 1957.Hence, the State of Meghalaya may reframe the guidelines inconformity with MMDR Act, 1957 and submit. In the revised proposaldated 25.07.2016 the State of Meghalaya had proposed certainamendments in MMDR Act, 1957 and exemption from the applicationGof the MMDR Act, 1957 through a Presidential notification underPara 12A(b) of the Sixth Schedule.It had already been communicatedby Central Government that exemption from applicability of MMDRAct, 1957 cannot be acceded to.

35. Shri Colin Gonsalves, learned senior counsel, appearing asHamicus curiae, has raised various submissions. Learned amicus curiae

has submitted a Report in two volumes titled “CURSE OFUNREGULATED COAL MINING IN MEGHALAYA”, a citizen’sReport from Meghalaya 01/12/2018. In Volume I under the head‘INTRODUCTION’ the Report states:

“INTRODUCTON

Meghalaya has a resource curse. Although, we have beenendowed with abundant forests and minerals, these resources havenot contributed to the good of our society, because they havebeen extracted without any regulation or concern for the largercommon good. This unregulated, narrow, self-interest based useof natural resources has exacerbated socio-economic inequality,destroyed the environment, heightened criminality, and torn asunder our egalitarian tribal social fabric.

It also violates Section 39(b) of the Constitution which providesthat the ownership and control of the material resources of thecommunity should be so distributed so as to best subserve thecommon good and, therefore, the State cannot distribute thematerial resource of the community in any way it likes. The processof distribution must be guided by the constitutional principlesincluding the doctrine of equality and larger public good.

The National Green Tribunal’s landmark order regardingUnregulated and illegal coal mining in our state therefore came asa wakeup call for Meghalaya society at large. This order hasbeen criticised and appealed against by a small section of localsmost of who are coal mine owners, transporters, politicians andadministrators who have ‘illegally’ benefitted out of this unregulatedmining and who want things to get back to business as usual. CoalMiners and politicians who are miners, truck owners, weigh bridgeoperators etc. have been filed appeals with the HonourableSupreme Court, asking the Hon’ble Court to rescind NGT ordersso that mining can once again begin.”

36. Learned amicus curiae submits that State of Meghalaya stillcontinues with the illegal mining. Shri Gonsalves submits that Section 4of MMDR Act, 1957 by use of words “no person” clearly prohibitsmining operation without obtaining mining lease in accordance with theAct. Referring to Section 5,he submits that for Schedule A mineralspermission of Central Government is required which has not been

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Aobtained. Shri Gonsalves submits that for mining, the leases are requiredand permission be sought. He submits that there are 53 mines perkilometre in Tribal areas of Meghalaya. He submits that all extractedcoal which is claimed to be lying assessed or unassessed in the State ofMeghalaya is result of illegal mining and Coal India Ltd. be directed totake over the entire coal.B

37. Shri Gonsalves has also referred to various reports ofComptroller and Auditor General of India which has been brought onrecord in Volume II – A Citizen’s Report from Meghalaya 06/01/2019.

38. Shri Nidhesh Gupta, learned senior counsel, appearing onCbehalf of private respondent in Civil Appeal No.5272 of 2016 hasrefuted the submissions raised by the learned counsel for the appellants.Shri Nidhesh Gupta submits that as per Entry 54 of List I regulation ofmines and minerals development has been declared by the Parliamentunder MMDR Act, 1957. Section 2, by declaration as contained inMMDR Act, 1957, the State Government is denuded of all legislativeDand executive powers under Entry 23 of List II read with Article 162 ofthe Constitution of India. Section 4 sub-section (1) makes it clear that noperson can undertake any reconnaissance, prospecting or miningoperations in any area, except under and in accordance with the termsand conditions of a reconnaissance permit or of a prospecting licence.EAs per Section 5 sub-section (1) A State Government shall not grant areconnaissance permit, prospecting licence or mining lease to anyperson unless such person is an Indian National and satisfies suchconditions as may be prescribed. The proviso to Section 5(1) providesthat in respect of any mineral specified in Part A and Part B of the FirstSchedule, no reconnaissance permit, prospecting licence or mining leaseFshall be granted except with the previous approval of the CentralGovernment. The contention on behalf of the State of Meghalaya thatthe MMDR Act, 1957 does not apply to State of Meghalaya is based onan erroneous reading of the statutory provisions.

39. Section 13 empowers the Central Government to make rulesGfor regulating the grant of reconnaissance permits, prospecting licencesand mining leases in respect of land in which minerals vest in theGovernment and also in respect of any land in which the minerals vest ina person other than the Government. In exercise of powers underSection 13 of the Act, the Mineral Concession Rules, 1960 have beenframed.H

40. Chapter V deals with the procedure for obtaining aprospecting licence or a mining lease in respect of a land in which theminerals vest in a person other than the Government. The said Chaptercontains provisions from Rule 41 to Rule 52. Rule 41 stipulates that theprovisions of the said Chapter apply only to the grant of prospectinglicences and mining leases in respect of land in which minerals vestexclusively in a person other than the Government. Therefore, miningleases in respect of land where minerals vest in a person other than theGovernment are covered by the said Chapter and matters concerninggrant of prospecting licences and mining leases are detailed therein.

41. As per Section 23C, the State Government is empowered tomake Rules for preventing illegal mining, transportation and storage ofminerals. No Rules have been framed by the State of Meghalaya underSection 23C. The contention on behalf of State of Meghalaya thatMMDR Act applies only in the cases where minerals vest inGovernment, therefore, MMDR Act does not apply in the State ofMeghalaya, is completely misconceived.

42. Learned counsel also relies on the stand taken by the Unionof India in the Status Report dated 24.07.2018. Shri Gupta submits thatapproximate price of coal is Rs.10,000/- per metric ton. Referring tonotice inviting tenders by the State of Meghalaya, it is submitted thatamount of Rs.1,000/- per metric ton was contemplated. It is submittedthat selling the coal on much low price is causing loss to Revenue aswell as loss to other stakeholders. The allegations have been by ShriGupta that sale of coal at such low price raises suspicion of under handdealing. It is submitted that legal position be laid down by this Court andthe orders of the NGT be upheld.

43. In addition to above, we have also heard several learnedcounsels who have filed IA for impleadment and IAs for directionincluding direction to transport coal belonging to them. We have heardShri Siddharth Luthra, Shri R. Basant, Smt. Meenakshi Arora, SeniorAdvocates and other learned counsel.

44. On 10.05.2019, we had passed an order permittingtransportation of coal to the extent of 75,050 metric ton which wasbalance quantity from 1,76,655 metric ton of coal, for transportation ofwhich this Court had passed order on 04.12.2018. The order dated10.05.2019 permitted transportation of the coal, for which Transport A

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Achallans had already been issued after 04.12.2018 under the terms andconditions as indicated in the order dated 10.05.2019. In the order dated10.05.2019, we had also held that applicants need not be impleaded,however, they were permitted to intervene in the matter.

45. The counsel appearing for different applicants claimBtransportation of different quantity of coal which according to them hasnow been assessed. Still some of the applicants claims transportation ofthe coal which is yet to be assessed. In different applications, differentquantities are claimed to be transported which according to theapplicant is lying in different districts of the State of Meghalaya.I.A.No.22981 of 2019 and I.A. No. 22991 of 2019 are applications byCan applicant claiming to be auction purchaser. Learned counselsubmitted that he was declared highest bidder, he pleaded for extensionof time to deposit the amount but after the order dated 15.01.2019, hewas not permitted to transport the coal nor he could deposit the balanceauction money.D

46. Shri Ranjan Mukherjee, learned counsel appearing for Stateof Meghalaya has filed an additional affidavit of Commissioner andSecretary to the Government of Meghalaya, Mining and GeologyDepartment dated 06.04.2019. In the affidavit, it is stated that inpursuance of the order of NGT dated 31.08.2018, the State GovernmentEvide notification dated 14.09.2018 has constituted a team to assist theCommissioner and Secretary to deal with the directives given in para 13of the order of the NGT. It is submitted that in pursuance of the order ofthe State Government dated 14.09.2018, the members of the committeehave carried out assessment of unassessed extracted coal appearing inthe datasheet of inventory in different hills district. The report datedF04.10.2018 of Deputy Commissioner, west Khasi hills, is filed asAnnexure A-3, containing the statement of unassessed extracted coalhas been brought on record. Another report dated 22.10.2018 and16.11.2018 of west Khasi hills district containing the statement ofassessment of unassessed extracted coal has been brought on record.GBy report dated 12.11.2018 of Deputy Commissioner, South west Khasihills, datasheet of coal inventory has been brought on the record. Reportdated 30.10.2018, Deputy Commissioner, South Garo hills, has also beenbrought on record. There were reports referring to different assessmentcarried out by the committee according to the affidavit which has been H

filed on behalf of the Commissioner and Secretary to the Government ofMeghalaya, the total quantity of coal stock which has now beenassessed in different reports stands at 32,56,715 metric ton.

47. It is further submitted by learned counsel for the State ofMeghalaya that above assessment of coal has been also verified bytechnical committees appointed by the State of Meghalaya. Certainreports of technical committees have also been brought on the recordalong with the affidavit.

48. Shri Colin Gonsalves, learned Amicus Curiae has challengedthe assessment made by the committees appointed by the StateGovernment as well as verification by technical committee report. It issubmitted by Shri Gonsalves that report of technical committee wants toundo what has been done in the proceedings before the tribunal and thisCourt. Learned Amicus Curiae submits that for transportation, fiveextensions were granted by NGT and four extensions were granted bythis Court. Shri Gonsalves referred to Katakey committee report insupport of his submissions.

49. Shri Nidhesh Gupta, learned senior counsel, has also refutedthe claim of the different applicants as well as the steps taken by theState of Meghalaya in assessing the coal and verifying the same bytechnical committee. Shri Gupta submits that the coal which is nowclaimed to be assessed is nothing but illegally extracted coal. It issubmitted that in pursuance of several orders passed by NGT and thisCourt substantial transportation of coal has been permitted, still theenormous quantity of coal is claimed which is nothing but an excuse toobtain an order of transportation of such illegally mined coal.It issubmitted that State of Meghalaya is hand in glove with illegal miners.Shri Gupta submits that the cost of winning coal by rat hole mining isnegligible and after payment of royalty of Rs.675/- and Rs.485/-towards Meghalaya Environment Protection and Restoration Fund i.e.total payment of Rs.1160/-, the coal is transported. The market price ofthe coal is approximately Rs.10,000/- per metric ton. The claim ofdifferent applicants with regard to unassessed coal is false. It issubmitted that all illegally mined coal should be vested in the State andno permission of transport as prayed by the different applicants be grantedby this Court. Learned senior advocate submits that all applicationspraying for different directions deserve to be rejected.

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354SUPREME COURT REPORTS

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A50. Learned counsel for the parties in support of their respectivesubmissions have placed reliance on various judgments of this Courtwhich shall be referred to while considering the submissions of theparties.

51. From the submissions of the parties as noted above and theBmaterials on record in these appeals following points arise forconsideration.

52. POINTS FOR CONSIDERATION

1. Whether orders passed by the National Green Tribunal arewithout jurisdiction being beyond the purview of Sections 14,C15 and 16 of the National Green Tribunal Act, 2010?

2. Whether provisions of Mines and Minerals DevelopmentRegulation Act, 1957 are applicable in Tribal areas within theState of Meghalaya, included in Sixth Schedule of theConstitution?

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3. Whether for mining the minerals from privately owned/community owned land in hills districts of Meghalaya, obtaininga mining lease is a statutory requirement under the MMDRAct, 1957 and the Mineral Concession Rules, 1960?

4. Whether under the MMDR Act, 1957 and Mineral ConcessionERules, 1960, it is the State Government, who is to grant leasefor mining of minerals in privately owned/community ownedland or it is the owner of the minerals, who is to grant leasefor carrying out mining operations?

5. Whether the State of Meghalaya has any statutory controlFover the mining of coal from privately owned/community ownedland in hills districts of State of Meghalaya?

6. Whether the power to allot land for mining purposes is vestedin Autonomous District Councils?

7. Whether the order of National Green Tribunal dated 17.04.2014directing for complete ban on mining is unsustainable?

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8. Whether the complete ban on mining of coal in the State ofMeghalaya as directed by NGT deserved to be vacated/modified in the interest of State and Tribals?

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9. Whether NGT had any jurisdiction to constitute committees tosubmit reports, to implement the orders of NGT, to monitorstorage/transportation; of minerals and to prepare action planfor restoration of environment?

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10. Whether the NGT committed error in directing for constitutionof fund, namely, Meghalaya Environment Protection andBRestoration Fund?

11. Whether NGT by constituting Committees has delegatedessential judicial powers to the Committees and has furtherencroached the constitutional scheme of administration ofTribal areas under Article 244(2) and Article 275(1) andSchedule VI of the Constitution?

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12. Whether direction to deposit Rs.100/- crores by the State ofMeghalaya by order dated 04.01.2019 of NGT impugned inC.A.No.2968 of 2019 is sustainable?

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13. Whether NGT’s order dated 31.03.2016 that after 15.05.2016all remaining coal shall vest in the State of Meghalaya issustainable?

14. Whether assessed and unassessed coal which has alreadybeen extracted and lying in different Districts of Meghalayabe permitted to be transported and what mechanism beadopted for disposal of such coal?

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53. Now we proceed to consider the above points in seriatim.

Point No.1

54. The State of Meghalaya submits that NGT while imposingban on mining and by forming committee and creating a “MeghalayaEnvironment Protection and Restoration Fund” has gone beyond itsjurisdiction as conferred on it by NGT Act, 2010. The Tribunal has noinherent jurisdiction, its jurisdiction flow from Sections 14, 15 and 16 ofthe Act.

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55. It is relevant to notice few provisions of NGT Act, 2010 tocomprehend the jurisdiction vested with the Tribunal. The National GreenTribunal Act, 2010 was enacted to provide for the effective andexpeditious disposal of cases relating to environmental protection andconservation of forests and other natural resources including H

Aenforcement of any legal right relating to environment and giving reliefand compensation for damages to persons and property and for mattersconnected therewith or incidental thereto. Section 2 is definitions.Section 2(c)defines environment in the following manner:

“2(c) “environment” includes water, air and land and the inter-Brelationship, which exists among and between water, air and landand human beings, other living creatures, plants, micro-organismand property;

56. Section 2(m) defines substantial question relating environmentwhich is to the following effect:

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“2(m) “substantial question relating to environment” shall includean instance where,— (i) there is a direct violation of a specificstatutory environmental obligation by a person by which,— (A)the community at large other than an individual or group ofindividuals is affected or likely to be affected by theDenvironmental consequences; or (B) the gravity of damage to theenvironment or property is substantial; or (C) the damage topublic health is broadly measurable; (ii) the environmentalconsequences relate to a specific activity or a point source ofpollution;”

E57. Chapter III of the Act deals with jurisdiction, powers andproceedings of the Tribunal. Sections 14 and 15 which are relevant inthe present case are as follows:

“14. Tribunal to settle disputes.—(1) The Tribunal shall have thejurisdiction over all civil cases where a substantial question relatingFto environment (including enforcement of any legal right relatingto environment), is involved and such question arises out of theimplementation of the enactments specified in Schedule I.

1. Ins. by Act 7 of 2017, s. 182 (w.e.f. 26-5-2017).

(2) The Tribunal shall hear the disputes arising from the questionsGreferred to in sub-section (1) and settle such disputes and passorder thereon.

(3) No application for adjudication of dispute under this sectionshall be entertained by the Tribunal unless it is made within aperiod of six months from the date on which the cause of actionfor such dispute first arose:

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Provided that the Tribunal may, if it is satisfied that theapplicant was prevented by sufficient cause from filing theapplication within the said period, allow it to be filed within a furtherperiod not exceeding sixty days.

15. Relief, compensation and restitution.—

(1) The Tribunal may, by an order, provide,—

(a) relief and compensation to the victims of pollution andother environmental damage arising under the enactmentsspecified in the Schedule I (including accident occurringwhile handling any hazardous substance); (b) for restitution of property damaged;

(c) for restitution of the environment for such area or areas,as the Tribunal may think fit.

(2) The relief and compensation and restitution of property andenvironment referred to in clauses (a), (b) and (c) of sub-section(1) shall be in addition to the relief paid or payable under thePublic Liability Insurance Act, 1991 (6 of 1991).

(3) No application for grant of any compensation or relief orrestitution of property or environment under this section shall beentertained by the Tribunal unless it is made within a period offive years from the date on which the cause for such compensationor relief first arose:

Provided that the Tribunal may, if it is satisfied that the applicantwas prevented by sufficient cause from filing the application withinthe said period, allow it to be filed within a further period notexceeding sixty days.

(4) The Tribunal may, having regard to the damage to public health,property and environment, divide the compensation or reliefpayable under separate heads specified in Schedule II so as toprovide compensation or relief to the claimants and for restitutionof the damaged property or environment, as it may think fit.

(5) Every claimant of the compensation or relief under this Actshall intimate to the Tribunal about the application filed to, or, asthe case may be, compensation or relief received from, any othercourt or authority.”

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A58. The submission which has been pressed by the State is thatneither MMDR Act, 1957 nor Mines Act, 1952 is prescribed in ScheduleI of the Act,hence, coal mining is not within the purview of Schedule Iand not within the jurisdiction of the Tribunal. The submission further isthat for applicability of Section 14 both the component of sub-section (1)of Section 14 that (i) a substantial question relating to environment andB(ii) such question arises out of the implementation of the enactmentsspecified in Schedule I has to be satisfied.

59. It is relevant to notice that before the NGT no such plea wastaken by the State of Meghalaya or any of the parties questioning thejurisdiction of the NGT. However, the issue being a jurisdictional issue,Cwe have permitted the learned counsel for the appellant to raise theissue. The NGT took cognizance when application, O.A.No.73 of 2014on 17.04.2014 was admitted and order was issued. The jurisdiction ofthe Tribunal to entertain O.A.No.73 of 2014 has to be found out fromthe case set up and pleadings in O.A.No.73 of 2014 for which we needDto scrutinise the application. O.A.No.73 of 2014 has been brought onrecord as Annexure - A3 in C.A.No.5272 of 2016. The application wasfiled by one All Dimasa Students Union Dima Hasao DistrictCommittee. In the application following were the respondents:

1. The State of Meghalaya through the Principal Secretary, For-Eest and Environment Department, Government of Meghalaya,Shillong. 2. The Chairperson, State Pollution Control Board,Meghalaya, Shillong. 3. The State of Assam through the PrincipalSecretary, Forest and Environment Department Government ofAssam, Dispur. 4.The Chairperson, State Pollution Control Board,Assam, Dispur. 5. The Central Pollution Control Board, ParveshFBhawan, East Arjun Nagar, Delhi – 110032 through its Chairper-son. 6. North Easter Electric Power Corporation Ltd. through itsChairman and Managing Director Brooklyn Compound, LowerNew Colony, Shillong – 793003. Meghalaya.

