1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10720 OF 2018

STATE OF MEGHALAYA ...APPELLANT(S)

VERSUS

ALL DIMASA STUDENTS UNION,

DIMA-HASAO DISTRICT COMMITTEE & ORS. ...RESPONDENT(S)

WITH

CIVIL APPEAL NO. 10611 OF 2018

THE STATE COORDINATION COMMITTEE

OF COAL OWNERS, MINERS AND DEALERS

FORUM ...APPELLANT(S)

VERSUS

ALL DIMASA STUDENTS UNION

DIMA HASAO DISTRICT COMMITTEE & ORS. ...RESPONDENT(S)

WITH

CIVIL APPEAL NO.10907 OF 2018

GARO HILLS AUTONOMOUS DISTRICT

COUNCIL ...APPELLANT(S)

VERSUS

ALL DIMASA STUDENTS UNION

DIMA HASAO DISTRICT COMMITTEE & ORS. ...RESPONDENT(S)

WITH

CIVIL APPEAL NO. 5272 OF 2016

KA HIMA NONGSTOIN LAND OWNERS,

COAL TRADERS AND

PRODUCERS ASSOCIATION ...APPELLANT(S)

VERSUS

ALL DIMASA STUDENTS UNION

DIMA HASAO DISTRICT COMMITTEE & ORS. ...RESPONDENT(S)

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WITH

CIVIL APPEAL No.5295 OF 2019

(@C.A. DIARY NO. 3067 OF 2018)

LBER LALOO ...APPELLANT(S)

VERSUS

ALL DIMASA STUDENTS UNION,

HASAO DISTRICT COMMITTEE & ORS. ...RESPONDENT(S)

WITH

CIVIL APPEAL NO. 2968 OF 2019

STATE OF MEGHALAYA ...APPELLANT(S)

VERSUS

ALL DIMASA STUDENTS UNION

DIMA HASAO DISTRICT COMMITTEE & ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

Natural resources of the country are not meant to

be consumed only by the present generation of men or

women of the region where natural resources are

deposited. These treasures of nature are for all

generations to come and for intelligent use of the

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entire country. The present generation owes a duty to

preserve and conserve the natural resources of the

nation so that it may be used in the best interest of

coming generations as well and for the country as a

whole.

2.These appeals have been filed challenging various

orders passed by National Green Tribunal wherein

several directions were issued, measures to be taken

to check and combat the unregulated coal mining in

Tribal areas of State of Meghalaya which coal mining

resulted not only loss of lives but damaged the

environment of the area.

Details of appeals

3.Civil Appeal Nos. 10720 of 2018, 10611 of 2018

and 10907 of 2018 have been filed against order dated

31.08.2018 passed by the National 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

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order dated 10.05.2016 of the National Green

Tribunal, Principal Bench, New Delhi. Civil Appeal

(Diary No.3067) of 2018 has been filed by Lber Laloo

against order dated 25.03.2015 of National Green

Tribunal, Principal Bench, New Delhi and Civil Appeal

No.2968 of 2019 has been filed against order dated

04.01.2019 of National Green Tribunal, Principal

Bench, New Delhi by which State of Meghalaya has been

directed to deposit Rs.100 crores with the Central

Pollution Control Board.

4.All the appeals having been filed against the

orders of National Green Tribunal (NGT), it is

necessary to notice the details of various

proceedings before the NGT to appreciate the

grievances raised in the appeals. The Gauhati High

Court on the basis of a News item to the effect that

on 06.07.2012, 30 coal labourers were trapped inside

a coal mine at Nongalbibra in the District of South

Garo Hill and 15 of them died 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

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matter was directed to be transferred to NGT in which

notice was issued by the Tribunal on 30.01.2013.

Transferred matter was registered as Original

Application NO.11(THC)/2012. All Dimasa Students

Union Dima Hasao District Committee filed an Original

Application No.73 of 2014 before National Green

Tribunal, Principal Bench making serious complaints

with regard to rat-hole mining operation, which has

been going on in Jaintia Hills in the State of

Meghalaya for last many years without being regulated

by any law. It was alleged that in the course of rat-

hole coal mining by flooding water several employees

and workers have died. The applicant had also brought

before the Tribunal a detailed report of one Dr. O.P.

Singh, Professor, Department of Environmental

Studies, North-Eastern Hills University, Shillong,

Meghalaya where entire aspects of the coal mining in

the State of Meghalaya were discussed. The NGT

admitted the application and took the view that

illegal and unscientific mining neither can be held

to be in the interest of people of the area, the

people working in the mines nor in the interest of

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environment. After hearing applicant, the Tribunal on

17.04.2014 passed an order directing the Chief

Secretary of Meghalaya, Director General of Police,

State of Meghalaya to ensure that rat-hole

mining/illegal mining is stopped forthwith throughout

the State of Meghalaya and any illegal transport of

coal shall not take place until further orders passed

by the Tribunal. After the passing of the order dated

17.04.2014 various applications were filed before the

Tribunal by different Associations and persons

claiming interest in the subject matter of the

application. Application No. 317/2019 was filed by

Western Coal Miners and Exporters Association for

being impleaded in O.A. No.73 of 2014, which was

allowed. Another application M.A.No.306 of 2014 was

filed by Khasi Hills District Autonomous District

Council, Shillong, East Khasi Hills District,

Meghalaya (one of the appellants before us) for

impleadment claiming to be a constitutional body and

entitled in the sharing primarily of the royalty on

the coal produced/mined, which application was

allowed.

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5.The Tribunal clubbed O.A.No.13 of 2014, O.A.No.73

of 2014 and O.A.No.11(THC)/2012. Miscellaneous

applications were filed before 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 a coal mine owner. The miscellaneous application

was also filed by the State Coordination Committee of

the Jaintia Hills District, Meghalaya (one of the

appellants before us) for their impleadment, which

was allowed. This Court dismissed the Civil Appeal

filed against the order dated 17.04.2014 passed by

the Tribunal, however, granted liberty to the

appellant to approach the Tribunal for modification

of the order. The Tribunal also noticed in its order

dated 09.06.2014 that there has been serious air,

water and environmental pollution being caused by the

illegal, unregulated and indiscriminate rat-hole

mining being carried on in various parts of the State

of Meghalaya. Serious pollution to the upstream was

also noticed. The Tribunal, however, noticed that

there are documents on record to show that right from

the year 2003, there has been serious air and water

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pollution in the mining areas of Meghalaya which is

injurious and has not only resulted in degradation of

environment, particularly the streams and underground

water, but has also seriously jeopardised the human

health. It was further noticed that Transportation of

coal in an illegal, unregulated, indiscriminate and

unscientific manner has resulted in serious diseases

to the people. The report of the Committee dated

09.06.2014 was noticed by the Tribunal. By order

dated 09.06.2014 while permitting the transportation

of the already extracted coal lying in open near the

mining sites, constituted a committee for supervising

such transportation. Various other directions were

issued to the committee as well as to the State and

its authorities.

6.By a subsequent order dated 01.08.2014 the

Tribunal noticed that the committee earlier

constituted by order dated 09.06.2014 failed to

perform the functions assigned to it, hence, a new

committee was constituted. The Tribunal from time to

time issued various directions. We need to notice

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four orders passed by the Tribunal in detail which

are subject matter of challenge in these appeals. The

orders which are subject matter in these appeals are

orders dated 25.03.2015, 10.05.2016, 31.08.2018 and

04.01.2019.

Order dated 25.03.2015

7.In order dated 25.03.2015 NGT noticed that the

rampant, illegal, unscientific and life-threatening

mining activity, particularly rat hole mining is

going on in the State of Meghalaya for years. The NGT

noticed the report of Commissioner appointed by it

and opined that in spite of order dated 17.04.2014

fresh mining was going on. The Tribunal also noticed

that State of Meghalaya has promulgated a Mining

Policy of 2012 which does not deal with rat hole

mining. The State Government was also directed to

formulate and declare Mining Policy and Guidelines

for the State of Meghalaya to deal with all aspects

of mining, which Policy was yet to see the light of

the day. The Tribunal also noticed that the order of

the Tribunal has been violated by illegal mining

despite complete prohibitory orders. It was noticed

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that the State Government has found as many as 73

cases of illegal transportation of coal in one

District. Further, 15 more cases of specific

violation of the NGT orders had already been

registered by the State Government. In all 11

Districts of State of Meghalaya, 308 cases of

violation have been registered and a total number of

605 trucks and 2675.63 tonnes of coal has been

seized. The stand of the State for a non-compliance

and its inability to comply with the direction was

also noticed to the following effect:

“(a) Lack of forces of carry out counter

insurgency operations and implementation of

NGT orders.

(b)The State Government proposes to

approach the Central Government for

claiming an exemption, in terms of para

12A(b) of the VIth Schedule of the

Constitution of India and from the

condition of previous approval of the

Central Government under the Mine and

Mineral Rule Regulation Act, 1957 in

respect of reconnaissance, prospecting and

mining of coal and from the operations of

Coal Mines Nationalisation Act.”

8.The Tribunal issued directions that the

Additional Secretary, North East in the Ministry of

Home, Central Government shall, within a period of

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two weeks, hold a meeting with the Chief Secretary of

the State of Meghalaya and other concerned

Authorities and consider the proposal of the State of

Meghalaya. The Tribunal also expressed its

disapproval for the conduct of the State in not

formulating appropriate Policy and Guidelines. The

Tribunal further observed that the mining in the

State cannot be permitted, unless appropriate policy

is prepared by the State Government.

9.The Tribunal also noticed that there is huge

environmental degradation and pollution of the water

in the State of Meghalaya and observed that serious

steps are required to be taken for cleaning polluted

waterbodies, with the above objective the Tribunal

authorised the State Government to collect 10% on the

market value of the coal in addition to the royally

payable to it. In this regard following directions

were issued:

“It is also undisputable that there has

been huge environmental degradation and

pollution of the waterbody in the State of

Meghalaya, because of this illegal,

unscientific mining. No one has even

thought of restoration of the area in

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question, to bring to some extent, if not

completely, restoration of ecology and

environment in question. Serious steps are

required to be taken for cleaning polluted

waterbodies and ensure that no further

pollution is caused by this activity and

the activity which would be permitted to be

carried on finally including transportation

of coal. On the basis of `Polluter Pay

Principle’. We direct that the State

Government shall in addition to the royalty

payable to it, shall also collect 10% on

the market value of the coal for every

consignment. Having heard the learned

Counsel appearing for the parties and

keeping in view the notifications of the

Central Government dated 10.05.2012 and

that of the State Government dated

22.06.2012, we may notice that in the

report of Comptroller and Auditor General

of India for the period ending 31st March,

2013 under 7.5.18 of Chapter 7 of which the

invoice value of the coal has been taken

Rs. 4850/- per metric tonne.

Thus, we direct that the State

Government shall in addition to the royalty

payable to it, also collect 10% of the said

market value of the coal per metric tonne

from each person. The amount so collected

shall be deposited in the account to be

titled as ‘Meghalaya Environment Protection

and Restoration Fund’ to be maintained by

the State under the direct control of the

Chief Secretary of the State of Meghalaya.

This amount shall only be used for

restoration of environment and for

necessary remedial and preventive measures

in regard to environment and matters

related thereto.”

10.Certain other directions were issued by the

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Tribunal vide order dated 25.03.2015.

Order dated 10.05.2016

11.Order dated 10.05.2016 has been challenged by KA

Hima Nongstoin Land Owners, Coal Traders and

Producers Association. The NGT vide its order dated

23.12.2015 had permitted transportation of coal for

the period till 15.05.2016. By order dated

31.03.2016, NGT refused to further extend the time

for transportation and directed that after 15.05.2016

all extracted coal shall vest in the State. Aggrieved

against order dated 31.03.2016 KA Hima Nongstoin Land

Owners, Coal Traders and Producers Association filed

C.A.No.4793 of 2016 before this Court, which was

disposed of by granting liberty to the appellant to

file application before the NGT. Pursuant to the

liberty granted by this Court M.A.No.427 of 2016 was

filed before the NGT. By order dated 10.05.2016

applications, M.A. Nos.400 and 427 of 2016 were

dismissed. By the same order the State of Meghalaya

was directed to place on record the exact current

quantity of coal and value thereof including the

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status of the coal lying and mined anywhere in the

State of Meghalaya as 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 State shall deal with the coal that is vested in

the State primarily for the reasons that entire coal

is illegally extracted coal.

Order dated 31.08.2018

12.On 31.08.2018, the Tribunal noticing the earlier

proceedings also noted that few issues are pending

before this Court arising out of orders passed by the

Tribunal. In paragraph 10 of the order following has

been noticed:

“10. At this stage, we may note that

following issues are pending before the

Hon’ble Supreme Court arising out of orders

passed by this Tribunal:

i)Civil Appeal No(s). 5272/2016 titled

as Ka Hima Nongstoin Land Owners,

Coal Traders and Producers

Association Vs. All Dimasa Students

Union, Dima Hasao District Committee

and Ors., wherein following order

was passed on 21.09.2016:

“Having heard counsel for the parties,

it is directed that the petitioners, as

well as the respondents, who have mined

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the coal, are permitted to transport

the coal on payment of royalty and

other fees as fixed by the National

Green Tribunal (for short, ‘the

Tribunal’) and other relevant status.

The extracted coal can be transported

from 1st October, 2016 till 31st May,

2017. It is further directed that no

other extraction shall take place in

the meantime.

The finding of the Tribunal that the

coal is vested in the State on the

ground that it is illegally extracted

coal, shall be adverted to at the time

of final hearing. The miners shall keep

the accounts and if, ultimately, it is

held that the coal belongs to the

State, they will refund the amount with

interest. The quantum of interest shall

be determined at the time of final

hearing. Needless to say, these

observations have been made without

prejudice to the contentions to be

raised by the learned counsel for the

parties. The tribunal can proceed with

regard to the other aspects which are

pending before it.”

The above order shows that question

whether coal is vested in the State is to

be gone into before the Hon’ble Supreme

Court.

Thereafter, on 28.03.2018, by the said

order, time for transporting already

extracted coal was extended up to

31.05.2018 but it was clear that no further

extraction shall be allowed.

ii) Civil Appeal Diary No. 3067/2018

titled as Lber Laloo Vs. All Dimasa

Students Union, Dima Hasao District

Committee and Ors., raising the question

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whether ban on mining can be continued. We

are informed that in the said matter, the

issue of mining plan has also been raised.”

13.The Tribunal further directed that ban on rat

hole mining shall continue subject to further orders

of this Court. Ban on transportation of extracted

coal will also continue subject to further orders.

Following directions were issued in paragraph 13:

“13. Accordingly, we direct that orders of

ban of rat-hole mining will continue,

subject to further orders of the Hon’ble

Supreme Court. Ban of transportation of the

already mined material will also continue

subject to further orders of the Hon’ble

Supreme Court. The State of Meghalaya will

be the receiver/custodian of the available

extracted coal as on date, subject to

further orders of the Hon’ble Supreme

Court. If any further coal not so far

recorded in the inventory is available, a

separate inventory may be made and if it is

found that the extraction was illegal,

royalty in terms of orders already passed

may also be collected. This may be

determined by the Secretary of Mining of

the State of Meghalaya. While one view is

that there is extracted coal and not

accounted for, the other view put forward

that it is result of illegal mining. This

aspect may be gone into by the Secretary of

Mining, State of Meghalaya in the first

instance. The same be cross-checked by a

joint team of representatives of Central

Pollution Control Board and Indian School

of Mines, Dhanbad.”

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14.The Tribunal also deliberated on restoration of

the environment and rehabilitation of the victims for

which funds were available. The Tribunal constituted

a committee headed by Justice B.P. Katakey, Former

Judge of the Gauhati High Court with representatives

from Central Pollution Control Board and Indian

School of Mines, Dhanbad. Paragraphs 14 to 28 of the

order are relevant in this context which are as

follows:

“14. Only last question which remains is of

restoration of the environment and

rehabilitation of the victims for which

funds are available. We are of the view that

for this task, it will appropriate that we

constitute an independent Committee. This

Committee will be headed by Justice B.P.

Katakey, Former Judge of the Guwahati High

Court with representatives from Central

Pollution Control Board and Indian School of

Mines, Dhanbad.

15. The Committee will take the following

steps:

 Take stock of all actions taken so far

in this regard.

 Prepare time bound action plan to deal

with the issue and ensure its

implementation.

16. The Committee may requisition services

of such technical experts as may be

necessary and may also carry out visits to

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sites whenever necessary. They will be

entitled to all logistic support for

performing these functions which shall be

provided under the directions of the Chief

Secretary, Meghalaya.

17. The Committee may also set up website

for receiving and giving information on

subject.

18. The Committee may also involve

educational institutions for awareness and

feedback about results.

19. All authorities concerned in the State

of Meghalaya shall cooperate and coordinate

with the Committee. The Committee can seek

such technical assistance as may be required

from any relevant authority.

20. The Chief Secretary, Meghalaya to

provide all facilities to said Committee to

perform its functions. The Committee may

send its periodical reports to the Tribunal

by e-mail at filing.ngt@gmail.com .

21. The Committee may assume its charge

within two weeks from today. The Committee

may prepare Action Plan which shall have

targets of ensuring compliance. It may meet

at such intervals as considered appropriate

but twice in every month and fix targets for

compliance.

22.The Committee will be free to take up

all incidental issues. The committee will be

free to seek any further directions from

this Tribunal by e-mail.

23. The Chief Secretary of State of

Meghalaya may determine remuneration of the

Chairman in consultation with him and the

Chief Secretary of the State of Meghalaya

will also provide all logistic support

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including security if needed for their

proper functioning.

25. The Committee will be entitled to take

the help of the technical experts in

execution of this order. The Committee may

frame its action plan for implementation

within one month from today and

implementation may be completed within six

months as far as possible. The timelines may

be laid down. A copy of the action plan may

be sent to this Tribunal by e-mail at

filing.ngt@gmail.com. Thereafter, reports

may be sent at least once in two months. The

Committee may also assess the damage to the

environment as well as to the individuals as

already suggested in the Report.

27. The State of Meghalaya will make

available all the relevant records to the

Committee for the purpose. The State will

also determine the remuneration to be paid

to the Chairman of the Committee in

consultation with him within one month from

today.

28. The Committee will be at liberty to take

technical assistance from any quarter which

may be facilitated by the State of

Meghalaya. The Committee may also supervise

any issue arising out of

receivership/custodianship of the already

extracted coal, including any environmental

issues which any arise out of storage of the

extracted material and the steps required to

be taken for the purpose.

The Report of the Committee may be furnished

to this Tribunal by e-mail at

filing.ngt@gmail.com .

A copy of this order may be sent to all the

concerned authorities by e-mail for

compliance.

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All pending matters will stand disposed of

in above terms.

List for consideration of the Report on 06th

March, 2019.”

Order dated 04.01.2019

15.Justice Katakey submitted its report before the

Tribunal on 02.01.2019. Committee’s various

proceedings which were part of the report were

noticed in detail by the NGT. In paragraph 21 of the

order following was noticed:

“21. Under issue number D, it was noted

that the Meghalaya State Pollution Control

Board in its report in September, 1997 had

noted that unplanned and unscientific coal

mining activities were taking place. This

had achieved dangerous dimensions in the

last two decades creating ecological

disturbance and adverse environmental

impacts. This showed that though cognizance

of the problem was taken in the year 1997,

the problem continues even 20 years

thereafter. The State Pollution Control

Board had, in the year 1997, recommended

steps to check illegal mining including

generation of awareness, legislative

measures, use of technology, carrying out

of study but none of the recommendations

were implemented even after 21 years.”

16.The Tribunal after considering the report of the

committee and other materials on record came to the

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conclusion that the State of Meghalaya had failed to

perform its duties to act on the recommendation of

the report of the Meghalaya State Pollution Control

Board submitted in the year 1997. The Tribunal opined

that interim amount be deposited towards restoration

of the environment. Paragraphs 31 to 33 are as

follows:

“31. Paying capacity and the amount which

may act as deterrent to prevent further

damage is also well recognised. Net Present

Value of the ecological services foregone

and cost of damage to environment and

pristine ecology, the cost of illegal mined

material, and the cost of mitigation and

restoration are also relevant factors. The

Committee may go into these aspects to

determine the final figure.

32. We are satisfied that having regard to

the totality of factual situation emerging

from the record, damages required to be

recovered are not, prima facie, less than

Rs. 100 Crores. Accordingly, by way of an

interim measure, we require the State of

Meghalaya to deposit Rs. 100 crores within

two months with the CPCB in this regard.

33. We have already noted the extent of

damage found and the value of the illegally

mined material, apart from clandestine

mining for which sufficient material is not

available. The State had collected, as

noted in the earlier order, royalty of Rs.

400 crores which by now must be higher

figure.”

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17.The State of Meghalaya has filed two appeals

being C.A.No.10720 of 2018 and C.A.No.2968 of 2019.

C.A.No.10720 of 2018 has been filed questioning the

order dated 31.08.2018 passed by the Tribunal by

which the Tribunal directed that order of the ban of

rat-hole mining will continue and further constituted

Justice B.P. Katakey committee to take steps for

restoration of the environment and rehabilitation of

the victims. The other Civil Appeal No.2968 of 2019

has been filed by the State of Madhya Pradesh

questioning the order dated 04.01.2019 by which State

of Meghalaya was directed to deposit interim amount

of Rs.100 crores towards restoration of the

environment.

18.Against the same order dated 31.08.2018 two

other appeals have been filed being C.A.No.10611 of

2018 by the State Coordination Committee of Coal

Owners, Miners and Dealers Forum and C.A.No.10907 of

2018 by Garo Hills Autonomous District Council

aggrieved by the perpetual ban of coal mining by

order dated 31.08.2018 without considering illegality

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of the ban in the first place. The appellants are

also aggrieved by appointment of State Government

receiver/custodian of the extracted coal when there

is no dispute of the ownership of the coal and

further the question of vesting of the coal in the

State is pending consideration in this Court in

C.A.No.5272 of 2016.

19.C.A.No.10907 of 2018 is filed by Garo Hills

Autonomous District Council which is aggrieved by the

order of the Tribunal dated 31.08.2018 by which it

has confirmed the ban on coal mining which was in

force for over four years and further direction by

the Tribunal to constitute a committee for the

disposal of funds in excess of Rs.400 crores. The

appellants are aggrieved by the above and alleged

that the Tribunal failed to consider that

constituting the committee without considering the

roles and responsibilities of the District Council

has the effect of virtually excluding the Council

from issues concerning administration of forests and

lands which are within the exclusive jurisdiction of

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the Council. The ban on coal mining has effectively

closed the doors on a major source of revenue for the

functioning of the District Council, which is

empowered in terms of Sixth Schedule of the

Constitution to collect taxes.

20.C.A.No.5272 of 2016 by KA Hima Nongstoin Land

Owners, Coal Traders and Producers Association has

been filed against order dated 10.05.2016 by which

Miscellaneous Applications No.400 and 420 of 2016

were dismissed. The appellants had prayed for

modification and clarification and/or recall of the

final order dated 31.03.2016 by which Tribunal

directed for vesting of the duly assessed already

extracted coal with the State of Meghalaya and

refusing to extend the time for transportation of the

already extracted coal. The appellants claim for

propriety rights of its members over such coal, which

were mined as per prevailing custom prior to

17.04.2014.

21.Now, remains appeal being Civil Appeal of

2019(@ Diary No.3067 of 2018) filed on behalf of the

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Lber Laloo. The appellant has filed this appeal

against the order dated 25.03.2015. Aggrieved by the

blanket ban on mining activities imposed in the State

of Meghalaya by the NGT which, according to the

appellant, is adversely affecting the lives and

livelihood of the miners in the State of Meghalaya.

As a result of ban on coal mining large number of the

families are affected in the State of Meghalaya, who

are dependent for their livelihood on coal mining.

Submissions

22.We have heard Shri Shekhar Naphade, learned

senior counsel, Shri Amrendra Sharan, learned senior

counsel, Shri Amit Kumar, Advocate General, for the

State of Meghalaya. We also heard Shri Ranjan

Mukherjee appearing for the State of Meghalaya. Shri

Ranjit Kumar, learned senior counsel, appearing for

the appellant in C.A. Diary No.3067 of 2018 and Shri

Raju Ramachandran, learned senior counsel, appearing

for the appellant in C.A.No.10907/2018. Shri Colin

Gonsalves, learned senior counsel has been heard as

amicus curiae. We have also heard learned counsel for

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respondent No.1 in C.A. No.5272 of 2016 (who was the

applicant before the NGT). Shri Nidhesh Gupta,

learned senior counsel has been heard for the private

respondents in C.A.No.5272 of 2016. Shri A.N.S.