60. Paragraph 3 of the application states the case of the applicantGand facts in brief. Paragraph 3 and (I) to (VI) are as follows:

“3.The Applicant above named beg to present the presentApplication to bring to the notice of this Hon’ble Tribunal about theadverse impact of unscientific opencast mining operations beingstill undertaken in the Jaintia Hills in Meghalaya on the ecologyH

and socio-economy of the concerned area including DimaHasao District of Assam. It is stated that the Acid MineDrainage (for short [(]AMD’) generated from the aforesaidmining operations has resulted in making the water of the riverKopili (an inter-state river flowing through the State ofMeghalaya and Assam) and its tributaries highly acidic whichin turn has not only caused serious far reaching damage to theenvironment, water bodies, soil, agriculture, economy, andindustry of the concerned area but also resulted in causingerosion/corrosion of the critical underwater Hydro PowerEquipments of the Kopili Hydro-Electric Project (for short`KHEP’) of the North-Eastern Electric Power Corporation Ltd(for short `NEEPC0') situated in Umrongso, Dima Hasao,District of Assam in as much as the said acidic water isultimately led to the reservoirs of the said project.

FACTS IN BRIEF

I. That the Applicant is the Secretary of the Dima HasaoStudents Association and filing the present Petition in arepresentative capacity to espouse the cause of the peopleof Dima Hasao, Assam who are constantly andcontinuously facing the adverse affect of the aforesaidillegal activities in the State of Meghalaya.

II. That the Kopili River is an inter-state river in North-EastIndia that flows through the States of Meghalaya and Assamand is the largest south bank tributary of the riverBrahmaputra in Assam, The Kopili river originates from theblack mountains of Lum Bah-bo Bah-Kong in Meghalayaand flows north-west into the Brahmaputra Valley in Assam.The said river demarcates the Jaintia Hills in Meghalayaand Dirria Hasao in Assam. The river flows for a total lengthof 290 kms and has a catchment area of 16, 420 Kms.

III. That the Kopili Hydro-Electric Project (KHEP) of NEEPCO(a Government of India undertaking)is one of the pioneeringHydro-Electric Project in the North Eastern Region of India.The Kopili Hydro-Electric Plant is a 275 MW storage typehydro electric plant consisting of two dams which havecreated two reservoirs namely Kopili reservoir is used in

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the Khandong powerhouse through a 2759 metre tunnel togenerate power. The tail water from this powerhouse is ledto the Umrong reservoir is used in Kopili powerhouse througha 5473 metre tunnel to generate power. Although, the dam,powerhouse and residential colony of. kopili Hydro ElectricPlaner (KHEP) are located in the Dima Hasao District(formerly known as North Cachar Hills District) of Assam,the catchment and reservoirs are spread in two states namelyMeghalaya and Assam. It is further stated that the KopiliRiver and its tributaries feed water to the reservoirs of theproject. The Kharkor is a major tributary of river Kopili anddrains a vast area of Jaintia Hills Districts of Meghalaya.The Jaintia Hills being well known for coal mining areas iscontributing acidic water in the form of Acid Mine Drainage(AMD) to the river Kharkor through its different tributariessuch as Urn Pai, Myntriang, Urn Ropang, Sarbang, Mostemetc. as these streams drain through the active and inactivecoal mining areas of Jaintia Hills. The acidic water finallyreaches to Khandong and Umrong reservoirs of KHEP. Asa result, the water of the reservoirs has become highly acidic.The water pollution in streams of catchment area variesfrom brownish to reddish orange. The same polluted waterthrough various tributaries of rivers Kharkor and Kopili isperpetually reaching to the reservoirs of the KHEP. As aresult, the water of reservoirs has become highly acidic. Inrecent years, it has been found that acidity of reservoir wateris a major threat to equipments and machinery due tocorrosion/metal decay and erosion. Components such ascooling water header pipe, Bends, throttling valves, pressureequalizer pipe of turbine etc. made up of different metalsand alloys are getting severely affected and incurringhigh maintenance cost.

IV. That the said adverse impact of the aforesaid miningoperation which has not only affected the ecology andsocio-economy of the area but also severely affected thegeneration of hydro-electricity at the Kopili Hydro-Electric Planthas been subject matter of various studies. In fact, a detailed

project report of pilot project for remediation of Acid MineDrainage (AMD) in the catchment of Kopili River at theupstream of Kopili Hydro Electric Plant (KHEP), Umrongso,Dima Hasao, Assam was done by Dr. O.P.Singh,Professor, Department of Environmental Studies, North-Eastern Hills University, Shillong, Meghalaya. Similarly, adetailed article based on detailed investigation by Shri PankajSharma and others was published under the heading “Acidmine discharge — Challenges met in a hydro powerproject” in the International Journal of EnvironmentalSciences, Volume I, No.6, 2011. Both the aforesaidpublications gives an in depth analysis of the aforesaidproblem as well as suggests remedial measures to improvethe situation. However, it is stated that no proper andeffective remedial measures have been taken by theconcerned authorities / State Respondents to abort theaforesaid menace and the ill-effect of the same are still continuingand the same are being constantly faced by the innocentcitizens / water bodies etc of the area including the peopleof Dima Hasao district of Assam. Copies of the detailed projectreport of pilot project for remediation of Acid Mine Drainage(AMD) in the catchment of Kopili River at the upstream ofKopili Hydro Electric Plant (KHEP), Umrongso, Dima Hasao,Assam and the article published under the heading “Acid minedischarge — Challenges met in a hydro power project” in theInternational Journal of Environmental Sciences, Volume I, No.6,2011 are annexed herewith and marked asANNEXURE-P/1 & P-2 respectively. The ill-effect ofthe aforesaid operations has also been the subject matter ofnews items in various newspapers including one published bythe Assam Tribune on June, 20, 2012 under the heading“Concern over contamination of Kopili Water” and anotherone published in the Telegraph on 20.06.2013 under theheading “Two Kopili power units shut down — Mining inJaintia Hills affects machines”. Copies of the news itemspublished in the Assam Tribune dated 20.06.2012 and theTelegraph dated 20.06.2013 are annexed herewith andmarked as ANNEXURE-P/3 & P-4respectively.”

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A61. In paragraph 3(V) the appellant has extracted a report of oneDr. O.P. Singh, Professor, North-Eastern Hills University, Shillong,Meghalaya. Certain paragraphs of report stated that Acid MineDrainage(AMD) is the greatest environmental problem of coal industryand main source of water pollution in and around mining areas. Thereport mentioned that AMD degrades the water quality of the area inBterms of lowering the pH of the surrounding water resources andincreasing the level of total suspended solids, total dissolved solids andsome heavy metals. Following is the part of the paragraph 4.1.4 of thereport which is extracted in paragraph 3(V):

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“4.1.4 Impact of AMD on Environment, Socio-economy andCIndustry

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“4.1.4 Impact of AMD on Environment, Socio-economy andCIndustry Impact on Environment and Water Resources: Acid minedrainage is the greatest environmental problem of coalmining industry and main source of water pollution in andaround mining areas. The influx of untreated AMD intostreams severely degrades both water quality and aquatichabitat turning water unfit for desired uses and oftenproducing an environment devoid of most aquatic life. AMDdegrades the water quality of the area in terms of loweringthe pH of the surrounding water resources and increasingthe level of total suspended solids, total dissolved solidsand some heavy metals. Acidity and high concentration ofSO42; iron and other metals prove to be toxic and corrosiveto most aquatic animals and plants. Precipitate of ironhydroxide increases the load of suspended solids whichimpair light penetration and visibility resulting into lowproductivity and disruption of normal functioning of thecontaminated aquatic ecosystem. AMD can also be toxicto vegetation when discharged to the shallow soil waterzones and wetlands (Van Green et al., 1999; Singh andAgrawal, 2004; Gosh, 1991).

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Aquatic communities of rivers and streams comprise ofphytoplanktoris, periphyton, macrophytes, zooplanktons,invertebrates and vertebrate species. They play importantrole in normal functioning of the aquatic ecosystem andare indicative of good health of water bodies. Generally,a variety of species with representatives of almost all insect H

orders, including a high diversity of insects belonging tothe taxonomic orders of Ephemeroptera (mayflies),Plecoptera (stoneflies), and Trichoptera (caddisflies)commonly referred to as EPT taxa. Any physical, chemicalor biological change in waterbodies affects one or allspecies and disturbs the normal functioning of the aquaticecosystem. Like many other pollutants, AMIDcontamination causes a reduction in the diversity and totalnumbers, or abundance, of these aquatic communitiesincluding benthic macroinvertebrates, fishes, etc. As aresult, the community structure is altered and water bodiesaffected by AMD possess a lower percentage of EPT taxa(Campbell et al., 2000). Moderate AMD contaminationeliminates the more sensitive species whereas severelycontaminated conditions are characterized by dominanceof certain taxonomic representatives of pollutiontolerantorganisms.

As a consequence of depletion of aquatic invertebrates,the fishes do not get adequate supply of food and sufferindirectly from AMD contamination AMD also has directeffect on fishby causing various physiologicaldisturbances. However, the primary cause of fish death inacid waters is loss of sodium ions from the blbod. Lessavailability of oxygen to the cells and tissues leads toanoxia and death as acid water increases the permeabilityof fish gills to water, adversely affecting the gill function.Severe anoxia occurs below pH 4.2. Low H that is notdirectly lethal may adversely affect fish growth rates andreproduction.”

62. Further, paragraph 4.2.3 of the report dealt with coal mining inJaintia Hills and paragraph 4.2.4 dealt with impact of coal mining inJaintia Hills and paragraph 4.2.5 dealt with degradation of water qualitydue to coal mining. Paragraphs 4.2.3, 4.2.4, 4.2.5 and 4.2.6 which wereextracted in O.A.No.73 of 2014 are produced as below:

“4.2.3Coal Mining in Jaintia Hills

Extraction of coal has been taking place in all threeregions, however, ‘major production occurs in Jaintia Hills. Themining activity in Jaintia Hills is a small scale venture AB

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controlled by individuals who own the land. Primitive miningmethod commonly known as ‘rat-hole’ mining is inpractice in Meghalaya. In this method the land is firstcleared by cutting and removing the ground vegetation andthen digging pits ranging from 5 to 100 m[2] into the groundto reach the coal seam. Thereafter, tunnels are made intothe seam sideways to extract the coal which is brought intothe pit by using a conical basket or a wheel barrowmanually. Coal seams are reached by excavating the sideedge of the hill slopes and then coal is extracted through ahorizontal tunnel. The coal from the tunnel or pit is takenout and dumped on nearby un-mined area, from where it iscarried to the larger dumping places near highways for itstrade and transportation. Finally, the coal is carried bytrucks to the larger dumping places near highways for itstrade and transportation. Entire road sides in and aroundmining areas are used for piling of coal which is a majorsource of air, water and soil pollution. Off road movementof trucks and other vehicles in the area causes furtherdamage to the ecology of the area.

Every year new areas are brought under mining and areaunder coal mining in Jaintia Hills is increasing day-by-day as shown in Figure 4,5.”

“4.2.4 Impact of Coal Mining in Jaintia Hills andBeyond Mining operation, undoubtedly has brought wealth andemployment opportunity in the area, but simultaneously hasled to extensive environmental degradation and erosion oftraditional values in the society. Environmental problemsassociated with mining have been felt severely because ofthe region’s fragile ecosystems and richness of biologicaland cultural diversity. The indiscriminate and unscientificmining and absence of post-mining treatment andmanagement of mined areas are making the fragileecosystems more vulnerable to environmental degradationand leading to large scale land cover/land use changes.The current modus operandi of surface mining in the areagenerates huge quantity of mine spoil or overburden

(consolidated and unconsolidated materials overlying thecoal seam) in the form of gravels, rocks, sand, soil etc.which are dumped over a large area adjacent to the minepits. The dumping of overburden and coal destroys thesurrounding vegetation and leads to severe soil and waterpollution. Large scale denudation of forest cover, scarcityof water, pollution of air, water and soil, and degradationof agricultural lands are some of the conspicuousenvironmental implications of coal mining in JaintiaHills.Further, entire coal mining area of the Jaintia Hillshas become full of mine pits and caves. These open, unfilledpits are the places where surface water percolates anddisappears. As a result, smaller streams and rivers of thearea, which served as life lines for the people, are eithercompletely disappearing from the face of the earth orbecoming seasonal instead. Consequently, the area isfacing acute shortage of clean drinking and irrigationwater. Besides, a vast area has become physicallydisfigured due to haphazard dumping of overburden andmined coal, and caving in of the ground and subsidenceof land.

Continuous discharge of Acid Mine Drainage (AMD) andtoxic chemicals from coal mines, storage sites andexposed overburden have polluted the river system of thearea. Acidic water on reaching to land and agriculturalfields has affected the traditional agriculture andagricultural productivity of the area (Das Gupta et al,2002; Swer and Singh, 2004)

“4.2.5 Degradation of Water Quality due to Coal Mining

The water bodies of the area are the greatest victims of thecoal mining. The water bodies are badly affected bycontamination of Acid Mines Drainage (AMD) originatingfrom mines and spoils, leaching of heavy metals,[•] organicenrichment and silting by coal and sand particles. Pollutionof the safer is evidenced by the colour of the water whichin most of the rivers and streams in the mining area variesfrom brownish to reddish orange. Low pH (between 2-3),high conductivity, high concentration of sulphate, iron and A

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toxic heavy metals, low dissolved oxygen (DO) and highBOD are some of the physic-chemical and biologicalparameters which’ characterize the degradation of waterquality. Analysis of physic-chemical and biologicalparameters of water in the mining area shows severedegradation of water quality.

The colour of the water in mining area generally variesfrom brownish to reddish orange. Siltation of coalparticles,’ sand, soil etc. and contamination of AMD andformation of iron hydroxide are some of the major causesof change in water colour. Formation of iron hydroxides[Fe (CH)31 is mainly responsible for orange or red colourof water in the mining areas. Iron hydroxide is a yellowishinsoluble material commonly formed in water bodies ofthe coalfields. It is this material that stains streams andresponsible for red to orange color of water. When elevatedlevels of iron are introduced into natural waters, the ironis oxidized and hydrolyzed, thereby forming precipitate ofiron hydroxides.

The water in coal mining areas has been found highlyacidic. The pH of streams and rivers varies between 2.31to 4.01. Solids such as fine particles of coal, sand, mudand other mineral particles were found deposited at thebottom of the water bodies. Besides, water was also foundturbid and coloured due to suspended precipitates of ironhydroxides. Dissolved oxygen was found to be low inwater bodies of coat mining areas, the lowest being 4.24mg/L in river Rawaka and stream Metyngka of Rymbai.

The waters of the mining areas have been found containingsulphate concentration between 78 to 168 mg/L. Electricalconductivity is a rapid measure of the total dissolved solidspresent in ionic form. Water in coal mining areas was foundhaving high conductivity. Deposition of silt at the bottomof the rivers and streams is another important problem incoal mining areas. Water bodies of the mining area appearto contain various types of organic matter which isevident by low Dissolved Oxygen (D00 and highBiochemical Oxygen Demand(BOD).

As a result, the rivers, streams and springs which hadsupported extremely rich biodiversity and traditionalagriculture, and were source of potable and irrigation waterin the area have become unfit for human consumption.Further, there is an overall decline in agriculturalproductivity due to contamination of soil with coal particles,seepage of Acid mines drainage and scarcity of water. Thewater of many rivers and streams have almost becomedevoid of aquatic life”.

4.2.6 Causes of Deterioration of Water Quality

4.2.6 Causes of Deterioration of Water Quality Major causes of deterioration of water quality, asevidenced by above observations are AMD discharge,siltation and organic enrichment. As in any other coalmining area, Acid Mine Drainage (AMD) is the mainsource of water pollution in the coal mining areas of JaintiaHills. As discussed in previous chapter, Amp is formed by aseries of complex geochemical and microbial reactions thatoccur when water comes in contact with pyrite (Iron sulfide)found in coal and exposed rocks of overburden. Iron sulfidein presence of oxygen, water and bacteria forms sulphuricacid, is referred to as AMD. In the process, iron hydroxide,a yellowish orange precipitate is also formed. Theprercipitate of iron hydroxide together with othercontaminants auses turbidity and changes in colour of thewater which reduces the penetration of light and affectsthe aquatic life. Extremely low pH conditions in the wateraccelerate weathering and dissolution of silicate and otherrock minerals, thereby causing the release of otherelements such as aluminium, manganese, copper, cadmiumetc. into the water. Hence, water contaminated with AMDis often coloured and turbid with suspended solids, highlyacidic (low pH), and contains high concentration ofdissolved metals and other elements. Most of the streamsand rivers of Jaintia Hills in coal mining areas are severelycontaminated with AMD and thus becomes water hasbecome highly acidic. The pH and other parameters ofsome AMD affected water bodies are summarized in Table4.1.

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The results show that most of the rivers in the coal miningareas of Jaintia Hills are severely affected AMD as evidentfrom the lower pH values, higher sulphate content and ECin water samples”.

63. Thus, there were clear allegations in the application that inspite of various remedial measures set out in the report no proper andeffective remedial measures have been taken by the concernedauthorities of the State of Meghalaya. Paragraph 3(VI) is as follows:

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“3(VI). That the various remedial measures are set out in detailin paragraphs 4.4, 4.5, 5, 5.1 and 5.2 and other relevantparagraphs of the said report. However, to the best ofCknowledge of the Applicant, no proper and effective remedialmeasures have been undertaken by the concerned authoritiestill date and the innocent citizens/ water bodies etc. of theconcerned areas including that of Dima Hasao District in Assamcontinue to be subjected to the ill-effect of the aforesaid illegalDmining operation in the State of Meghalaya. That apart,continuous and irreparable damage on the environment, water,soil, agriculture etc. in the concerned areas including DimaHasao district of Assam are also continuing as a result of the saidillegal mining operations in Jaintia Hills in the State ofMeghalaya.”E

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64. Ground A of the application is also relevant to be reproducedwhich is to the following effect:

“GROUNDS

A. that the aforementioned illegal mining operations in the JaintiaFHills in the State of Meghalaya have not only caused seriousand irreparable damage to the ecology, water bodies and thesocio-economy of the concerned areas including of Dima Hasaodistrict of Assam but has also resulted in serious erosion/corrosion of the underwater plants and machineries andequipments of the Kopili Hydro Power Project of the NorthGEastern Electric Power Corporation of India (a Governmentof India undertaking), The ill-effect of the said mining operationhas been highlighted in detail in the aforementioned detailedproject report by Dr. O.P.Singh, Professor, North-Eastern HillsUniversity as well as the said article published in the H

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AInternational Journal of Environmental Sciences. Thoughremedial measures were suggested in both the aforesaidstudies, to the best of the knowledge of the Applicant, no properand effective remedial measures have been undertaken by theRespondents herein and the ill-effect of the said activitiesare still continuing to the detriment of the ecology, water bodiedBand socio-economy of the concerned areas including DimaHasao district of Assam. It is most respectfully submitted thatthe total inaction on the part of the Respondents herein in spiteof detailed study on the subject with remedial suggestions aretotally inexcusable and show the total callous attitude of theCState Respondents The menace of illegal opencast miningoperations in the Jaintia Hills in Meghalaya is still continuing tothe detriment of the ecology and socio-economic of theconcerned areas including Dime Hasao district of Assam andas such, warrants, in the most respectful submissions of theApplicant, immediate intervention by this Hon’ble Tribunal. TheDaforesaid inaction has resulted in violation of the variousenactments mentioned in Schedule I of the National GreenTribunal Act 2010 including the Water (Prevention and Controlof Pollution) Act, 1974, the Air (Prevention and Control ofPollution) Act, 1981 and the Environment (Protection) Act 1986Eapart from infringing the fundamental rights of the Applicantunder Article 14 and 21 of the Constitution of India.”

65. The pleadings in O.A.No.73 of 2014 as extracted above clearlyand categorically alleged environmental degradation consequent toillegal coal mining. It was further stated that inaction of respondentFauthorities has resulted in violation of various enactments mentioned inSchedule I of the NGT Act, 2010 including the Water (Prevention andControl Pollution) Act, 1974, the Air (Prevention and Control ofPollution) Act, 1981 and the Environment (Protection) Act, 1986. Theapplication O.A.No.73 of 2014 thus has clearly made out allegationswhichwere sufficient for the Tribunal to exercise its jurisdiction as conferredGby Section 14. Both the component as appearing in sub-section 1 ofSection 14 that is (i) substantial question relating to environment and (ii)such question arises out of the implementation of the enactmentsspecified in Schedule I, were involved.

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66. The NGT after adverting to the application O.A.No.73 of2014 on 17.04,2014 has undertaken different proceedings and asked forvarious reports from different committees including State PollutionControl Board. By order dated 31.08.2018, the NGT had appointed acommittee headed by Justice B.P. Katakey, former Judge of the GauhatiHigh Court which consisted of Prof. Ashok K. Singh, Rajiv Gandhi ChairProfessor, Department of Environmental Science & Engineeringrepresentative from Indian School of Mines, Dhanbad IIT(ISM), Dhanbad(826004), Dr. Shantanu Kumar Dutta, Scientist ‘D’ representative ofCentral Pollution Control Board. The said committee submitted interimreport on 31.12.2018 and on the subject “Whether coal mining activitiesas well as dumping of coal results in adverse environmental effect, if so,the nature and extent thereof?” has been dealt with in Issue No.(D) inthe following manner:

“Issue No.(D) Whether coal mining activities as well asdumping of coal results in adverse environmental effect, ifso, the nature and extent thereof?

(i) The Meghalaya State Pollution Control Board in the month ofSeptember, 1997 published a report entitled “ENVIRONMENTALIMPACT OF COAL MINING IN JAINTIA HILLS DISTRICT”.The then Chairman of the said Board, in his foreword, has admittedunplanned and unscientific coal mining activities in the State formore than hundred years, which achieved dangerous dimensionssince last two decades and are creating ecological disturbancesand negative environmental impacts, to the extent that the veryexistence of biological life is threatened in the coal mining areasof the State. It has also been admitted that no systematic effortsto study such impacts have so far been made by any institution.The then Member Secretary of the Board, in the preface, hasprojected the adverse impacts on the environment because of thecoal mining activities. The pH level of in water almost all therivers and streams was found to be below the required level. Insome rivers and streams, the pH level was found to be as low as2.4. The Meghalaya State Pollution Control Board, in the saidreport, has observed that the random discharge of AMD and acidicrun offs from -40- the coal storage areas have also made the A

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rivers, streams and even ground waters highly acidic. The ambientair quality of the coal mining and coal storage areas was alsofound to be degraded to certain extent. The Board, therefore,observed that – “The uncontrolled and unscientific coal miningoperations in Jaintia Hills District have already created massiveecological disturbances and environmental degradation becausepresently neither any pollution control measures are adopted bythe miners nor any sincere efforts are made for reclamation ofthe mine land”. In the said report, the following recommendationswere made to minimize the overall adverse environmental impactsof the mining activities:- (a) To generate social awareness among the public in generaland the miners in particular about the adverse environmentalimpacts and the health hazards associated with such unscientificand unplanned coal mining activities.

(b) Preparation of the inventory of the mine owners, areasunder mining and rate of land use change to get the first handknowledge about the quantum of the efforts required for bettermanagement of these activities.

(c) To enforce suitable legislations on the lines of the NationalMineral Policy immediately for exploitation of coal in mostsustainable manner.

(d) To engage expert institution for finding out the most suitedtechnologies for the coal exploitation with appropriate pollutioncontrol measures in order to ensure that the environment as awhole is not subjected to further degradation.

(e) To engage the expert institution for finding out the suitableways for rehabilitation of the mined land in phase manner sothat the scarce land resources can be brought back to productiveuses.

(f) To look for the alternative transport facilities to controlvehicular pollution.

(g) To identify the suitable location for the storage of coal forsale with adequate facilities to treat dump run offs.

(h) To study the aspect of the presence of trace elements inthe surface and ground water because the low pH values increase the dissolution power of water. Large numbers oftrace elements are always associated with the coal which getsdissolved in low pH waters. These trace elements are serioushealth hazards even in very low concentrations.

(i) To introduce lucrative schemes for the aforestation in themost affected areas.

(j) To develop the State Mineral Policy with the interaction ofGovernment Agencies, Social Institutions, Local Elders andthe Miners, keeping in view the specific land ownership systemof the State. Nothing of the above recommendations have beenimplemented so far.

(ii) It is, therefore, evident that apart from the water, air pollution,there is degradation of surface land because of the coal miningactivities in the State of Meghalaya. Despite publication of thesaid report by the Meghalaya State Pollution Control Board asback as in the year 1997, no steps appeared to have been takenby any authority to check the adverse environmental affect andalso to remedy the same.”

67. The present is not a case of mere allegation of applicant ofenvironmental degradation by illegal and unregulated coal mining ratherthere were materials on the record including the report of the experts,the Meghalaya State Pollution Control Board published in the month ofSeptember, 1992,the report of Katakey committee appointed by theTribunal where environmental degradation of water, air and surface ofthe land was proved.

68. Hence, there was sufficient allegation regarding substantialquestions relating to environment and violation of enactments inSchedule I. We fail to see any substance in the submission of the learnedcounsel for the appellant that NGT has no jurisdiction to entertain thecase and pass orders. During submission, learned counsel for theappellant has not even referred to application which was filed by theapplicant in O.A.No.73/2014. There were reports of the MeghalayaState Pollution Control Board before the State Government pointing outenvironmental degradation and the Tribunal having taken up the issue,the submission on behalf of the State that the Tribunal has no jurisdictionis not expected from the State Government who is under constitutionalobligation to ensure clean environment to all its citizens. In cases A

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Apertaining to environmental matter the State has to act as facilitator andnot as obstructionist. Article 48A of the Constitution provides:

“48A. Protection and improvement of environment andsafeguarding of forests and wild life The State shall endeavour toprotect and improve the environment and to safeguard the forestsand wild life of the country.”

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69. Learned counsel for the appellant has placed reliance on thejudgment of this Court in Techi Tagi Tara versus Rajendra SinghBhandari and others, 2018(11) SCC 734. This Court had occasion toconsider Section 14,15 and 2(m) of the National Green Tribunal Act,2010, which involves the question of jurisdiction of NGT. The nature oforder passed by NGT which was challenged before this court has beennoticed in para 1 of the judgment, which is to the following effect:- C

“1. This batch of appeals is directed against the judgmentand order dated 24-8-2016 passed by the National GreenTribunal, Principal Bench, New Delhi (for short “the NGT”)1in Rajendra Singh Bhandari v. State of Uttarakhand. On areading of the judgment and order passed by the NGT, it isquite clear that the Tribunal was perturbed and anguishedthat some persons appointed to the State Pollution ControlBoards (for short “SPCBs”) did not have, according to theNGT, the necessary expertise or qualifications to be membersor Chairpersons of such high-powered and specialisedstatutory bodies and therefore did not deserve theirappointment or nomination. While we fully commiserate withthe NGT and share the pain and anguish, we are of the viewthat the Tribunal has, at law, exceeded its jurisdiction indirecting the State Governments to reconsider the appointmentsand in laying down guidelines for appointment to the SPCBs,however well-meaning they might be. Therefore, we set asidethe decision of the NGT, but note that a large number ofdisconcerting facts have been brought out in the judgmentwhich need serious consideration by those in authority,particularly the State Governments that make appointmentsor nominations to the SPCBs. Such appointments should notbe made casually or without due application of mindconsidering the duties, functions and responsibilities of theSPCBs.”

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70. In the above background, this Court held that the failure of theState Government to appoint professionals and experience persons tothe key positions in the State Pollution Control Board cannot be classi-fied as a primary dispute over which the NGT could have jurisdiction.Following was laid down in paragraph 21: - “21. As far as we are concerned, in the context of the Act, adispute would be the assertion of a right or an interest or aclaim met by contrary claims on the other side. In other words,the dispute must be one of substance and not of form and itappears to us that the appointments that we are concernedwith are not “disputes” as such or even disputes for thepurposes of the Act — they could be disputes for aconstitutional court to resolve through a writ of quo warranto,but certainly not for the NGT to venture into. The failure ofthe State Government to appoint professional and experiencedpersons to key positions in the SPCBs or the failure to appointany person at all might incidentally result in an ineffectiveimplementation of the Water Act and the Air Act, but thiscannot be classified as a primary dispute over which the NGTwould have jurisdiction. Such a failure might be of a statutoryobligation over which, in the present context and notuniversally, only a constitutional court would havejurisdiction and not a statutory body like the NGT. While weappreciate the anxiety of the NGT to preserve and protect theenvironment as a part of its statutory functions, we cannotextend these concepts to the extent of enabling the NGT to consider who should be appointed as a Chairperson or amember of any SPCB or who should not be so appointed.”

71. The issue involved in the above case was entirely differentwhich did not directly pertain to environmental degradation. WhetherNGT has jurisdiction to entertain a particular cause is a question whichdepends on the facts of each case. To find out as to whether NGT hasjurisdiction to entertain a case, the case set up before the Tribunal has tobe looked into to answer the question. The judgment of Techi Tagi Tara(supra) was on its own facts and does not help the appellant in thepresent case.

72. In view of the foregoing discussion, we reject the submissionof the learned counsel for the State that the Tribunal exceeded its

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Ajurisdiction under Sections 14 and 15 in entertaining the applicationO.A.No.73 of 2014. We also record our dis-approval to the stand takenby the State in this regard.

Point No.2

73. Before we proceed to consider the above points, first of all,Bwe need to notice the nature of land tenure in the Hills Districts of Stateof Meghalaya. Learned counsel for the parties are not at variance onthe question of nature of land tenure in the Hills Districts of State ofMeghalaya. By the North-Eastern Area Reorganisation Act, 1971 theState of Meghalaya was formed as independent full-fledged State.CAfter the enforcement of the Constitution the area, now comprised inthe State of Meghalaya, was included in the State of Assam, theAdministration and control of which area was as per Article 244 of theConstitution of India read with Sixth Schedule of the Constitution. In sofar as the land tenure in the Hills Districts of Meghalaya, there is nosubstantial change after the advent of the Constitution. There was noDpayment system of land revenue before the advent of the Constitution inthe Hills Districts of Meghalaya. Learned counsel for the parties havereferred to various materials pertaining to the land tenure systemprevalent in the Hills Districts of State of Meghalaya. The lands in theKhasi Hills District of Meghalaya come under two divisions Ri RaidEand Ri Kynti. Ri raid lands are community lands which are set apartfor the benefit and use of entire community. Ri kynti lands are privatelyowned lands which were also owned by community as well as byindividuals. The owner of the re kynti land is an absolute proprietor.The tenure system in Jaintia Hills classified into two types of lands,namely, Hali /irrigated land and High land. Hali lands are furtherFcategorised in Raj land, service land, village puja land and private land.Proprietary right does not vest in the State in respect to majority of landswhich are either privately owned or owned by the Tribal community. Nosystem of payment of land revenue is prevalent in the Hills District ofMeghalaya except lands which belong to State. For the purposes ofGpresent case where the submission of the appellant is that land in whichmining operations of coal is being done are lands belonging to Tribalswho are owners of the land as well as of the sub-soil, we proceed withthe assumption that Tribal is the owner of the land. It is further the caseof the appellant that in Hills Districts of State of Meghalaya in landwhich is privately owned by the Tribal or community owned, the TribalsHor the community or the clan are owners of both surface right and

sub-soil. It is the case of the appellant that the State does not have anyright in sub-soil or minerals. The judgment of this in Thressiamma Jacoband others vs. Geologist, Department of Mining and Geologyand others, 2013(9) SCC 725, is relied on. This Court in the abovecase had occasion to consider the question of ownership of sub-soil/mineral rights in reference to genmom lands in Malabar area of theState of Madras. Holder of the genmom rights also claimed not only asproprietor of the soil but the owner of the minerals in the soil. This Courtlaid down following in paragraph 58:

“58. For the abovementioned reasons, we are of the opinion thatthere is nothing in the law which declares that all mineral wealth/subsoil rights vest in the State, on the other hand, the ownershipof subsoil/mineral wealth should normally follow the ownership ofthe land, unless the owner of the land is deprived of the same bysome valid process. In the instant appeals, no such deprivation isbrought to our notice and therefore we hold that the appellantsare the proprietors of the minerals obtaining in their lands. Wemake it clear that we are not making any declaration regardingtheir liability to pay royalty to the State as that issue stands referredto a larger Bench.”

74. A Constitution Bench of this Court in Raja Anand BrahmaShah vs. The State of Uttar Pradesh and others, AIR 1967 SC1081, had laid down that prima facie owner of a surface of the land isentitled to everything beneath the land unless there is an express orimplied reservation in the grant. In paragraph 13 following has been laiddown:

“13. In our opinion, a reading of the two sanads supports the caseof the appellant that there is no reservation of mineral rights infavour of the Government. The expression used in the sanad of1803 A.D. is “You ought to consider him the Raja of immovablejagir and of mahal and everything appertaining thereto belongs tohim.” In effect, the grant to the Raja in the two sanads is a grantof the lands comprised in the mahal of Agori and everythingappertaining thereto and as a matter of construction the grantmust be taken to be not only of the land but also of everythingbeneath or within the land. Prima facie the owner of a surface ofthe land is entitled ex jure to everything beneath the land and inthe absence of any reservation in the grant minerals necessarily

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Apass with the rights to the surface (Halsbury’s Laws of England,3rd Edn., Vol. 26, p. 325). In other words, a transfer of the right tothe surface conveys right to the minerals underneath unless thereis an express or implied reservation in the grant. A contracttherefore to sell or grant a lease of land will generally includemines, quarries and minerals beneath or within it (Mitchell v.BMosley). It is manifest that when the sanad was executed infavour of the Raja the Government made over the land with all itscapabilities to the Raja and merely imposed on him a fixed sum ofrevenue in lieu of all the rights the Government had as a proprietorof the soil. When neither of the parties knew undiscovered mineralsCunderneath the land and the idea of reservation never enteredtheir minds it cannot be held that there was any implied reservationin the grant. Nor can afterwards a distinction be drawn betweenthe various rights that may exist on the land for the purpose ofqualifying the original grant and importing into it what neither partycould have imagined. It was argued on behalf of the respondentsDthat the assessment was made on the agricultural income, but thiscircumstance cannot derogate from the rights conveyed to theRaja in the two sanads because no restriction was placed on theuse of the land and the use by the Raja was not limited toagriculture.”

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75. Thus, looking to the nature of the land tenure as applicable inthe Hills Districts of State of Meghalaya, the most of the lands are eitherprivately or community owned in which State does not claim any right.Thus, private owners of the land as well as community owners haveboth the surface right as well as sub-soil right. We are, thus, of theFopinion that Tribals owned the land and also owned the minerals,whichis an inescapable conclusion. We, thus, proceed to examine the issueson the premise that in privately owned land or community land mineralsalso vest in the owner. We first need to consider as to whether theprovisions of MMRD Act, 1957 are applicable in the Tribal area of HillsDistrict of State of Meghalaya.G

76. Part X of the Constitution separately deals with Scheduledand Tribal areas. Hills Districts of State of Meghalaya were treated tobe Tribal area and were to be governed by Article 244 sub-clause (2)read with Schedule VI. Provisions of Article 244 after formation of Stateof Meghalaya is as follows:H

“Article 244. Administration of Scheduled Areas and TribalAreas.-(1) The provisions of the Fifth Schedule shall apply to theadministration and control of the Scheduled Areas and ScheduledTribes in any State other than the States of Assam, Meghalaya,Tripura and Mizoram.

(2) The provisions of the Sixth Schedule shall apply to theadministration of the tribal areas in the State of Assam, Meghalaya,Tripura and Mizoram.”

77. Sixth Schedule of the Constitution contains ‘Provisions as tothe Administration of Tribal Areas in the States of Assam, Meghalaya,Tripura and Mizoram’. Paragraph 20 of Sixth Schedule refers to Tribalareas and Part II of which consists of Khasi Hills District, Jaintia HillsDistrict and Garo Hills District which have been referred asAutonomous Districts. Sixth Schedule Para 1(1) is as follows:

“1. Autonomous districts and autonomous regions.-(1)Subjectto the provisions of this paragraph, the tribal areas in each item ofParts I, II and IIA and in Part III of the table appended to paragraph20 of this Schedule shall be an autonomous district.

78. Para 2 of Sixth Schedule provides for Constitution of DistrictCouncils and Regional Councils. Para 3 provides for powers of theDistrict Councils and Regional Councils to make laws which is to thefollowing effect:

“3. Powers of the District Councils and Regional Councilsto make laws.—(1) The Regional Council for an autonomousregion in respect of all areas within such region and the DistrictCouncil for an autonomous district in respect of all areas withinthe district except those which are under the authority of RegionalCouncils, if any, within the district shall have power to make lawswith respect to—

(a) the allotment, occupation or use, or the setting apart, of land,other than any land which is a reserved forest for thepurposes of agriculture or grazing or for residential or othernon-agricultural purposes or for any other purpose likely topromote the interests of the inhabitants of any village or town:

Provided that nothing in such laws shall prevent thecompulsory acquisition of any land, whether occupied or

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Aunoccupied, for public purposes 1 [by the Government ofthe State concerned] in accordance with the law for the timebeing in force authorising such acquisition; (b) the management of any forest not being a reserved forest;

(c) the use of any canal or water-course for the purpose ofagriculture; B

(d) the regulation of the practice of jhum or other forms of shift-ing cultivation; (e) the establishment of village or town committees or councilsand their powers; C

(f) any other matter relating to village or town administration,including village or town police and public health and sanita-tion; (g) the appointment or succession of Chiefs or Headmen; D

(h) the inheritance of property;

(i) marriage and divorce;

(j) social customs.

(2) In this paragraph, a “reserved forest” means any area whichis a reserved forest under the Assam Forest Regulation, 1891, orunder any other law for the time being in force in the area inquestion. (3) All laws made under this paragraph shall be submittedforthwith to the Governor and, until assented to by him, shall haveno effect.”

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F79. Para 9 of the Sixth Schedule which is relevant for the presentcase is as follows:

“9. Licences or leases for the purpose of prospecting for, orextraction of, minerals.—(1) Such share of the royalties accruingeach year from licences or leases for the purpose of prospectingfor, or the extraction of, minerals granted by the Government ofthe State] in respect of any area within an autonomous district asmay be agreed upon between the Government of the State] andthe District Council of such district shall be made over to thatDistrict Council.

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(2) If any dispute arises as to the share of such royalties to bemade over to a District Council, it shall be referred to the Governorfor determination and the amount determined by the Governor inhis discretion shall be deemed to be the amount payable undersub-paragraph (1) of this paragraph to the District Council andthe decision of the Governor shall be final.”

80. Para 12A which is relevant for Meghalaya is as follows:

“12A. Application of Acts of Parliament and of theLegislature of the State of Meghalaya to autonomousdistricts and autonomous regions in the State of—Meghalaya.