Nadkarni, learned Additional Solicitor General has

been heard for the Union of India. We have also heard

other learned counsel who were permitted to intervene

in the matter and raise various arguments in respect

of their different IAs.

23.Shri Shekhar Naphade, learned senior counsel led

the arguments on behalf of the State of Meghalaya.

Shri Naphade submits that jurisdiction of NGT

constituted under National Green Tribunal Act, 2010

is confined to Sections 14,15 and 16. Section 16 is

not attracted in the present case. Section 14 deals

with original jurisdiction of NGT and it takes within

its compass or all of civil cases where a substantial

question relating to environment (including

enforcement of any legal right relating to

environment) is involved and such question arises out

of the implementation of the enactments specified in

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Schedule I. The jurisdiction depends upon two

conditions which are required to be satisfied

cumulatively and they are: (1) substantial question

which relates to environment and (2) implementation

of the enactments specified in Schedule I. It is

submitted that Mines and Minerals (Development and

Regulation) Act, 1957(hereinafter referred to as

“MMDR Act, 1957”) not being specified in Schedule I,

the National Green Tribunal could not have exercised

jurisdiction to examine violation of MMDR Act, 1957.

It is submitted that the NGT committed error in

holding that the coal mining in State of Meghalaya is

unregulated. The NGT proceeded on erroneous premise

that the Tribals of Meghalaya cannot do coal mining

without obtaining lease from the State Government. It

is submitted that Tribals who are owners of the land

are also owners of the sub-soil and the minerals in

the land. The land in the State of Meghalaya was

property of men and villages. The Khasi Hills,

Jaintia Hills and Garo Hills have different land

tenure system of their own, which does not provide

28

for vesting of land or minerals in the State right

from pre-Independence period.

24.Shri Naphade submits that the ownership of

minerals vests with the owner of the land unless the

owner of the land is deprived of the same by some

valid process of law, for example, the provision

contained in Land Revenue Codes of different States,

which categorically state that the ownership of

minerals exclusively vests in the State Government.

However, in the State of Meghalaya, there exists no

such law that deprives the owner of the land from

owning the minerals beneath it.

25.Shri Naphade submits that under MMDR Act, 1957,

State has no legislative or executive power with

regard to coal, which is a major mineral. It can

neither exercise any jurisdiction of granting any

mining lease to the Tribals nor it has any

jurisdiction to frame any mining policy. It is

submitted that the provisions of the MMDR Act deal

with lease and prospecting licence. The Tribals of

Meghalaya are owners of the minerals located in their

29

land. Since they are the owners, there is no question

of they being required to obtain either a prospecting

licence or a mining lease. The concepts of lease and

licence necessarily involve minimum two parties to

the transaction- in case of a license, there has to

be a licensor and licensee. The owner of minerals

cannot give licence or lease to himself or grant a

prospecting licence. The State is not the owner of

the minerals and, therefore, it cannot on its own

grant prospecting licence or lease as it has no

proprietary right in respect of such minerals. State

can neither be a licensor nor a lessor in such

situation.

26.Shri Naphade reiterates that the whole premise

of NGT that the coal mining in the State of Meghalaya

is unregulated is fully erroneous. Referring to

north-eastern area under which the State of Meghalaya

was established as full-fledged State, it is

submitted that administration of Tribal areas is to

be governed as per Sixth Schedule of the Constitution

of India and various orders passed by the NGT

30

directly interfered in the administration of Tribal

area which is vested in the Autonomous District

Councils. It is submitted that NGT failed to consider

the relevant statutory matrix including the

provisions of Sixth Schedule and legislation framed

by the Autonomous District Councils. It is submitted

that NGT has no jurisdiction to constitute any

committee for the purpose of enforcing its orders.

The constitution of committees including constitution

of Justice B.P. Katakey, former Judge of the Gauhati

High Court by the impugned order dated 31.08.2018 is

beyond the jurisdiction of NGT. The constitution of

the committee is interference with the jurisdiction

of Autonomous District Council. It is further

submitted that NGT has also no jurisdiction to create

any fund. The Tribunal by constituting the committee

and by constituting a fund has created a parallel

Government. The Tribunal not being a constitutional

court it cannot issue a continuous mandamus. It is

submitted that Tribunal although issued several

directions to the State of Meghalaya to frame mining

policy whereas the State has no jurisdiction

31

regarding framing of mining policy under MMDR Act,

1957, the State is denuded with any legislative

powers with regard to regulation and development of

minerals, which have been declared by the Union to

have taken under its control. Referring to EIA

notification dated 14.09.2006 issued under

Environment Protection Act, 1986, he submitted that

environment clearance for mining was required only

when area of mining was more than five hectares. In

Tribal areas of State of Meghalaya, mining area

consists of small area which being not more than five

hectares, there was no requirement of obtaining an

environment clearance. He does not dispute that after

15.01.2016 by the EIA notification now the

requirement of area of being not more than five

hectares having been deleted environment clearance is

required as on date with regard to carrying mining

operations. The Tribals are dependent for their

livelihood on coal mining and, therefore, by complete

ban on coal mining with effect from 17.04.2014, large

number of Tribals are deprived from their livelihood

and it is obligatory for the State to espouse the

32

cause of the Tribals, who individually were not

before the NGT. There being no jurisdiction in the

State of Meghalaya to grant mining lease as per

special nature of land tenure in the Tribal areas of

State of Meghalaya and further minerals are not

vested in the State of Meghalaya, the NGT erred in

holding that State has failed to carry on its

obligation and failed to check coal mining in the

State of Meghalaya, it is Central Government which

have all jurisdiction and authorities under Act, 1957

to make necessary Rules and issue necessary

directions and State alone cannot be blamed.

Referring to Minerals Concession Rules, 1960 framed

under Section 13 of MMDR Act, 1957, it is submitted

that even though Rule 13(f) refers to mining

application with regard to land of which minerals

vest in persons other than the Government, he submits

that this provision shall not apply for owner when he

himself carries on the mining, the question of taking

lease may arise when owner of the land give land to

some other person to mine the minerals.

33

27.Shri Naphade, however, submits that the

provisions of the Mines Act, 1952 are applicable and

have to be complied with. He referred to the Mineral

Conservation and Development Rules, 1988, where cess

can be charged by the State.

28.Shri Amrendra Sharan, learned senior counsel

appearing for the State of Meghalaya in C.A. No.2968

of 2019 submits that NGT vide impugned order dated

04.01.2019 has directed the State of Meghalaya to

deposit Rs. 100 crores as an interim measure which is

wholly unsustainable. The NGT has passed the order

dated 04.01.2019 relying on first interim report of

the Committee headed by Justice B.P. Katakey, former

Judge of the Gauhati High Court. The constitution of

committee was itself beyond the jurisdiction of the

NGT. Shri Sharan adopts the submissions made by Shri

Naphade and in addition to those submissions, submits

that order dated 04.01.2019 has been passed in

violation of principles of natural justice since no

opportunity was given to the State of Meghalaya to

respond to the report of the committee used against

34

it for imposing a penalty of Rs.100 crores. The order

impugned has been made by the NGT contrary to the

findings recorded in the report of the committee of

Justice B.P. Katakey. The impugned order dated

04.01.2019 has been passed by the NGT without any

assessment of damage of environment whatsoever. The

Tribunal also did not notice its earlier order dated

25.03.2015 wherein penalty has already been imposed

on actual polluters, i.e., coal miners and

transporters based on Polluters Pay Principle for

which Fund, namely, Meghalaya Environment Protection

and Restoration Fund (hereinafter referred to as

“MEPRF”) has already been created. The NGT passed

order dated 04.01.2019 without considering the

concerned statutory provisions to determine as to who

is responsible for implementation of the mining

statutes and the environmental legislation in the

State of Meghalaya. The state of Meghalaya has

limited source of revenue and putting extra burden of

Rs.100 Crores shall shatter the economy of the state.

35

29.Shri Raju Ramachandran, learned senior counsel,

in support of appellant, Garo Hills Autonomous

District Council in Civil Appeal No. 10907 of 2018

submits that the NGT while passing order dated

31.08.2018 has ignored the Sixth Schedule of the

Constitution. By order dated 31.08.2018, the NGT

could not have constituted the committee. Referring

to Sixth Schedule of the Constitution, Shri Raju

Ramachandran submits that under para 2, District

Councils, Regional Councils have been constituted and

also Hills District Council is a Council created

under the Sixth Schedule of the constitution framed

under Article 244(2) and Article 275(1) of the

Constitution of India. The constitution of committee

by the NGT has virtually affected District Autonomous

Council from issues concerning administration of

forests and lands within the exclusive jurisdiction

of the council. The ban of coal mining has deprived

the appellant from major source of Revenue. Under

para 8 of Sixth Schedule, Autonomous District Council

is entitled to share the Revenue from minerals

royalty collected by the State Government. The

36

impugned order has been passed without hearing and

taking note of existence of shareholders or stake of

shareholders. Shri Raju Ramachandran further submits

that NGT has disposed of OA Nos.73/2014, 13/2014 and

186/2014 by order dated 31.08.2018 after this, it

could not have passed any order.

30.Learned counsel for the appellant in support of

C.A. No. 5272 of 2016 submits that the appeal filed

by the appellant is only for seeking protection of

the proprietary rights of its members over the coal

which was mined as per prevailing custom prior to

17.04.2014. It is submitted that by order dated

31.03.2016, NGT had taken the view that all coal

after 2016 shall vest in the State. The appellant had

previously approached this Court by filing

C.A.No.4793 of 2016 against the order dated

31.03.2016 wherein this Court granted the liberty to

the appellant to approach the NGT for filing

application for clarification of the order. The

application of the appellant for clarification was

rejected by the NGT without giving any reason. The

37

NGT had overreached the scope of its jurisdiction and

authority in directing for vesting of the coal

extracted by the members from their land in the

State. It is further submitted that MMDR Act, 1957

was enacted by the Parliament to regulate the mining

activities in the country which does not in any

manner purport to declare the proprietary rights to

the State in the minerals.

31.Mr. Ranjit Kumar, learned senior counsel in

support of C.A.(D) No.3067 of 2018 submits that the

Tribunal committed error in stopping the entire coal

mining in the State of Meghalaya. Referring to

Section 15 of NGT Act, 2010, Shri Ranjit Kumar

submits that relief, compensation and restitution can

be granted as provided in Section 15. It is submitted

that by stopping entire coal mining from 17.04.2014

the livelihood of appellant and several similarly

situated persons had been adversely affected. It is

submitted that the Tribunal ought to have lifted the

ban. Order impugned infringes right under Article 21

of the Constitution of India. The Tribunal has acted

38

beyond its power under Section 15 of NGT Act, 2010.

The finding of the Tribunal on mining that in the

State of Meghalaya mining is unregulated is not

correct, whereas, a miner is required to get

registered and it has to pay royalty fixed by the

State of Meghalaya.

32.Shri Ranjan Mukherjee, learned counsel appearing

for respondent No.2, State of Meghalaya in

C.A.No.3067(D) of 2019 submits that even if rat-hole

mining has been banned, all mining cannot be banned.

He submits that the Meghalaya Mines and Minerals

Policy, 2012 has been formulated with an aim to

facilitate systematic, scientific and planned

utilisation of mineral resources and to streamline

mineral based development of the State. The State of

Meghalaya has been created to follow the customary

rights and practices of coal mining in the Tribal

areas of Meghalaya. In this regard letter of Central

Government dated 02.07.1987 has also been relied. The

draft guidelines for coal mining activities in the

State has also been framed in the year 2015.

39

Although, NGT has directed Ministry of Environment

and Forests to look into the matter but no objection

has been communicated to the State except certain

miner discrepancies.

33.Shri A.S. Nadkarni, learned Additional Solicitor

General appearing for the Union of India submits that

provisions of MMDR Act, 1957 are also applicable in

the Tribal areas of State of Meghalaya. The request

submitted by the Government of Meghalaya for issuance

of Presidential Notification under Paragraph 12A(b)

of the Sixth Schedule of the Constitution of India

for exempting the State of Meghalaya from certain

provisions of the MMDR Act, 1957 has not been acceded

to. The Office Memorandum dated 12.03.2019 issued by

the Government of India, Ministry of Coal has been

referred to and relied by the learned Additional

Solicitor General in this regard. It is submitted

that no prior approval for mining rights in respect

of area containing coal has been given under MMDR

Act, 1957 by Ministry of Coal, Government of India

for the State of Meghalaya.

40

34.It is submitted that it is entirely

impermissible for the appellant or any other private

person to claim any rights for illegal or unlawful

mining of coal in derogation of the law in force in

the State of Meghalaya. It is further submitted that

generation of revenue would not be a ground for

claiming permission to carry out mining in

contravention/derogation of the law in force. A draft

guideline submitted by the State Government of

Meghalaya by letter dated 24.09.2015 was examined by

the Ministry of Coal, Government of India on which

decision was taken that the guidelines submitted by

the Government of Meghalaya were not in conformity

with the existing statutory provisions of MMDR Act,

1957. Hence, the State of Meghalaya may reframe the

guidelines in conformity with MMDR Act, 1957 and

submit. In the revised proposal dated 25.07.2016 the

State of Meghalaya had proposed certain amendments in

MMDR Act, 1957 and exemption from the application of

the MMDR Act, 1957 through a Presidential

notification under Para 12A(b) of the Sixth Schedule.

41

It had already been communicated by Central

Government that exemption from applicability of MMDR

Act, 1957 cannot be acceded to.

35.Shri Colin Gonsalves, learned senior counsel,

appearing as amicus curiae, has raised various

submissions. Learned amicus curiae has submitted a

Report in two volumes titled “ CURSE OF UNREGULATED

COAL MINING IN MEGHALAYA” , a citizen’s Report from

Meghalaya 01/12/2018. In Volume I under the head

‘INTRODUCTION’ the Report states:

“INTRODUCTON

Meghalaya has a resource curse. Although,

we have been endowed with abundant forests

and minerals, these resources have not

contributed to the good of our society,

because they have been extracted without

any regulation or concern for the larger

common good. This unregulated, narrow,

self-interest based use of natural

resources has exacerbated socio-economic

inequality, destroyed the environment,

heightened criminality, and torn as under

our egalitarian tribal social fabric.

It also violates Section 39(b) of the

Constitution which provides that the

ownership and control of the material

resources of the community should be so

distributed so as to best subserve the

common good and, therefore, the State

cannot distribute the material resource of

the community in any way it likes. The

42

process of distribution must be guided by

the constitutional principles including the

doctrine of equality and larger public

good.

The National Green Tribunal’s landmark

order regarding Unregulated and illegal

coal mining in our state therefore came as

a wakeup call for Meghalaya society at

large. This order has been criticised and

appealed against by a small section of

locals most of who are coal mine owners,

transporters, politicians and

administrators who have ‘illegally’

benefitted out of this unregulated mining

and who want things to get back to business

as usual. Coal Miners and politicians who

are miners, truck owners, weigh bridge

operators etc. have been filed appeals with

the Honourable Supreme Court, asking the

Hon’ble Court to rescind NGT orders so that

mining can once again begin.”

36.Learned amicus curiae submits that State of

Meghalaya still continues with the illegal mining.

Shri Gonsalves submits that Section 4 of MMDR Act,

1957 by use of words “no person” clearly prohibits

mining operation without obtaining mining lease in

accordance with the Act. Referring to Section 5, he

submits that for Schedule A minerals permission of

Central Government is required which has not been

obtained. Shri Gonsalves submits that for mining, the

leases are required and permission be sought. He

43

submits that there are 53 mines per kilometre in

Tribal areas of Meghalaya. He submits that all

extracted coal which is claimed to be lying assessed

or unassessed in the State of Meghalaya is result of

illegal mining and Coal India Ltd. be directed to

take over the entire coal.

37.Shri Gonsalves has also referred to various

reports of Comptroller and Auditor General of India

which has been brought on record in Volume II – A

Citizen’s Report from Meghalaya 06/01/2019.

38.Shri Nidhesh Gupta, learned senior counsel,

appearing on behalf of private respondent in Civil

Appeal No.5272 of 2016 has refuted the submissions

raised by the learned counsel for the appellants.

Shri Nidhesh Gupta submits that as per Entry 54 of

List I regulation of mines and minerals development

has been declared by the Parliament under MMDR Act,

1957. Section 2, by declaration as contained in MMDR

Act, 1957, the State Government is denuded of all

legislative and executive powers under Entry 23 of

44

List II read with Article 162 of the Constitution of

India. Section 4 sub-section (1) makes it clear that

no person can undertake any reconnaissance,

prospecting or mining operations in any area, except

under and in accordance with the terms and conditions

of a reconnaissance permit or of a prospecting

licence. As per Section 5 sub-section (1) A State

Government shall not grant a reconnaissance permit,

prospecting licence or mining lease to any person

unless such person is an Indian National and

satisfies such conditions as may be prescribed. The

proviso to Section 5(1) provides that in respect of

any mineral specified in Part A and Part B of the

First Schedule, no reconnaissance permit, prospecting

licence or mining lease shall be granted except with

the previous approval of the Central Government. The

contention on behalf of the State of Meghalaya that

the MMDR Act, 1957 does not apply to State of

Meghalaya is based on an erroneous reading of the

statutory provisions.

45

39.Section 13 empowers the Central Government to

make rules for regulating the grant of reconnaissance

permits, prospecting licences and mining leases in

respect of land in which minerals vest in the

Government and also in respect of any land in which

the minerals vest in a person other than the

Government. In exercise of powers under Section 13 of

the Act, the Mineral Concession Rules, 1960 have been

framed.

40.Chapter V deals with the procedure for obtaining

a prospecting licence or a mining lease in respect of

a land in which the minerals vest in a person other

than the Government. The said Chapter contains

provisions from Rule 41 to Rule 52. Rule 41

stipulates that the provisions of the said Chapter

apply only to the grant of prospecting licences and

mining leases in respect of land in which minerals

vest exclusively in a person other than the

Government. Therefore, mining leases in respect of

land where minerals vest in a person other than the

Government are covered by the said Chapter and

46

matters concerning grant of prospecting licences and

mining leases are detailed therein.

41.As per Section 23C, the State Government is

empowered to make Rules for preventing illegal

mining, transportation and storage of minerals. No

Rules have been framed by the State of Meghalaya

under Section 23C. The contention on behalf of State

of Meghalaya that MMDR Act applies only in the cases

where minerals vest in Government, therefore, MMDR

Act does not apply in the State of Meghalaya, is

completely misconceived.

42.Learned counsel also relies on the stand taken

by the Union of India in the Status Report dated

24.07.2018. Shri Gupta submits that approximate price

of coal is Rs.10,000/- per metric ton. Referring to

notice inviting tenders by the State of Meghalaya, it

is submitted that amount of Rs.1,000/- per metric ton

was contemplated. It is submitted that selling the

coal on much low price is causing loss to Revenue as

well as loss to other stakeholders. The allegations

47

have been by Shri Gupta that sale of coal at such low

price raises suspicion of under hand dealing. It is

submitted that legal position be laid down by this

Court and the orders of the NGT be upheld.

43.In addition to above, we have also heard several

learned counsels who have filed IA for impleadment

and IAs for direction including direction to trans -

port coal belonging to them. We have heard Shri Sid -

dharth Luthra, Shri R. Basant, Smt. Meenakshi Arora,

Senior Advocates and other learned counsel.

44.On 10.05.2019, we had passed an order permitting

transportation of coal to the extent of 75,050 metric

ton which was balance quantity from 1,76,655 metric

ton of coal, for transportation of which this Court

had passed order on 04.12.2018. The order dated

10.05.2019 permitted transportation of the coal, for

which Transport challans had already been issued af -

ter 04.12.2018 under the terms and conditions as in -

dicated in the order dated 10.05.2019. In the order

dated 10.05.2019, we had also held that applicants

48

need not be impleaded, however, they were permitted

to intervene in the matter.

45.The counsel appearing for different applicants

claim transportation of different quantity of coal

which according to them has now been assessed. Still

some of the applicants claims transportation of the

coal which is yet to be assessed. In different appli -

cations, different quantities are claimed to be

transported which according to the applicant 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 by an applicant claiming to be auction

purchaser. Learned counsel submitted that he was de -

clared highest bidder, he pleaded for extension of

time to deposit the amount but after the order dated

15.01.2019, he was not permitted to transport the

coal nor he could deposit the balance auction money.

46.Shri Ranjan Mukherjee, learned counsel appearing

for State of Meghalaya has filed an additional affi -

davit of Commissioner and Secretary to the Government

49

of Meghalaya, Mining and Geology Department dated

06.04.2019. In the affidavit, it is stated that in

pursuance of the order of NGT dated 31.08.2018, the

State Government vide notification dated 14.09.2018

has constituted a team to assist the Commissioner and

Secretary to deal with the directives given in para

13 of the order of the NGT. It is submitted that in

pursuance of the order of the State Government dated

14.09.2018, the members of the committee have carried

out assessment of unassessed extracted coal appearing

in the datasheet of inventory in different hills dis -

trict. The report dated 04.10.2018 of Deputy Commis -

sioner, west Khasi hills, is filed as Annexure A-3,

containing the statement of unassessed extracted coal

has been brought on record. Another report dated

22.10.2018 and 16.11.2018 of west Khasi hills dis -

trict containing the statement of assessment of

unassessed extracted coal has been brought on record.

By report dated 12.11.2018 of Deputy Commissioner,

South west Khasi hills, datasheet of coal inventory

has been brought on the record. Report dated

30.10.2018, Deputy Commissioner, South Garo hills,

50

has also been brought on record. There were reports

referring to different assessment carried out by the

committee according to the affidavit which has been

filed on behalf of the Commissioner and Secretary to

the Government of Meghalaya, the total quantity of

coal stock which has now been assessed in different

reports stands at 32,56,715 metric ton.

47.It is further submitted by learned counsel for

the State of Meghalaya that above assessment of coal

has been also verified by technical committees ap -

pointed by the State of Meghalaya. Certain reports of

technical committees have also been brought on the

record along with the affidavit.

48.Shri Colin Gonsalves, learned Amicus Curiae has

challenged the assessment made by the committees ap -

pointed by the State Government as well as verifica -

tion by technical committee report. It is submitted

by Shri Gonsalves that report of technical committee

wants to undo what has been done in the proceedings

before the tribunal and this Court. Learned Amicus

Curiae submits that for transportation, five exten -

51

sions were granted by NGT and four extensions were

granted by this Court. Shri Gonsalves referred to

Katakey committee report in support of his submis -

sions.

49.Shri Nidhesh Gupta, learned senior counsel, has

also refuted the claim of the different applicants as

well as the steps taken by the State of Meghalaya in

assessing the coal and verifying the same by techni -

cal committee. Shri Gupta submits that the coal which

is now claimed to be assessed is nothing but ille -

gally extracted coal. It is submitted that in pur -

suance of several orders passed by NGT and this Court

substantial transportation of coal has been permit -

ted, still the enormous quantity of coal is claimed

which is nothing but an excuse to obtain an order of

transportation of such illegally mined coal. It is

submitted that State of Meghalaya is hand in glove

with illegal miners. Shri Gupta submits that the cost

of winning coal by rat hole mining is negligible and

after payment of royalty of Rs.675/- and Rs.485/- to -

wards Meghalaya Environment Protection and Restora -

52

tion Fund i.e. total payment of Rs.1160/-, the coal

is transported. The market price of the coal is ap -

proximately Rs.10,000/- per metric ton. The claim of

different applicants with regard to unassessed coal

is false. It is submitted that all illegally mined

coal should be vested in the State and no permission

of transport as prayed by the different applicants be

granted by this Court. Learned senior advocate sub -

mits that all applications praying for different di -

rections deserve to be rejected.

50.Learned counsel for the parties in support of

their respective submissions have placed reliance on

various judgments of this Court which shall be

referred to while considering the submissions of the

parties.

51.From the submissions of the parties as noted

above and the materials on record in these appeals

following points arise for consideration.