Notwithstanding anything in this Constitution, —

(a) if any provision of a law made by a District or Regional Councilin the State of Meghalaya with respect to any matter specified insubparagraph (1) of paragraph 3 of this Schedule or if any provisionof any regulation made by a District Council or a Regional Councilin that State under paragraph 8 or paragraph 10 of this Schedule,is repugnant to any provision of a law made by the Legislature ofthe State of Meghalaya with respect to that matter, then, the lawor regulation made by the District Council or, as the case may be,the Regional Council whether made before or after the law madeby the Legislature of the State of Meghalaya, shall, to the extentof repugnancy, be void and the law made by the Legislature ofthe State of Meghalaya shall prevail; (b) the President may, with respect to any Act of Parliament, bynotification, direct that it shall not apply to an autonomous districtor an autonomous region in the State of Meghalaya, or shall applyto such district or region or any part thereof subject to suchexceptions or modifications as he may specify in the notificationand any such direction may be given so as to have retrospectiveeffect.

81. Now, we revert back to Mines and Minerals (Developmentand Regulation) Act, 1957. Act, 1957 has been enacted to provide fordevelopment and regulation of mines and minerals under the control ofthe Union. Section 1 of the Act is as follows:

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A“Section 1. Short title, extent and commencement. ¯(1) This Actmay be called the Mines and Minerals (Development andRegulation) Act, 1957.

(2) It extends to the whole of India.

(3) It shall come into force on such date3 as the CentralBGovernment may, by notification in the Official Gazette, appoint.”

82. The Act came into effect w.e.f. 01.06.1958. Whether thereare any indications in the Sixth Schedule or any other provision of thelaw by which it can be contended that Act, 1957 is not applicable in HillsDistrict of Tribal areas of State of Meghalaya? We may first refer toCSixth Schedule of the Constitution which is a provision forAdministration of Tribal areas in the State of Meghalaya. Para 12Asub-clause (b) empowers that the President may, with respect to anyAct of Parliament, by notification, direct that it shall not apply to anautonomous district or an autonomous region in the State of Meghalaya,Dor shall apply to such district or region or any part thereof subject tosuch exceptions or modifications as he may specify in the notification.No notification has been issued by the President under Para 12A(b) ofthe VIth Schedule of the Constitution, although, the said Para 12A(b) isin the Constitution with effect from 21.1.1972. Thus, there is nothing inSixth Schedule of the Constitution which may indicate about theEinapplicability of Act, 1957 with regard to the Hills Districts of State ofMeghalaya. At this juncture, we may also notice the report of theComptroller and Auditor General of India for the year ended 31[st] March,2013. In para 7.5.1 the report mentions:

“7.5.1. Introduction

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Meghalaya is endowed with sizeable deposits of valuable mineralslike coal, limestone, uranium, granite and clay. Minerals beingvaluable resource, the extraction needs to be maximised throughscientific methods of mining with aim to ensure extraction andutilisation of minerals. Besides, most of the mineral reserves arein areas which are under forest cover and hence, mining in theState has environmental implications. In Meghalaya, individual andlocal communities have ownership over the land and the mineralsand barring a few reserve forest areas, the State Governmenthas no ownership over the minerals. The activities of the Mining& Geology (M&G) Department, Government of Meghalaya G

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(GOM) are limited to collection of royalty on the minerals exportedoutside the State besides geological investigation/exploration ofminerals. The Mines and Minerals (Development and Regulation)Act, 1957 lays down the legal framework for regulation of minesand development of minerals. The Mineral Concession Rules, 1960and the Mineral Conservation and Development Rules, 1988 wereaccordingly framed under the MMDR Act framed for conservationand systematic development of minerals and for regulating grantof permits, licences and leases. The GOM has introduced theMeghalaya Mineral Cess Act, 1988 to mobilise additional revenue.Further with a view to facilitating systematic, scientific and plannedutilisation of mineral resources and to streamline mineral baseddevelopment of the State, the Meghalaya Mines and Mineral Policy,2012 has also been notified with effect from 5 November 2012.”

83. The Comptroller and Auditor General has clearly stated thatAct, 1957 is fully applicable for regulation of mines and regulation ofminerals in the State of Meghalaya.

84. Learned counsel for the State of Meghalaya has also filedbefore us along with an affidavit of Joint Secretary of Government ofMeghalaya, Mining and Geology Department dated 13.04.1018 by whichMeghalaya Mines and Minerals Policy, 2012 issued by the Governmentof Meghalaya as well as draft guidelines of coal mining activities in theState prepared in the year 2015 has been brought on the record.

85. Clause 10 of the Policy provides for “Regulatory Frameworkfor Mine Development and Mining”. Sub-clause b) of Clause 10required application for mineral concession either fresh or renewal is tobe submitted to the State Government through the DeputyCommissioner of the District wherein the area applied for is situatedand with NOC from District Council concerned and land owner. Clause10 also refers to clearance of the Pollution Control Board of Meghalayaand other requirement. Sub-clause (l) further contemplated that orderfor grant of mineral concessions will be issued by the State Government,with the approval of the Central Government wherever necessary. Thus,the Policy of 2012 contemplated regulatory regime for mining lease bythe State. The Mining and Geology Department of the Government hadframed a draft guidelines for coal mining activity in the State which hasalso been brought on record along with the above affidavit dated13.04.2018.

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A86. The above guidelines were prepared after in consultation withthe Central Government.

87. The above draft guidelines prepared by the State clearlymentions about the unregulated and unscientific mining being carried outin the State of Meghalaya. The Policy Guidelines of Coal Mining whichBis part of the guidelines also contains following statement:

“The Mines Act, 1952 and the Mines and Minerals (Developmentand Regulation) Act, 1957 (MMDR), together with the rules andregulations framed under them constitute the basic laws governingthe mining sector in India. While the Mines Act, 1952 governs theChealth and safety of the workers, the MMDR Act, 1957 (includingall amendments) lays down the legal frame work for the regulationof mines and development of all minerals other than petroleumand natural gas. The relevant rules in force under the MMDRAct, 1957 are the Mineral Concession Rules (MCR), 1960 outlinesthe procedures and conditions for obtaining a Prospecting LicenceDor Mining Lease. The MCDR, 1988 lays down guidelines forensuring mining on a scientific basis, while conserving theenvironment, at the same time.

Apart from the mining statutes, which also govern environment inmines, India has elaborate environment statutes for protection ofEenvironment in mining.”

88. One submission of Shri Naphade with respect to direction ofNGT to frame mining policy by the State also needs consideration. ShriNaphade submits that the State of Meghalaya having no legislativecompetence with regard to major minerals, National Green Tribunal couldFnot have directed the State of Meghalaya to frame Mining Policy.

89. There can be no dispute to the preposition that in view ofMMDR Act, 1957, the legislative competence of State of Meghalayaunder Entry 23 List II stands denuded. However, under the MMDRAct, 1957 as well as the Mineral Concession Rules, 1960, severalGstatutory obligations/jurisdictions have been conferred on the State ofMeghalaya, which shall be referred to later in this judgment.

90. When under a Parliamentary enactment, State has been givensome statutory obligations, there is no lack of jurisdiction in the State to H

frame policy to give effect to or implement the jurisdictions conferred onthe State by Parliamentary enactments. It is true that Mining Policy tobe framed by the State has to confine to the jurisdiction conferred on itas per the MMDR Act, 1957 and the Rules framed thereunder. Thereare other related issues concerning Mining like protection ofenvironment and forests for which the State has to declare its policy forimplementation of its objective. Several other aspects relating to mininglike, rehabilitation, reclamation and restoration have to be effectivelyimplemented by the State for which also, it may be required to frame apolicy. We may further notice that Meghalaya Mines and Minerals Policy,2012 was already framed by the State of Meghalaya, even beforedirections were issued by the NGT. In pursuance of NGT directions, itwas draft guidelines of 2015, which were prepared by State of Meghalaya.We, thus, are of the view that direction of NGT to declare Mining Policyby the State of Meghalaya cannot be said to be without jurisdiction.However, the State in its Mining Policy can only include those areaswhere it has jurisdiction under the MMDR Act, 1957 and the Rulesframed thereunder.

91. A perusal of the entire Policy documents indicate that Policyhas been framed by the State as per the Act, 1957 and Minerals(Concession) Rules, 1960.

92. The Government of Meghalaya has also made a request tothe Government of India in the year 2015 for issuance of Presidentialnotification under Para 12A(b) of Sixth Schedule for exempting State ofMeghalaya from certain provisions of the MMDR Act, 1957. Afterseveral deliberations, the Union of India has communicated through itsO.M. dated 12.03.2019 that it is not possible to accede to the request ofthe Government of Meghalaya for issuance of Presidential notificationunder Para 12A(b) of Sixth Schedule. Thus, the request made by theState of Meghalaya to issue exemption has not also been acceded to.The request of the State of Meghalaya that exemption be granted byPresidential notification under Para 12A(b) itself expresses recognitionof the State of Meghalaya that provisions of Act, 1957 are applicable.We, thus, conclude that there is nothing in Sixth Schedule of theConstitution which in any manner exclude the applicability of Act, 1957in the Tribal areas of Hills District of State of Meghalaya.

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93. We need to scan through the statutory scheme of Act, 1957 tofind out as to whether Parliamentary legislation requires obtaining leasefor winning the minerals in so far as mining of coal from privately ownedland/community owned land are concerned?

B94. Section 2 of the Act, 1957 contains declaration to thefollowing effect:

“2. Declaration as to expediency of Union Control.¯It ishereby declared that it is expedient in the public interest that theUnion should take under its control the regulation of mines andCthe development of minerals to the extent hereinafter provided.”

95. The Act, 1957 has been enacted in reference to Entry 54 ListI of Seventh Schedule to the following effect:

“Entry 54. Regulation of mines and mineral development to theDextent to which such regulation and development under the controlof the Union is declared by Parliament by law to be expedient inthe public interest.”

96. At this juncture, we may notice Entry 23 of List II which is tothe following effect:

E“Entry 23. Regulation of mines and mineral development subjectto the provisions of List I with respect to regulation anddevelopment under the control of the Union.”

97. The Legislative power under Entry 23 is subject to theprovision of List I with respect to regulation and development under theFcontrol of the Union. When the Union has declared to have taken underits control the regulation of mines and development of minerals to theextent provided in the Act. Legislative power of the State to the aboveextent is denuded. Learned counsel for the appellant have also veryfairly not disputed the position in law.

G98. Section 3 of the Act contains definition clause. Section 3(c)defines mining lease and Section 3(d) defines a mining operation whichare to the following effect:

“Section 3(c) “mining lease” means a lease granted for the purposeof undertaking mining operations, and includes a sub-lease grantedHfor such purpose; Section 3(d) “mining operations” means anyoperations undertakenfor the purpose of winning any mineral;”

99. Section 4 of the Act contains general restriction onundertaking prospecting and mining operation. Section 4 is couched interms of an injunction. No person shall undertake any mining operationsin any area, except under and in accordance with the terms andconditions of a reconnaissance permit or of a prospecting licence or, asthe case may be, of a mining lease, granted under this Act and rulesmade thereunder. Sub-section (1) of Section 4 is relevant in the presentcase which is as follows:

4. Prospecting or mining operations to be under licence orlease.¯(1) No person shall undertake any reconnaissance,prospecting or mining operations in any area, except under and inaccordance with the terms and conditions of a reconnaissancepermit or of a prospecting licence or, as the case may be, of amining lease, granted under this Act and the rules made thereunder:

Provided that nothing in this sub-section shall affect any prospectingor mining operations undertaken in any area in accordance withterms and conditions of a prospecting licence or mining leasegranted before the commencement of this Act which is in forceat such commencement:

Provided further that nothing in this sub-section shall apply to anyprospecting operations undertaken by the Geological Survey ofIndia, the Indian Bureau of Mines, the Atomic Minerals Directoratefor Exploration and Research of the Department of Atomic Energyof the Central Government, the Directorates of Mining and Geologyof any State Government (by whatever name called), and theMineral Exploration Corporation Limited., a Government companywithin the meaning of clause (45) of section 2 of the CompaniesAct, 2013 (18 of 2013), and any such entity that may be notifiedfor this purpose by the Central Government]:

Provided also that nothing in this sub-section shall apply to anymining lease (whether called mining lease mining concession orby any other name) in force immediately before thecommencement of this Act in the Union territory of Goa, Damanand Diu.”

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A100. The use of word no person in Section 4(1) is without anexception. There is nothing in Section 4(1) to indicate that restrictioncontained in Section 4(1) does not apply with regard to a person who isowner of the mine. Further, word ‘any area’ under Section 4(1) also hassignificance which does not have any exception. Further phrase ‘exceptunder and in accordance with terms and condition with a mining leaseBgranted under the Act’ are also significant which make the intent andpurpose of prohibition clear and loud. Section 5 contains restriction onthe grant of prospecting licences and mining lease in the following words:

5. Restrictions on the grant of prospecting licences ormining leases.¯ (1) A State Government shall not grant aCreconnaissance permit, prospecting licence or mining lease to anyperson 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 D (b) satisfies such conditions as may be prescribed:

Provided that in respect of any mineral specified in Part Aand Part B of the First Schedule, no reconnaissance permit,prospecting licence or mining lease shall be granted except withthe previous approval of the Central Government.

E Explanation. ¯For the purposes of this sub-section, a personshall be deemed to be an Indian national,¯

(a) in the case of a firm or other association of individuals, onlyif all the members of the firm or members of theassociation are citizens of India; andF

(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 Governmentunless it is satisfied that¯

(a) there is evidence to show the existence of mineral contentsGin the area for which the application for a mining lease hasbeen made in accordance with such parameters as may beprescribed for this purpose by the Central Government; (b) there is a mining plan duly approved by the CentralGovernment, or by the State Government, in respect of suchHcategory of mines as may be specified by the Central

Government, for the development of mineral deposits in thearea concerned:

Provided that a mining lease may be granted upon the filing of amining plan in accordance with a system established by the StateGovernment for preparation, certification, and monitoring of suchplan, with the approval of the Central Government.

101. The proviso to Section 5(1) is relevant since it contains afurther restriction that no mining lease shall be granted with regard toany minerals specified in Para A of First Schedule except with the pre-vious approval of the Central Government. We in the present case areconcerned with coal which is in Para A of First Schedule.

102. The next provision which is relevant is Section 13 whichprovides for Rule making power of Central Government in respect ofminerals. Section 13 sub-section (1) and Section 13 sub-section (2) in sofar as relevant in the present case are as follows:

“13. Power of Central Government to make rules in respectof minerals.¯(1) The Central Government may, by notification inthe Official Gazette, make rules for regulating the grant ofreconnaissance permits, prospecting licences and mining leasesin respect of minerals and for purposes connected therewith.

(2) In particular, and without prejudice to the generality of theforegoing power, such rules may provide for all or any of thefollowing matters, namely:¯

(a) the person by whom, and the manner in which, applicationsfor reconnaissance permits, prospecting licences or miningleases in respect of land in which the minerals vest in theGovernment may be made and the fees to be paid therefor;

……………………………

(f) the procedure for obtaining 5 [a reconnaissance permit, aprospecting licence or a mining lease] in respect of anyland in which the minerals vest in a person other than theGovernment and the terms on which, and the conditionssubject to which, such 6 [a permit, licence or lease may begranted or renewed;

…………………………”

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A103. When we read clause (a) and clause (f), itmakes clear thatthe Rules can be made for grant of mining lease in respect of land inwhich minerals vest in the Government as well as in respect of any landin which minerals vest in person other than Government. The statutoryscheme, thus, is clear that lease can be granted with regard to both thecategories of land, land in which Government is owner of minerals andBland in which minerals vest in person other than Government. The Tribals,owners of the minerals shall expressly fall in Rule making power of theGovernment under Section 13(f).

104. The Central Government in exercise of power under Section13 has framed Rules, namely, Minerals (Concession) Rules, 1960. ChapterCIV of the Rules contains a heading “Grant of Mining Lease in respect ofland the Minerals vest in the Government”. Rules 22 to 40 containvarious provisions under Chapter IV. Chapter V has a separate headingwhich is “Procedure for obtaining a prospecting licence or mininglease in respect of land in which the minerals vest in a personDother than the Government”. Thus, Chapter V contains provisionsfor grant of lease in respect of minerals which vest in the person otherthan the Government. Rules 41 and 42 which are relevant are quotedbelow:

“41. Applicability of this chapter: - The provisions of this chapterEshall apply only to the grant of prospecting licences and miningleases in respect of land in which the minerals vest exclusively ina person other than the Government.

42. Restrictions on the grant of prospecting licence andmining lease:- (1) No prospecting licence or mining lease shallFbe granted to any person unless he has filed an affidavit statingthat 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 asGprovided in the Income Tax Act, 1961 (43 of 1961). (2)Except with the previous approval of the CentralGovernment, no prospecting licence or mining lease shallbe granted in respect of any mineral specified in the FirstSchedule to the Act.”

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105. The statutory scheme delineated by Section 13(2)(f) and theMinerals (Concession) Rules, 1960 clearly contemplate grant of mininglease, with regard to boththe categories of land, that is, land in whichminerals vest in the Government, and the land in which minerals vest ina person other than the Government. In statutory provisions there is nokind of exception as contended by the learned counsel of the appellantthat when owner himself wants to win the minerals he does not requireany mining lease. The submission is contrary to the express statutoryscheme, in the event submission of appellant is accepted that withregard to minerals which vest in a private person no mining lease isrequired,the whole object of the Union by which it declared to havetaken under its control regulation of mines and development of mineralsshall be frustrated.

106. Another limb of submission of the appellant needs to benoticed here. Shri Naphade submits that there is no concept of owner ofa land granting lease to himself. He submits that concept of lease is wellknown and well recognised concept as contained in Section 105 ofTransfer of Property Act. Section 105 of the Transfer of Property Act isas follows:

“Section 105. Lease defined. A lease of immovable property isa transfer of a right to enjoy such property, made for a certaintime, express or implied, or in perpetuity, in consideration of aprice paid or promised, or of money, a share of crops, service orany other thing of value, to be rendered periodically or onspecified occasions to the transferor by the transferee, whoaccepts the transfer on such terms.

Lessor, lessee, premium and rent defined: The transferor iscalled the lessor, the transferee is called the lessee, the price iscalled the premium, and the money, share, service or other thingto be so rendered is called the rent.”

107. Halsbury’s Laws of England, Fourth Edition Para 321defines nature of mining lease in the following manner:

“321. Nature of mining lease. A lease may be granted of landor any part of land, and since minerals are a part of the land itfollows that a lease can be granted of the surface of the land andthe minerals below, or of the surface alone, or of the minerals A

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Aalone. It has been said that a contract for the working and gettingof minerals, although for convenience called a mining lease, is notin reality a lease at all in the sense in which one speaks of anagricultural lease, and that such a contract, properly considered,is really a sale of a portion of the land at a price payable byinstalments, that is, by way of rent or royalty, spread over a numberBof years.”

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108. This Court had occasion to consider the concept of mininglease under Act, 1957 in SRI TARKESHWAR SIO THAKUR JIUvs. DAR DASS DEY & CO. AND OTHERS, 1979(3) SCC 106,this Court held that term lease occurring in Section 3(C) of Act 67 ofC1957 does not appear to have been used in the narrow technicalsense in which it is defined in Section 105 of the Transfer ofProperty Act but it has all the characteristics of a lease asdefined in the Transfer of Property Act. In paragraph 31 followingwas laid down:

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“31. It is important to bear in mind that the term “lease” occurringin the definition of “mining lease” given in Section 3(c) of Act 67of 1957 does not appear to have been used in the narrow technicalsense in which it is defined in Section 105 of the Transfer ofProperty Act. But, as rightly pointed out by a Bench of the CalcuttaEHigh Court in Fala Krishna Pal v. Jagannath Marwari. asettlement of the character of a mining lease is everywhere inIndia regarded as “lease”. A mining lease, therefore, may bemeticulously and strictly satisfy in all cases, all the characteristicsof a “lease” as defined in the Transfer of Property Act.Nevertheless, in the legal accepted sense, it has always beenFregarded as a lease in this country.”