52.POINTS FOR CONSIDERATION

1. Whether orders passed by the National Green

53

Tribunal are without jurisdiction being beyond

the purview of Sections 14, 15 and 16 of the

National Green Tribunal Act, 2010?

2. Whether provisions of Mines and Minerals

Development Regulation Act, 1957 are applicable

in Tribal areas within the State of Meghalaya,

included in Sixth Schedule of the Constitution?

3. Whether for mining the minerals from privately

owned/community owned land in hills districts of

Meghalaya, obtaining a mining lease is a

statutory requirement under the MMDR Act, 1957

and the Mineral Concession Rules, 1960?

4. Whether under the MMDR Act, 1957 and Mineral

Concession Rules, 1960, it is the State

Government, who is to grant lease for mining of

minerals in privately owned/community owned land

or it is the owner of the minerals, who is to

grant lease for carrying out mining operations?

5. Whether the State of Meghalaya has any statutory

control over the mining of coal from privately

54

owned/community owned land in hills districts of

State of Meghalaya?

6. Whether the power to allot land for mining

purposes is vested in Autonomous District

Councils?

7. Whether the order of National Green Tribunal

dated 17.04.2014 directing for complete ban on

mining is unsustainable?

8. Whether the complete ban on mining of coal in

the State of Meghalaya as directed by NGT

deserved to be vacated/modified in the interest

of State and Tribals?

9. Whether NGT had any jurisdiction to constitute

committees to submit reports, to implement the

orders of NGT, to monitor

storage/transportation; of minerals and to

prepare action plan for restoration of

environment?

10.Whether the NGT committed error in directing for

constitution of fund, namely, Meghalaya

55

Environment Protection and Restoration Fund?

11.Whether NGT by constituting Committees has

delegated essential judicial powers to the

Committees and has further encroached the

constitutional scheme of administration of

Tribal areas under Article 244(2) and Article

275(1) and Schedule VI of the Constitution?

12.Whether direction to deposit Rs.100/- crores by

the State of Meghalaya by order dated 04.01.2019

of NGT impugned in C.A.No.2968 of 2019 is

sustainable?

13.Whether NGT’s order dated 31.03.2016 that after

15.05.2016 all remaining coal shall vest in the

State of Meghalaya is sustainable?

14. Whether assessed and unassessed coal which has

already been extracted and lying in different

Districts of Meghalaya be permitted to be

transported and what mechanism be adopted for

disposal of such coal?

56

53.Now we proceed to consider the above points in

seriatim.

Point No.1

54.The State of Meghalaya submits that NGT while

imposing ban on mining and by forming committee and

creating a “Meghalaya Environment Protection and

Restoration Fund” has gone beyond its jurisdiction as

conferred on it by NGT Act, 2010. The Tribunal has no

inherent jurisdiction, its jurisdiction flow from

Sections 14, 15 and 16 of the Act.

55.It is relevant to notice few provisions of NGT

Act, 2010 to comprehend the jurisdiction vested with

the Tribunal. The National Green Tribunal Act, 2010

was enacted to provide for the effective and

expeditious disposal of cases relating to

environmental protection and conservation of forests

and other natural resources including enforcement of

any legal right relating to environment and giving

relief and compensation for damages to persons and

property and for matters connected therewith or

57

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-relationship, which ex -

ists among and between water, air and land

and human beings, other living creatures,

plants, micro-organism and property;

56.Section 2(m) defines substantial question

relating environment which is to the following

effect:

“2(m) "substantial question relating to en -

vironment" shall include an instance where,

— (i) there is a direct violation of a spe -

cific statutory environmental obligation by

a person by which,— (A) the community at

large other than an individual or group of

individuals is affected or likely to be af -

fected by the environmental consequences;

or (B) the gravity of damage to the envi -

ronment or property is substantial; or (C)

the damage to public health is broadly mea -

surable; (ii) the environmental conse -

quences relate to a specific activity or a

point source of pollution;”

57.Chapter III of the Act deals with jurisdiction,

powers and proceedings of the Tribunal. Sections 14

and 15 which are relevant in the present case are as

follows:

“14. Tribunal to settle disputes.—(1) The

Tribunal shall have the jurisdiction over

all civil cases where a substantial ques -

tion relating to environment (including en -

58

forcement of any legal right relating to

environment), is involved and such question

arises out of the implementation of the en -

actments 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 questions referred to in

sub-section (1) and settle such disputes

and pass order thereon.

(3) No application for adjudication of dis -

pute under this section shall be enter -

tained by the Tribunal unless it is made

within a period of six months from the date

on which the cause of action for such dis -

pute first arose:

Provided that the Tribunal may, if it is

satisfied that the applicant was prevented

by sufficient cause from filing the appli -

cation within the said period, allow it to

be filed within a further period not ex -

ceeding sixty days.

15. Relief, compensation and restitution.—

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

—

(a) relief and compensation to the vic -

tims of pollution and other environ -

mental damage arising under the en -

actments specified in the Schedule I

(including accident occurring while

handling any hazardous substance);

(b) for restitution of property damaged;

(c) for restitution of the environment

for such area or areas, as the Tri -

bunal may think fit.

59

(2) The relief and compensation and resti -

tution of property and environment referred

to in clauses (a), (b) and (c) of sub-sec -

tion (1) shall be in addition to the relief

paid or payable under the Public Liability

Insurance Act, 1991 (6 of 1991).

(3) No application for grant of any compen -

sation or relief or restitution of property

or environment under this section shall be

entertained by the Tribunal unless it is

made within a period of five years from the

date on which the cause for such compensa -

tion or relief first arose:

Provided that the Tribunal may, if it

is satisfied that the applicant was pre -

vented by sufficient cause from filing the

application within the said period, allow

it to be filed within a further period not

exceeding sixty days.

(4) The Tribunal may, having regard to the

damage to public health, property and envi -

ronment, divide the compensation or relief

payable under separate heads specified in

Schedule II so as to provide compensation

or relief to the claimants and for restitu -

tion of the damaged property or environ -

ment, as it may think fit.

(5) Every claimant of the compensation or

relief under this Act shall intimate to the

Tribunal about the application filed to,

or, as the case may be, compensation or re -

lief received from, any other court or au -

thority.”

58.The submission which has been pressed by the

State is that neither MMDR Act, 1957 nor Mines Act,

60

1952 is prescribed in Schedule I of the Act, hence,

coal mining is not within the purview of Schedule I

and not within the jurisdiction of the Tribunal. The

submission further is that for applicability of

Section 14 both the component of sub-section (1) of

Section 14 that (i) a substantial question relating

to environment and (ii) such question arises out of

the implementation of the enactments specified in

Schedule I has to be satisfied.

59.It is relevant to notice that before the NGT no

such plea was taken by the State of Meghalaya or any

of the parties questioning the jurisdiction of the

NGT. However, the issue being a jurisdictional issue,

we have permitted the learned counsel for the

appellant to raise the issue. The NGT took cognizance

when application, O.A.No.73 of 2014 on 17.04.2014 was

admitted and order was issued. The jurisdiction of

the Tribunal to entertain O.A.No.73 of 2014 has to be

found out from the case set up and pleadings in

O.A.No.73 of 2014 for which we need to scrutinise the

application. O.A.No.73 of 2014 has been brought on

record as Annexure - A3 in C.A.No.5272 of 2016. The

61

application was filed by one All Dimasa Students

Union Dima Hasao District Committee. In the

application following were the respondents:

1. The State of Meghalaya through the

Principal Secretary, Forest and Environment

Department, Government of Meghalaya,

Shillong. 2. The Chairperson, State

Pollution Control Board, Meghalaya,

Shillong. 3. The State of Assam through the

Principal Secretary, Forest and Environment

Department Government of Assam, Dispur.

4.The Chairperson, State Pollution Control

Board, Assam, Dispur. 5. The Central

Pollution Control Board, Parvesh Bhawan,

East Arjun Nagar, Delhi – 110032 through

its Chairperson. 6. North Easter Electric

Power Corporation Ltd. through its Chairman

and Managing Director Brooklyn Compound,

Lower New Colony, Shillong – 793003.

Meghalaya.

60.Paragraph 3 of the application states the case

of the applicant and facts in brief. Paragraph 3 and

(I) to (VI) are as follows:

“3.The Applicant above named beg to

present the present Application to bring

to the notice of this Hon'ble Tribunal about

the adverse impact of unscientific

opencast mining operations being still

undertaken in the Jaintia Hills in

Meghalaya on the ecology and socio-

economy of the concerned area including

Dima Hasao District of Assam. It is

stated that the Acid Mine Drainage (for

short

(

AMD') generated from the aforesaid

mining operations has resulted in making

the water of the river Kopili (an inter-

state river flowing through the State of

Meghalaya and Assam) and its tributaries

highly acidic which in turn has not only

caused serious far reaching damage to the

environment, water bodies, soil,

agriculture, economy, and industry of the

62

concerned area but also resulted in

causing erosion/corrosion of the critical

underwater Hydro Power Equipments 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 is ultimately led to the

reservoirs of the said project.

FACTS IN BRIEF

I.That the Applicant is the Secretary of

the Dima Hasao Students Association and

filing the present Petition in a

representative capacity to espouse the

cause of the people of Dima Hasao,

Assam who are constantly and

continuously facing the adverse affect

of the aforesaid illegal

activities in the State of

Meghalaya.

II. That the Kopili River is an inter-

state river in North-East India that

flows through the States of Meghalaya

and Assam and is the largest south

bank tributary of the river Brahmapu -

tra in Assam, The Kopili river origi -

nates from the black mountains of Lum

Bah-bo Bah-Kong in Meghalaya and flows

north-west into the Brahmaputra Valley

in Assam. The said river demarcates

the Jaintia Hills in Meghalaya and

Dirria Hasao in Assam. The river flows

for a total length of 290 kms and has

a catchment area of 16, 420 Kms.

III. That the Kopili Hydro-Electric

Project (KHEP) of NEEPCO (a Government

of India undertaking)is one of the

pioneering Hydro-Electric Project in

the North Eastern Region of India. The

Kopili Hydro-Electric Plant is a 275

MW storage type hydro electric plant

consisting of two dams which have cre -

63

ated two reservoirs namely Kopili

reservoir is used in the Khandong

powerhouse through a 2759 metre tunnel

to generate power. The tail water

from this powerhouse is led to the

Umrong reservoir is used in Kopili

powerhouse through a 5473 metre tunnel

to generate power. Although, the dam,

powerhouse and residential colony of.

kopili Hydro Electric Planer (KHEP)

are located in the Dima Hasao Dis -

trict (formerly known as North Cachar

Hills District) of Assam, the catch -

ment and reservoirs are spread in two

states namely Meghalaya and Assam. It

is further stated that the Kopili

River and its tributaries feed water to

the reservoirs of the project. The Kharkor is a ma -

jor tributary of river Kopili and drains a

vast area of Jaintia Hills Districts of

Meghalaya. The Jaintia Hills being

well known for coal mining areas is

contributing acidic water in the

form of Acid Mine Drainage (AMD) to

the river Kharkor through its dif -

ferent tributaries such as Urn Pai,

Myntriang, Urn Ropang, Sarbang, Mostem

etc. as these streams drain through

the active and inactive coal mining

areas of Jaintia Hills. The acidic

water finally reaches to Khandong and

Umrong reservoirs of KHEP. As a re-

sult, the water of the reservoirs

has become highly acidic. The water

pollution in streams of catchment area

varies from brownish to reddish or -

ange. The same polluted water

through various tributaries of

rivers Kharkor and Kopili is perpet-

ually reaching to the reservoirs of

the KHEP. As a result, the water of

reservoirs has become highly acidic. In

recent years, it has been found that

acidity of reservoir water is a major

64

threat to equipments and machinery

due to corrosion/metal decay and

erosion. Components such as cooling

water header pipe, Bends, throttling

valves, pressure equalizer pipe of

turbine etc. made up of different met -

als and alloys are getting severely

affected and incurring high mainte-

nance cost.

IV.That the said adverse impact of the

aforesaid mining operation which has

not only affected the ecology and

socio-economy of

the area but also severely affected

the generation of hydro- electricity at

the Kopili Hydro-Electric Plant has been

subject matter of various studies. In

fact, a detailed project report of

pilot project for remediation of Acid

Mine Drainage (AMD) in the catchment

of Kopili River at the upstream of

Kopili Hydro Electric Plant (KHEP),

Umrongso, Dima Hasao, Assam was done

by Dr. O.P.Singh, Professor,

Department of Environmental Studies,

North-Eastern Hills University,

Shillong, Meghalaya. Similarly, a

detailed article based on detailed

investigation by Shri Pankaj Sharma and

others was published under the heading

"Acid mine discharge — Challenges met

in a hydro power project" in the

International Journal of

Environmental Sciences, Volume I,

No.6, 2011. Both the aforesaid

publications gives an in depth

analysis of the aforesaid problem as

well as suggests remedial measures to

improve the situation. However, it is

stated that no proper and effective

remedial measures have been taken by

the concerned authorities / State

Respondents to abort the aforesaid

65

menace and the ill-effect of the same

are still continuing and the same are

being constantly faced by the innocent

citizens / water bodies etc of the area

including the people of Dima Hasao

district of Assam. Copies of the detailed

project report of pilot project for

remediation of Acid Mine Drainage (AMD)

in the catchment of Kopili River at the

upstream of Kopili Hydro Electric Plant

(KHEP), Umrongso, Dima Hasao, Assam and

the article published under the heading

"Acid mine discharge — Challenges met in a

hydro power project" in the International

Journal of Environmental Sciences,

Volume I, No.6, 2011 are annexed

herewith and marked as ANNEXURE-P/1 &

P-2 respectively. The ill-effect of

the aforesaid operations has also

been the subject matter of news items in

various newspapers including one

published by the Assam Tribune on June,

20, 2012 under the heading "Concern

over contamination of Kopili Water"

and another one published in the

Telegraph on 20.06.2013 under the

heading "Two Kopili power units shut

down — Mining in Jaintia Hills affects

machines". Copies of the news items

published in the Assam Tribune dated

20.06.2012 and the Telegraph dated

20.06.2013 are annexed herewith and

marked as ANNEXURE - P/3 & P - 4

respectively.”

61.In paragraph 3(V) the appellant has extracted a

report of one Dr. O.P. Singh, Professor, North-

Eastern Hills University, Shillong, Meghalaya.

Certain paragraphs of report stated that Acid Mine

66

Drainage(AMD) is the greatest environmental problem

of coal industry and main source of water pollution

in and around mining areas. The report mentioned that

AMD degrades the water quality of the area in terms

of lowering the pH of the surrounding water resources

and increasing the level of total suspended solids,

total dissolved solids and some heavy metals.

Following is the part of the paragraph 4.1.4 of the

report which is extracted in paragraph 3(V):

"4.1.4 Impact of AMD on Environment, Socio-

economy and Industry

Impact on Environment and Water

Resources: Acid mine drainage is the

greatest environmental problem of coal

mining industry and main source of water

pollution in and around mining areas.

The influx of untreated AMD into

streams severely degrades both water

quality and aquatic habitat turning

water unfit for desired uses and often

producing an environment devoid of most

aquatic life. AMD degrades the water

quality of the area in terms of lowering

the pH of the surrounding water resources and

increasing the level of total suspended

solids, total dissolved solids and some

heavy metals. Acidity and high

concentration of SO 4

2

; iron and other

metals prove to be toxic and corrosive to

most aquatic animals and plants.

Precipitate of iron hydroxide increases

the load of suspended solids which impair

light penetration and visibility

67

resulting into low productivity and

disruption of normal functioning of the

contaminated aquatic ecosystem. AMD can

also be toxic to vegetation when discharged

to the shallow soil water zones and

wetlands (Van Green et al., 1999; Singh

and Agrawal, 2004; Gosh, 1991).

Aquatic communities of rivers and

streams comprise of phytoplanktoris,

periphyton, macrophytes, zooplanktons,

invertebrates and vertebrate species. They

play important role in normal

functioning of the aquatic ecosystem

and are indicative of good health of

water bodies. Generally, a variety of

species with representatives of almost

all insect orders, including a high

diversity of insects belonging to the

taxonomic orders of Ephemeroptera

(mayflies), Plecoptera (stoneflies), and

Trichoptera (caddisflies) commonly

referred to as EPT taxa. Any physical,

chemical or biological change in water

bodies affects one or all species and

disturbs the normal functioning of the

aquatic ecosystem. Like many other

pollutants, AMID contamination causes a

reduction in the diversity and total

numbers, or abundance, of these aquatic

communities including benthic

macroinvertebrates, fishes, etc. As a

result, the community structure is altered

and water bodies affected by AMD possess a

lower percentage of EPT taxa (Campbell

et al., 2000). Moderate AMD

contamination eliminates the more

sensitive species whereas severely

contaminated conditions are characterized

by dominance of certain taxonomic

representatives of pollution tolerant

organisms.

68

As a consequence of depletion of aquatic

invertebrates, the fishes do not get

adequate supply of food and suffer

indirectly from AMD contamination AMD also

has direct effect on fishby causing various

physiological disturbances. However, the

primary cause of fish death in acid waters

is loss of sodium ions from the blbod. Less

availability of oxygen to the cells and

tissues leads to anoxia and death as acid

water increases the permeability of fish

gills to water, adversely affecting the

gill function. Severe anoxia occurs below

pH 4.2. Low H that is not directly lethal

may adversely affect fish growth rates and

reproduction.”

62.Further, paragraph 4.2.3 of the report dealt

with coal mining in Jaintia Hills and paragraph 4.2.4

dealt with impact of coal mining in Jaintia Hills and

paragraph 4.2.5 dealt with degradation of water

quality due to coal mining. Paragraphs 4.2.3, 4.2.4,

4.2.5 and 4.2.6 which were extracted in O.A.No.73 of

2014 are produced as below:

“4.2.3Coal Mining in Jaintia Hills

Extraction of coal has been taking place in

all three regions, however, 'major

production occurs in Jaintia Hills. The

mining activity in Jaintia Hills is a small

scale venture controlled by individuals

who own the land. Primitive mining

method commonly known as 'rat-hole'

mining is in practice in Meghalaya. In

this method the land is first cleared by

cutting and removing the ground vegetation and

69

then digging pits ranging from 5 to 100 m

2

into the ground to reach the coal seam.

Thereafter, tunnels are made into the seam

sideways to extract the coal which is

brought into the pit by using a conical

basket or a wheel barrow manually. Coal

seams are reached by excavating the side

edge of the hill slopes and then coal is

extracted through a horizontal tunnel.

The coal from the tunnel or pit is taken

out and dumped on nearby un-mined area,

from where it is carried to the larger

dumping places near highways for its

trade and transportation. Finally, the

coal is carried by trucks to the larger

dumping places near highways for its trade

and transportation. Entire road sides in

and around mining areas are used for

piling of coal which is a major source of

air, water and soil pollution. Off road

movement of trucks and other vehicles in

the area causes further damage to the

ecology of the area.

Every year new areas are brought under

mining and area under 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 and Beyond

Mining operation, undoubtedly has

brought wealth and employment

opportunity in the area, but

simultaneously has led to extensive

environmental degradation and erosion of

traditional values in the society.

Environmental problems associated with

mining have been felt severely because of

the region's fragile ecosystems and

richness of biological and cultural

diversity. The indiscriminate and

unscientific mining and absence of post-

mining treatment and management of mined

70

areas are making the fragile ecosystems more

vulnerable to environmental degradation and leading

to large scale land cover/land use changes.

The current modus operandi of surface

mining in the area generates huge quantity

of mine spoil or overburden (consolidated

and unconsolidated materials overlying the

coal seam) in the form of gravels, rocks,

sand, soil etc. which are dumped over a

large area adjacent to the mine pits. The

dumping of overburden and coal

destroys the surrounding vegetation and

leads to severe soil and water pollution.

Large scale denudation of forest cover,

scarcity of water, pollution of air,

water and soil, and degradation of

agricultural lands are some of the

conspicuous environmental implications of

coal mining in Jaintia Hills.

Further, entire coal mining area of the

Jaintia Hills has become full of mine

pits and caves. These open, unfilled pits

are the places where surface water

percolates and disappears. As a result,

smaller streams and rivers of the area,

which served as life lines for the people,

are either completely disappearing from

the face of the earth or becoming

seasonal instead. Consequently, the

area is facing acute shortage of clean

drinking and irrigation water. Besides, a

vast area has become physically disfigured

due to haphazard dumping of overburden and

mined coal, and caving in of the ground and

subsidence of land.

Continuous discharge of Acid Mine Drainage

(AMD) and toxic chemicals from coal

mines, storage sites and exposed

overburden have polluted the river system

of the area. Acidic water on reaching to

land and agricultural fields has affected

the traditional agriculture and

agricultural productivity of the area (Das

71

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 the coal mining. The water bodies

are badly affected by contamination of Acid

Mines Drainage (AMD) originating from

mines and spoils, leaching of heavy

metals,

•

organic enrichment and silting

by coal and sand particles. Pollution of

the safer is evidenced by the colour of

the water which in most of the rivers and

streams in the mining area varies from

brownish to reddish orange. Low pH

(between 2-3), high conductivity, high

concentration of sulphate, iron and toxic

heavy metals, low dissolved oxygen (DO)

and high BOD are some of the physic-

chemical and biological parameters

which' characterize the degradation of

water quality. Analysis of physic-

chemical and biological parameters of

water in the mining area shows severe

degradation of water quality.

The colour of the water in mining area

generally varies from brownish to reddish

orange. Siltation of coal particles,'

sand, soil etc. and contamination of

AMD and formation of iron hydroxide are

some of the major causes of change in

water colour. Formation of iron

hydroxides [Fe (CH) 31 is mainly

responsible for orange or red colour of

water in the mining areas. Iron

hydroxide is a yellowish insoluble

material commonly formed in water bodies

of the coalfields. It is this material

that stains streams and responsible for

red to orange color of water. When

elevated levels of iron are introduced

into natural waters, the iron is

oxidized and hydrolyzed, thereby forming

72

precipitate of iron hydroxides.

The water in coal mining areas has been

found highly acidic. The pH of streams and

rivers varies between 2.31 to 4.01. Solids

such as fine particles of coal, sand, mud

and other mineral particles were found

deposited at the bottom of the water

bodies. Besides, water was also found

turbid and coloured due to suspended

precipitates of iron hydroxides. D i s s o l v e d

o x y g e n w a s f o u n d t o b e l o w i n w a t e r

bodies of coat mining areas, the lowest

being 4.24 mg/L in river Rawaka and stream

Metyngka of Rymbai.

The waters of the mining areas have been

found containing sulphate concentration

between 78 to 168 mg/L. Electrical

conductivity is a rapid measure of the

total dissolved solids present in ionic

form. Water in coal mining areas was

found having high conductivity. Deposition

of silt at the bottom of the rivers and

streams is another important problem in

coal mining areas. Water bodies of the

mining area appear to contain various

types of organic matter which is

evident by low Dissolved Oxygen (D00

and high Biochemical Oxygen Demand(BOD).

As a result, the rivers, streams and

springs which had supported extremely

rich biodiversity and traditional

agriculture, and were source of potable

and irrigation water in the area have

become unfit for human consumption.

Further, there is an overall decline in

agricultural productivity due to

contamination of soil with coal particles,

seepage of Acid mines drainage and scarcity

of water. The water of many rivers and

streams have almost become devoid of aquatic

life".

73

4.2.6 Causes of Deterioration of Water

Quality

Major causes of deterioration of water

quality, as evidenced by above observations

are AMD discharge, siltation and organic

enrichment. As in any other coal mining

area, Acid Mine Drainage (AMD) is the

main source of water pollution in the coal

mining areas of Jaintia Hills. As

discussed in previous chapter, Amp is

formed by a series of complex geochemical

and microbial reactions that occur when

water comes in contact with pyrite (Iron

sulfide) found in coal and exposed rocks

of overburden. Iron sulfide in presence

of oxygen, water and bacteria forms sulphuric

acid, is referred to as AMD. In the process,

iron hydroxide, a yellowish orange precipitate is

also formed. The prercipitate of iron

hydroxide together with other contaminants

auses turbidity and changes in colour of

the water which reduces the penetration

of light and affects the aquatic life.