109. This Court proceeded further to consider Section 105 of theTransfer of Property Act and opined following in paragraphs 37:

“37. A right to carry on mining operations in land to extract aspecified mineral and to remove and appropriate that mineral, is a“right to enjoy immovable property” within the meaning of Section105; more so, when — as in the instant case — it is coupled witha right to be in its exclusive khas possession for a specified period.The “right to enjoy immovable property” spoken of in Section G

105, means the right to enjoy the property in the manner in whichthat property can be enjoyed. If the subject-matter of the lease ismineral land or a sand-mine, as in the case before us, it can onlybe enjoyed and occupied by the lessee by working it, as indicatedin Section 108, Transfer of Property Act, which regulates the rightsand 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 andothers 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 rightto extract the minor mineral from Government quarry is a leaseor a licence and whether the contractor is liable to pay the royaltyin respect of minor mineral extracted from the Government quarry.Section 105 of the Transfer of Property Act defines a lease ofimmovable property as a transfer of a right to enjoy such propertymade for a certain time, express or implied, or in perpetuity, inconsideration of a price paid or promised, or of money, a share ofcrops, service or any other thing of value, to be renderedperiodically or on specified occasions to the transferor by thetransferee, who accepts the transfer on such terms. The normalconnotation of the term lease is the preservation of the demisedestate to be in occupation and enjoyment thereof for a specifiedperiod or in perpetuities for consideration; the corpus by userthereof does not disappear and at the expiry of the term or ontermination the same is handed over to the lessor subject to theterms of the contract, express or implied. A right to carry on miningoperations in the land on surface or sub-soil is to extract thespecified quantity of the minerals found therein, to remove andappropriate that mineral. Section 9 of the Mines and Minerals(Regulation & Development) Act, 1957 affords the guidance inthis behalf. It says that the holder of a mining lease or agent, etc.is entitled to remove or consume the mineral. It would meandestruction of the estate leased out and appropriation thereof onpayment of consideration i.e. royalty. Therefore, it is a right toenjoy immovable property within the meaning of Section 105 more A

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Aso when, as in the instant case, it is coupled with a right to be inoccupation or enter into possession for a specified period. Section3(d) of the Act defines ‘mining operations’ to mean any operationundertaken for the purpose of winning any minerals. It is true thatno right, title or interest has been created in the contractor overthe mining area. But he has been permitted to remove and use theBminor minerals in the execution of the works as its (sic his) rightto enjoy immovable property spoken of in Section 105 which meansthe right to enjoy the property in the manner in which that property1can be enjoyed. In Nageshwar Bux Roy v. Bengal Coal Co.Lord Macmillan speaking for the Board held that:

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“In considering the character and effect of acts of possessionin the case of a mineral field, it is necessary to bear in mind thenature of the subject and the possession of which it issusceptible. Owing to the inaccessibility of minerals in the earth,it is not possible to take actual physical possession at once of awhole mineral field: it can be occupied only by extracting theminerals and until the whole minerals are exhausted the physicaloccupation must necessarily be partial.”

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111. The word mining lease has been given specific meaningunder Act, 1957. It is well settled principle of interpretation that theEprovisions of an Act including definition of a term is to be interpreted ina manner which may advance the object of the legislation. The essentialcharacteristic of mining lease is that it is granted for the purpose ofundertaking mining operation and mining operation means any operationundertaken for the purpose of winning the mineral. Applying aforesaiddefinition in the Minerals (Concession) Rules, 1960 under Chapter VFit cannot be said that no mining lease is contemplated with respect toland where mineral vests exclusively in a private person.

112. The examination of a statutory scheme applicable in Tribalareas of State of Meghalaya shall not be complete unless we notice twomore aspects, they are (i) the Mines Act, 1952 and the RegulationsGframed thereunder; (2) Environmental Protection Act, 1986 and the no-tification issued thereunder with regard to mining project.

113. The Mines Act, 1952 is an Act to amend and consolidate thelaw relating to the regulation of labour and safety of mines. The act H

contains various provisions regarding inspection of mining operation andmanagement of mines. Section 16 provides a notice to be given tomining operations by the owner agent or manager of a mine. Section 16is as follows:

“Section 16. Notice to be given of miningoperations.-(1) The owner, agent or manager of a mine shall,before the commencement of any mining operation, give to theChief Inspector, the Controller, Indian Bureau of Mines and thedistrict magistrate of the district in which the mine is situate, noticein writing in such form and containing such particulars relating tothe mine as may be prescribed.

(2) Any notice given under sub-section (1) shall be so givenas to reach the persons concerned at least one month before thecommencement of any mining operation.”

114. Section 18 contains duties and responsibilities of owners,agents and managers. There are various other provisions in the MinesAct, 1952 which are mandatory to be followed before working any mine.Learned counsel for the appellant has not disputed that the provisions ofthe Mines Act, 1952 are applicable with regard to the coal mining in theState of Meghalaya. He, however, submits that there are no powerswith the District Magistrate or State Officials under the Mines Act, 1952.Chapter II of the Mines Act, 1952 deals with Inspectors and CertifyingSurgeons. Section 5(3) provided that the District Magistrate mayexercise the powers and perform the duties of an Inspector subject tothe general or special orders of the Central Government. Section 5(3) isas follows:- “5(3)The district magistrate may exercise the powers andperform the duties of an Inspector subject to the general orspecial orders of the Central Government.”

115. The above provision clearly empowers the DistrictMagistrate to exercise the powers and perform the duties of anInspector but subject to general and special orders of CentralGovernment, which means that there may be some restriction on thepower of the District Magistrate as directed by Central Government. Inthis context, Shri Naphade has referred to a notification dated 18.09.1953

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Aissued under sub-section 3 of Section 5 of the Mines Act, 1952, which isto the following effect:- “New Delhi, the 18[th] September, 1953

S.R.O. 1789 – In pursuance of sub-section 3 of section 5 of theMines Act, 1952 (XXXV of 1952), the Central Government herebydirects that in exercising the powers and performing the duties ofan Inspector, the District Magistrate shall not, without priorreference to the Chief Inspector, take direct action or issue anyorder in respect of any matter solely connected with the technicaldirection, management or supervision of any mine, even thoughsuch direction, management or supervision may appear to him tobe dangerous or defective.

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[No.M-41(370 52.]

P.N. SHARMA, Under Secy.”

D116. The restriction as is apparent from the above notification iswith regard to matters solely connected with the technical direction,management or supervision of any mine. The above notification doesnot take away all the functions of the District Magistrate but restrictionis with regard to area mentioned therein. As noted above, Section 16obliged the owner, agent or manager of a mine to give notice before theEcommencement of any mining operation to the district magistrate of thedistrict in which the mine is situate. Section 75 of the Mines Act, 1952also empowers the District Magistrate to institute prosecution againstany owner, agent or manager for any offence under the Mines Act,1952. Section 75 is as follows:- F

“75. Prosecution of owner, agent or manager.—Noprosecution shall be instituted against any owner, agent or managerfor any offence under this Act except at the instance of the ChiefInspector or of the district magistrate or of an Inspector authorisedin this behalf by general or special order in writing by the ChiefInspector; G

Provided that the Chief Inspector or the district magistrate or theInspector 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 suchoffence.

Provided further that in respect of an offence committed in thecourse of the technical direction and management of a mine, thedistrict magistrate shall not institute any prosecution against anowner, agent or manager without the previous approval of theChief Inspector.”

117. We, thus, do not accept the submission of Shri Naphade thatDistrict Magistrate has no jurisdiction under the Mines Act, 1952 to takeany action.

118. In exercise of the power under Section 57 of Mines Act,1952 a new set of regulations has been framed, namely, Coal MinesRegulations, 2017. Regulation 2(r) defines “District Magistrate”. TheRegulations contain various regulatory provisions with regard to mines.Chapter II deals with returns, notices and records. Chapter IV dealswith Inspectors and Mine Officials. The Regulations contain severalregulatory provisions which need to be followed while working a mineby the owner or his agent. The enforcement of Mines Act, 1952 and theRegulations, 2017 have to be ensured in the public interest by the stateof Meghalaya.

119. Now we come to the Environment (Protection) Act, 1986. Anotification dated 14.09.2006 was issued by the Ministry ofEnvironment and Forests in exercise of power under Section 3(3) of theEnvironment Protection Act, 1986. Section 3 of the Act, 1986 whichprovided for requirements of prior environmental clearance with regardto projects enumerates therein. Schedule to the notification listed theprojects or activities requiring prior environmental clearance. “Mining ofminerals” included at Item No.1(a) but even for mining projectrequirement of minimum 5 hectares area was required for applicabilityof the project. Substituting Item No.1(a) of Notification dated 14.09.2006a new notification dated 15.01.2016 has been issued. In place of ItemNo.1(a) new entry has been substituted in respect of coal mine leasewhich is to the following effect:

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120. If the project was under Category ‘A’, environmentalclearance is required from Ministry of Environment and Forests whereasEas per new notification dated 15.01.2016 for project ‘B’ environmentalclearance is required from State Environmental Assessment Authoritywith respect of coal mining lease area of less than or equal to 150hectares. Now as per statutory regime brought in force by notificationdated 15.01.2016 environmental clearance is required for a project ofcoal for mining of any extent of area. We have dealt with the notificationFdated 15.01.2016, since it was placed before us and submissions weremade by learned counsel for the parties. The notification dated 15.01.2016being a statutory provision shall operate on its own force and no order ofany Court is required for enforcement of notification dated 15.01.2016.We have dealt the matter only in view to clarify the statutory regimeGpertaining to mining of coal.

121. While implementing statutory regime for carrying miningoperations in the Hills District of the State of Meghalaya, the State ofMeghalaya has to ensure compliance of not only MMDR Act, 1957 butMines Act, 1952 as well as Environment (Protection)Act, 1986.

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Point No.4

122. We having held that for carrying out mining operations inprivately owned and community owned land in Hills Districts ofMeghalaya, obtaining a mining lease is a mandatory requirement forcarrying out the mining, we have to examine the procedure for grant ofsuch mining lease and the authority/person, who is competent to grantsuch lease.

123. Chapter IV of the Mineral Concession Rules, 1960 dealswith grant of mining leases in respect of land in which the minerals vestin the Government and Chapter V deals with procedure for obtaining aprospecting licence or mining lease in respect of land in which theminerals vest in a person other than the Government. Chapter IVcontains Rules 22 to 40 and Chapter V contains Rules 41 to 52 and theprocedure and manner of applying for mining lease and grant of lease ascontained in Chapter IV is not made applicable to the procedure asgiven in Chapter V except that by virtue of Rule 45(i) certain conditionsof mining lease as contained in Rule 27 under Chapter IV are madeapplicable for mining lease under Chapter V.

124. Rule 22(1) provides that an application for the grant of amining lease in respect of land in which the minerals vest in theGovernment shall be made to the State Government in Form I throughsuch officer or authority as the State Government may specify in thisbehalf. In Chapter V, there is no such rule, which requires making anapplication for lease to the State Government. There is a markeddifference between the rules contained in Chapter IV and rulescontained in Chapter V, few of which are relevant to notice for thepurposes of this case. Rule 27(2) provides that a mining lease maycontain such other conditions as the State Government may deemnecessary in regard to the matters enumerated therein. Whereas Rule45(iii) provides that every mining lease may contain such otherconditions, not being inconsistent with the provisions of the Act and theserules, as may be agreed upon between the parties. The above provisiongives an indication that in the lease executed by Chapter V, the omissionof word “State Government” in Rule 45(iii) is indicative of the fact thatconditions, which are to be added has to be agreed upon between theparties. Most important rule to be noticed is Rule 45 in this context,which is to the following effect:- A

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“45.Conditions of mining lease : - Every mining lease shall besubject to the following conditions :- A

(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 inclauses (c) and (d) for the words “State Government” the wordB“lessor” shall be substituted ; (ia) mining operations shall be undertaken in accordance with theduly approved mining plan ;

(ii) Omitted.;

(iii) the lease may contain such other conditions, not beinginconsistent with the provisions of the Act and these rules, as maybe agreed upon between the parties; C

(iv) if the lessee makes any default in payment of royalty asrequired by section 9 or commits a breach of any of the conditionsof the lease, the lessor shall give notice to the lessee requiring himto 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 ifthe royalty is not paid or the breach is not remedied within suchperiod, the lessor without prejudice to any proceeding that may betaken against the lessee determine the lease; D

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(v) the lessee may determine the lease at any time by giving notless than one year’s notice in writing to lessor.”

125. It is provided in Rule 45(i) that in clauses (c) and (d) of RuleF27 for the words “State Government” the word “lessor” shall besubstituted, which gives a clear indication that State Government is not alessor in a lease granted under Chapter V. Rule 27(5) and Rule 45(iv) isalso relevant to notice. Rule 27(5) provides as follows:- “27(5) If the lessee makes any default in the payment of royaltyas required under section 9 or payment of dead rent as requiredunder section 9A or commits a breach of any of the conditionsspecified in sub-rules (1), (2) and (3), except the condition referredto in clause (f) of sub-rule (1), the State Government shall givenotice to the lessee requiring him to pay the royalty or dead rent G

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or remedy the breach, as the case may be, within sixty days fromthe date of the receipt of the notice and if the royalty or dead rentis not paid or the breach is not remedied within the said period, theState Government may, without prejudice to any other proceedingsthat may be taken against him, determine the lease and forfeit thewhole or part of the security deposit.”

126. Under Rule 27(5), if the lessee makes any default in thepayment of the royalty or the payment of dead rent or commits breachof any of the conditions, the State Government shall give notice to thelessee and determine the lease and forfeit the whole or part of thesecurity deposit. Whereas under rule 45(iv), the said power has beenvested in the lessor, which also indicates that it is lessor, who willdetermine the lease and not the State Government. Other provisions ofChapter V also support the above conclusion. Rule 47 provides forsubmission of copy of licence or lease to the State Government withinthree months of the grant of such licence or lease. Requirement ofsubmitting the licence or lease copy to the State Government indicatethat the State Government is not the authority, who is granting the lease,otherwise there was no requirement of submitting a copy to the StateGovernment, if it was contemplated that State Government shall grantthe lease. Rule 63 in Chapter V provides that previous approval of theCentral Government to be obtained through State Government, which isto the following effect:- “63. Previous approval of the Central Government to beobtained through State Government:- Where in any caseprevious approval of the Central Government is required underthe Act or these rules, the application for such approval shall bemade to the Central Government through the StateGovernment .”

127. Our above conclusion is reinforced when we look into thestatutory regime regarding grant of mining lease as per the MineralConcession Rules, which were inforce prior to enforcement of MineralConcession Rules, 1960. Prior to MMDR Act, 1957, earlier CentralLegislation which was governing the field was Mines and Minerals(Regulation and Development) Act, 1948, under which rules have beenframed by Central Government namely, Mineral Concession Rules, 1949.

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ARule 14 of Chapter III contemplated application for prospecting license.Chapter IV of the Rules, 1949 contained the heading “grant of MiningLease in respect of land in which the minerals belong to Government”.The provisions of Rule 27 of Chapter IV provide for application formining lease and there were several other rules under Chapter IV, whichin substance have been retained in Chapter IV of Rules, 1960. ChapterBV of Rules, 1949 contained the heading “grant of mineral concessionsby private persons.” As noted above, the heading of Chapter V underRules, 1960 is “procedure for obtaining a prospecting licence or mininglease in respect of land in which the minerals vest in a person other thanthe Government.” Rule 47 of Chapter V of Rules, 1949 provide forC“conditions in a mining lease”, which are in substance similar as Rule 45of Rules, 1960. Rule 47(iv) of the Rules, 1949 was akin to present Rule45(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 aprivate person shall be subject to the following condition:-D 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 suchlease with the modification that in clauses (ii), (iii), (iv) and (xv)for the words “State Government” the word “lessor” shall beEsubstituted; XXXXXXXXX”

128. Thus, the Chapter V of Rules, 1949 dealt with the mininglease granted by private persons, i.e., the category where the mineralsFwere 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 withminerals owned by private owners. The earlier statutory regime, whichwas enforced as per Rules, 1949 made it amply clear that mineralconcessions are to be granted by private persons also, which is inGsubstances retained in Chapter V of Rules, 1960. Thus, mining lease tobe granted as per Chapter V of Rules, 1960 is mining lease by the ownerof mineral and similar concept has to be borrowed and read in ChapterV as noted above. Absence of any procedure to make an applicationfor mining lease to the State Government in Chapter V of the Rules,1960 and lessor being the private persons and not the State Government,H

clearly indicates that State Government is not to grant the lease inrespect of land of privately owned/community owned owners.

129. Another reason for not providing any application to StateGovernment for grant of mining lease in respect of minerals, which vestsin the private owners and community owners is that; without consent orwillingness of private owners/community owners of minerals, noauthority is empowered to grant any mining lease with regard tominerals, of which he is the owner, it is the owner of the minerals maybe private persons or community owners, who is entitled to grant leaseof minerals as per the provisions of Chapter V of Rules, 1960.

130. We, thus, conclude that as per the statutory provisionscontained in Rules, 1960 especially Chapter V, a mining lease forminerals, which belongs to a private owner or a community owner, it isnot the State Government, which is entitled to receive any application orgrant any mining lease,but it is the private owner or community owner,who is entitled to grant a lease for mining minerals owned by them.Issue No.4 is answered accordingly.

Point No.5

131. Shri Shekhar Naphade, learned senior counsel appearing forthe State of Meghalaya has submitted that State of Meghalaya has nocontrol over the mining of the coal by owners of the minerals since it isthe owners, who have right to carry on mining, which has beentraditionally going on in the State of Meghalaya for last several decades.To find out as to whether State of Meghalaya has any statutory controlover the mining operations in State of Meghalaya, which is going on forlast several decades, we have to examine the statutory provisionsgoverning the field.

132. We have already held that provisions of MMRD Act, 1957and Mineral Concession Rules, 1960 are applicable in the Hills Districtsof the State of Meghalaya. We, in the present case, are concerned withthe mining of coal, which is a major mineral as per the Act, 1957 andMineral Concession Rules, 1960. Rule 42 of Chapter V of the Rules,1960 provides for restrictions on the grant of prospecting licence andmining lease, which is to the following effect:- “42. Restrictions on the grant of prospecting licence andmining lease:- (1) No prospecting licence or mining lease shall AB

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(i) filed up-to-date income tax returns;

(ii) paid the income tax assessed on him, and B(iii) paid the income tax on the basis of self-assessment asprovided 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 respectof any mineral specified in the First Schedule to the Act.”

C133. As per Rule 42(2), except with the previous approval of theCentral Government, no prospecting licence or mining lease shall begranted in respect of any mineral specified in the First Schedule to theAct. Thus, previous approval of Central Government is mandatorybefore grant of mining lease of coal. Rule 63 provides that the approvalDof the Central Government has to be obtained through the StateGovernment. Thus, the State Government has to be aware that anyprevious approval of the Central Government for mining coal has beenobtained or not. Thus, restriction being statutory and without anyexception State Government cannot say that it has no role to play withregard to mining of coal. All applications for previous approval ofECentral Government has to be routed through State Government. Thereare other rules in Chapter V itself, which provides for control of theState government in the mining of coal. Rule 50 empowers theprovision for prohibition of working of mines by the State Government,which is to the following effect:- F“50. Prohibition of working of mines:- If the State Governmenthas reason to believe that the grant or transfer of a prospectinglicence or a mining lease or of any right, title or interest in suchlicence or lease is in contravention of any of the provisions of thischapter, the State Government may, after giving the parties anopportunity to represent their views and with the approval of theGCentral Government, direct the parties concerned not to undertakeany prospecting or mining operations in the area to which thelicence or lease relates.”