Extremely low pH conditions in the

water accelerate weathering and

dissolution of silicate and other rock

minerals, thereby causing the release

of other elements such as aluminium,

manganese, copper, cadmium etc. into the

water. Hence, water contaminated with AMD

is often coloured and turbid with

suspended solids, highly acidic (low

pH), and contains high concentration of

dissolved metals and other elements.

Most of the streams and rivers of Jaintia

Hills in coal mining areas are severely

contaminated with AMD and thus becomes

water has become highly acidic. The pH and

other parameters of some AMD affected

water bodies are summarized in Table

4.1.

Table 4.1: Summary of water quality

parameters in some Coal mining

74

rivers/reservoir.

SI.

No.

Rivers/

Streams &

Location

Colour

of

Water

pH Sulpha

te

conten

ts

(mg/L)

E

Conduct

ivity

(pS/Cm)

1. Myntriang Light

yellow

2.8 36 56

2. Urn Pai Brownish3.2 186 160

3. Rawaka,

Rymbai

Reddish

brown

2.31166.5 135

4. Kenai-um,

Rymbai

Reddish

brown

2.66144.0 74

5. Metyngka,

R y m b a i

Reddish

b r o w n

2.42 168.027

6. Urn-

Mynkseh,

Ladrymbai

Brownish

orange

3.52 118.767

7

.

Thwai-

Kungor,

Bapun

Brownish4.0182.87 18

8. Umkyrpon,

Khliehriat

Light

Orange

3.67161.3 37

9. Waikhyrwi,

S u t n g a

Brownish 3.96

78.69

-10. Um Roong 2.8 896 128

11. Mostem Brownish2.9 616 119

12. Sarbang Turbid 3.35150 32

13. Um Lurem Yellowish5.0 19 3

14. Khongdong

Reservoir

Clear 4.6 43 34

Source: Present study; GSI, 2006-7;

Biahwar, 2010

The results show that most of the rivers

in the coal mining areas of Jaintia Hills

are severely affected AMD as evident from

the lower pH values, higher sulphate

75

content and EC in water samples".

63.Thus, there were clear allegations in the

application that in spite of various remedial

measures set out in the report no proper and

effective remedial measures have been taken by the

concerned authorities of the State of Meghalaya.

Paragraph 3(VI) is as follows:

“3(VI).That the various remedial measures

are set out in detail in paragraphs 4.4,

4.5, 5, 5.1 and 5.2 and other relevant

paragraphs of the said report. However,

to the best of knowledge of the

Applicant, no proper and effective

remedial

measures have been undertaken by the

concerned authorities till date and the

innocent citizens/ water bodies etc. of

the concerned areas including that of Dima

Hasao District in Assam continue to be

subjected to the ill-effect of the

aforesaid illegal mining operation in the

State of Meghalaya. That apart,

continuous and irreparable damage on the

environment, water, soil, agriculture

etc. in the concerned areas including

Dima Hasao district of Assam are also

continuing as a result of the said illegal

mining operations in Jaintia Hills in

the State of Meghalaya.”

64.Ground A of the application is also relevant to

be reproduced which is to the following effect:

76

“GROUNDS

A. that the aforementioned illegal mining

operations in the Jaintia Hills in the

State of Meghalaya have not only caused

serious and irreparable damage to the

ecology, water bodies and the socio-

economy of the concerned areas

including of Dima Hasao district of

Assam but has also resulted in serious

erosion/corrosion of the underwater plants

and machineries and equipments of the

Kopili Hydro Power Project of the North

Eastern Electric Power Corporation of

India (a Government of India

undertaking), The ill-effect of the said

mining operation has been highlighted in

detail in the aforementioned detailed

project report by Dr. O.P.Singh,

Professor, North-Eastern Hills University

as well as the said article published

in the International Journal of

Environmental Sciences. Though remedial

measures were suggested in both the

aforesaid studies, to the best of the

knowledge of the Applicant, no proper

and effective remedial measures have been

undertaken by the Respondents herein and the

ill-effect of the said activities are still

continuing to the detriment of the

ecology, water bodied and socio-economy

of the concerned areas including Dima

Hasao district of Assam. It is most

respectfully submitted that the total

inaction on the part of the Respondents

herein in spite of detailed study on the

subject with remedial suggestions are

totally inexcusable and show the total

callous attitude of the State

Respondents The menace of illegal

opencast mining operations in the Jaintia

Hills in Meghalaya is still continuing to

the detriment of the ecology and socio -

economic of the concerned areas including

Dime Hasao district of Assam and as such,

77

warrants, in the most respectful

submissions of the Applicant, immediate

intervention by this Hon'ble Tribunal.

The aforesaid inaction has resulted in

violation of the various enactments

mentioned in Schedule I of the National

Green Tribunal Act 2010 including the

Water (Prevention and Control of

Pollution) Act, 1974, the Air

(Prevention and Control of Pollution)

Act, 1981 and the Environment (Protection)

Act 1986 apart from infringing the

fundamental rights of the Applicant under

Article 14 and 21 of the Constitution of

India.”

65.The pleadings in O.A.No.73 of 2014 as extracted

above clearly and categorically alleged environmental

degradation consequent to illegal coal mining. It was

further stated that inaction of respondent

authorities has resulted in violation of various

enactments mentioned in Schedule I of the NGT Act,

2010 including the Water (Prevention and Control

Pollution) Act, 1974, the Air (Prevention and Control

of Pollution) Act, 1981 and the Environment

(Protection) Act, 1986. The application O.A.No.73 of

2014 thus has clearly made out allegations which were

sufficient for the Tribunal to exercise its

jurisdiction as conferred by Section 14. Both the

component as appearing in sub-section 1 of Section 14

78

that is (i) substantial question relating to

environment and (ii) such question arises out of the

implementation of the enactments specified in

Schedule I, were involved.

66.The NGT after adverting to the application

O.A.No.73 of 2014 on 17.04,2014 has undertaken

different proceedings and asked for various reports

from different committees including State Pollution

Control Board. By order dated 31.08.2018, the NGT had

appointed a committee headed by Justice B.P. Katakey,

former Judge of the Gauhati High Court which

consisted of Prof. Ashok K. Singh, Rajiv Gandhi Chair

Professor, Department of Environmental Science &

Engineering representative from Indian School of

Mines, Dhanbad IIT(ISM), Dhanbad (826004), Dr.

Shantanu Kumar Dutta, Scientist ‘D’ representative of

Central Pollution Control Board. The said committee

submitted interim report on 31.12.2018 and on the

subject “Whether coal mining activities as well as

dumping of coal results in adverse environmental

effect, if so, the nature and extent thereof?” has

79

been dealt with in Issue No.(D) in the following

manner:

“Issue No.(D) Whether coal mining

activities as well as dumping of coal

results in adverse environmental effect, if

so, the nature and extent thereof?

(i) The Meghalaya State Pollution Control

Board in the month of September, 1997

published a report entitled “ENVIRONMENTAL

IMPACT OF COAL MINING IN JAINTIA HILLS

DISTRICT”. The then Chairman of the said

Board, in his foreword, has admitted

unplanned and unscientific coal mining

activities in the State for more than

hundred years, which achieved dangerous

dimensions since last two decades and are

creating ecological disturbances and

negative environmental impacts, to the

extent that the very existence of

biological life is threatened in the coal

mining areas of the State. It has also been

admitted that no systematic efforts to

study such impacts have so far been made by

any institution. The then Member Secretary

of the Board, in the preface, has projected

the adverse impacts on the environment

because of the coal mining activities. The

pH level of in water almost all the rivers

and streams was found to be below the

required level. In some rivers and streams,

the pH level was found to be as low as 2.4.

The Meghalaya State Pollution Control

Board, in the said report, has observed

that the random discharge of AMD and acidic

run offs from -40- the coal storage areas

have also made the rivers, streams and even

ground waters highly acidic. The ambient

air quality of the coal mining and coal

storage areas was also found to be degraded

to certain extent. The Board, therefore,

observed that – “The uncontrolled and

80

unscientific coal mining operations in

Jaintia Hills District have already created

massive ecological disturbances and

environmental degradation because presently

neither any pollution control measures are

adopted by the miners nor any sincere

efforts are made for reclamation of the

mine land”. In the said report, the

following recommendations were made to

minimize the overall adverse environmental

impacts of the mining activities:-

(a) To generate social awareness among

the public in general and the miners in

particular about the adverse

environmental impacts and the health

hazards associated with such

unscientific and unplanned coal mining

activities.

(b) Preparation of the inventory of the

mine owners, areas under mining and rate

of land use change to get the first hand

knowledge about the quantum of the

efforts required for better management

of these activities.

(c) To enforce suitable legislations on

the lines of the National Mineral Policy

immediately for exploitation of coal in

most sustainable manner.

(d) To engage expert institution for

finding out the most suited technologies

for the coal exploitation with

appropriate pollution control measures

in order to ensure that the environment

as a whole is not subjected to further

degradation.

(e) To engage the expert institution for

finding out the suitable ways for

rehabilitation of the mined land in

phase manner so that the scarce land

81

resources can be brought back to

productive uses.

(f) To look for the alternative

transport facilities to control

vehicular pollution.

(g) To identify the suitable location

for the storage of coal for sale with

adequate facilities to treat dump run

offs.

(h) To study the aspect of the presence

of trace elements in the surface and

ground water because the low pH values

increase the dissolution power of water.

Large numbers of trace elements are

always associated with the coal which

gets dissolved in low pH waters. These

trace elements are serious health

hazards even in very low concentrations.

(i) To introduce lucrative schemes for

the aforestation in the most affected

areas.

(j) To develop the State Mineral Policy

with the interaction of Government

Agencies, Social Institutions, Local

Elders and the Miners, keeping in view

the specific land ownership system of

the State. Nothing of the above

recommendations have been implemented so

far.

(ii) It is, therefore, evident that apart

from the water, air pollution, there is

degradation of surface land because of the

coal mining activities in the State of

Meghalaya. Despite publication of the said

report by the Meghalaya State Pollution

Control Board as back as in the year 1997,

no steps appeared to have been taken by any

authority to check the adverse

82

environmental affect and also to remedy the

same.”

67.The present is not a case of mere allegation of

applicant of environmental degradation by illegal and

unregulated coal mining rather there were materials

on the record including the report of the experts,

the Meghalaya State Pollution Control Board published

in the month of September, 1992, the report of

Katakey committee appointed by the Tribunal where

environmental degradation of water, air and surface

of the land was proved.

68.Hence, there was sufficient allegation regarding

substantial questions relating to environment and

violation of enactments in Schedule I. We fail to see

any substance in the submission of the learned

counsel for the appellant that NGT has no

jurisdiction to entertain the case and pass orders.

During submission, learned counsel for the appellant

has not even referred to application which was filed

by the applicant in O.A.No.73/2014. There were

reports of the Meghalaya State Pollution Control

83

Board before the State Government pointing out

environmental degradation and the Tribunal having

taken up the issue, the submission on behalf of the

State that the Tribunal has no jurisdiction is not

expected from the State Government who is under

constitutional obligation to ensure clean environment

to all its citizens. In cases pertaining to

environmental matter the State has to act as

facilitator and not as obstructionist. Article 48A of

the Constitution provides:

“48A. Protection and improvement of envi -

ronment and safeguarding of forests and

wild life The State shall endeavour to pro -

tect and improve the environment and to

safeguard the forests and wild life of the

country.”

69.Learned counsel for the appellant has placed

reliance on the judgment of this Court in Techi Tagi

Tara versus Rajendra Singh Bhandari and others,

2018(11) SCC 734. This Court had occasion to consider

Section 14,15 and 2(m) of the National Green Tribunal

Act, 2010, which involves the question of

jurisdiction of NGT. The nature of order passed by

NGT which was challenged before this court has been

84

noticed in para 1 of the judgment, which is to the

following effect:-

“1. This batch of appeals is directed

against the judgment and order dated 24-8-

2016 passed by the National Green Tribunal,

Principal Bench, New Delhi (for short “the

NGT”) in Rajendra Singh Bhandari v. State

of Uttarakhand 1. On a reading of the

judgment and order passed by the NGT, it is

quite clear that the Tribunal was perturbed

and anguished that some persons appointed

to the State Pollution Control Boards (for

short “SPCBs”) did not have, according to

the NGT, the necessary expertise or

qualifications to be members or

Chairpersons of such high-powered and

specialised statutory bodies and therefore

did not deserve their appointment or

nomination. While we fully commiserate with

the NGT and share the pain and anguish, we

are of the view that the Tribunal has, at

law, exceeded its jurisdiction in directing

the State Governments to reconsider the

appointments and in laying down guidelines

for appointment to the SPCBs, however well-

meaning they might be. Therefore, we set

aside the decision of the NGT, but note

that a large number of disconcerting facts

have been brought out in the judgment which

need serious consideration by those in

authority, particularly the State

Governments that make appointments or

nominations to the SPCBs. Such appointments

should not be made casually or without due

application of mind considering the duties,

functions and responsibilities of the

SPCBs.”

85

70.In the above background, this Court held that

the failure of the State Government to appoint

professionals and experience persons to the key

positions in the State Pollution Control Board cannot

be classified as a primary dispute over which the NGT

could have jurisdiction. Following was laid down in

paragraph 21: -

“21. As far as we are concerned, in the

context of the Act, a dispute would be the

assertion of a right or an interest or a

claim met by contrary claims on the other

side. In other words, the dispute must be

one of substance and not of form and it

appears to us that the appointments that we

are concerned with are not “disputes” as

such or even disputes for the purposes of

the Act — they could be disputes for a

constitutional court to resolve through a

writ of quo warranto, but certainly not for

the NGT to venture into. The failure of the

State Government to appoint professional

and experienced persons to key positions in

the SPCBs or the failure to appoint any

person at all might incidentally result in

an ineffective implementation of the Water

Act and the Air Act, but this cannot be

classified as a primary dispute over which

the NGT would have jurisdiction. Such a

failure might be of a statutory obligation

over which, in the present context and not

universally, only a constitutional court

would have jurisdiction and not a statutory

body like the NGT. While we appreciate the

anxiety of the NGT to preserve and protect

the environment as a part of its statutory

functions, we cannot extend these concepts

to the extent of enabling the NGT to

86

consider who should be appointed as a

Chairperson or a member of any SPCB or who

should not be so appointed.”

71.The issue involved in the above case was

entirely different which did not directly pertain to

environmental degradation. Whether NGT has

jurisdiction to entertain a particular cause is a

question which depends on the facts of each case. To

find out as to whether NGT has jurisdiction to

entertain a case, the case set up before the Tribunal

has to be looked into to answer the question. The

judgment of Techi Tagi Tara (supra) was on its own

facts and does not help the appellant in the present

case.

72.In view of the foregoing discussion, we reject

the submission of the learned counsel for the State

that the Tribunal exceeded its jurisdiction under

Sections 14 and 15 in entertaining the application

O.A.No.73 of 2014. We also record our dis-approval to

the stand taken by the State in this regard.

87

Point No.2

73.Before we proceed to consider the above points,

first of all, we need to notice the nature of land

tenure in the Hills Districts of State of Meghalaya.

Learned counsel for the parties are not at variance

on the question of nature of land tenure in the Hills

Districts of State of Meghalaya. By the North-Eastern

Area Reorganisation Act, 1971 the State of Meghalaya

was formed as independent full-fledged State. After

the enforcement of the Constitution the area, now

comprised in the State of Meghalaya, was included in

the State of Assam, the Administration and control of

which area was as per Article 244 of the Constitution

of India read with Sixth Schedule of the

Constitution. In so far as the land tenure in the

Hills Districts of Meghalaya, there is no substantial

change after the advent of the Constitution. There

was no payment system of land revenue before the

advent of the Constitution in the Hills Districts of

Meghalaya. Learned counsel for the parties have

referred to various materials pertaining to the land

tenure system prevalent in the Hills Districts of

88

State of Meghalaya. The lands in the Khasi Hills

District of Meghalaya come under two divisions Ri

Raid and Ri Kynti. Ri raid lands are community lands

which are set apart for the benefit and use of entire

community. Ri kynti lands are privately owned lands

which were also owned by community as well as by

individuals. The owner of the re kynti land is an

absolute proprietor. The tenure system in Jaintia

Hills classified into two types of lands, namely,

Hali /irrigated land and High land . Hali lands are

further categorised in Raj land, service land,

village puja land and private land. Proprietary right

does not vest in the State in respect to majority of

lands which are either privately owned or owned by

the Tribal community. No system of payment of land

revenue is prevalent in the Hills District of

Meghalaya except lands which belong to State. For the

purposes of present case where the submission of the

appellant is that land in which mining operations of

coal is being done are lands belonging to Tribals who

are owners of the land as well as of the sub-soil, we

proceed with the assumption that Tribal is the owner

89

of the land. It is further the case of the appellant

that in Hills Districts of State of Meghalaya in land

which is privately owned by the Tribal or community

owned, the Tribals or the community or the clan are

owners of both surface right and sub-soil. It is the

case of the appellant that the State does not have

any right in sub-soil or minerals. The judgment of

this in Thressiamma Jacob and others vs. Geologist,

Department of Mining and Geology and others, 2013(9)

SCC 725, is relied on. This Court in the above case

had occasion to consider the question of ownership of

sub-soil/mineral rights in reference to genmom lands

in Malabar area of the State of Madras. Holder of the

genmom rights also claimed not only as proprietor of

the soil but the owner of the minerals in the soil.

This Court laid down following in paragraph 58:

“58. For the abovementioned reasons, we are

of the opinion that there is nothing in the

law which declares that all mineral

wealth/subsoil rights vest in the State, on

the other hand, the ownership of

subsoil/mineral wealth should normally

follow the ownership of the land, unless

the owner of the land is deprived of the

same by some valid process. In the instant

appeals, no such deprivation is brought to

our notice and therefore we hold that the

90

appellants are the proprietors of the

minerals obtaining in their lands. We make

it clear that we are not making any

declaration regarding their liability to

pay royalty to the State as that issue

stands referred to a larger Bench.”

74.A Constitution Bench of this Court in Raja Anand

Brahma Shah vs. The State of Uttar Pradesh and

others, AIR 1967 SC 1081, had laid down that prima

facie owner of a surface of the land is entitled to

everything beneath the land unless there is an

express or implied reservation in the grant. In

paragraph 13 following has been laid down:

“13. In our opinion, a reading of the two

sanads supports the case of the appellant

that there is no reservation of mineral

rights in favour of the Government. The

expression used in the sanad of 1803 A.D.

is “You ought to consider him the Raja of

immovable jagir and of mahal and everything

appertaining thereto belongs to him.” In

effect, the grant to the Raja in the two

sanads is a grant of the lands comprised in

the mahal of Agori and everything

appertaining thereto and as a matter of

construction the grant must be taken to be

not only of the land but also of everything

beneath or within the land. Prima facie the

owner of a surface of the land is entitled

ex jure to everything beneath the land and

in the absence of any reservation in the

grant minerals necessarily pass with the

rights to the surface ( Halsbury’s Laws of

England, 3rd Edn., Vol. 26, p. 325). In

91

other words, a transfer of the right to the

surface conveys right to the minerals

underneath unless there is an express or

implied reservation in the grant. A

contract therefore to sell or grant a lease

of land will generally include mines,

quarries and minerals beneath or within it

(Mitchell v. Mosley). It is manifest that

when the sanad was executed in favour of

the Raja the Government made over the land

with all its capabilities to the Raja and

merely imposed on him a fixed sum of

revenue in lieu of all the rights the

Government had as a proprietor of the soil.

When neither of the parties knew

undiscovered minerals underneath the land

and the idea of reservation never entered

their minds it cannot be held that there

was any implied reservation in the grant.

Nor can afterwards a distinction be drawn

between the various rights that may exist

on the land for the purpose of qualifying

the original grant and importing into it

what neither party could have imagined. It

was argued on behalf of the respondents

that the assessment was made on the

agricultural income, but this circumstance

cannot derogate from the rights conveyed to

the Raja in the two sanads because no

restriction was placed on the use of the

land and the use by the Raja was not

limited to agriculture.”

75.Thus, looking to the nature of the land tenure

as applicable in the Hills Districts of State of

Meghalaya, the most of the lands are either privately

or community owned in which State does not claim any

right. Thus, private owners of the land as well as

92

community owners have both the surface right as well

as sub-soil right. We are, thus, of the opinion that

Tribals owned the land and also owned the minerals,

which is an inescapable conclusion. We, thus, proceed

to examine the issues on the premise that in

privately owned land or community land minerals also

vest in the owner. We first need to consider as to

whether the provisions of MMRD Act, 1957 are

applicable in the Tribal area of Hills District of

State of Meghalaya.

76.Part X of the Constitution separately deals with

Scheduled and Tribal areas. Hills Districts of State

of Meghalaya were treated to be Tribal area and were

to be governed by Article 244 sub-clause (2) read

with Schedule VI. Provisions of Article 244 after

formation of State of Meghalaya is as follows:

“Article 244. Administration of Scheduled

Areas and Tribal Areas.- (1) The provisions

of the Fifth Schedule shall apply to the

administration and control of the Scheduled

Areas and Scheduled Tribes in any State

other than the States of Assam, Meghalaya,

Tripura and Mizoram.

(2) The provisions of the Sixth Schedule

shall apply to the administration of the

93

tribal areas in the State of Assam,

Meghalaya, Tripura and Mizoram.”

77.Sixth Schedule of the Constitution contains

‘Provisions as to the Administration of Tribal Areas

in the States of Assam, Meghalaya, Tripura and

Mizoram’. Paragraph 20 of Sixth Schedule refers to

Tribal areas and Part II of which consists of Khasi

Hills District, Jaintia Hills District and Garo Hills

District which have been referred as Autonomous

Districts. Sixth Schedule Para 1(1) is as follows:

“1. Autonomous districts and autonomous

regions.-(1)Subject to the provisions of

this paragraph, the tribal areas in each

item of Parts I, II and IIA and in Part III

of the table appended to paragraph 20 of

this Schedule shall be an autonomous

district.

78.Para 2 of Sixth Schedule provides for

Constitution of District Councils and Regional

Councils. Para 3 provides for powers of the District

Councils and Regional Councils to make laws which is

to the following effect:

“3. Powers of the District Councils and Re -

gional Councils to make laws .—(1) The Re-

gional Council for an autonomous region in

respect of all areas within such region and

the District Council for an autonomous dis -

trict in respect of all areas within the

94

district except those which are under the

authority of Regional Councils, if any,

within the district shall have power to

make laws with respect to—

(a)the allotment, occupation or use, or

the setting apart, of land, other

than any land which is a reserved

forest for the purposes of agricul -

ture or grazing or for residential or

other non-agricultural purposes or

for any other purpose likely to pro -

mote the interests of the inhabitants

of any village or town:

Provided that nothing in such

laws shall prevent the compulsory ac -

quisition of any land, whether occu -

pied or unoccupied, for public pur -

poses 1 [by the Government of the

State concerned] in accordance with

the law for the time being in force

authorising such acquisition;

(b)the management of any forest not be -

ing a reserved forest;

(c)the use of any canal or water-course

for the purpose of agriculture;

(d)the regulation of the practice of

jhum or other forms of shifting cul -

tivation;

(e)the establishment of village or town

committees or councils and their pow -

ers;

(f)any other matter relating to village

or town administration, including

village or town police and public

health and sanitation;

(g)the appointment or succession of

Chiefs or Headmen;

(h)the inheritance of property;

95

(i)marriage and divorce;

(j)social customs.

(2) In this paragraph, a “reserved forest”

means any area which is a reserved forest

under the Assam Forest Regulation, 1891, or

under any other law for the time being in

force in the area in question. (3) All laws

made under this paragraph shall be submit -

ted forthwith to the Governor and, until

assented to by him, shall have no effect.”

79.Para 9 of the Sixth Schedule which is relevant

for the present case is as follows:

“9. Licences or leases for the purpose of

prospecting for, or extraction of, miner -

als.—(1) Such share of the royalties accru -

ing each year from licences or leases for

the purpose of prospecting for, or the ex -

traction of, minerals granted by the Gov -

ernment of the State] in respect of any

area within an autonomous district as may

be agreed upon between the Government of

the State] and the District Council of such

district shall be made over to that Dis -

trict Council.

(2) If any dispute arises as to the share

of such royalties to be made over to a Dis -

trict Council, it shall be referred to the

Governor for determination and the amount

determined by the Governor in his discre -

tion shall be deemed to be the amount

payable under sub-paragraph (1) of this

paragraph to the District Council and the

decision of the Governor shall be final.”