134. The above rule empowers the State Government with theapproval of the Central Government to direct the parties concerned notH

to undertake any mining operations, if it has reasons to believe that thegrant or transfer of mining lease is in contravention of any of theprovisions of Chapter V. Thus, when mining operations of coal arebeing conducted without prior approval of Central Government, State isnot powerless to direct the parties not to undertake any prospectivemining operations in the area. The power given under Rule 50 is notonly enabling power, but is a statutory obligation on the State to exercisethe power in the public interest. Rule 51 requires a mining lease tofurnish to the State Government such returns and statements as may beprescribed. Rule 52 provides for penalty, which is to the followingeffect:- “52. Penalty:- (1) If the holder of a prospecting licence or amining lease or his transferee or assignee fails, without sufficientcause, to furnish the documents or information, or returns referredto in rule 46, rule 47, rule 48, or rule 51, or acts in any manner incontravention of rule 49 or rule 50, he shall be punishable withimprisonment for a term which may extend to one year or finewhich may extend to five thousand rupees or with both.

(2) If any person grants or transfers or obtains a prospectinglicence or mining lease or any right, title or interest therein, incontravention of any of the provisions of this chapter, he shall bepunishable with imprisonment which may extend to one year orfine which may extend to five thousand rupees or both.”

135. Rule 52 gives the State Government ample power toprosecute and punish mining leases or his transferees or assignees onviolation of the rules or contravention of any of the provisions ofChapter V, which is ample power to the State to ensure that the Act isfaithfully followed.

136. The State was advised by the Comptroller and AuditorGeneral of India in its report ended 31[st] March, 2013 in para 4.5.1 that toregulate mining by following Mines and Minerals (Development andRegulation) Act, 1957.Para 7.5.8 of the same report has made thefollowing as recommendation No.1:

“Recommendation No.1: The M&G Department should takenecessary measures to regulate mining in the State in accordancewith the provisions of the MMDR Act and Rules thereunder.”

137. The State is thus well aware of its statutory obligation whichis reflected in Mining Policy of 2012 and Draft Guidelines, 2015 but still A

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Abefore this Court their contention that no mining lease is to be obtainedfor privately owned/community owned land in Hills District of State ofMeghalaya is unacceptable and not in a good spirit.Our country beinggoverned by the Constitution of India all the States are to implementParliamentary Acts in true spirit and in the present case the State havingbeen advised time and again by Comptroller and Auditor General andBbeing well aware of its statutory obligation as noticed above it comes illfrom the State to contend before this Court that there is no requirementof mining lease for winning the minerals. The above stand of the Statetaken before this Court gives the impression that instead ofimplementing the Parliamentary enactment and regulatory regime forCmineral regulation some vested interests wants to continue the illegalregime of illegal mining to the benefit of the few persons which isunacceptable and condemnable. We, thus, conclude that the State ofMeghalaya has jurisdiction and power to ensure that no mining of coalshould take place except when a mining lease granted under MineralConcession Rules, 1960, Chapter V, as discussed above.D

Point No.6

138. One more point which needs to be considered is as to whetherpower to allot land for mining purpose is vested in Autonomous DistrictCouncil? The submission on behalf of one of the Autonomous DistrictECouncil which is the appellant before us as well as on behalf of State ofMeghalaya is that Autonomous District Council being constitutionalauthority constituted under Schedule VI of the Constitution has legisla-tive and administrative power. Reference to various legislation framedby Autonomous District Council which received the assent of theGovernor has also been relied on. Para 3 of Schedule VI enumeratesFthe power of District Council and regional council to make laws whichwe have extracted above.

139. Certain legislation framed by District Council has also beenreferred namely the Khasi Hills District (Trading by Non Tribals)Regulation, 1954, the United Khasi Jaintia Hills AutonomousGDistrict(Management and Control of Forest) Rules, 1960. The KhasiHills Autonomous District (Trading by Non Tribals) Rules, 1959, allframed in exercise of power under para 3 of Sixth Schedule. The powerto make law entrusted to Autonomous District Council under para 3 ofSchedule VI is power to make law referable to List 2 and List 3 of theHSeventh Schedule. We have already noticed above that with regard to

regulation and development of mineral, the Union has made declarationby Section 2 of 1957 Act and the power of the State Legislature isdenuded in that respect. The logical corollary of the above principle isthat power of Autonomous District Council shall also be denuded in sofar as regulation and development of minerals to the extent which iscovered by 1957 Act. We may refer to one Rule 4 of United KhasiJaintia Hills District (Trading by non Tribals) Rules,1959, whichcontemplates form of licence and one of the licence referred to is underRule 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 mineralsand the sale or purchase of minerals accruing from the autonomousdistrict and for the import of minerals into the autonomous districtfor sale therein as specified in Part ‘E’ of the First Schedule onpayment of prescribed license fee subject to the conditions specifiedin the license..

“ . . . .

140. It is relevant to notice that the United Khasi Jaintia HillsDistrict (Trading by Non-Tribal) Rules, 1959 has been repealed insofaras Jaintia Hills Districts are concerned by the Jaintia Hills AutonomousDistrict (Trading by Non-Tribal) Regulation Act, 2011, Section 18. Rules,1959 is still in force in Khasi Hills Autonomous Districts, since, no otherregulations have been placed before us repealing the Rules, 1959. InRegulations, 2011, one aspect needs to be noted in Section 2, which isdefinition clause.By clause (viii), “trade” has been defined, which is tothe following effect:- “(viii) “Trade” means any trade involving buying and selling or businessfor profit and includes exchange of goods or commodities or businessor import, export and transport of goods/commodities or entry of goodsinto market for sale or trade and business such as construction worksor other work rendered by the contractor or his agent and it alsoincludes person and persons engaged by such contractor or agent orany other profession or vocation such as barber, cobbler, tailoring,cattle rearing (which include piggery, goatary, poultry) milk and dairyproducts, automobiles making or repairing, electrician, furniture makers, AB

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pharmacist, physician, transport and any other similar vocation orprofession and the term “trade” and “trading” shall be construedaccordingly.”

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141. The grant of licenses contemplated by Regulations are onlywith respect to the “trade” as defined in 2(viii). The entire RegulationsBdo 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 tobe noticed. Paragraph 9 of the Schedule VI refers to Licences or leasesfor the purpose of prospecting for, or extraction of, minerals. Para 9 isCas follows: - “9. Licences or leases for the purpose of prospecting for, orextraction of, minerals. -

(1) Such share of the royalties accruing each year fromlicences or leases for the purpose of prospecting for, or theextraction of, minerals granted by [the Government of theState] in respect of any area within an autonomous district asmay be agreed upon between [the Government of the State]and the District Court of such district shall be made over tothat District Council.

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(2) If any dispute arises as to the share of such royalties to bemade over to a District Council, it shall be referred to theGovernor for determination and the amount determined bythe Governor in his discretion shall be deemed to be theamount payable under sub-paragraph(1) of this paragraphto the District Council and the decision of the Governor shallbe final.”

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143. Para 9(1) confines to the licences or leases of mineralsgranted by government of the State. Schedule VI which constitute theDistrict Councils and Regional Councils enumerates their powers. Para9 refers to licences or leases for extraction of minerals granted by theGGovernment of the State. Para 9 only deals with share of the royalties toDistrict Councils as agreed upon between the Government of the Stateand the District Councils. Further paragraph 12(A)(a) itselfcontemplates that any law made by District Council or Regional Councilwhich is repugnant to any law of the State shall be void. Thus, the status H

of law made by District Council or Regional councils has to give way tothe law made by the State. There can be no doubt that District Counciland Regional Council cannot make any law which may be repugnant tothe provisions of the Parliamentary Act.

144. We, thus, are of the view that District Council does not haveany power to make any law with regard to grant of mining lease. Themining leases for winning the major minerals has to be granted inaccordance with 1957 Act and Mineral Concession Rules, 1960.

POINT NOS. 7 & 8

145. This Court in State of Tamil Nadu versus M/s Hind Stoneand others,1981 (2) SCC 205, speaking through Chinnappa Reddy,J.,has made following weighty observations: - “6. Rivers, Forests, Minerals and such other resourcesconstitute a Nation’s natural wealth. These resources are notto be frittered away and exhausted by any one generation.Every generation owes a duty to all succeeding generationsto develop and conserve the natural resources of the nationin the best possible way. It is in the interest of mankind. It is inthe interest of the nation. It is recognised by Parliament.Parliament has declared that it is expedient in the publicinterest that the Union should take under its control theregulation of mines and the development of minerals. It hasenacted the Mines and Minerals (Regulation andDevelopment) Act, 1957.....”

146. No one can dispute the underlying object in the aboveobservations of this Court. The use of natural resources also playsmajor role in carrying out development. A fine balance has to bemaintained in utilisation of natural resources and its conservation andpreservation. One cannot be sacrificed for the interest of other. Theconcept of Sustainable Development has been evolved and is beingpursued. In this context, reference be made to the three-Judge Benchjudgment of this Court in Lafarge Umiam Mining (pvt.) Ltd. VersusUnion of India & Others, 2011(7) SCC 338. In para 75, followinglegal position was noticed: - “75. Universal human dependence on the use of environmentalresources for the most basic needs renders it impossible to refrain A

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410SUPREME COURT REPORTS

Afrom altering the environment. As a result, environmental conflictsare ineradicable and environmental protection is always a matterof degree, inescapably requiring choices as to the appropriate levelof environmental protection and the risks which are to beregulated. This aspect is recognised by the concepts of “sustainabledevelopment”. It is equally well settled by the decision of thisBCourt in Narmada Bachao Andolan Vs. Union of India thatenvironment has different facets and care of the environment isan ongoing process. These concepts rule out the formulation ofan across-the-board principle as it would depend on the facts ofeach case whether diversion in a given case should be permittedCor not, barring “no go” areas (whose identification would againdepend 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 17.04.2014by which Tribunal prohibited the Rathole mining/illegal miningDthroughout the State of Meghalaya. We have noticed above that in OANo.73 of 2014 wherein the above order was passed, sufficientmaterialswere brought on the record including experts report which provedthat illegal coal mining in the State of Meghalaya is degrading theenvironment. The Court also noticed the report of Professor Dr.O.P.Singhwhich noticed that the Meghalaya Pollution Control Board in the yearE1997 has submitted the report about the environmental pollutionconsequent to illegal mining.

148. Learned Amicus Curiae has invited our attention to report ofComptroller and Auditor General for the year ending 31[st] March, 2013,where the Comptroller and Auditor General has noticed that due to AcidFMine Drainage several locations of Lukha River were severallypolluted. The report also referred to investigation by the Meghalaya StatePollution Control Board in November 2011 and noticed that no effectivesteps were taken to control AMD. Paragraph 7.5.23.1 of the report is asfollows: -G“7.5.23.1 Pollution of rivers due to Acid Mine Drainage fromcoal mines Based on media reports relating to pollution of Lukhariver in Jaintia Hills, the Meghalaya State Pollution Board H

(MSPCB) conducted (November 2011) an investigation toascertain the water quality of the Lukha River and its feedingstreams in Jaintia Hills District vis-a-vis a similar investigationcarried out in February 2007. For this purpose, eight waterand sediment samples were collected from the same samplinglocations investigated during 2007. The findings are asfollows: - The water quality characteristics in terms of pH, Sulphateand Iron concentrations with respect to Stations 1,2,4 and 5indicated that there is significant deterioration of water qualityin comparison to that of the year 2007 the major cause ofwhich was the AMD from coal mining in these areas.

The investigation made by the MSPCB further revealed thatthe river water on the entire stretch of the sampling locationswas not suitable for drinking purpose......”

149. Tribunal being satisfied from the materials on record hasissued the order dated 17.04.2014 which cannot be faulted in the factsand materials which are on record in the present case. One more fact inthe 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 of2016 filed application for vacating the ban which was not acceded to by A

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Athe Tribunal. Subsequently the NGT permitted transportation of coal till15.05.2016 and directed that after 15.05.2016, all coal within the Stateof Meghalaya shall vest in the State.

150. The tribunal after considering all pleas and materialsincluding reports submitted by the committees affirmed the order datedB17.04.2014 and refused to withdraw the ban. We do not find any error inthe order of NGT reaffirming its ban order in the facts of the presentcase. But the question which has been raised by the appellant beforethis Court is that whether the complete ban as imposed by the NGTdeserves to be vacated or modified in the interest of the State and tribals.The revenue earned by the State from coal mining plays substantial partCin the economy of the State. It is also amply demonstrated from therecord that tribals are the owners of the land who carry on mining ofcoal in their land by which they earn their substantial livelihood.

151. Though as discussed above the manner in which the miningis being carried out by the tribals cannot be approved which is clearly inDviolation of statutory regime under 1957 Act and 1960 Rules but in eventthe mining is carried out by tribals or their assignees as per theprovisions of 1957 Act and 1960 Rules, there can be no objections incarrying such mining under the regulation and control of State ofMeghalaya. We thus clarify that in event mining operations areEundertaken by the tribals or other owners of hills districts of Meghalayain accordance with mining lease obtained from the State of Meghalayaas per 1957 Act and Mineral Concessions Rule, 1960, the ban orderdated 17.04.2014 of the tribunal shall not come in its way of carryingmining operations. The ban order is for the illegal coal mining which wasrampant in the State of Meghalaya and the ban order cannot beFextended 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 toconstitute any committee. The NGT vide its different orders hasGconstituted different committees for submitting reports for differentpurposes. The Constitution of which committees are sought to bechallenged on the ground that the NGT has no jurisdiction to constitute acommittee. Similarly, order of the Tribunal directing for constituting a

fund, namely, Meghalaya Environment Protection and Restoration Fundhas been challenged on the ground that the Tribunal has no jurisdiction toconstitute any fund.

153. What are the powers and jurisdiction of the Tribunal givenunder the National Green Tribunal Act, 2010 has to be looked into toconsider the above submission? In so far as jurisdiction of the Tribunal isconcerned, 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 theTribunal. Section 19 which is relevant for the present case is as follows:

“19. Procedure and powers of Tribunal. –(1). The Tribunalshall not be bound by the procedure laid down by the Code ofCivil Procedure, 1908 but shall be guided by the principles of naturaljustice.

(2). Subject to the provisions of this Act, the Tribunal shall havepower to regulate its own procedure.

(3). The Tribunal shall also not be bound by the rules of evidencecontained in the Indian Evidence Act, 1872.

(4). The Tribunal shall have, for the purposes of discharging itsfunctions under this Act, the same powers as are vested in a civilcourt 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 personand examining him on oath; (b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) subject to the provisions of sections 123 and 124 of theIndian Evidence Act, 1872, requisitioning any public record ordocument or copy of such record or document from any office; (e) issuing commissions for the examination of witnesses ordocuments; (f) reviewing its decision; (g) dismissing an application for default or deciding it ex parte;

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(h) setting aside any order of dismissal of any application fordefault or any order passed by it ex parte; A

(i) pass an interim order (including granting an injunction orstay) after providing the parties concerned an opportunity tobe heard, on any application made or appeal filed under thisAct; B

(j) pass an order requiring any person to cease and desist fromcommitting or causing any violation of any enactment specifiedin Schedule I; (k) any other matter which may be prescribed.

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5. All proceedings before the Tribunal shall be deemed to be thejudicial proceedings within the meaning of sections 193, 219 and228 for the purposes of section 196 of the Indian Penal Code andthe Tribunal shall be deemed to be a civil court for the purposes ofsection 195 and Chapter XXVI of the Code of Criminal Procedure,D1973.”

154. Sub-section (1) of Section 19 provides that Tribunal shall notbe bound by the procedure laid down by the Code of Civil Procedure butshall be guided by the principles of natural justice. What sub-section (1)meant to convey is that Tribunal is not shackled with the procedure laidEdown by the CPC for conducting its proceedings. Sub-section (2) ofSection 19 empowers the Tribunal, powers to regulate its ownprocedure. Section 19(2) confers wide powers on the Tribunal in so faras its procedure is concerned. Section 19(4) vests some powers as arevested in civil court, while trying a suit, in respect of matters enumeratedFtherein. The use of expression “shall not be bound by the procedure laiddown by the CPC” is not akin to saying that procedure as laid down bythe CPC is in no manner relevant to the Tribunal. Further, Section 19(1)also does not mean that Tribunal cannot follow any procedure given inthe CPC. One provision of CPC inserted by Act 104 of 1976 with effectfrom 01.02.1977 is Order XXVI, which is relevant for present inquiry.GOrder XXVI Rule 10A provides as follows:

“Order XXVI Rule 10A.Commission for scientificinvestigations”- (1) Where any question arising in a suit involvesany 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 todo, issue a commission to such person as it thinks fit, directing himto 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 asthey apply in relation to a Commissioner appointed under rule 9.”

155. Rule 10A provides that where any question arising in a suitinvolves any scientific investigation which cannot, in the opinion of theCourt, be conveniently conducted before the Court, the Court may, if itthinks necessary or expedient in the interests of justice so to do, issue acommission to such person as it thinks fit, directing him to inquire intosuch question and report thereon to the Court. Rule 10A is enablingpower to the courts to obtain report from such persons as it thinks fitwhen any question involves with the scientific investigation. The powersunder Rule 10A which are to be exercised by the Court can very well beused by the NGT to obtain reports by experts. The NGT as per thestatutory scheme of the NGT has to decide several complex questionspertaining to pollution and environment. The scientific investigation andreport by experts are necessary requirement in appropriate cases tocome to correct conclusion to find out measures to remedy the pollutionand environment. We do not, thus, find any dearth of jurisdiction in theNGT to appoint a committee to submit a report. We may further say thatwhile asking expert to give a report the NGT is not confined to the fourcorners of Rule 10A rather its jurisdiction is not shackled by strict termsof Order 26 Rule 10A s per Section 19(1) as noticed above.

156. There is one more provision which throws considerable lighton the above. Under Section 35 of the NGT Act, 2010 CentralGovernment is empowered to make rule for carrying out the provisionsof the Act. Rules have been framed in exercise of powers under Section35, namely, National Green Tribunal(Practice and Procedure) Rules, 2011.The said Rules have been framed in exercise of powers under Section4(4) as well as Section 35. The Rules, 2011 are Rules also for practicesand procedure of the Tribunal. Rule 24 which is relevant for the presentcase is as follows:

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416SUPREME COURT REPORTS

A“Section 24. Order and directions in certain cases.- TheTribunal may make such orders or give such directions as may benecessary or expedient to give effect to its order or to preventabuse of its process or to secure the ends of justice.”

157. Rule 24 empowers the Tribunal to make such orders or giveBsuch directions as may be necessary or expedient to give effect to itsorderor to secure the ends of justice. Rule 24 gives wide powers to theTribunal to secure the ends of justice. Rule 24 vests special power toTribunal to pass orders and issue directions to secure ends of justice.Use of words ‘may’, ‘such orders’, ‘gives such directions’, ‘as may benecessary or expedient’, ‘to give effect to its orders’, ‘order to preventCabuse of process’, are words which enable the Tribunal to pass ordersand the above words confer wide discretion.

158. Professor Justice G.P. Singh, in Principles of StatutoryInterpretation, 14[th] Edition while dealing with enabling word says:

D“Ordinarily, the words ‘May’ and ‘It shall be lawful’ are not wordsof compulsion. They are enabling words and they only confercapacity, power or authority and imply discretion. “They are bothused in a statute to indicate that something may be done whichprior to it could not be done”. The use of words ‘Shall have power”also connotes the same idea.”E

159. The enabling powers give to the Tribunal under Rule 24 isfor purpose and object to decide the subjects which are to be examined,decided andan appropriate relief is to be granted by the Tribunal.Further,subjects contain wide range of subjects which require technical andscientific inputs. The Tribunal can pass such orders as it may think fitFnecessary 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 widerange of jurisdiction and has to possess wide range of powers to dojustice in a given case. The power is given to exercise for the benefit ofGthose who have right for clean environment which right they have toestablish before the Tribunal. The power given to the Tribunal is coupledwith duty to exercise such powers for achieving the objects. In thisregard reference is made to judgment of this Court in L. Hirday Narainvs. Income Tax Officer, Bareilly, 1970(2)SCC 355,where this Court H

was examining provision empowering authority to do something. ThisCourt laid down in paragraph 14:

“14. The High Court observed that under Section 35 of the IndianIncome Tax. Act, 1922, the jurisdiction of the Income Tax Officeris discretionary. If thereby it is intended that the Income Tax Officerhas discretion to exercise or not to exercise the power to rectify,that view is in our judgment erroneous. Section 35 enacts that theCommissioner or Appellate Assistant Commissioner or the IncomeTax Officer may rectify any mistake apparent from the record. Ifa statute invests a public officer with authority to do an act in aspecified set of circumstances, it is imperative upon him to exercisehis authority in a manner appropriate to the case when a partyinterested and having a right to apply moves in that behalf andcircumstances for exercise of authority are shown to exist. Evenif the words used in the statute are prima facie enabling the Courtswill readily infer a duty to exercise power which is invested in aidof enforcement of a right — public or private — of a citizen.”

161. We, thus, are of the considered opinion that there is no lackof jurisdiction in the NGT to direct for appointment of committee or toobtain a report from a committee in given facts of the case.

162. Now coming to the challenge to the Fund which has beenconstituted by the Tribunal, namely, “Meghalaya EnvironmentProtection and Restoration Fund”, it is useful to notice the observationof the Tribunal in its order dated March 25, 2015 by which the said Fundwas created. The reasons for constitution of Fund are self-explanatorywhich are to the following effect:

“It is also undisputable that there has been huge environmentaldegradation and pollution of the waterbody in the State ofMeghalaya, because of this illegal, unscientific mining. No onehas even thought of restoration of the area in question, to bring tosome 16 extent, if not completely, restoration of ecology andenvironment in question. Serious steps are required to be takenfor cleaning polluted waterbodies and ensure that no furtherpollution is caused by this activity and the activity which would bepermitted to be carried on finally including transportation of coal.On the basis of `Polluter Pay Principle’. We direct that the State

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AGovernment shall in addition to the royalty payable to it, shall alsocollect 10% on the market value of the coal for every consignment.Having heard the learned Counsel appearing for the parties andkeeping in view the notifications of the Central Government dated10.05.2012 and that of the State Government dated 22.06.2012,we may notice that in the report of Comptroller and AuditorBGeneral of India for the period ending 31st March, 2013 under7.5.18 of Chapter 7 of which the invoice value of the coal hasbeen taken Rs. 4850/- per metric tonne. Thus, we direct that theState Government shall in addition to the royalty payable to it, alsocollect 10% of the said market value of the coal per metric tonneCfrom each person. The amount so collected shall be deposited inthe account to be titled as ‘Meghalaya Environment Protectionand Restoration Fund’ to be maintained by the State under thedirect control of the Chief Secretary of the State of Meghalaya.

This amount shall only be used for restoration of environment andDfor necessary remedial and preventive measures in regard to environmentand matters related thereto”

163. As noticed above the NGT could have passed any order ordirection to secure ends of justice which power especially conferred byRule 24 as noticed above,direction to constitute Fund is thus also savedEunder such power.

Point No.11

164. In respect of constitution of committee by the Tribunal thereare two other limbs of submission; that,(1) NGT by constitutingcommittees has delegated essential judicial power to the committee; (2)Fthe Constitution of committees encroaches the constitutional scheme ofadministration of Tribal areas under Article 244(2) read with SixthSchedule of the Constitution.

165. The Tribunal vide its various directions has asked for reportsfrom State officials and the committees. The various instances whereGthe NGT directed for report or investigation and submission of report bycommittees were with the object of ensuring the implementation of theorders passed by it and to decide the environmental issues raised beforeit. In no manner constitution of committee can be said to be delegationof essential judicial powers of the NGT to the committee.

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166. Now, we come to the Katakey committee which wasconstituted by the Tribunal on 31.08.2018. In paragraphs 14 and 15, theTribunal while directing for constitution of committee headed by JusticeB.P. Katakey directed:

“14. Only last question which remains is of restoration of theenvironment and rehabilitation of the victims for which funds areavailable. We are of the view that for this task, it will appropriatethat we constitute an independent Committee. This Committeewill be headed by Justice B.P. Katoki, Former Judge of theGuwahati 8 Item Nos. 06 to 10 August 31, 2018 R High Courtwith representatives from Central Pollution Control Board andIndian 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 ensureits implementation.”

167. The Constitution of the committee and its functions entrustedwere with the object to implement the orders passed by the Tribunal.The Tribunal has already directed for preparing a scheme for therestoration of the environment and ecology. The environment andecology restoration plan was submitted before the Tribunal along withthe affidavit dated 03.10.2017 as has been noticed in the order dated02.01.2018 of the NGT. In the constitution of Katakey committee, thus,it cannot be said that essential judicial functions were delegated to thecommittee by the Tribunal. For the restoration of environment NGT videits order dated 31.08.2018 has directed the committee to submit itsaction plan and reports by e-mail. The Tribunal, thus, had kept completecontrol on all steps which were required to be taken by the committeeand issued directions from time to time. We, thus, do not accept thesubmission of the appellant that the essential judicial powers of the NGThad been delegated to the committee. Looking to the enormous work ofrestoration of environment which has to be supervised on the spot thecommittee was constituted. We, however, observe that the State isalways at liberty to obtain particular direction if aggrieved by any act ofthe committee. The matter being pending before the Tribunal of acts ofthe committee are under direct control of the Tribunal and if the

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Acommittee oversteps in any direction the same can very well becorrected by the Tribunal on the matter being brought before it.

168. Now, we come to the second limb, that the constitution ofthe committee encroaches the constitutional scheme of the Tribal areas.We revert back to the Sixth Schedule of the Constitution. Para 3 of theBSixth Schedule enumerates the powers of the District Council andRegional Council to make laws.The powers of the District and RegionalCouncils are enumerated under paragraph 3. In the directions of theTribunal to constitute committee for transportation of extracted mineralsor for preparing time bound action to deal with the restoration ofenvironment and to ensure its implementation, there is no interference inCthe powers of the District or Regional Councils. Action plan forrestoration of environment is consequence of Tribunal finding out thatan unregulated coal mining has damaged environment and has causedthe pollution including water pollution. It is not case of the appellant thatDistrict and Regional Councils have framed any law for restoration ofDenvironment which is being breached by the committee or its acts. TheDistrict and Regional Councils are free to exercise all their powers andthe committee constituted by the Tribunal is only concerned with theEnvironmental degradation and illegal coal mining. The committees’report or direction of the Tribunal in no manner encroaches upon theadministration of Tribal areas by the District and Regional Councils.E

Point No.12

169. The NGT vide its order dated 04.01.2019 directed the Stateof Meghalaya to deposit an amount of Rs.100 Crores with the CentralPollution Control Board, which was to be spent for restoration ofFenvironment. The State of Meghalaya aggrieved by above direction hasfiled Civil Appeal No.2968 of 2019. We have already noticed thesubmission of Shri Amrendra Sharan, Senior Advocate.

170. Shri Colin Gonsalves, learned Amicus Curiae has refuted thesubmissions made by the learned counsel for the appellant. It isGsubmitted that despite the specific ban on coal mining by order dated17.04.2014 in the entire State, illegal coal mining had been going on,which was proved from the reports and pictures referred to in thereport. The State is responsible and constitutionally obligated toprovide clean environment to every citizen. They having entirely failedto stop the illegal mining, which is cause of degradation of pollution H

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including pollution of river streams, the Tribunal has rightly directed theState of Meghalaya to deposit Rs.100 Crores. Shri Gonsalves submitsthat in spite of State Pollution Control Board as well as ComptrollerAuditor General having invited the attention of the State of Meghalayatowards serious pollution especially in the river water, no steps weretaken by the State of Meghalaya. It is further submitted that restorationof environment requires carrying out various projects and unless theState provides for necessary fund and finances, the restoration of dam-aged environment cannot be undertaken. It is further submitted thatState had collected huge fund Rs.4,33,07,26,731/-, which amount hadnot been spent by the State, although, it was required to take steps forrestoration of environment.

171. The NGT vide its order dated 31.08.2018 constituted a com-mittee headed by Justice B.P. Katakey, Former Judge of Gauhati HighCourt with representatives from Central Pollution Control Board andIndian School of Mines, Dhanbad. By subsequent order dated 19.09.2018issued by the Tribunal, additional Chief Secretary to Government ofMeghalaya was made the Member Secretary/Coordinator for properfunctioning of the committee. The committee visited different sites,held various meetings, various presentations were also made before thecommittee by Meghalaya State Pollution Control Board and other bod-ies namely North Eastern Centre for Technology Application and Reach,North Eastern Space Application Centre. In Para 12(g), following hasbeen stated by the committee:- “12(g) Presentation was also made by the Meghalaya StatePollution Control Board on the coal mine activities and its impacton the land used, water quality, air quality, ecology as well associo-economic impact. The Committee, on the basis of the saidpresentation, found the following:-

(i) Continuation of coal mine activities for a long time in anunplanned and unscientific manner as well as without anypollution control measures.

(ii) Such mining activities are generating huge ecologicaldisturbances and negative environmental impacts.

(iii) Water in rivers and streams in the mining areas havebecome highly acidic in nature with pH value of 2.7 since1991-92 due to presence of high percentage of sulphur in A

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coal, which reacts after mixing with oxygen in air andwater giving rise to AMD problem. No difference of pHlevel of water in rivers, streams and mine drains have beennoticed during monsoon.

(iv) pH level of water in springs, taps water and hand pumpsalso found to be less than permissible limit of drinkingwater standards.

(v) Absence of biological life in the water bodies.

(vi) Ambient air quality of the coal mining areas and coalstorage areas exceeds the National Ambient Air QualityStandards on few occasions.

(vii) Requirement of urgent steps to be taken to generate socialawareness about the adverse environmental impacts andthe health hazards associated with unplanned andunscientific coal mining activities.

172. Action plans for restoration of environment were alsodiscussed and finalised.

173. On detailed discussion on Issue No.(A), committee withdetails 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 includesthe extraction of coal and transportation, is going on in the Stateof Meghalaya, at least in East Jaintia Hills District, where suchmining activities are most, despite the ban imposed by the Hon’bleNGT vide its order dated 17.04.2014. Very sincere and honestefforts are required on the part of the State Government to stopthe mining activities, which are going on. Such mining activitiesare going on without adopting any safety measures for the workersand without caring for adverse environmental affect. A sinceredesire to stop such illegal mining activities is also necessary onthe part of the State and Central Government agencies forimplementation and monitoring of health, safety and environmentalregulations.

(vii) The result of ongoing un-abetted illegal mining, despite theban imposed by the NGT, is the very tragic incident occurred

very recently on 13.12.2018 in a coal mine in Ksan Village nearLytein River under Saipung Police Station in East Jaintia HillsDistrict, where 15(fifteen) coal mine workers are reported trapped,while they were working in the mine. Unfortunately, none of themso far could be rescued. For the said incident, Saipung PoliceStation Case No.15(12)/2018 under Section 188/304A/34 IPC readwith 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 Magisterialenquiry to find out the facts and circumstances leading to the saidincident, has also been directed.”

174. The fact that on 13.12.2018, 15 coal mine workers weretrapped in an ongoing coal mining operation, who all have been reportedto be dead itself proves beyond any shade of doubt that order dated17.04.2014 banningmining in the entire State of Meghalaya was neitherbeen enforced nor serious endeavours were taken by the State or itsauthorities to save the environmental pollution. With regard torestoration of the environment and restoration of the victims, action planswere formulated by the committee.

175. The first submission raised by Shri Amrendra Sharanchallenging the order is violation of principles of natural justice. Thereport dated 31.12.2018 of the committee itself in issue No. f(iv)noticed: - “Website has been opened and all the proceedings of theCommittee are uploaded in the said website.”

176. The report being placed on website on 31.12.2018 itself, thereis no question of serving copy of the report of the committee to theStakeholders. It is further relevant to notice that Additional ChiefSecretary of the Government of Meghalaya was himself the MemberSecretary and Coordinator of the committee under the orders of theTribunal dated 19.09.2018. All proceedings of the committee, itsmeetings and minutes, were with the knowledge and participation of thecoordinator/ Additional Chief Secretary of the State of Meghalaya.

177. A perusal of the order dated 04.01.2019, which is impugnedin the appeal indicates that although learned counsel for the State ofMeghalaya was present and was heard but no kind of objection wasraised regarding acceptability of the report. The report obtained by the

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ANGT through the committee was to take effective steps towardsprotection of environmental pollution and for restoration of damagedenvironment. Pollution of the various rivers and streams and steps fortreating the acidic water was urgently required. Several presentationsbefore the committee were also made and different steps regardingrestoration of environment were to be taken as noticed and indicated inBthe report of the committee. As noticed above, the NGT vide its orderdated 25.03.2015 constituted a fund namely ‘Meghalaya EnvironmentProtection and Restoration Fund’ to be maintained by the State underthe direct control of the Chief Secretary of the State of Meghalaya. It isreiterated in the report of the committee that an amount of Rs.433 CroresCis already lying in the said fund, which has not been spent.

178. Learned counsel for the appellant has laid much emphasisthat there had been no calculation of the extent of damage nor Tribunalcould have arrived at on the amount of damages to the extent of Rs.100Crores, which was directed to be deposited by the State of MeghalayaDwith the Central Pollution Control Board.

179. We are of the view that the amount, which has been directedby NGT to be deposited by State of Meghalaya is neither a penalty nora fine imposed on the State. The amount has been directed to bedeposited for carrying out steps regarding restoration of environment.EWe further agree with the submission of the learned counsel for theappellant that the said amount cannot be said to be amount of damagesto be paid by the State. We further find force in the submission of thelearned counsel for the appellant that State of Meghalaya has verylimited source of revenue and putting an extra burden on the State ofMeghalaya to make payment of Rs.100 Crores from its own financialFresources and budgetary amount may cause great hardship to the Stateof Meghalaya. Ends of justice be served in modifying the direction ofNGT dated 04.01.2019 to the extent that State is permitted to transferan amount of Rs.100 Crores from the amount lying in the MEPRF to theCentral Pollution Control Board. The Central Pollution Control BoardGas directed by the Tribunal (NGT) shall utilise the aforesaid amount ofRs.100 Crores only for restoration of the environment. The appeal isthus, partly allowed to the above extent.

Point No.13

180. Vide order dated 31.03.2016, the NGT had permittedHtransportation of coal till 15.5.2016 under terms and conditions as

enumerated therein. The order dated 31.3.2016 further contemplatedthat no coal in any form whatsoever shall be permitted to be transportedafter 15.05.2016 on which date the entire remaining coal shall vest in theState Government and shall be disposed of in accordance with law.

181. The main grievance of the appellant is that NGT could nothave directed for vesting of coal in the State. The submission is thatmembers of the appellant-association have proprietary rights in the coalwith which they could not be divested by the Tribunal. We have alreadyheld that private owners of the land are also owners of the minerals andthe minerals belong to the owners/Tribals. We have also found that coalmining was illegally going on unregulated by any statutory law in theHills District of State of Meghalaya without there being any mining lease.The entire mining was, thus, is clear in contravention of Section 4(1) ofAct, 1957 which attracted penalties under Section 21. Section 21 of theAct is as follows:

“21. Penalties.¯(1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punishablewith imprisonment for a term which may extend to five years andwith fine which may extend to five lakh rupees per hectare of thearea.

(2) Any rule made under any provision of this Act may providethat any contravention thereof shall be punishable withimprisonment for a term which may extend to two years or withfine which may extend to five lakh rupees, or with both, and in thecase of a continuing contravention, with additional fine which mayextend to fifty thousand rupees for every day during which suchcontravention continues after conviction for the first suchcontravention.

(3) Where any person trespasses into any land in contraventionof the provisions of sub-section (1) of section 4, such trespassermay be served with an order of eviction by the State Governmentor any authority authorised in this behalf by that Government andthe State Government or such authorised authority may, ifnecessary, obtain the help of the police to evict the trespasserfrom the land.

(4) Whenever any person raises, transports or causes to be raisedor transported, without any lawful authority, any mineral from any A

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Aland, and, for that purpose, uses any tool, equipment, vehicle orany other thing, such mineral tool, equipment, vehicle or any otherthing shall be liable to be seized by an officer or authority speciallyempowered in this behalf. (4A) Any mineral, tool, equipment,vehicle or any other thing seized under sub-section (4), shall beliable to be confiscated by an order of the court competent to takeBcognizance of the offence under sub-section (1) and shall bedisposed of in accordance with the directions of such court.

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(5) Whenever any person raises, without any lawful authority,any mineral from any land, the State Government may recoverfrom such person the mineral so raised, or, where such mineralhas already been disposed of, the price thereof, and may alsorecover from such person, rent, royalty or tax, as the case maybe, for the period during which the land was occupied by suchperson without any lawful authority.

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(6) Notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974), an offence under sub-section (1)shall be cognizable.”

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182. The mining of coal in contravention of Section 4(1) invitespenalties as enumerated in Section 21. The present is not a case whereany kind of penalty has been imposed on the miners except that theEamount of royalty as payable on mining of coal is being collected by theState as penalty. It is true that the State Government has power underSection 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 caseFmay be, but it is for the State Government to exercise its power underSection 21(5) by way of penalty. The NGT has not given any reason asto how coal shall automatically vest in the State. The right of recoveryof mineral as contemplated under Section 21(5) does not amount to saythat proprietary right of owner of the minerals is lost rather State underSection 21(5) exercises its power to recover the mineral which has beenGraised without any lawful authority. We, thus, are of the view that coalextracted and lying in open after 15.05.2016 was not automatically vestedin the State and the owner of the coal or the person who has mined thecoal shall have the proprietary right in the mineral which shall not belost.