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

follows:

96

“12A. Application of Acts of Parliament and

of the Legislature of the State of Megha -

laya to autonomous districts and autonomous

regions in the State of Meghalaya. —

Notwithstanding anything in this Constitu -

tion, —

(a) if any provision of a law made by a

District or Regional Council in the State

of Meghalaya with respect to any matter

specified in subparagraph (1) of paragraph

3 of this Schedule or if any provision of

any regulation made by a District Council

or a Regional Council in that State under

paragraph 8 or paragraph 10 of this Sched -

ule, is repugnant to any provision of a law

made by the Legislature of the State of

Meghalaya with respect to that matter,

then, the law or regulation made by the

District Council or, as the case may be,

the Regional Council whether made before or

after the law made by the Legislature of

the State of Meghalaya, shall, to the ex -

tent of repugnancy, be void and the law

made by the Legislature of the State of

Meghalaya shall prevail;

(b) the President may, with respect to any

Act of Parliament, by notification, direct

that it shall not apply to an autonomous

district or an autonomous region in the

State of Meghalaya, or shall apply to such

district or region or any part thereof sub -

ject to such exceptions or modifications as

he may specify in the notification and any

such direction may be given so as to have

retrospective effect.

81.Now, we revert back to Mines and Minerals

(Development and Regulation) Act, 1957. Act, 1957 has

been enacted to provide for development and

97

regulation of mines and minerals under the control of

the Union. Section 1 of the Act is as follows:

“Section 1. Short title, extent and com -

mencement. ―(1) This Act may be called the

Mines and Minerals (Development and Regula -

tion) Act, 1957.

(2) It extends to the whole of India.

(3) It shall come into force on such date3

as the Central Government may, by notifica -

tion in the Official Gazette, appoint.”

82.The Act came into effect w.e.f. 01.06.1958.

Whether there are any indications in the Sixth

Schedule or any other provision of the law by which

it can be contended that Act, 1957 is not applicable

in Hills District of Tribal areas of State of

Meghalaya? We may first refer to Sixth Schedule of

the Constitution which is a provision for

Administration of Tribal areas in the State of

Meghalaya. Para 12A sub-clause (b) empowers that the

President may, with respect to any Act of Parliament,

by notification, direct that it shall not apply to an

autonomous district or an autonomous region in the

State of Meghalaya, or shall apply to such district

or region or any part thereof subject to such

98

exceptions or modifications as he may specify in the

notification. No notification has been issued by the

President under Para 12A(b) of the VIth Schedule of

the Constitution, although, the said Para 12A(b) is

in the Constitution with effect from 21.1.1972. Thus,

there is nothing in Sixth Schedule of the

Constitution which may indicate about the

inapplicability of Act, 1957 with regard to the Hills

Districts of State of Meghalaya. At this juncture, we

may also notice the report of the Comptroller 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

Meghalaya is endowed with sizeable deposits

of valuable minerals like coal, limestone,

uranium, granite and clay. Minerals being

valuable resource, the extraction needs to

be maximised through scientific methods of

mining with aim to ensure extraction and

utilisation of minerals. Besides, most of

the mineral reserves are in areas which are

under forest cover and hence, mining in the

State has environmental implications. In

Meghalaya, individual and local communities

have ownership over the land and the

minerals and barring a few reserve forest

areas, the State Government has no

ownership over the minerals. The activities

of the Mining & Geology (M&G) Department,

Government of Meghalaya (GOM) are limited

to collection of royalty on the minerals

99

exported outside the State besides

geological investigation/exploration of

minerals. The Mines and Minerals

(Development and Regulation) Act, 1957 lays

down the legal framework for regulation of

mines and development of minerals. The

Mineral Concession Rules, 1960 and the

Mineral Conservation and Development Rules,

1988 were accordingly framed under the MMDR

Act framed for conservation and systematic

development of minerals and for regulating

grant of permits, licences and leases. The

GOM has introduced the Meghalaya Mineral

Cess Act, 1988 to mobilise additional

revenue. Further with a view to

facilitating systematic, scientific and

planned utilisation of mineral resources

and to streamline mineral based development

of the State, the Meghalaya Mines and

Mineral Policy, 2012 has also been notified

with effect from 5 November 2012.”

83.The Comptroller and Auditor General has clearly

stated that Act, 1957 is fully applicable for

regulation of mines and regulation of minerals in the

State of Meghalaya.

84.Learned counsel for the State of Meghalaya has

also filed before us along with an affidavit of Joint

Secretary of Government of Meghalaya, Mining and

Geology Department dated 13.04.1018 by which

Meghalaya Mines and Minerals Policy, 2012 issued by

the Government of Meghalaya as well as draft

100

guidelines of coal mining activities in the State

prepared in the year 2015 has been brought on the

record.

85.Clause 10 of the Policy provides for “Regulatory

Framework for Mine Development and Mining”. Sub-

clause b) of Clause 10 required application for

mineral concession either fresh or renewal is to be

submitted to the State Government through the Deputy

Commissioner of the District wherein the area applied

for is situated and with NOC from District Council

concerned and land owner. Clause 10 also refers to

clearance of the Pollution Control Board of Meghalaya

and other requirement. Sub-clause (l) further

contemplated that order for grant of mineral

concessions will be issued by the State Government,

with the approval of the Central Government wherever

necessary. Thus, the Policy of 2012 contemplated

regulatory regime for mining lease by the State. The

Mining and Geology Department of the Government had

framed a draft guidelines for coal mining activity in

101

the State which has also been brought on record along

with the above affidavit dated 13.04.2018.

86.The above guidelines were prepared after in

consultation with the Central Government.

87.The above draft guidelines prepared by the State

clearly mentions about the unregulated and

unscientific mining being carried out in the State of

Meghalaya. The Policy Guidelines of Coal Mining which

is part of the guidelines also contains following

statement:

“The Mines Act, 1952 and the Mines and

Minerals (Development and Regulation) Act,

1957 (MMDR), together with the rules and

regulations framed under them constitute

the basic laws governing the mining sector

in India. While the Mines Act, 1952 governs

the health and safety of the workers, the

MMDR Act, 1957 (including all amendments)

lays down the legal frame work for the

regulation of mines and development of all

minerals other than petroleum and natural

gas. The relevant rules in force under the

MMDR Act, 1957 are the Mineral Concession

Rules (MCR), 1960 outlines the procedures

and conditions for obtaining a Prospecting

Licence or Mining Lease. The MCDR, 1988

lays down guidelines for ensuring mining on

a scientific basis, while conserving the

environment, at the same time.

102

Apart from the mining statutes, which also

govern environment in mines, India has

elaborate environment statutes for

protection of environment in mining.”

88.One submission of Shri Naphade with respect to

direction of NGT to frame mining policy by the State

also needs consideration. Shri Naphade submits that

the State of Meghalaya having no legislative

competence with regard to major minerals, National

Green Tribunal could not have directed the State of

Meghalaya to frame Mining Policy.

89.There can be no dispute to the preposition that

in view of MMDR Act, 1957, the legislative competence

of State of Meghalaya under Entry 23 List II stands

denuded. However, under the MMDR Act, 1957 as well

as the Mineral Concession Rules, 1960, several

statutory obligations/jurisdictions have been

conferred on the State of Meghalaya, which shall be

referred to later in this judgment.

103

90.When under a Parliamentary enactment, State has

been given some statutory obligations, there is no

lack of jurisdiction in the State to frame policy to

give effect to or implement the jurisdictions

conferred on the State by Parliamentary enactments.

It is true that Mining Policy to be framed by the

State has to confine to the jurisdiction conferred on

it as per the MMDR Act, 1957 and the Rules framed

thereunder. There are other related issues

concerning Mining like protection of environment and

forests for which the State has to declare its policy

for implementation of its objective. Several other

aspects relating to mining like, rehabilitation,

reclamation and restoration have to be effectively

implemented by the State for which also, it may be

required to frame a policy. We may further notice

that Meghalaya Mines and Minerals Policy, 2012 was

already framed by the State of Meghalaya, even before

directions were issued by the NGT. In pursuance of

NGT directions, it was draft guidelines of 2015,

which were prepared by State of Meghalaya. We, thus,

are of the view that direction of NGT to declare

104

Mining Policy by the State of Meghalaya cannot be

said to be without jurisdiction. However, the State

in its Mining Policy can only include those areas

where it has jurisdiction under the MMDR Act, 1957

and the Rules framed thereunder.

91.A perusal of the entire Policy documents

indicate that Policy has been framed by the State as

per the Act, 1957 and Minerals (Concession) Rules,

1960.

92.The Government of Meghalaya has also made a

request to the Government of India in the year 2015

for issuance of Presidential notification under Para

12A(b) of Sixth Schedule for exempting State of

Meghalaya from certain provisions of the MMDR Act,

1957. After several deliberations, the Union of India

has communicated through its O.M. dated 12.03.2019

that it is not possible to accede to the request of

the Government of Meghalaya for issuance of

Presidential notification under Para 12A(b) of Sixth

Schedule. Thus, the request made by the State of

105

Meghalaya to issue exemption has not also been

acceded to. The request of the State of Meghalaya

that exemption be granted by Presidential

notification under Para 12A(b) itself expresses

recognition of the State of Meghalaya that provisions

of Act, 1957 are applicable. We, thus, conclude that

there is nothing in Sixth Schedule of the

Constitution which in any manner exclude the

applicability of Act, 1957 in the Tribal areas of

Hills District of State of Meghalaya.

Point No.3

93.We need to scan through the statutory scheme of

Act, 1957 to find out as to whether Parliamentary

legislation requires obtaining lease for winning the

minerals in so far as mining of coal from privately

owned land/community owned land are concerned?

94.Section 2 of the Act, 1957 contains declaration

to the following effect:

“2. Declaration as to expediency of Union

Control.―It is hereby declared that it is

expedient in the public interest that the

Union should take under its control the

106

regulation of mines and the development of

minerals to the extent hereinafter pro -

vided.”

95.The Act, 1957 has been enacted in reference to

Entry 54 List I of Seventh Schedule to the following

effect:

“Entry 54. Regulation of mines and mineral

development to the extent to which such

regulation and development under the

control of the Union is declared by

Parliament by law to be expedient in the

public interest.”

96.At this juncture, we may notice Entry 23 of List

II which is to the following effect:

“Entry 23. Regulation of mines and mineral

development subject to the provisions of

List I with respect to regulation and

development under the control of the

Union.”

97.The Legislative power under Entry 23 is subject

to the provision of List I with respect to regulation

and development under the control of the Union. When

the Union has declared to have taken under its

control the regulation of mines and development of

minerals to the extent provided in the Act.

Legislative power of the State to the above extent is

107

denuded. Learned counsel for the appellant have also

very fairly not disputed the position in law.

98.Section 3 of the Act contains definition clause.

Section 3(c) defines mining lease and Section 3(d)

defines a mining operation which are to the following

effect:

“Section 3(c) “mining lease” means a lease

granted for the purpose of undertaking

mining operations, and includes a sub-lease

granted for such purpose;

Section 3(d) “mining operations” means any

operations undertaken for the purpose of

winning any mineral;”

99.Section 4 of the Act contains general

restriction on undertaking prospecting and mining

operation. Section 4 is couched in terms of an

injunction. No person shall undertake any mining

operations in any area, except under and in

accordance with the terms and conditions of a

reconnaissance permit or of a prospecting licence or,

as the case may be, of a mining lease, granted under

this Act and rules made thereunder. Sub-section (1)

108

of Section 4 is relevant in the present case which is

as follows:

4. Prospecting or mining operations to be

under licence or lease. ―(1) No person

shall undertake any reconnaissance,

prospecting or mining operations in any

area, except under and in accordance with

the terms and conditions of a reconnais -

sance permit or of a prospecting licence

or, as the case may be, of a mining lease,

granted under this Act and the rules made

thereunder:

Provided that nothing in this sub-sec -

tion shall affect any prospecting or mining

operations undertaken in any area in accor -

dance with terms and conditions of a

prospecting licence or mining lease granted

before the commencement of this Act which

is in force at such commencement:

Provided further that nothing in this

sub-section shall apply to any prospecting

operations undertaken by the Geological

Survey of India, the Indian Bureau of

Mines, the Atomic Minerals Directorate for

Exploration and Research of the Department

of Atomic Energy of the Central Government,

the Directorates of Mining and Geology of

any State Government (by whatever name

called), and the Mineral Exploration Corpo -

ration Limited., a Government company

within the meaning of clause (45) of sec -

tion 2 of the Companies Act, 2013 (18 of

2013), and any such entity that may be no -

tified for this purpose by the Central Gov -

ernment]:

Provided also that nothing in this sub-

section shall apply to any mining lease

(whether called mining lease mining conces -

sion or by any other name) in force immedi -

109

ately before the commencement of this Act

in the Union territory of Goa, Daman and

Diu.”

100. The use of word no person in Section 4(1) is

without an exception. There is nothing in Section

4(1) to indicate that restriction contained in

Section 4(1) does not apply with regard to a person

who is owner of the mine. Further, word ‘any area’

under Section 4(1) also has significance which does

not have any exception. Further phrase ‘except under

and in accordance with terms and condition with a

mining lease granted under the Act’ are also

significant which make the intent and purpose of

prohibition clear and loud. Section 5 contains

restriction on the grant of prospecting licences and

mining lease in the following words:

5. Restrictions on the grant of prospecting

licences or mining leases. ― (1) A State

Government shall not grant a reconnaissance

permit, prospecting licence or mining lease

to any person unless such person―

(a)is an Indian national, or company

as defined in 1clause (20) of sec -

tion 2 of the Companies Act, 2013

(18 of 2013)]; and

(b)satisfies such conditions as may be

prescribed:

110

Provided that in respect of any mineral

specified in Part A and Part B of the First

Schedule, no reconnaissance permit,

prospecting licence or mining lease shall

be granted except with the previous ap -

proval of the Central Government.

Explanation. ―For the purposes of this sub-

section, a person shall be deemed to be an

Indian national,―

(a)in the case of a firm or other asso -

ciation of individuals, only if all

the members of the firm or members

of the association are citizens of

India; and

(b)in the case of an individual, only

if he is a citizen of India.

(2) No mining lease shall be granted by

the State Government unless it is satisfied

that―

(a)there is evidence to show the exis -

tence of mineral contents in the

area for which the application for a

mining lease has been made in accor -

dance with such parameters as may be

prescribed for this purpose by the

Central Government;

(b)there is a mining plan duly approved

by the Central Government, or by the

State Government, in respect of such

category of mines as may be speci -

fied by the Central Government, for

the development of mineral deposits

in the area concerned:

Provided that a mining lease may be

granted upon the filing of a mining plan in

accordance with a system established by the

State Government for preparation, certifi -

cation, and monitoring of such plan, with

the approval of the Central Government.

111

101.The proviso to Section 5(1) is relevant since it

contains a further restriction that no mining lease

shall be granted with regard to any minerals

specified in Para A of First Schedule except with the

previous approval of the Central Government. We in

the present case are concerned with coal which is in

Para A of First Schedule.

102. The next provision which is relevant is

Section 13 which provides for Rule making power of

Central Government in respect of minerals. Section 13

sub-section (1) and Section 13 sub-section (2) in so

far as relevant in the present case are as follows:

“13. Power of Central Government to make

rules in respect of minerals. ―(1) The Cen-

tral Government may, by notification in the

Official Gazette, make rules for regulating

the grant of reconnaissance permits,

prospecting licences and mining leases in

respect of minerals and for purposes con -

nected therewith.

(2) In particular, and without prejudice to

the generality of the foregoing power, such

rules may provide for all or any of the

following matters, namely:―

(a)the person by whom, and the manner in

which, applications for reconnaissance

112

permits, prospecting licences or mining

leases in respect of land in which the

minerals vest in the Government may be

made and the fees to be paid therefor;

……………………………

(f) the procedure for obtaining 5 [a recon -

naissance permit, a prospecting licence

or a mining lease] in respect of any

land in which the minerals vest in a

person other than the Government and

the terms on which, and the conditions

subject to which, such 6 [a permit, li -

cence or lease may be granted or re -

newed;

…………………………”

103. When we read clause (a) and clause (f), it

makes clear that the Rules can be made for grant of

mining lease in respect of land in which minerals

vest in the Government as well as in respect of any

land in which minerals vest in person other than

Government. The statutory scheme, thus, is clear that

lease can be granted with regard to both the

categories of land, land in which Government is owner

of minerals and land in which minerals vest in person

other than Government. The Tribals, owners of the

minerals shall expressly fall in Rule making power of

the Government under Section 13(f).

113

104. The Central Government in exercise of power

under Section 13 has framed Rules, namely, Minerals

(Concession) Rules, 1960. Chapter IV of the Rules

contains a heading “Grant of Mining Lease in respect

of land the Minerals vest in the Government”. Rules

22 to 40 contain various provisions under Chapter IV.

Chapter V has a separate heading which is “ Procedure

for obtaining a prospecting licence or mining lease

in respect of land in which the minerals vest in a

person other than the Government ”. Thus, Chapter V

contains provisions for grant of lease in respect of

minerals which vest in the person other than the

Government. Rules 41 and 42 which are relevant are

quoted below:

“41. Applicability of this chapter : - The

provisions of this chapter shall apply only

to the grant of prospecting licences and

mining leases in respect of land in which

the minerals vest exclusively in a person

other than the Government.

42. Restrictions on the grant of prospect -

ing licence and mining lease: - (1) No

prospecting licence or mining lease shall

be granted to any person unless he has

filed an affidavit stating that he has–

(i)filed up-to-date income tax re -

turns;

114

(ii) paid the income tax assessed on

him, and

(iii) paid the income tax on the basis

of self-assessment as provided in

the Income Tax Act, 1961 (43 of

1961). (2) Except with the previ -

ous approval of the Central Gov -

ernment, no prospecting licence

or mining lease shall be granted

in respect of any mineral speci -

fied in the First Schedule to the

Act.”

105. The statutory scheme delineated by Section

13(2)(f) and the Minerals (Concession) Rules, 1960

clearly contemplate grant of mining lease, with

regard to both the categories of land, that is, land

in which minerals vest in the Government, and the

land in which minerals vest in a person other than

the Government. In statutory provisions there is no

kind of exception as contended by the learned counsel

of the appellant that when owner himself wants to win

the minerals he does not require any mining lease.

The submission is contrary to the express statutory

scheme, in the event submission of appellant is

accepted that with regard to minerals which vest in a

private person no mining lease is required, the whole

object of the Union by which it declared to have

115

taken under its control regulation of mines and

development of minerals shall be frustrated.

106. Another limb of submission of the appellant

needs to be noticed here. Shri Naphade submits that

there is no concept of owner of a land granting lease

to himself. He submits that concept of lease is well

known and well recognised concept as contained in

Section 105 of Transfer of Property Act. Section 105

of the Transfer of Property Act is as follows:

“Section 105. Lease defined. A lease of

immovable property is a transfer of a right

to enjoy such property, made for a certain

time, express or implied, or in perpetuity,

in consideration of a price paid or

promised, or of money, a share of crops,

service or any other thing of value, to be

rendered periodically or on specified

occasions to the transferor by the

transferee, who accepts the transfer on

such terms.

Lessor, lessee, premium and rent

defined: The transferor is called the

lessor, the transferee is called the

lessee, the price is called the premium,

and the money, share, service or other

thing to be so rendered is called the

rent.”

116

107. Halsbury’s Laws of England, Fourth Edition

Para 321 defines nature of mining lease in the fol -

lowing manner:

“321. Nature of mining lease. A lease may

be granted of land or any part of land, and

since minerals are a part of the land it

follows that a lease can be granted of the

surface of the land and the minerals below,

or of the surface alone, or of the minerals

alone. It has been said that a contract for

the working and getting of minerals,

although for convenience called a mining

lease, is not in reality a lease at all in

the sense in which one speaks of an

agricultural lease, and that such a

contract, properly considered, is really a

sale of a portion of the land at a price

payable by instalments, that is, by way of

rent or royalty, spread over a number of

years.”

108. This Court had occasion to consider the

concept of mining lease under Act, 1957 in SRI

TARKESHWAR SIO THAKUR JIU vs. DAR DASS DEY & CO. AND

OTHERS, 1979(3) SCC 106, this Court held that term

lease occurring in Section 3(C) of Act 67 of 1957

does not appear to have been used in the narrow

technical sense in which it is defined in Section 105

of the Transfer of Property Act but it has all the

characteristics of a lease as defined in the

117

Transfer of Property Act . In paragraph 31 following

was laid down:

“31. It is important to bear in mind that

the term “lease” occurring in the

definition of “mining lease” given in

Section 3(c) of Act 67 of 1957 does not

appear to have been used in the narrow

technical sense in which it is defined in

Section 105 of the Transfer of Property

Act. But, as rightly pointed out by a Bench

of the Calcutta High Court in Fala Krishna

Pal v. Jagannath Marwari. a settlement of

the character of a mining lease is

everywhere in India regarded as “lease”. A

mining lease, therefore, may be

meticulously and strictly satisfy in all

cases, all the characteristics of a “lease”

as defined in the Transfer of Property Act.

Nevertheless, in the legal accepted sense,

it has always been regarded as a lease in

this country.”

109. This Court proceeded further to consider

Section 105 of the Transfer of Property Act and

opined following in paragraphs 37:

“37. A right to carry on mining operations

in land to extract a specified mineral and

to remove and appropriate that mineral, is

a “right to enjoy immovable property”

within the meaning of Section 105; more so,

when — as in the instant case — it is

coupled with a right to be in its exclusive

khas possession for a specified period. The

“right to enjoy immovable property” spoken

of in Section 105, means the right to enjoy

the property in the manner in which that

property can be enjoyed. If the subject-

118

matter of the lease is mineral land or a

sand-mine, as in the case before us, it can

only be enjoyed and occupied by the lessee

by working it, as indicated in Section 108,

Transfer of Property Act, which regulates

the rights and liabilities of lessors and

lessees of immovable property.”

110. This Court further following the Nageshwar

Bux Roy vs. Bengal Coal Co., LR (1930) 58 IA 29, in

State of Karanataka and others vs. Subhash Rukmayya

Guttedar and others, 1993 Supp.(3) 290 laid down

following in paragraph 6:

“6………The question, therefore, is whether

the grant of the right to extract the minor

mineral from Government quarry is a lease

or a licence and whether the contractor is

liable to pay the royalty in respect of

minor mineral extracted from the Government

quarry. Section 105 of the Transfer of

Property Act defines a lease of immovable

property as a transfer of a right to enjoy

such property made for a certain time,

express or implied, or in perpetuity, in

consideration of a price paid or promised,

or of money, a share of crops, service or

any other thing of value, to be rendered

periodically or on specified occasions to

the transferor by the transferee, who

accepts the transfer on such terms. The

normal connotation of the term lease is the

preservation of the demised estate to be in

occupation and enjoyment thereof for a

specified period or in perpetuities for

consideration; the corpus by user thereof

does not disappear and at the expiry of the

term or on termination the same is handed

119

over to the lessor subject to the terms of

the contract, express or implied. A right

to carry on mining operations in the land

on surface or sub-soil is to extract the

specified quantity of the minerals found

therein, to remove and appropriate that

mineral. Section 9 of the Mines and

Minerals (Regulation & Development) Act,

1957 affords the guidance in this behalf.

It says that the holder of a mining lease

or agent, etc. is entitled to remove or

consume the mineral. It would mean

destruction of the estate leased out and

appropriation thereof on payment of

consideration i.e. royalty. Therefore, it

is a right to enjoy immovable property

within the meaning of Section 105 more so

when, as in the instant case, it is coupled

with a right to be in occupation or enter

into possession for a specified period.

Section 3(d) of the Act defines ‘mining

operations’ to mean any operation

undertaken for the purpose of winning any

minerals. It is true that no right, title

or interest has been created in the

contractor over the mining area. But he has

been permitted to remove and use the minor

minerals in the execution of the works as

its (sic his) right to enjoy immovable

property spoken of in Section 105 which

means the right to enjoy the property in

the manner in which that property can be

enjoyed. In Nageshwar Bux Roy v. Bengal

Coal Co.1 Lord Macmillan speaking for the

Board held that:

“In considering the character and

effect of acts of possession in the

case of a mineral field, it is

necessary to bear in mind the nature

of the subject and the possession of

which it is susceptible. Owing to the

inaccessibility of minerals in the

120

earth, it is not possible to take

actual physical possession at once of

a whole mineral field: it can be

occupied only by extracting the

minerals and until the whole minerals

are exhausted the physical occupation

must necessarily be partial.”

111. The word mining lease has been given specific

meaning under Act, 1957. It is well settled principle

of interpretation that the provisions of an Act

including definition of a term is to be interpreted

in a manner which may advance the object of the

legislation. The essential characteristic of mining

lease is that it is granted for the purpose of

undertaking mining operation and mining operation

means any operation undertaken for the purpose of

winning the mineral. Applying aforesaid definition in

the Minerals (Concession) Rules, 1960 under Chapter V

it cannot be said that no mining lease is

contemplated with respect to land where mineral vests

exclusively in a private person.

112. The examination of a statutory scheme

applicable in Tribal areas of State of Meghalaya

shall not be complete unless we notice two more

121

aspects, they are (i) the Mines Act, 1952 and the

Regulations framed thereunder; (2) Environmental

Protection Act, 1986 and the notification issued

thereunder with regard to mining project.

113. The Mines Act, 1952 is an Act to amend and

consolidate the law relating to the regulation of

labour and safety of mines. The act contains various

provisions regarding inspection of mining operation

and management of mines. Section 16 provides a notice

to be given to mining operations by the owner agent

or manager of a mine. Section 16 is as follows:

“Section 16. Notice to be given of mining

operations.-(1) The owner, agent or manager

of a mine shall, before the commencement of

any mining operation, give to the Chief In -

spector, the Controller, Indian Bureau of

Mines and the district magistrate of the

district in which the mine is situate, no -

tice in writing in such form and containing

such particulars relating to the mine as

may be prescribed.

(2) Any notice given under sub-section

(1) shall be so given as to reach the per -

sons concerned at least one month before

the commencement of any mining operation.”

114. Section 18 contains duties and

responsibilities of owners, agents and managers.

122

There are various other provisions in the Mines Act,

1952 which are mandatory to be followed before

working any mine. Learned counsel for the appellant

has not disputed that the provisions of the Mines

Act, 1952 are applicable with regard to the coal

mining in the State of Meghalaya. He, however,

submits that there are no powers with the District

Magistrate or State Officials under the Mines Act,

1952. Chapter II of the Mines Act, 1952 deals with

Inspectors and Certifying Surgeons. Section 5(3)

provided that the District Magistrate may exercise

the powers and perform the duties of an Inspector

subject to the general or special orders of the

Central Government. Section 5(3) is as follows:-

“5(3) The district magistrate may exercise

the powers and perform the duties of an

Inspector subject to the general or special

orders of the Central Government.”

115. The above provision clearly empowers the

District Magistrate to exercise the powers and

perform the duties of an Inspector but subject to

general and special orders of Central Government,

which means that there may be some restriction on the

123

power of the District Magistrate as directed by

Central Government. In this context, Shri Naphade has

referred to a notification dated 18.09.1953 issued

under sub-section 3 of Section 5 of the Mines Act,

1952, which is to the following effect:-

“New Delhi, the 18

th

September, 1953

S.R.O. 1789 – In pursuance of sub-section 3

of section 5 of the Mines Act, 1952 (XXXV

of 1952), the Central Government hereby

directs that in exercising the powers and

performing the duties of an Inspector, the

District Magistrate shall not, without

prior reference to the Chief Inspector,

take direct action or issue any order in

respect of any matter solely connected with

the technical direction, management or

supervision of any mine, even though such

direction, management or supervision may

appear to him to be dangerous or defective.

[No.M-41(370 52.]

P.N. SHARMA, Under Secy.”

116. The restriction as is apparent from the above

notification is with regard to matters solely

connected with the technical direction, management or

supervision of any mine. The above notification does

not take away all the functions of the District

Magistrate but restriction is with regard to area

mentioned therein. As noted above, Section 16

obliged the owner, agent or manager of a mine to give

124

notice before the commencement of any mining

operation to the district magistrate of the district

in which the mine is situate. Section 75 of the

Mines Act, 1952 also empowers the District Magistrate

to institute prosecution against any owner, agent or

manager for any offence under the Mines Act, 1952.

Section 75 is as follows:-

“75. Prosecution of owner, agent or man -

ager.--No prosecution shall be instituted

against any owner, agent or manager for any

offence under this Act except at the in -

stance of the Chief Inspector or of the

district magistrate or of an Inspector au -

thorised in this behalf by general or spe -

cial order in writing by the Chief Inspec -

tor;

Provided that the Chief Inspector or the

district magistrate or the Inspector as so

authorised shall, before instituting such

prosecution, satisfy himself that the

owner, agent or manager had failed to exer -

cise all due diligence to prevent the com -

mission of such offence.

Provided further that in respect of an

offence committed in the course of the

technical direction and management of a

mine, the district magistrate shall not in -

stitute any prosecution against an owner,

agent or manager without the previous ap -

proval of the Chief Inspector.”

117. We, thus, do not accept the submission of

Shri Naphade that District Magistrate has no

125

jurisdiction under the Mines Act, 1952 to take any

action.

118. In exercise of the power under Section 57 of

Mines Act, 1952 a new set of regulations has been

framed, namely, Coal Mines Regulations, 2017.

Regulation 2(r) defines “District Magistrate”. The

Regulations contain various regulatory provisions

with regard to mines. Chapter II deals with returns,

notices and records. Chapter IV deals with Inspectors

and Mine Officials. The Regulations contain several

regulatory provisions which need to be followed while

working a mine by the owner or his agent. The

enforcement of Mines Act, 1952 and the Regulations,

2017 have to be ensured in the public interest by the

state of Meghalaya.

119. Now we come to the Environment (Protection)

Act, 1986. A notification dated 14.09.2006 was issued

by the Ministry of Environment and Forests in

exercise of power under Section 3(3) of the

Environment Protection Act, 1986. Section 3 of the

Act, 1986 which provided for requirements of prior

126

environmental clearance with regard to projects

enumerates therein. Schedule to the notification

listed the projects or activities requiring prior

environmental clearance. “Mining of minerals”

included at Item No.1(a) but even for mining project

requirement of minimum 5 hectares area was required

for applicability of the project. Substituting Item

No.1(a) of Notification dated 14.09.2006 a new

notification dated 15.01.2016 has been issued. In

place of Item No.1(a) new entry has been substituted

in respect of coal mine lease which is to the

following effect:

(1) (2) (3) (4) (5)

“1(a)(i)

Mining

of

minerals

>50 ha of

mining lease

areas in

respect of

non-coal mine

lease

>150 ha of

mining lease

area in

respect of

coal mine

lease

Asbestos

mining

irrespective

of mining area

<50 ha of

mining

lease

area in

respect

of non-

coal mine

lease

<150 ha

of mining

lease

area in

respect

of coal

lease

General

Conditions

shall

apply

except:

(i) for

project or

activity

of mining

of minor

minerals

of

Category

‘B2’(up to

25 ha of

mining

lease

area);

127

(ii) River

bed mining

projects

on account

of inter-

state

boundary.

120. If the project was under Category ‘A’,

environmental clearance is required from Ministry of

Environment and Forests whereas as per new

notification dated 15.01.2016 for project ‘B’

environmental clearance is required from State

Environmental Assessment Authority with respect of

coal mining lease area of less than or equal to 150

hectares. Now as per statutory regime brought in

force by notification dated 15.01.2016 environmental

clearance is required for a project of coal for

mining of any extent of area. We have dealt with the

notification dated 15.01.2016, since it was placed

before us and submissions were made by learned

counsel for the parties. The notification dated

15.01.2016 being a statutory provision shall operate

on its own force and no order of any Court is

required for enforcement of notification dated

128

15.01.2016. We have dealt the matter only in view to

clarify the statutory regime pertaining to mining of

coal.

121. While implementing statutory regime for

carrying mining operations in the Hills District of

the State of Meghalaya, the State of Meghalaya has to

ensure compliance of not only MMDR Act, 1957 but

Mines Act, 1952 as well as Environment

(Protection)Act, 1986.

Point No.4

122. We having held that for carrying out mining

operations in privately owned and community owned

land in Hills Districts of Meghalaya, obtaining a

mining lease is a mandatory requirement for carrying

out the mining, we have to examine the procedure for

grant of such mining lease and the authority/person,

who is competent to grant such lease.

123. Chapter IV of the Mineral Concession Rules,

1960 deals with grant of mining leases in respect of

land in which the minerals vest in the Government and

129

Chapter V deals with procedure for obtaining a

prospecting licence or mining lease in respect of

land in which the minerals vest in a person other

than the Government. Chapter IV contains Rules 22 to

40 and Chapter V contains Rules 41 to 52 and the

procedure and manner of applying for mining lease and

grant of lease as contained in Chapter IV is not made

applicable to the procedure as given in Chapter V

except that by virtue of Rule 45(i) certain

conditions of mining lease as contained in Rule 27

under Chapter IV are made applicable for mining lease

under Chapter V.

124. Rule 22(1) provides that an application for

the grant of a mining lease in respect of land in

which the minerals vest in the Government shall be

made to the State Government in Form I through such

officer or authority as the State Government may

specify in this behalf. In Chapter V, there is no

such rule, which requires making an application for

lease to the State Government. There is a marked

difference between the rules contained in Chapter IV

130

and rules contained in Chapter V, few of which are

relevant to notice for the purposes of this case.

Rule 27(2) provides that a mining lease may contain

such other conditions as the State Government may

deem necessary in regard to the matters enumerated

therein. Whereas Rule 45(iii) provides that every

mining lease may contain such other conditions, not

being inconsistent with the provisions of the Act and

these rules, as may be agreed upon between the

parties. The above provision gives an indication

that in the lease executed by Chapter V, the omission

of word “State Government” in Rule 45(iii) is

indicative of the fact that conditions, which are to

be added has to be agreed upon between the parties.

Most important rule to be noticed is Rule 45 in this

context, which is to the following effect:-

“45. Conditions of mining lease : - Every

mining lease shall be subject to the fol -

lowing conditions :-

(i) the provisions of clauses (b) to (l)

and (p) to (u) of sub-rule (1) of rule 27

shall apply to such leases with the modifi -

cation that in clauses (c) and (d) for the

words "State Government" the word "lessor"

shall be substituted ;

131

(ia) mining operations shall be undertaken

in accordance with the duly approved mining

plan ;

(ii) Omitted.;

(iii) the lease may contain such other con -

ditions, not being inconsistent with the

provisions of the Act and these rules, as

may be agreed upon between the parties;

(iv) if the lessee makes any default in

payment of royalty as required by section 9

or commits a breach of any of the condi -

tions of the lease, the lessor shall give

notice to the lessee requiring him to pay

the royalty or remedy the breach, as the

case may be, within sixty days from the

date of the receipt of the notice and if

the royalty is not paid or the breach is

not remedied within such period, the lessor

without prejudice to any proceeding that

may be taken against the lessee determine

the lease;

(v) the lessee may determine the lease at

any time by giving not less than one year’s

notice in writing to lessor.”

125. It is provided in Rule 45(i) that in clauses

(c) and (d) of Rule 27 for the words “State

Government” the word “lessor” shall be substituted,

which gives a clear indication that State Government

is not a lessor in a lease granted under Chapter V.

Rule 27(5) and Rule 45(iv) is also relevant to

notice. Rule 27(5) provides as follows:-

132

”27(5) If the lessee makes any default in

the payment of royalty as required under

section 9 or payment of dead rent as re -

quired under section 9A or commits a breach

of any of the conditions specified in sub-

rules (1), (2) and (3), except the condi -

tion referred to in clause (f) of sub-rule

(1), the State Government shall give notice

to the lessee requiring him to pay the roy -

alty or dead rent or remedy the breach, as

the case may be, within sixty days from the

date of the receipt of the notice and if

the royalty or dead rent is not paid or the

breach is not remedied within the said pe -

riod, the State Government may, without

prejudice to any other proceedings that may

be taken against him, determine the lease

and forfeit the whole or part of the secu -

rity deposit.”

126. Under Rule 27(5), if the lessee makes any

default in the payment of the royalty or the payment

of dead rent or commits breach of any of the

conditions, the State Government shall give notice to

the lessee and determine the lease and forfeit the

whole or part of the security deposit. Whereas under

rule 45(iv), the said power has been vested in the

lessor, which also indicates that it is lessor, who

will determine the lease and not the State

Government. Other provisions of Chapter V also

support the above conclusion. Rule 47 provides for

submission of copy of licence or lease to the State

133

Government within three months of the grant of such

licence or lease. Requirement of submitting the

licence or lease copy to the State Government

indicate that the State Government is not the

authority, who is granting the lease, otherwise there

was no requirement of submitting a copy to the State

Government, if it was contemplated that State

Government shall grant the lease. Rule 63 in Chapter

V provides that previous approval of the Central

Government to be obtained through State Government,

which is to the following effect:-

“63. Previous approval of the Central Gov -

ernment to be obtained through State Gov -

ernment:- Where in any case previous ap -

proval of the Central Government is re -

quired under the Act or these rules, the

application for such approval shall be made

to the Central Government through the State

Government .”

127. Our above conclusion is reinforced when we

look into the statutory regime regarding grant of

mining lease as per the Mineral Concession Rules,

which were in force prior to enforcement of Mineral

Concession Rules, 1960. Prior to MMDR Act, 1957,

earlier Central Legislation which was governing the

134

field was Mines and Minerals (Regulation and

Development) Act, 1948, under which rules have been

framed by Central Government namely, Mineral

Concession Rules, 1949. Rule 14 of Chapter III

contemplated application for prospecting license.

Chapter IV of the Rules, 1949 contained the heading

“grant of Mining Lease in respect of land in which

the minerals belong to Government”. The provisions

of Rule 27 of Chapter IV provide for application for

mining lease and there were several other rules under

Chapter IV, which in substance have been retained in

Chapter IV of Rules, 1960. Chapter V of Rules, 1949

contained the heading “grant of mineral concessions

by private persons.” As noted above, the heading of

Chapter V under Rules, 1960 is “procedure for

obtaining a prospecting licence or mining lease in

respect of land in which the minerals vest in a

person other than the Government.” Rule 47 of

Chapter V of Rules, 1949 provide for “conditions in a

mining lease”, which are in substance similar as Rule

45 of Rules, 1960. Rule 47(iv) of the Rules, 1949

135

was akin to present Rule 45(i) of the Rules, 1960.

Rule 47(iv) of the Rules, 1949 is as follows:-

“47. Conditions of mining lease : - A min-

ing lease granted by a private person shall

be subject to the following condition:-

XXXXXXX

(iv) the provisions of clauses (i),

(ii), (iii), (iv), (v), (vii), (viii),

(ix), (x), (xi0 and (xv) of sub-rule (1) of

rule 41 shall apply to such lease with the

modification that in clauses (ii), (iii),

(iv) and (xv) for the words "State Govern -

ment" the word "lessor" shall be substi -

tuted;

XXXXXXXXX”

128. Thus, the Chapter V of Rules, 1949 dealt with

the mining lease granted by private persons, i.e.,

the category where the minerals were not owned by the

Government but was owned by private persons. Chapter

V of the Rules, 1960 contains substantially similar

provisions. Thus, Chapter V of Rules, 1960 has to be

treated to be dealing with minerals owned by private

owners. The earlier statutory regime, which was

enforced as per Rules, 1949 made it amply clear that

mineral concessions are to be granted by private

persons also, which is in substances retained in

Chapter V of Rules, 1960. Thus, mining lease to be

136

granted as per Chapter V of Rules, 1960 is mining

lease by the owner of mineral and similar concept has

to be borrowed and read in Chapter V as noted above.

Absence of any procedure to make an application for

mining lease to the State Government in Chapter V of

the Rules, 1960 and lessor being the private persons

and not the State Government, clearly indicates that

State Government is not to grant the lease in respect

of land of privately owned/community owned owners.

129. Another reason for not providing any

application to State Government for grant of mining

lease in respect of minerals, which vests in the

private owners and community owners is that; without

consent or willingness of private owners/community

owners of minerals, no authority is empowered to

grant any mining lease with regard to minerals, of

which he is the owner, it is the owner of the

minerals may be private persons or community owners,

who is entitled to grant lease of minerals as per the

provisions of Chapter V of Rules, 1960.

130. We, thus, conclude that as per the statutory

provisions contained in Rules, 1960 especially

137

Chapter V, a mining lease for minerals, which belongs

to a private owner or a community owner, it is not

the State Government, which is entitled to receive

any application or grant any mining lease, but it is

the private owner or community owner, who is entitled

to grant a lease for mining minerals owned by them.

Issue No.4 is answered accordingly.

Point No.5

131. Shri Shekhar Naphade, learned senior counsel

appearing for the State of Meghalaya has submitted

that State of Meghalaya has no control over the

mining of the coal by owners of the minerals since it

is the owners, who have right to carry on mining,

which has been traditionally going on in the State of

Meghalaya for last several decades. To find out as

to whether State of Meghalaya has any statutory

control over the mining operations in State of

Meghalaya, which is going on for last several

decades, we have to examine the statutory provisions

governing the field.

138

132. We have already held that provisions of MMRD

Act, 1957 and Mineral Concession Rules, 1960 are

applicable in the Hills Districts of the State of

Meghalaya. We, in the present case, are concerned

with the mining of coal, which is a major mineral as

per the Act, 1957 and Mineral Concession Rules, 1960.

Rule 42 of Chapter V of the Rules, 1960 provides for

restrictions on the grant of prospecting licence and

mining lease, which is to the following effect:-

“42. Restrictions on the grant of prospect -

ing licence and mining lease:- (1) No

prospecting licence or mining lease shall

be granted to any person unless he has

filed an affidavit stating that he has–

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

(ii) paid the income tax assessed on him,

and

(iii) paid the income tax on the basis of

self-assessment as provided in the

Income Tax Act, 1961 (43 of 1961).

(2) Except with the previous approval of

the Central Government, no prospecting li -

cence or mining lease shall be granted in

respect of any mineral specified in the

First Schedule to the Act.”

139

133. As per Rule 42(2), e xcept with the previous

approval of the Central Government, no prospecting

licence or mining lease shall be granted in respect

of any mineral specified in the First Schedule to the

Act. Thus, previous approval of Central Government

is mandatory before grant of mining lease of coal.

Rule 63 provides that the approval of the Central

Government has to be obtained through the State Gov -

ernment. Thus, the State Government has to be aware

that any previous approval of the Central Government

for mining coal has been obtained or not. Thus, re -

striction being statutory and without any exception

State Government cannot say that it has no role to

play with regard to mining of coal. All applications

for previous approval of Central Government has to be

routed through State Government. There are other

rules in Chapter V itself, which provides for control

of the State government in the mining of coal. Rule

50 empowers the provision for prohibition of working

of mines by the State Government, which is to the

following effect:-

“50. Prohibition of working of mines: - If

the State Government has reason to believe

140

that the grant or transfer of a prospecting

licence or a mining lease or of any right,

title or interest in such licence or lease

is in contravention of any of the provi -

sions of this chapter, the State Government

may, after giving the parties an opportu -

nity to represent their views and with the

approval of the Central Government, direct

the parties concerned not to undertake any

prospecting or mining operations in the

area to which the licence or lease re -

lates.”

134. The above rule empowers the State Government

with the approval of the Central Government to direct

the parties concerned not to undertake any mining op -

erations, if it has reasons to believe that the grant

or transfer of mining lease is in contravention of

any of the provisions of Chapter V. Thus, when min -

ing operations of coal are being conducted without

prior approval of Central Government, State is not

powerless to direct the parties not to undertake any

prospective mining operations in the area. The power

given under Rule 50 is not only enabling power, but

is a statutory obligation on the State to exercise

the power in the public interest. Rule 51 requires a

mining lease to furnish to the State Government such

returns and statements as may be prescribed. Rule 52

141

provides for penalty, which is to the following ef -

fect:-

“52. Penalty:- (1) If the holder of a

prospecting licence or a mining lease or

his transferee or assignee fails, without

sufficient cause, to furnish the documents

or information, or returns referred to in

rule 46, rule 47, rule 48, or rule 51, or

acts in any manner in contravention of rule

49 or rule 50, he shall be punishable with

imprisonment for a term which may extend to

one year or fine which may extend to five

thousand rupees or with both.

(2) If any person grants or transfers or

obtains a prospecting licence or mining

lease or any right, title or interest

therein, in contravention of any of the

provisions of this chapter, he shall be

punishable with imprisonment which may ex -

tend to one year or fine which may extend

to five thousand rupees or both.”

135. Rule 52 gives the State Government ample power

to prosecute and punish mining leases or his trans -

ferees or assignees on violation of the rules or con -

travention of any of the provisions of Chapter V,

which is ample power to the State to ensure that the

Act is faithfully followed.

136. The State was advised by the Comptroller and

Auditor General of India in its report ended 31

st

142

March, 2013 in para 4.5.1 that to regulate mining by

following Mines and Minerals (Development and

Regulation) Act, 1957. Para 7.5.8 of the same report

has made the following as recommendation No.1:

“Recommendation No.1: The M&G Department

should take necessary measures to regulate

mining in the State in accordance with the

provisions of the MMDR Act and Rules

thereunder.”

137. The State is thus well aware of its statutory

obligation which is reflected in Mining Policy of

2012 and Draft Guidelines, 2015 but still before this

Court their contention that no mining lease is to be

obtained for privately owned/community owned land in

Hills District of State of Meghalaya is unacceptable

and not in a good spirit. Our country being governed

by the Constitution of India all the States are to

implement Parliamentary Acts in true spirit and in

the present case the State having been advised time

and again by Comptroller and Auditor General and

being well aware of its statutory obligation as

noticed above it comes ill from the State to contend

before this Court that there is no requirement of

143

mining lease for winning the minerals. The above

stand of the State taken before this Court gives the

impression that instead of implementing the

Parliamentary enactment and regulatory regime for

mineral regulation some vested interests wants to

continue the illegal regime of illegal mining to the

benefit of the few persons which is unacceptable and

condemnable. We, thus, conclude that the State of

Meghalaya has jurisdiction and power to ensure that

no mining of coal should take place except when a

mining lease granted under Mineral Concession Rules,

1960, Chapter V, as discussed above.

Point No.6

138. One more point which needs to be considered is

as to whether power to allot land for mining purpose

is vested in Autonomous District Council? The submis -

sion on behalf of one of the Autonomous District

Council which is the appellant before us as well as

on behalf of State of Meghalaya is that Autonomous

District Council being constitutional authority con -

144

stituted under Schedule VI of the Constitution has

legislative and administrative power. Reference to

various legislation framed by Autonomous District

Council which received the assent of the Governor has

also been relied on. Para 3 of Schedule VI enumerates

the power of District Council and regional council to

make laws which we have extracted above.

139. Certain legislation framed by District Council

has also been referred namely the Khasi Hills Dis -

trict (Trading by Non Tribals) Regulation, 1954, the

United Khasi Jaintia Hills Autonomous District (Man -

agement and Control of Forest) Rules, 1960. The Khasi

Hills Autonomous District (Trading by Non Tribals)

Rules, 1959, all framed in exercise of power under

para 3 of Sixth Schedule. The power to make law en -

trusted to Autonomous District Council under para 3

of Schedule VI is power to make law referable to List

2 and List 3 of the Seventh Schedule. We have already

noticed above that with regard to regulation and de -

velopment of mineral, the Union has made declaration

by Section 2 of 1957 Act and the power of the State

145

Legislature is denuded in that respect. The logical

corollary of the above principle is that power of Au -

tonomous District Council shall also be denuded in so

far as regulation and development of minerals to the

extent which is covered by 1957 Act. We may refer to

one Rule 4 of United Khasi Jaintia Hills District

(Trading by non Tribals) Rules,1959, which contem -

plates form of licence and one of the licence re -

ferred to is under Rule 4 is licence in Form E. Rule

4 is as follows:

"4. Form of License.-

....

(5) License in form 'E' shall be issued for

the mining of minerals and the sale or

purchase of minerals accruing from the

autonomous district and for the import of

minerals into the autonomous district for

sale therein as specified in Part 'E' of

the First Schedule on payment of prescribed

license fee subject to the conditions

specified in the license..