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Point No.14

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Point No.14

183. Several I.A.s have been filed by different applicants seekingdirection to transport already extracted coal lying at different places inhills districts of State of Meghalaya. Different applicants may claim todifferent quantities of coal situate at different places. By our orderdated 10.05.2019, we have already permitted transportation of balancecoal to the extent of 75050 MTs for which challans were already issuedafter the order of this Court dated 04.12.2018. The above quantity ofsaid 75050 MTs. was balance quantity out of 176655 Mts., fortransportation of which order was passed by this Court on 04.12.2018.In addition to the aforesaid quantity, claim with regard to differentquantities by different applicants has been laid. It is not necessary forthe purpose of the present case to notice different quantities and claimsof different persons for transportation. After the order of the NGTdated 31.08.2018, the State of Meghalaya has constituted committees toassist the Commissioner and Secretary, Mining and Geology to preparea separate inventory with regard to coal not so far recorded in theinventory available with the NGT. In pursuance of said direction, ascontained in paragraph No.13 of the order, steps were taken and variouscommittees had made certain assessments with regard to differentquantities of coal lying in four HillsDistricts of State of Meghalaya.Katakey committee Report dated 31.12.2018 has in chart noticed thedifferent quantities as was informed by letter dated 13.11.2018 toCommissioner and Secretary to the Government of Meghalaya. Whiledealing with issue No.3, in paragraph Nos.(iii), (iv) and (v), followinghas been stated:- “(iii) The Commissioner & Secretary to the Government ofMeghalaya, Mining & Geology Department, in the ATR submittedon 13.11.2018 has stated about the availability of 176655 MTs ofalready inventorised coal for transportation, which has also beenreflected in the order dated 04.12.2018 passed by the Hon’bleSupreme Court. The Commissioner & Secretary, in the saidATR, has also stated that 23,25,663.54 MTs of coal, otherthan those inventorized coal, remained un-inventorized andavailable for transportation, district-wise break up of which is asfollows:- A

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A“REPORTON EXTRACTED COALREFLECTED ASUN-ASSESSED OR NILIN THE INVENTORYAPPROVED BY NGT

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(iv) From the aforesaid District wise break up of extracted coal,which was un-inventorised, it appears that the quantity of suchcoal was highest in East Jaintia Hills District, where the DeputyCommissioner, as noticed above, has admitted ongoing coal miningactivities despite the ban imposed by the Hon’ble NGT vide orderdated 17.04.2014. The stand of the Government that the quantityof coal, as reflected in the aforesaid chart were mined prior to thesaid ban, appears to be not acceptable, in view of the aforesaidadmission of the Deputy Commissioner and also what theCommittee has noticed during its field visit on 12.11.2018. It seemsthat there is an attempt to show the freshly mined coal, i.e. thecoal mined after the ban imposed by the Hon’ble NGT, as thecoal left out from the assessment and remained un-inventorisedthough mined prior to the said ban. The Committee also apprehendsthat such freshly mined coal may be transported taking advantageof the order dated 04.12.2018 passed by the Hon’ble SupremeCourt.

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(v) The Hon’ble NGT vide its order dated 31.08.2018 given theresponsibility of going through the said issue to the Secretary ofMining, State of Meghalaya in the first instance and to becross-checked by the Joint Team of representatives of the CentralPollution Control Board and India School of Mines, Dhanbad. Asreported, no such cross-check has so far been made.”

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184. The State of Meghalaya has filed additional affidavit dated06.04.2019 of Commissioner and Secretary to the Government ofMeghalaya, Mining and Geology Department, where details ofassessments made by committees appointed by the State of Meghalayahas been brought on the record. In the affidavit, it has also been statedthat a technical committee was also constituted to perform theverification of the assessments made by the Deputy Commissioners ofrespective districts. As per the affidavit, assessment of extracted coalstocks in above four districts is 32,56,715 MTs whereas in the reportsubmitted by Katakey committee, the said figure in the above fourdistricts is 23,25,663.54 MTs. Technical committee submitted theirreport, which have been brought on the record alongwith the AdditionalAffidavit verifying the assessed quantities. In the affidavit of theCommissioner and Secretary, it has also been sated that the technicalcommittees have submitted that it is difficult to define with certainty thatwhich coal was mined prior to ban in 2014 and mined after 2014. Fromthe above it is clear that the State Government itself has come with acase that huge quantity of coal in the four hills districts, which has beenextracted is lying waiting for orders of transportation. Learned AmicusCuriae and Shri Nidhesh Gupta, learned senior counsel have refuted theclaim made by the applicants as well as the State of Meghalaya. It issubmitted by learned Amicus Curiae that in fact State is not making anyeffort to stop the illegal mining, in spite of the ban of 17.04.2014, illegalmining of coal has been permitted and now such illegal mined coal hasalso been assessed and State also supports the claim of transportation ofthe applicants on the guise that coal lying in open is an environmentalhazard.

185. Shri Nidhesh Gupta, learned senior counsel appearing forprivate respondents in C.A. No.5272 of 2016 has submitted that theState auctioned coal on a meagre price, whereas market rate of the coalis approximately Rs.10,000/- per MT. In the present case, we havenoticed that illegal coal mining is going on in spite of ban by NGT by itsorder dated 17.04.2014. The Katakey committee report has also opinedthat all the extracted coal lying in different districts is a coal, which hasbeen illegally mined after the imposition of ban by the order dated17.04.2014. All coals being illegally mined, the State is fully entitled toimpose a penalty, i.e., to realise the royalty and the amount of MEPRFund. The coal being major mineral and useful for different industries

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Aand projects, appropriate disposal of extracted coal is also of aparamount importance.

186. We accept the suggestion of learned Amicus Curiae thatentire extracted coal lying at various places be directed to be taken overby Coal India Ltd, a Government of India unit, who may dispose of theBsame as per its normal method of disposal and proceeds be distributedas per directions issued by this Court hereinafter. The NGT has alreadydirected 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 car-ried out the assessment of the coal lying in the aforesaid four districtsincluding the details of the quantities and the details of owners beingCavailable with it, it may ensure that the entire coal are handed over to theCoal India Ltd., as per the mode and manner to be formulated by KatakeyCommittee, in consultation with officers of the Coal India Ltd. and Stateof Meghalaya.

187. The Katakey committee and its various members andDparticipants have done a commendable job in studying and examiningvarious aspects of environment in the State of Meghalaya and severalvaluable suggestions have been given by the committee, which are alsobeing implemented to mitigate the suffering of the citizens consequent tothe illegal coal mined.

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188. We direct that Commissioner and Secretary of the State inthe Department of Mining and Geology alongwith the officers of CoalIndia Ltd. may deliberate with the Katakey committee to finalise a com-prehensive plan for transportation and handing over of the coal to CoalIndia Ltd. for disposal/auction as per rules of Coal India Ltd. Disposal/Fauction by Coal India Ltd. shall be beneficial to both the owners of themines as well as to the State of Meghalaya. Receiving fair value of thecoal should be a concern of both the owners and State. It is for the CoalIndia 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 itis for the Coal India Ltd. to finalise the process of disposal and auctionGof the coal. It goes without saying that it shall be the duty of the State ofMeghalaya and its officers especially Deputy Commissioner of the areaconcerned to enter details of quantity of the coal, name of the ownerand place from where it is collected. Coal India Ltd. shall also takesteps to ensure weighment of the coal when it is received by it and since H

all consequent steps regarding disposal, price grade of the coal shall bedetermined as per the weight of the coal received by the Coal India Ltd.from different places. The expenses of transportation shall be borne bythe State of Meghalaya, Coal India Ltd. or by both, which expensesshall be deductible from the price received of the coal. The State ofMeghalaya shall be entitled to royalty and payment towards MERP Fundas well as taxes out of the price of the coal. After deduction of cost oftransportation, the payment of royalty and payment to MERP fund andtaxes plus 10% of value of the coal to be given to Coal India Ltd. for theabove exercise,balance amount shall be disbursed to the owner of thecoal towards its price, which disbursement shall be the responsibility ofthe State. The Coal India Ltd. after taking its expenses fortransportation with 10% of price of the coal shall remit the entire amountto the State and it is for the State after deducting the royalty andpayment to the MERP Fund and taxes to pay back the balance of theamount to the owner.

189. Another aspect of the matter is also to be noticed. The coal,which has been seized by the State in illegal transportation or illegalmining for which different cases have been registered by the State, isnot to be dealt with as directed above. The said seized coal shall bedealt by the State in accordance with Section 21 of the Act, 1957 and onbeing satisfied, the State can take a decision to recover the entirequantity of coal so illegally raised without lawful authority and the saidcases has to be separately dealt with in accordance with law.

190. We, thus, are of the view that all I.A.s filed by differentapplicants seeking order of transportation of the different quantities standdisposed of in view of the directions as given above. Let the Katakeycommittee in consultation with State of Meghalaya and officers of CoalIndia Ltd. finalise appropriate mode and manner to affect the transportand disposal of the coal in the above manner.

Conclusions: -

191. From the foregoing discussions we arrived at followingconclusions:-

1) The application O.A.No.73 of 2014 has clearly made outallegations which were sufficient for the Tribunal toexercise its jurisdiction as conferred by Section 14 of the

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National Green Tribunal Act, 2010. Both the component asappearing in sub-section 1 of Section 14 that is (i) substantialquestion relating to environment and (ii) such question arisesout of the implementation of the enactments specified inSchedule I, were present.

2) The allegations of the applicant of O.A.No.73 of 2014 ofenvironmental degradation by illegal and unregulated coalmining were fully proved from materials on the recordincluding the report of the experts, report of the MeghalayaState Pollution Control Board, the report of Katakeycommittee, which all proved environmental degradation ofwater, air and surface.

3) The stand taken on behalf of the State of Meghalaya beforethis Court that the Tribunal has no jurisdiction cannot beapproved. The State Government is under constitutionalobligation to ensure clean environment to all its citizens. Incases pertaining to environmental matter, the State has toact as facilitator and not as obstructionist.

4) According to the land tenure system as applicable in the HillsDistricts of State of Meghalaya, the most of the lands areeither privately or community owned in which State doesnot claim any right. The private owners of the land as wellas community owners have both the surface right as well assub-soil rights.

5) Para 12A sub-clause (b) of Sixth Schedule of theConstitution empowers that the President may, with respectto any Act of Parliament, by notification, direct that it shallnot apply to an autonomous district or an autonomous regionin the State of Meghalaya, or shall apply to such district orregion or any part thereof subject to such exceptions ormodifications as he may specify in the notification. Nonotification has been issued by the President under Section12A(b). There is nothing in Sixth Schedule of theConstitution which may indicate about the inapplicability ofAct, 1957 with regard to the Hills Districts of State ofMeghalaya.

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6) There is nothing in Section 4(1) of 1957 Act to indicate thatrestriction contained in Section 4(1) does not apply withregard to privately owned/community owned land in HillsDistricts of Meghalaya. Further, word ‘any area’ underSection 4(1) also has significance which does not have anyexception. Further phrase “except under and in accordancewith terms and condition with a mining lease granted underthe Act” are also significant which make the intent andpurpose of prohibition clear and loud.

7) The statutory scheme delineated by Section 13(2)(f) and theMinerals (Concession) Rules, 1960 clearly contemplate grantof mining lease, with regard to both the categories of land,i.e., land in which minerals vest in the Government, and theland in which minerals vest in a person other than theGovernment.

8) The Mines Act, 1952 contains various provisions regardinginspection of mining operation and management of mines.The provisions of The Mines Act, 1952 are mandatory to befollowed before working a mine. The regulations namely CoalMines Regulations, 2017 also contains several regulatoryprovisions which need to be followed while working a mineby a mining lease holder. The enforcement of Mines Act,1952 and the Regulations, 2017 have to be ensured by theState in the public interest.

9) As per statutory regime brought in force by notification dated15.01.2016 issued under Environment (Protection) Act, 1986,environmental clearance is required for a project of coal formining of any extent of area. While implementing statutoryregime for carrying mining operations in the Hills Districtsof the State of Meghalaya, the State of Meghalaya has toensure compliance of not only MMDR Act, 1957 but MinesAct, 1952 as well as Environment (Protection)Act, 1986.

10) In Hill District of State of Meghalaya for carrying coalmining operations in privately owned/community owned landit is not the State Government which shall grant the mining A

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Alease under Chapter V of Rules, 1960, but it is the privateowner/community owner of the land, who is also the ownerof the mineral, who shall grant lease for mining of coal asper provisions of Chapter V of Rules, 1960 after obtainingprevious approval of the Central Government through theState Government.

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11) The State of Meghalaya has ample power and jurisdictionunder the Act, 1957 and Rules, 1960 to check, control andprohibit coal mining operations in Hill Districts of State ofMeghalaya.

12) The Union having made declaration by Section 2 of 1957 Acttaking under its control regulation and development ofmineral, the power of Autonomous District Council tolegislate on the subject shall also be denuded as that of theState Legislature.

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D13) In event the mining is carried out by a mining lease holder asper the provisions of Act, 1957 and Rules, 1960 with anapproved mining plan there can be no objections in carryingof such mining operations under the regulation and controlof the State of Meghalaya. We clarify that in event miningoperations are undertaken in privately owned/communityEowned land in Hills Districts of Meghalaya in accordancewith mining lease with approved mining plan as per Act, 1957and Mineral Concessions Rule, 1960, the ban order dated17.04.2014 of the tribunal of the NGT shall not come in wayof carrying mining operations.

F14) Under Order 26 Rule 10A of the Civil Procedure Code, aCourt can appoint commission for scientific investigation.The power which can be exercised by a Court under Order26 Rule 10A of CPC can very well be exercised by the NGTalso. The NGT while asking expert to give a report is notGconfined to the four corners of Rule 10A and its jurisdictionis not shackled by strict terms of Order 21 Rule 10A byvirtue of 19(1) of the NGT Act.

15) Rule 24 of National Green Tribunal (Practice andProcedure) Rules, 2011 empowers the Tribunal to make such H

orders or give such directions as may be necessary orexpedient to give effect to its order or to secure the ends ofjustice. The power given to the Tribunal is coupled with dutyto exercise such powers for achieving the objects. There isno lack of jurisdiction in NGT in directing for appointment ofa committee and to obtain a report from a Committee.

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16) The direction to constitute a fund namely “MeghalayaEnvironment Protection and Restoration Fund”, is also savedunder the above power.

17) NGT by directing for constitution of committee has notdelegated essential judicial functions. The Tribunal had keptCcomplete control on all steps which were required to be takenby the committees and has issued directions from time totime. The State is always at liberty to obtain appropriatedirections if aggrieved by any act of the committee. Thematter being pending before the Tribunal all acts of theDcommittee are under direct control of the Tribunal and if thecommittee oversteps in any direction the same can very wellbe corrected by the Tribunal on the matter being broughtbefore it.

18) NGT by issuing direction to constitute the committee fortransportation of the extracting mineral, for preparing timebound action plan to deal with the restoration ofenvironment and to ensure its implementation does not inany manner interfere with the powers of the District orRegional Councils. The District and Regional Councils arefree to exercise all their powers and committee constitutedby the Tribunal is only concerned with the Environmentaldegradation and illegal coal mining. The committees reportor direction of the Tribunal in no manner encroaches uponthe administration of Tribal areas by the District andRegional Councils.

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19) The amount which has been directed by NGT to be depositedby State of Meghalaya is neither a penalty nor a fineimposed on the State of Meghalaya. We accept thesubmissions of the learned counsel for the appellant that State of Meghalaya has very limited source of finances andputting an extra burden on the State of Meghalaya to makepayment of Rs. 100 Crores from its own financial resourcesmay cause great hardship to the State of Meghalaya. Endsof justice be served in modifying the direction of NGT dated04.01.2019 to the extent that State is permitted to transferan amount of Rs. 100 Crores from the amount lying in theMEPRF to the Central Pollution Control Board. The CentralPollution Control Board as directed by the Tribunal shallutilize the aforesaid amount of Rs.100 Crores only forrestoration of the environment in the State of Meghalaya.

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20) The coal extracted and lying in open after 15.05.2016 doesnot automatically vest in the State of Meghalaya and theowner of the coal or the person who has mined the coal shallhave the proprietary right in the mineral which shall not belost.

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21) The suggestion of learned Amicus Curiae that entireextracted coal lying at various places in hills districts ofMeghalaya be directed to be taken over by Coal India Ltd.is accepted. The Coal India Ltd. may dispose of the same asper its normal method of disposal and proceeds be dealt withas per directions issued.

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22) The State having carried out the assessment of the coal lyingin the aforesaid four districts including the details of thequantities and the details of owners being available with it, itmay ensure that entire coal is handed over to the Coal IndiaFLtd., as per the mode and manner to be formulated byKatakey Committee in consultation with officers of the CoalIndia Ltd. and the State of Meghalaya.

23) It is for Coal India Ltd. to decide as to venue, where they shallreceive the coal, i.e., either at any of its depot or any otherGplace in the State of Meghalaya and it is for the Coal IndiaLtd. to finalise the process of disposal and auction of thecoal. It shall be the duty of the State of Meghalaya and itsofficers especially Deputy Commissioner of the areaconcerned to enter details of quantity of the coal, name of

the owner and place from where it is collected. Allconcerned shall take steps to ensure weighment of the coalwhen it is received by Coal India Ltd.

24) The expenses of transportation shall be borne by the State ofMeghalaya, Coal India Ltd. or by both, which expenses shallbe deductible from the price received of the coal. The Stateof Meghalaya shall be entitled to royalty and paymenttowards MERP Fund as well as taxes out of the price of thecoal. After deducting its expenses for transportation with10% of price of the coal, the Coal India Ltd. shall remit thebalance amount to the State and it is for the State afterdeducting the royalty and payment to the MERP Fund andtaxes to pay back balance the amount to the owner.

25) The coal which has been seized by the State in illegaltransportation and illegal mining for which different caseshave been registered by the State, is not to be dealt with asdirected above. The seized coal shall be dealt by the State inaccordance with Section 21 of the Act, 1957 and on beingsatisfied, the State can take a decision to recover the entirequantity of coal so illegally raised without lawful authority.

192. In view of the foregoing discussions and conclusions, all theseappeals are decided in the following manner: -

1) Civil Appeal No. 10720 of 2018, Civil Appeal No. 10611 of2018, Civil Appeal No. 10907 of 2018 and Civil AppealNo.5295 of 2019 (arising out of Civil Appeal Diary No. 3067of 2018) are dismissed subject to declaration andclarification of law as made above.

2) Civil Appeal No. 5272 of 2016 is allowed setting aside theorder of NGT dated 31.03.2016 to the extent it declared thatall extracted coal after 15.05.2016 shall vest in the State ofMeghalaya.

3) Civil Appeal No. 2968 of 2019 is partly allowed permittingthe State of Meghalaya to transfer the amount of Rs.100Crores to Central Pollution Control Board from theMeghalaya Environment Protection and Restoration Fund

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Awhich amount shall be used by Central Pollution ControlBoard only for restoration of Environment.

4) All I.As. seeking direction for transportation of coal aredisposed of directing: -

i) All extracted coal as assessed by State of Meghalaya lyingBin different districts of State of Meghalaya which as perorder of NGT is in custody of State of Meghalaya shall behanded over to Coal India Ltd. for proper disposal.

ii) The Katakey Committee after discussion with Coal IndiaLtd. and State of Meghalaya shall formulate a mechanismCfor transport, weighment of all assessed coal.

iii) The Coal India Ltd. shall auction the coal so received by it asper its best judgment and remit the proceed to State to theextent as directed above.

Div) All coal seized by the State for which cases have alreadybeen registered shall be dealt by the State in accordancewith Section 21 of 1957 Act.

193. Before we close, we record our appreciation for valuableassistance rendered by learned counsel for the parties which enable usto decide several important issues in these appeals. We also record ourEappreciation for assistance rendered by learned Amicus Curiae Shri ColinGonsalves, Senior Advocate.

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Devika Gujral

Appeals disposed of.

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