. . . . ”

140. It is relevant to notice that the United Khasi

Jaintia Hills District (Trading by Non-Tribal) Rules,

1959 has been repealed insofar as Jaintia Hills Dis -

tricts are concerned by the Jaintia Hills Autonomous

146

District (Trading by Non-Tribal) Regulation Act,

2011, Section 18. Rules, 1959 is still in force in

Khasi Hills Autonomous Districts, since, no other

regulations have been placed before us repealing the

Rules, 1959. In Regulations, 2011, one aspect needs

to be noted in Section 2, which is definition clause.

By clause (viii), “trade” has been defined, which is

to the following effect:-

“(viii) "Trade" means any trade involving

buying and selling or business for profit

and includes exchange of goods or commodi -

ties or business or import, export and

transport of goods/commodities or entry of

goods into market for sale or trade and busi-

ness such as construction works or other work

rendered by the contractor or his agent and

it also includes person and persons engaged

by such contractor or agent or any other

profession or vocation such as barber, cob -

bler, tailoring, cattle rearing (which in -

clude piggery, goatary, poultry) milk and

dairy products, automobiles making or re-

pairing, electrician, furniture makers,

pharmacist, physician, transport and any

other similar vocation or profession and the

term "trade" and "trading" shall be con -

strued accordingly.”

141. The grant of licenses contemplated by Regula -

tions are only with respect to the “trade” as defined

in 2(viii). The entire Regulations do not refer to

147

any kind of trade in mining of coal or mining opera -

tions. Thus, the Regulations, 2011 have nothing to

do with the mining of coal.

142. Constitutional provisions of Schedule VI are

also relevant to be noticed. Paragraph 9 of the

Schedule VI refers to Licences or leases for the pur -

pose of prospecting for, or extraction of, minerals.

Para 9 is as follows: -

“9. Licences or leases for the purpose of

prospecting for, or extraction of,

minerals. -

(1) Such share of the royalties accruing

each year from licences or leases for the

purpose of prospecting for, or the

extraction of, minerals granted by [the

Government of the State] in respect of any

area within an autonomous district as may

be agreed upon between [the Government of

the State] and the District Court of such

district shall be made over to that

District Council.

(2) If any dispute arises as to the share

of such royalties to be made over to a

District Council, it shall be referred to

the Governor for determination and the

amount determined by the Governor in his

discretion shall be deemed to be the amount

payable under sub-paragraph(1) of this

paragraph to the District Council and the

decision of the Governor shall be final.”

148

143. Para 9(1) confines to the licences or leases

of minerals granted by government of the State.

Schedule VI which constitute the District Councils

and Regional Councils enumerates their powers. Para

9 refers to licences or leases for extraction of min -

erals granted by the Government of the State. Para 9

only deals with share of the royalties to District

Councils as agreed upon between the Government of the

State and the District Councils. Further paragraph

12(A)(a) itself contemplates that any law made by

District Council or Regional Council which is repug -

nant to any law of the State shall be void. Thus, the

status of law made by District Council or Regional

councils has to give way to the law made by the

State. There can be no doubt that District Council

and Regional Council cannot make any law which may be

repugnant to the provisions of the Parliamentary Act.

144. We, thus, are of the view that District Coun -

cil does not have any power to make any law with re -

gard to grant of mining lease. The mining leases for

winning the major minerals has to be granted in ac -

149

cordance with 1957 Act and Mineral Concession Rules,

1960.

POINT NOS. 7 & 8

145. This Court in State of Tamil Nadu versus M/s

Hind Stone and others, 1981 (2) SCC 205, speaking

through Chinnappa Reddy,J., has made following

weighty observations: -

“6. Rivers, Forests, Minerals and such

other resources constitute a Nation's

natural wealth. These resources are not to

be frittered away and exhausted by any one

generation. Every generation owes a duty to

all succeeding generations to develop and

conserve the natural resources of the

nation in the best possible way. It is in

the interest of mankind. It is in the

interest of the nation. It is recognised by

Parliament. Parliament has declared that it

is expedient in the public interest that

the Union should take under its control the

regulation of mines and the development of

minerals. It has enacted the Mines and

Minerals (Regulation and Development) Act,

1957.....”

146. No one can dispute the underlying object in

the above observations of this Court. The use of nat -

ural resources also plays major role in carrying out

development. A fine balance has to be maintained in

utilisation of natural resources and its conservation

150

and preservation. One cannot be sacrificed for the

interest of other. The concept of Sustainable Devel -

opment has been evolved and is being pursued. In this

context, reference be made to the three-Judge Bench

judgment of this Court in Lafarge Umiam Mining (pvt.)

Ltd. Versus Union of India & Others, 2011(7) SCC 338.

In para 75, following legal position was noticed: -

“75. Universal human dependence on the use

of environmental resources for the most

basic needs renders it impossible to

refrain from altering the environment. As a

result, environmental conflicts are

ineradicable and environmental protection

is always a matter of degree, inescapably

requiring choices as to the appropriate

level of environmental protection and the

risks which are to be regulated. This

aspect is recognised by the concepts of

“sustainable development”. It is equally

well settled by the decision of this Court

in Narmada Bachao Andolan Vs. Union of

India that environment has different facets

and care of the environment is an ongoing

process. These concepts rule out the

formulation of an across-the-board

principle as it would depend on the facts

of each case whether diversion in a given

case should be permitted or not, barring

“no go” areas (whose identification would

again depend on undertaking of due

diligence exercise). In such cases, the

margin of appreciation doctrine would

apply.”

151

147. Now we come back to the order of NGT dated

17.04.2014 by which Tribunal prohibited the Rathole

mining/illegal mining throughout the State of Megha -

laya. We have noticed above that in OA No.73 of 2014

wherein the above order was passed, sufficient mate -

rials were brought on the record including experts

report which proved that illegal coal mining in the

State of Meghalaya is degrading the environment. The

Court also noticed the report of Professor Dr.O.P.S -

ingh which noticed that the Meghalaya Pollution Con -

trol Board in the year 1997 has submitted the report

about the environmental pollution consequent to ille -

gal mining.

148. Learned Amicus Curiae has invited our atten -

tion to report of Comptroller and Auditor General for

the year ending 31

st

March, 2013, where the Comptrol -

ler and Auditor General has noticed that due to Acid

Mine Drainage several locations of Lukha River were

severally polluted. The report also referred to in -

vestigation by the Meghalaya State Pollution Control

Board in November 2011 and noticed that no effective

152

steps were taken to control AMD. Paragraph 7.5.23.1

of the report is as follows: -

“7.5.23.1 Pollution of rivers due to Acid

Mine Drainage from coal mines

Based on media reports relating to

pollution of Lukha river in Jaintia Hills,

the Meghalaya State Pollution Board (MSPCB)

conducted (November 2011) an investigation

to ascertain the water quality of the Lukha

River and its feeding streams in Jaintia

Hills District vis-a-vis a similar

investigation carried out in February 2007.

For this purpose, eight water and sediment

samples were collected from the same

sampling locations investigated during

2007. The findings are as follows: -

Table 1.6

Station pH

BIS norms

6.5-8.5

Iron(mg/I)

BIS norms:0.3

Sulphate(mg/I)

BIS

norms:200.0

2007 2011 2007 2011 2007 2011

St.1 3.0 2.7 3.6 6.2 254.0566.5

St.2 7.5 5.0 0.13 5.4 13.4 305.0

St.3 6.8 7.3 0.17 0.4 62.0 8.69

St.4 4.5 4.3 0.46 4.8 211.8265.0

St.5 6.3 5.0 0.32 1.2 188.8200.0

St.6 4.3 6.2 0.372 0.26 192.1118.2

St.7 7.9 8.2 1.35 0.18 99.0 29.04

St.8 7.8 8.1 0.3 0.28 101.5 45.6

The water quality characteristics in terms

of pH, Sulphate and Iron concentrations

with respect to Stations 1,2,4 and 5

indicated that there is significant

deterioration of water quality in

153

comparison to that of the year 2007 the

major cause of which was the AMD from coal

mining in these areas.

The investigation made by the MSPCB further

revealed that the river water on the entire

stretch of the sampling locations was not

suitable for drinking purpose......”

149. Tribunal being satisfied from the materials on

record has issued the order dated 17.04.2014 which

cannot be faulted in the facts and materials which

are on record in the present case. One more fact in

the above context need to be noticed i.e. after the

order dated 17.04.2014, several applicants including

the appellants of Civil Appeal No.5272 of 2016 filed

application for vacating the ban which was not ac -

ceded to by the Tribunal. Subsequently the NGT per -

mitted transportation of coal till 15.05.2016 and di -

rected that after 15.05.2016, all coal within the

State of Meghalaya shall vest in the State.

150. The tribunal after considering all pleas and

materials including reports submitted by the commit -

tees affirmed the order dated 17.04.2014 and refused

to withdraw the ban. We do not find any error in the

order of NGT reaffirming its ban order in the facts

154

of the present case. But the question which has been

raised by the appellant before this Court is that

whether the complete ban as imposed by the NGT de -

serves to be vacated or modified in the interest of

the State and tribals. The revenue earned by the

State from coal mining plays substantial part in the

economy of the State. It is also amply demonstrated

from the record that tribals are the owners of the

land who carry on mining of coal in their land by

which they earn their substantial livelihood.

151. Though as discussed above the manner in which

the mining is being carried out by the tribals cannot

be approved which is clearly in violation of statu -

tory regime under 1957 Act and 1960 Rules but in

event the mining is carried out by tribals or their

assignees as per the provisions of 1957 Act and 1960

Rules, there can be no objections in carrying such

mining under the regulation and control of State of

Meghalaya. We thus clarify that in event mining oper -

ations are undertaken by the tribals or other owners

of hills districts of Meghalaya in accordance with

155

mining lease obtained from the State of Meghalaya as

per 1957 Act and Mineral Concessions Rule, 1960, the

ban order dated 17.04.2014 of the tribunal shall not

come in its way of carrying mining operations. The

ban order is for the illegal coal mining which was

rampant in the State of Meghalaya and the ban order

cannot be extended to valid and legal mining as per

1957 Act and 1960 Rules.

Point Nos.9 and 10

152. The appellants contend that the NGT has no

jurisdiction to constitute any committee. The NGT

vide its different orders has constituted different

committees for submitting reports for different

purposes. The Constitution of which committees are

sought to be challenged on the ground that the NGT

has no jurisdiction to constitute a committee.

Similarly, order of the Tribunal directing for

constituting a fund, namely, Meghalaya Environment

Protection and Restoration Fund has been challenged

on the ground that the Tribunal has no jurisdiction

to constitute any fund.

156

153. What are the powers and jurisdiction of the

Tribunal given under the National Green Tribunal Act,

2010 has to be looked into to consider the above

submission? In so far as jurisdiction of the Tribunal

is concerned, we have already noticed Sections 14,

15, and 16 of the Act. Section 19 of the Act deals

with procedure and powers of the of the Tribunal.

Section 19 which is relevant for the present case is

as follows:

“19. Procedure and powers of Tribunal. –

(1). The Tribunal shall not be bound by the

procedure laid down by the Code of Civil

Procedure, 1908 but shall be guided by the

principles of natural justice.

(2). Subject to the provisions of this

Act, the Tribunal shall have power to

regulate its own procedure.

(3). The Tribunal shall also not be bound

by the rules of evidence contained in the

Indian Evidence Act, 1872.

(4). The Tribunal shall have, for the

purposes of discharging its functions under

this Act, the same powers as are vested in

a civil court under the Code of Civil

Procedure, 1908, while trying a suit, in

respect of the following matters, namely:-

(a) summoning and enforcing the

attendance of any person and

examining him on oath;

157

(b) requiring the discovery and

production of documents;

(c) receiving evidence on affidavits;

(d) subject to the provisions of

sections 123 and 124 of the Indian

Evidence Act, 1872, requisitioning

any public record or document or copy

of such record or document from any

office;

(e) issuing commissions for the

examination of witnesses or

documents;

(f) reviewing its decision;

(g) dismissing an application for

default or deciding it ex parte;

(h) setting aside any order of

dismissal of any application for

default or any order passed by it ex

parte;

(i) pass an interim order

(including granting an injunction or

stay) after providing the parties

concerned an opportunity to be heard,

on any application made or appeal

filed under this Act;

(j) pass an order requiring any

person to cease and desist from

committing or causing any violation

of any enactment specified in

Schedule I;

(k) any other matter which may be

prescribed.

5. All proceedings before the Tribunal

shall be deemed to be the judicial

proceedings within the meaning of sections

193, 219 and 228 for the purposes of

158

section 196 of the Indian Penal Code and

the Tribunal shall be deemed to be a civil

court for the purposes of section 195 and

Chapter XXVI of the Code of Criminal

Procedure, 1973.”

154. Sub-section (1) of Section 19 provides that

Tribunal shall not be bound by the procedure laid

down by the Code of Civil Procedure but shall be

guided by the principles of natural justice. What

sub-section (1) meant to convey is that Tribunal is

not shackled with the procedure laid down by the CPC

for conducting its proceedings. Sub-section (2) of

Section 19 empowers the Tribunal, powers to regulate

its own procedure. Section 19(2) confers wide powers

on the Tribunal in so far as its procedure is

concerned. Section 19(4) vests some powers as are

vested in civil court, while trying a suit, in

respect of matters enumerated therein. The use of

expression “shall not be bound by the procedure laid

down by the CPC” is not akin to saying that procedure

as laid down by the CPC is in no manner relevant to

the Tribunal. Further, Section 19(1) also does not

mean that Tribunal cannot follow any procedure given

159

in the CPC. One provision of CPC inserted by Act 104

of 1976 with effect from 01.02.1977 is Order XXVI,

which is relevant for present inquiry. Order XXVI

Rule 10A provides as follows:

“Order XXVI Rule 10A. Commission for

scientific investigations"- (1) Where any

question arising in a suit involves any

scientific investigation which cannot, in

the opinion of the Court, be conveniently

conducted before the Court, the Court may,

if it thinks it necessary or expedient in

the interests of justice so to do, issue a

commission to such person as it thinks fit,

directing him to inquire into such question

and report thereon to the Court.

(2) The provisions of rule 10 of this Order

shall, as far as may be, apply in relation

to a Commissioner appointed under this rule

as they apply in relation to a Commissioner

appointed under rule 9.”

155. Rule 10A provides that where any question

arising in a suit involves any scientific

investigation which cannot, in the opinion of the

Court, be conveniently conducted before the Court,

the Court may, if it thinks necessary or expedient

in the interests of justice so to do, issue a

commission to such person as it thinks fit, directing

him to inquire into such question and report thereon

160

to the Court. Rule 10A is enabling power to the

courts to obtain report from such persons as it

thinks fit when any question involves with the

scientific investigation. The powers under Rule 10A

which are to be exercised by the Court can very well

be used by the NGT to obtain reports by experts. The

NGT as per the statutory scheme of the NGT has to

decide several complex questions pertaining to

pollution and environment. The scientific

investigation and report by experts are necessary

requirement in appropriate cases to come to correct

conclusion to find out measures to remedy the

pollution and environment. We do not, thus, find any

dearth of jurisdiction in the NGT to appoint a

committee to submit a report. We may further say that

while asking expert to give a report the NGT is not

confined to the four corners of Rule 10A rather its

jurisdiction is not shackled by strict terms of Order

26 Rule 10A s per Section 19(1) as noticed above.

156. There is one more provision which throws

considerable light on the above. Under Section 35 of

the NGT Act, 2010 Central Government is empowered to

161

make rule for carrying out the provisions of the Act.

Rules have been framed in exercise of powers under

Section 35, namely, National Green Tribunal (Practice

and Procedure) Rules, 2011. The said Rules have been

framed in exercise of powers under Section 4(4) as

well as Section 35. The Rules, 2011 are Rules also

for practices and procedure of the Tribunal. Rule 24

which is relevant for the present case is as follows:

“Section 24. Order and directions in

certain cases.- The Tribunal may make such

orders or give such directions as may be

necessary or expedient to give effect to

its order or to prevent abuse of its

process or to secure the ends of justice.”

157. Rule 24 empowers the Tribunal to make such

orders or give such directions as may be necessary or

expedient to give effect to its order or to secure

the ends of justice. Rule 24 gives wide powers to the

Tribunal to secure the ends of justice. Rule 24 vests

special power to Tribunal to pass orders and issue

directions to secure ends of justice. Use of words

‘may’, ‘such orders’, ‘gives such directions’, ‘as

may be necessary or expedient’, ‘to give effect to

its orders’, ‘order to prevent abuse of process’, are

162

words which enable the Tribunal to pass orders and

the above words confer wide discretion.

158. Professor Justice G.P. Singh , in Principles of

Statutory Interpretation, 14

th

Edition while dealing

with enabling word says:

“Ordinarily, the words ‘May’ and ‘It shall

be lawful’ are not words of compulsion.

They are enabling words and they only

confer capacity, power or authority and

imply discretion. “They are both used in a

statute to indicate that something may be

done which prior to it could not be done”.

The use of words ‘Shall have power” also

connotes the same idea.”

159. The enabling powers give to the Tribunal under

Rule 24 is for purpose and object to decide the

subjects which are to be examined, decided and an

appropriate relief is to be granted by the Tribunal.

Further, subjects contain wide range of subjects

which require technical and scientific inputs. The

Tribunal can pass such orders as it may think fit

necessary or expedient to secure ends of justice.

160. The object for which said power is given is

not far to seek. To fulfil objective of the NGT Act,

163

2010. NGT has to exercise a wide range of

jurisdiction and has to possess wide range of powers

to do justice in a given case. The power is given to

exercise for the benefit of those who have right for

clean environment which right they have to establish

before the Tribunal. The power given to the Tribunal

is coupled with duty to exercise such powers for

achieving the objects. In this regard reference is

made to judgment of this Court in L. Hirday Narain

vs. Income Tax Officer, Bareilly, 1970(2) SCC 355,

where this Court was examining provision empowering

authority to do something. This Court laid down in

paragraph 14:

“14. The High Court observed that under

Section 35 of the Indian Income Tax. Act,

1922, the jurisdiction of the Income Tax

Officer is discretionary. If thereby it is

intended that the Income Tax Officer has

discretion to exercise or not to exercise

the power to rectify, that view is in our

judgment erroneous. Section 35 enacts that

the Commissioner or Appellate Assistant

Commissioner or the Income Tax Officer may

rectify any mistake apparent from the

record. If a statute invests a public

officer with authority to do an act in a

specified set of circumstances, it is

imperative upon him to exercise his

authority in a manner appropriate to the

case when a party interested and having a

164

right to apply moves in that behalf and

circumstances for exercise of authority are

shown to exist. Even if the words used in

the statute are prima facie enabling the

Courts will readily infer a duty to

exercise power which is invested in aid of

enforcement of a right — public or private

— of a citizen.”

161. We, thus, are of the considered opinion that

there is no lack of jurisdiction in the NGT to direct

for appointment of committee or to obtain a report

from a committee in given facts of the case.

162. Now coming to the challenge to the Fund which

has been constituted by the Tribunal, namely,

“Meghalaya Environment Protection and Restoration

Fund”, it is useful to notice the observation of the

Tribunal in its order dated March 25, 2015 by which

the said Fund was created. The reasons for

constitution of Fund are self-explanatory which are

to the following effect:

“It is also undisputable that there has

been huge environmental degradation and

pollution of the waterbody in the State of

Meghalaya, because of this illegal, unsci -

entific mining. No one has even thought of

restoration of the area in question, to

bring to some 16 extent, if not completely,

restoration of ecology and environment in

question. Serious steps are required to be

165

taken for cleaning polluted waterbodies and

ensure that no further pollution is caused

by this activity and the activity which

would be permitted to be carried on finally

including transportation of coal. On the

basis of `Polluter Pay Principle’. We di -

rect that the State Government shall in ad -

dition to the royalty payable to it, shall

also collect 10% on the market value of the

coal for every consignment. Having heard

the learned Counsel appearing for the par -

ties and keeping in view the notifications

of the Central Government dated 10.05.2012

and that of the State Government dated

22.06.2012, we may notice that in the re -

port of Comptroller and Auditor General of

India for the period ending 31st March,

2013 under 7.5.18 of Chapter 7 of which the

invoice value of the coal has been taken

Rs. 4850/- per metric tonne. Thus, we di -

rect that the State Government shall in ad -

dition to the royalty payable to it, also

collect 10% of the said market value of the

coal per metric tonne from each person. The

amount so collected shall be deposited in

the account to be titled as ‘Meghalaya En -

vironment Protection and Restoration Fund’

to be maintained by the State under the di -

rect control of the Chief Secretary of the

State of Meghalaya.

This amount shall only be used for restora -

tion of environment and for necessary reme -

dial and preventive measures in regard to

environment and matters related thereto”

163. As noticed above the NGT could have passed any

order or direction to secure ends of justice which

power especially conferred by Rule 24 as noticed

166

above, direction to constitute Fund is thus also

saved under such power.

Point No.11

164. In respect of constitution of committee by the

Tribunal there are two other limbs of submission;

that, (1) NGT by constituting committees has

delegated essential judicial power to the committee;

(2) the Constitution of committees encroaches the

constitutional scheme of administration of Tribal

areas under Article 244(2) read with Sixth Schedule

of the Constitution.

165. The Tribunal vide its various directions has

asked for reports from State officials and the

committees. The various instances where the NGT

directed for report or investigation and submission

of report by committees were with the object of

ensuring the implementation of the orders passed by

it and to decide the environmental issues raised

before it. In no manner constitution of committee can

be said to be delegation of essential judicial powers

of the NGT to the committee.

167

166. Now, we come to the Katakey committee which

was constituted by the Tribunal on 31.08.2018. In

paragraphs 14 and 15, the Tribunal while directing

for constitution of committee headed by Justice B.P.

Katakey directed:

“14. Only last question which remains is of

restoration of the environment and rehabil -

itation of the victims for which funds are

available. We are of the view that for this

task, it will appropriate that we consti -

tute an independent Committee. This Commit -

tee will be headed by Justice B.P. Katoki,

Former Judge of the Guwahati 8 Item Nos. 06

to 10 August 31, 2018 R High Court with

representatives from Central Pollution Con -

trol Board and Indian School of Mines,

Dhanbad.

15. The Committee will take the following

steps:

 Take stock of all actions taken so far in

this regard.

 Prepare time bound action plan to deal

with the issue and ensure its implementa -

tion.”

167. The Constitution of the committee and its

functions entrusted were with the object to implement

the orders passed by the Tribunal. The Tribunal has

already directed for preparing a scheme for the

restoration of the environment and ecology. The

environment and ecology restoration plan was

168

submitted before the Tribunal along with the

affidavit dated 03.10.2017 as has been noticed in the

order dated 02.01.2018 of the NGT. In the

constitution of Katakey committee, thus, it cannot be

said that essential judicial functions were delegated

to the committee by the Tribunal. For the restoration

of environment NGT vide its order dated 31.08.2018

has directed the committee to submit its action plan

and reports by e-mail. The Tribunal, thus, had kept

complete control on all steps which were required to

be taken by the committee and issued directions from

time to time. We, thus, do not accept the submission

of the appellant that the essential judicial powers

of the NGT had been delegated to the committee.

Looking to the enormous work of restoration of

environment which has to be supervised on the spot

the committee was constituted. We, however, observe

that the State is always at liberty to obtain

particular direction if aggrieved by any act of the

committee. The matter being pending before the

Tribunal of acts of the committee are under direct

control of the Tribunal and if the committee

169

oversteps in any direction the same can very well be

corrected by the Tribunal on the matter being brought

before it.

168. Now, we come to the second limb, that the

constitution of the committee encroaches the

constitutional scheme of the Tribal areas. We revert

back to the Sixth Schedule of the Constitution. Para

3 of the Sixth Schedule enumerates the powers of the

District Council and Regional Council to make laws.

The powers of the District and Regional Councils are

enumerated under paragraph 3. In the directions of

the Tribunal to constitute committee for

transportation of extracted minerals or for preparing

time bound action to deal with the restoration of

environment and to ensure its implementation, there

is no interference in the powers of the District or

Regional Councils. Action plan for restoration of

environment is consequence of Tribunal finding out

that an unregulated coal mining has damaged

environment and has caused the pollution including

water pollution. It is not case of the appellant that

District and Regional Councils have framed any law

170

for restoration of environment which is being

breached by the committee or its acts. The District

and Regional Councils are free to exercise all their

powers and the committee constituted by the Tribunal

is only concerned with the Environmental degradation

and illegal coal mining. The committees’ report or

direction of the Tribunal in no manner encroaches

upon the administration of Tribal areas by the

District and Regional Councils.

Point No.12

169. The NGT vide its order dated 04.01.2019 di -

rected the State of Meghalaya to deposit an amount of

Rs.100 Crores with the Central Pollution Control

Board, which was to be spent for restoration of envi -

ronment. The State of Meghalaya aggrieved by above

direction has filed Civil Appeal No.2968 of 2019. We

have already noticed the submission of Shri Amrendra

Sharan, Senior Advocate.

170. Shri Colin Gonsalves, learned Amicus Curiae

has refuted the submissions made by the learned coun -

sel for the appellant. It is submitted that despite

the specific ban on coal mining by order dated

171

17.04.2014 in the entire State, illegal coal mining

had been going on, which was proved from the reports

and pictures referred to in the report. The State is

responsible and constitutionally obligated to provide

clean environment to every citizen. They having en -

tirely failed to stop the illegal mining, which is

cause of degradation of pollution including pollution

of river streams, the Tribunal has rightly directed

the State of Meghalaya to deposit Rs.100 Crores.

Shri Gonsalves submits that in spite of State Pollu -

tion Control Board as well as Comptroller Auditor

General having invited the attention of the State of

Meghalaya towards serious pollution especially in the

river water, no steps were taken by the State of

Meghalaya. It is further submitted that restoration

of environment requires carrying out various projects

and unless the State provides for necessary fund and

finances, the restoration of damaged environment can -

not be undertaken. It is further submitted that

State had collected huge fund Rs.4,33,07,26,731/-,

which amount had not been spent by the State, al -

172

though, it was required to take steps for restoration

of environment.

171. The NGT vide its order dated 31.08.2018 con -

stituted a committee headed by Justice B.P. Katakey,

Former Judge of Gauhati High Court with representa -

tives from Central Pollution Control Board and Indian

School of Mines, Dhanbad. By subsequent order dated

19.09.2018 issued by the Tribunal, additional Chief

Secretary to Government of Meghalaya was made the

Member Secretary/Coordinator for proper functioning

of the committee. The committee visited different

sites, held various meetings, various presentations

were also made before the committee by Meghalaya

State Pollution Control Board and other bodies namely

North Eastern Centre for Technology Application and

Reach, North Eastern Space Application Centre. In

Para 12(g), following has been stated by the commit -

tee:-

“12(g) Presentation was also made by the

Meghalaya State Pollution Control Board on

the coal mine activities and its impact on

the land used, water quality, air quality,

ecology as well as socio-economic impact.

The Committee, on the basis of the said

173

presentation, found the following:-

(i) Continuation of coal mine activities

for a long time in an unplanned and

unscientific manner as well as with -

out any pollution control measures.

(ii)Such mining activities are generating

huge ecological disturbances and neg -

ative environmental impacts.

(iii)Water in rivers and streams in the

mining areas have become highly

acidic in nature with pH value of 2.7

since 1991-92 due to presence of high

percentage of sulphur in coal, which

reacts after mixing with oxygen in

air and water giving rise to AMD

problem. No difference of pH level of

water in rivers, streams and mine

drains have been noticed during mon -

soon.

(iv)pH level of water in springs, taps

water and hand pumps also found to be

less than permissible limit of drink -

ing water standards.

(v) Absence of biological life in the wa -

ter bodies.

(vi)Ambient air quality of the coal min -

ing areas and coal storage areas ex -

ceeds the National Ambient Air Qual -

ity Standards on few occasions.

(vii)Requirement of urgent steps to be

taken to generate social awareness

about the adverse environmental im -

pacts and the health hazards associ -

174

ated with unplanned and unscientific

coal mining activities.

172. Action plans for restoration of environment

were also discussed and finalised.

173. On detailed discussion on Issue No.(A), com -

mittee with details including photographs and maps

observed following:-

“(vi) From the aforesaid materials

available before the Committee, it is,

therefore, evident that the coal mining

activities, which includes the extraction

of coal and transportation, is going on in

the State of Meghalaya, at least in East

Jaintia Hills District, where such mining

activities are most, despite the ban

imposed by the Hon’ble NGT vide its order

dated 17.04.2014. Very sincere and honest

efforts are required on the part of the

State Government to stop the mining

activities, which are going on. Such mining

activities are going on without adopting

any safety measures for the workers and

without caring for adverse environmental

affect. A sincere desire to stop such

illegal mining activities is also necessary

on the part of the State and Central

Government agencies for implementation and

monitoring of health, safety and

environmental regulations.

(vii) The result of ongoing un-abetted

illegal mining, despite the ban imposed by

the NGT, is the very tragic incident

occurred very recently on 13.12.2018 in a

coal mine in Ksan Village near Lytein River

175

under Saipung Police Station in East

Jaintia Hills District, where 15(fifteen)

coal mine workers are reported trapped,

while they were working in the mine.

Unfortunately, none of them so far could be

rescued. For the said incident, Saipung

Police Station Case No.15(12)/2018 under

Section 188/304A/34 IPC read with Section

3(2)(d) of PDPP Act and Section 21(1) of

MM(R&D) Act against the coal mine owner has

been registered. A Magisterial enquiry to

find out the facts and circumstances

leading to the said incident, has also been

directed.”

174. The fact that on 13.12.2018, 15 coal mine

workers were trapped in an ongoing coal mining opera -

tion, who all have been reported to be dead itself

proves beyond any shade of doubt that order dated

17.04.2014 banning mining in the entire State of

Meghalaya was neither been enforced nor serious en -

deavours were taken by the State or its authorities

to save the environmental pollution. With regard to

restoration of the environment and restoration of the

victims, action plans were formulated by the commit -

tee.

175. The first submission raised by Shri Amrendra

Sharan challenging the order is violation of princi -

176

ples of natural justice. The report dated 31.12.2018

of the committee itself in issue No. f(iv) noticed: -

“Website has been opened and all the

proceedings of the Committee are uploaded

in the said website. ”

176. The report being placed on website on

31.12.2018 itself, there is no question of serving

copy of the report of the committee to the Stakehold -

ers. It is further relevant to notice that Addi -

tional Chief Secretary of the Government of Meghalaya

was himself the Member Secretary and Coordinator of

the committee under the orders of the Tribunal dated

19.09.2018. All proceedings of the committee, its

meetings and minutes, were with the knowledge and

participation of the coordinator/ Additional Chief

Secretary of the State of Meghalaya.

177. A perusal of the order dated 04.01.2019, which

is impugned in the appeal indicates that although

learned counsel for the State of Meghalaya was

present and was heard but no kind of objection was

raised regarding acceptability of the report. The

report obtained by the NGT through the committee was

177

to take effective steps towards protection of envi -

ronmental pollution and for restoration of damaged

environment. Pollution of the various rivers and

streams and steps for treating the acidic water was

urgently required. Several presentations before the

committee were also made and different steps regard -

ing restoration of environment were to be taken as

noticed and indicated in the report of the committee.

As noticed above, the NGT vide its order dated

25.03.2015 constituted a fund namely ‘Meghalaya Envi -

ronment Protection and Restoration Fund’ to be main -

tained by the State under the direct control of the

Chief Secretary of the State of Meghalaya. It is re -

iterated in the report of the committee that an

amount of Rs.433 Crores is already lying in the said

fund, which has not been spent.

178. Learned counsel for the appellant has laid

much emphasis that there had been no calculation of

the extent of damage nor Tribunal could have arrived

at on the amount of damages to the extent of Rs.100

Crores, which was directed to be deposited by the

178

State of Meghalaya with the Central Pollution Control

Board.

179. We are of the view that the amount, which has

been directed by NGT to be deposited by State of

Meghalaya is neither a penalty nor a fine imposed on

the State. The amount has been directed to be de -

posited for carrying out steps regarding restoration

of environment. We further agree with the submission

of the learned counsel for the appellant that the

said amount cannot be said to be amount of damages to

be paid by the State. We further find force in the

submission of the learned counsel for the appellant

that State of Meghalaya has very limited source of

revenue and putting an extra burden on the State of

Meghalaya to make payment of Rs.100 Crores from its

own financial resources and budgetary amount may

cause great hardship to the State of Meghalaya. Ends

of justice be served in modifying the direction of

NGT dated 04.01.2019 to the extent that State is per -

mitted to transfer an amount of Rs.100 Crores from

the amount lying in the MEPRF to the Central Pollu -

179

tion Control Board. The Central Pollution Control

Board as directed by the Tribunal (NGT) shall utilise

the aforesaid amount of Rs.100 Crores only for

restoration of the environment. The appeal is thus,

partly allowed to the above extent.

Point No.13

180. Vide order dated 31.03.2016, the NGT had

permitted transportation of coal till 15.5.2016 under

terms and conditions as enumerated therein. The order

dated 31.3.2016 further contemplated that no coal in

any form whatsoever shall be permitted to be

transported after 15.05.2016 on which date the entire

remaining coal shall vest in the State Government and

shall be disposed of in accordance with law.

181. The main grievance of the appellant is that

NGT could not have directed for vesting of coal in

the State. The submission is that members of the

appellant-association have proprietary rights in the

coal with which they could not be divested by the

Tribunal. We have already held that private owners of

180

the land are also owners of the minerals and the

minerals belong to the owners/Tribals. We have also

found that coal mining was illegally going on

unregulated by any statutory law in the Hills

District of State of Meghalaya without there being

any mining lease. The entire mining was, thus, is

clear in contravention of Section 4(1) of Act, 1957

which attracted penalties under Section 21. Section

21 of the Act is as follows:

“21. Penalties.―(1) Whoever contravenes the

provisions of sub-section (1) or sub-sec -

tion (1A) of section 4 shall be punishable

with imprisonment for a term which may ex -

tend to five years and with fine which may

extend to five lakh rupees per hectare of

the area.

(2) Any rule made under any provision of

this Act may provide that any contravention

thereof shall be punishable with imprison -

ment for a term which may extend to two

years or with fine which may extend to five

lakh rupees, or with both, and in the case

of a continuing contravention, with addi -

tional fine which may extend to fifty thou -

sand rupees for every day during which such

contravention continues after conviction

for the first such contravention.

(3) Where any person trespasses into any

land in contravention of the provisions of

sub-section (1) of section 4, such tres -

passer may be served with an order of evic -

tion by the State Government or any author -

ity authorised in this behalf by that Gov -

181

ernment and the State Government or such

authorised authority may, if necessary, ob -

tain the help of the police to evict the

trespasser from the land.

(4) Whenever any person raises, transports

or causes to be raised or transported,

without any lawful authority, any mineral

from any land, and, for that purpose, uses

any tool, equipment, vehicle or any other

thing, such mineral tool, equipment, vehi -

cle or any other thing shall be liable to

be seized by an officer or authority spe -

cially empowered in this behalf. (4A) Any

mineral, tool, equipment, vehicle or any

other thing seized under sub-section (4),

shall be liable to be confiscated by an or -

der of the court competent to take cog -

nizance of the offence under sub-section

(1) and shall be disposed of in accordance

with the directions of such court.

(5) Whenever any person raises, without any

lawful authority, any mineral from any

land, the State Government may recover from

such person the mineral so raised, or,

where such mineral has already been dis -

posed of, the price thereof, and may also

recover from such person, rent, royalty or

tax, as the case may be, for the period

during which the land was occupied by such

person without any lawful authority.

(6) Notwithstanding anything contained in

the Code of Criminal Procedure, 1973 (2 of

1974), an offence under sub-section (1)

shall be cognizable.”

182. The mining of coal in contravention of Section

4(1) invites penalties as enumerated in Section 21.

The present is not a case where any kind of penalty

182

has been imposed on the miners except that the amount

of royalty as payable on mining of coal is being

collected by the State as penalty. It is true that

the State Government has power under Section 21(5) to

recover from such person the minerals so raised, or,

where such material has already been disposed of, the

price thereof, and may also recover from such person,

rent, royalty or tax, as the case may be, but it is

for the State Government to exercise its power under

Section 21(5) by way of penalty. The NGT has not

given any reason as to how coal shall automatically

vest in the State. The right of recovery of mineral

as contemplated under Section 21(5) does not amount

to say that proprietary right of owner of the

minerals is lost rather State under Section 21(5)

exercises its power to recover the mineral which has

been raised without any lawful authority. We, thus,

are of the view that coal extracted and lying in open

after 15.05.2016 was not automatically vested in the

State and the owner of the coal or the person who has

mined the coal shall have the proprietary right in

the mineral which shall not be lost.

183

Point No.14

183. Several I.A.s have been filed by different ap -

plicants seeking direction to transport already ex -

tracted coal lying at different places in hills dis -

tricts of State of Meghalaya. Different applicants

may claim to different quantities of coal situate at

different places. By our order dated 10.05.2019, we

have already permitted transportation of balance coal

to the extent of 75050 MTs for which challans were

already issued after the order of this Court dated

04.12.2018. The above quantity of said 75050 MTs.

was balance quantity out of 176655 Mts., for trans -

portation of which order was passed by this Court on

04.12.2018. In addition to the aforesaid quantity,

claim with regard to different quantities by differ -

ent applicants has been laid. It is not necessary

for the purpose of the present case to notice differ -

ent quantities and claims of different persons for

transportation. After the order of the NGT dated

31.08.2018, the State of Meghalaya has constituted

committees to assist the Commissioner and Secretary,

Mining and Geology to prepare a separate inventory

184

with regard to coal not so far recorded in the inven -

tory available with the NGT. In pursuance of said

direction, as contained in paragraph No.13 of the or -

der, steps were taken and various committees had made

certain assessments with regard to different quanti -

ties of coal lying in four Hills Districts of State

of Meghalaya. Katakey committee Report dated

31.12.2018 has in chart noticed the different quanti -

ties as was informed by letter dated 13.11.2018 to

Commissioner and Secretary to the Government of

Meghalaya. While dealing with issue No.3, in para -

graph Nos.(iii), (iv) and (v), following has been

stated:-

“(iii) The Commissioner & Secretary to the

Government of Meghalaya, Mining & Geology

Department, in the ATR submitted on

13.11.2018 has stated about the

availability of 176655 MTs of already

inventorised coal for transportation, which

has also been reflected in the order dated

04.12.2018 passed by the Hon’ble Supreme

Court. The Commissioner & Secretary, in the

said ATR, has also stated that 23,25,663.54

MTs of coal, other than those inventorized

coal, remained un-inventorized and

available for transportation, district-wise

break up of which is as follows:-

“REPORT ON EXTRACTED COAL REFLECTED AS

UN-ASSESSED OR NIL IN THE INVENTORY

APPROVED BY NGT

185

Sl.

No.

Name of

District

Declared

Quantity in

MT

Assessed

Quantity in

MT

1.East Jaintia

Hills District

15,46,687.00 13,22,379.00

2.West Khasi

Hills District

7,29,757.00 7,78,297.99

3.South-West

Khasi Hills

District

1,25,600.63 2,14,145.55

4.South Garo

Hills District

12,834.00 10,841.00

Total24,14,878.6323,25,663.54”

(iv) From the aforesaid District wise break

up of extracted coal, which was un-

inventorised, it appears that the quantity

of such coal was highest in East Jaintia

Hills District, where the Deputy

Commissioner, as noticed above, has

admitted ongoing coal mining activities

despite the ban imposed by the Hon’ble NGT

vide order dated 17.04.2014. The stand of

the Government that the quantity of coal,

as reflected in the aforesaid chart were

mined prior to the said ban, appears to be

not acceptable, in view of the aforesaid

admission of the Deputy Commissioner and

also what the Committee has noticed during

its field visit on 12.11.2018. It seems

that there is an attempt to show the

freshly mined coal, i.e. the coal mined

after the ban imposed by the Hon’ble NGT,

as the coal left out from the assessment

and remained un-inventorised though mined

prior to the said ban. The Committee also

apprehends that such freshly mined coal may

be transported taking advantage of the

order dated 04.12.2018 passed by the

Hon’ble Supreme Court.

(v) The Hon’ble NGT vide its order dated

31.08.2018 given the responsibility of

186

going through the said issue to the

Secretary of Mining, State of Meghalaya in

the first instance and to be cross-checked

by the Joint Team of representatives of the

Central Pollution Control Board and India

School of Mines, Dhanbad. As reported, no

such cross-check has so far been made.”

184. The State of Meghalaya has filed additional

affidavit dated 06.04.2019 of Commissioner and Secre -

tary to the Government of Meghalaya, Mining and Geol -

ogy Department, where details of assessments made by

committees appointed by the State of Meghalaya has

been brought on the record. In the affidavit, it has

also been stated that a technical committee was also

constituted to perform the verification of the as -

sessments made by the Deputy Commissioners of respec -

tive districts. As per the affidavit, assessment of

extracted coal stocks in above four districts is

32,56,715 MTs whereas in the report submitted by

Katakey committee, the said figure in the above four

districts is 23,25,663.54 MTs. Technical committee

submitted their report, which have been brought on

the record alongwith the Additional Affidavit verify -

ing the assessed quantities. In the affidavit of the

187

Commissioner and Secretary, it has also been sated

that the technical committees have submitted that it

is difficult to define with certainty that which coal

was mined prior to ban in 2014 and mined after 2014.

From the above it is clear that the State Government

itself has come with a case that huge quantity of

coal in the four hills districts, which has been ex -

tracted is lying waiting for orders of transporta -

tion. Learned Amicus Curiae and Shri Nidhesh Gupta,

learned senior counsel have refuted the claim made by

the applicants as well as the State of Meghalaya. It

is submitted by learned Amicus Curiae that in fact

State is not making any effort to stop the illegal

mining, in spite of the ban of 17.04.2014, illegal

mining of coal has been permitted and now such ille -

gal mined coal has also been assessed and State also

supports the claim of transportation of the appli -

cants on the guise that coal lying in open is an en -

vironmental hazard.

185. Shri Nidhesh Gupta, learned senior counsel ap -

pearing for private respondents in C.A. No.5272 of

188

2016 has submitted that the State auctioned coal on a

meagre price, whereas market rate of the coal is ap -

proximately Rs.10,000/- per MT. In the present case,

we have noticed that illegal coal mining is going on

in spite of ban by NGT by its order dated 17.04.2014.

The Katakey committee report has also opined that all

the extracted coal lying in different districts is a

coal, which has been illegally mined after the impo -

sition of ban by the order dated 17.04.2014. All

coals being illegally mined, the State is fully enti -

tled to impose a penalty, i.e., to realise the roy -

alty and the amount of MEPR Fund. The coal being ma -

jor mineral and useful for different industries and

projects, appropriate disposal of extracted coal is

also of a paramount importance.

186. We accept the suggestion of learned Amicus Cu -

riae that entire extracted coal lying at various

places be directed to be taken over by Coal India

Ltd, a Government of India unit, who may dispose of

the same as per its normal method of disposal and

proceeds be distributed as per directions issued by

189

this Court hereinafter. The NGT has already directed

that for all extracted coal lying at different

places, it is the State, which is the receiver-cum-

custodian of the coal. The State having carried out

the assessment of the coal lying in the aforesaid

four districts including the details of the quanti -

ties and the details of owners being available with

it, it may ensure that the entire coal are handed

over to the Coal India Ltd., as per the mode and man -

ner to be formulated by Katakey Committee, in consul -

tation with officers of the Coal India Ltd. and State

of Meghalaya.

187. The Katakey committee and its various members

and participants have done a commendable job in

studying and examining various aspects of environment

in the State of Meghalaya and several valuable sug -

gestions have been given by the committee, which are

also being implemented to mitigate the suffering of

the citizens consequent to the illegal coal mined.

188. We direct that Commissioner and Secretary of

the State in the Department of Mining and Geology

190

alongwith the officers of Coal India Ltd. may delib -

erate with the Katakey committee to finalise a com -

prehensive plan for transportation and handing over

of the coal to Coal India Ltd. for disposal/auction

as per rules of Coal India Ltd. Disposal/auction by

Coal India Ltd. shall be beneficial to both the own -

ers of the mines as well as to the State of Megha -

laya. Receiving fair value of the coal should be a

concern of both the owners and State. It is for the

Coal India Ltd. to decide as to venue, where they

shall receive the coal, i.e., either at any of its

depot or any other place in State of Meghalaya and it

is for the Coal India Ltd. to finalise the process of

disposal and auction of the coal. It goes without

saying that it shall be the duty of the State of

Meghalaya and its officers especially Deputy Commis -

sioner of the area concerned to enter details of

quantity of the coal, name of the owner and place

from where it is collected. Coal India Ltd. shall

also take steps to ensure weighment of the coal when

it is received by it and since all consequent steps

regarding disposal, price grade of the coal shall be

191

determined as per the weight of the coal received by

the Coal India Ltd. from different places. The ex -

penses of transportation shall be borne by the State

of Meghalaya, Coal India Ltd. or by both, which ex -

penses shall be deductible from the price received of

the coal. The State of Meghalaya shall be entitled

to royalty and payment towards MERP Fund as well as

taxes out of the price of the coal. After deduction

of cost of transportation, the payment of royalty and

payment to MERP fund and taxes plus 10% of value of

the coal to be given to Coal India Ltd. for the above

exercise, balance amount shall be disbursed to the

owner of the coal towards its price, which disburse -

ment shall be the responsibility of the State. The

Coal India Ltd. after taking its expenses for trans -

portation with 10% of price of the coal shall remit

the entire amount to the State and it is for the

State after deducting the royalty and payment to the

MERP Fund and taxes to pay back the balance of the

amount to the owner.

189. Another aspect of the matter is also to be no -

ticed. The coal, which has been seized by the State

192

in illegal transportation or illegal mining for which

different cases have been registered by the State, is

not to be dealt with as directed above. The said

seized coal shall be dealt by the State in accordance

with Section 21 of the Act, 1957 and on being satis -

fied, the State can take a decision to recover the

entire quantity of coal so illegally raised without

lawful authority and the said cases has to be sepa -

rately dealt with in accordance with law.

190. We, thus, are of the view that all I.A.s filed

by different applicants seeking order of transporta -

tion of the different quantities stand disposed of in

view of the directions as given above. Let the

Katakey committee in consultation with State of

Meghalaya and officers of Coal India Ltd. finalise

appropriate mode and manner to affect the transport

and disposal of the coal in the above manner.

Conclusions: -

193

191. From the foregoing discussions we arrived at

following conclusions:-

1) The application O.A.No.73 of 2014 has clearly

made out allegations which were sufficient for

the Tribunal to exercise its jurisdiction as

conferred by Section 14 of the National Green

Tribunal Act, 2010. Both the component as ap -

pearing in sub-section 1 of Section 14 that is

(i) substantial question relating to environ -

ment and (ii) such question arises out of the

implementation of the enactments specified in

Schedule I, were present.

2) The allegations of the applicant of O.A.No.73

of 2014 of environmental degradation by ille -

gal and unregulated coal mining were fully

proved from materials on the record including

the report of the experts, report of the

Meghalaya State Pollution Control Board, the

report of Katakey committee, which all proved

environmental degradation of water, air and

surface.

194

3) The stand taken on behalf of the State of

Meghalaya before this Court that the Tribunal

has no jurisdiction cannot be approved. The

State Government is under constitutional obli -

gation to ensure clean environment to all its

citizens. In cases pertaining to environmental

matter, the State has to act as facilitator

and not as obstructionist.

4) According to the land tenure system as appli -

cable in the Hills Districts of State of

Meghalaya, the most of the lands are either

privately or community owned in which State

does not claim any right. The private owners

of the land as well as community owners have

both the surface right as well as sub-soil

rights.

5) Para 12A sub-clause (b) of Sixth Schedule of

the Constitution empowers that the President

may, with respect to any Act of Parliament, by

notification, direct that it shall not apply

to an autonomous district or an autonomous re -

195

gion in the State of Meghalaya, or shall apply

to such district or region or any part thereof

subject to such exceptions or modifications as

he may specify in the notification. No notifi -

cation has been issued by the President under

Section 12A(b). There is nothing in Sixth

Schedule of the Constitution which may indi -

cate about the inapplicability of Act, 1957

with regard to the Hills Districts of State of

Meghalaya.

6) There is nothing in Section 4(1) of 1957 Act

to indicate that restriction contained in Sec -

tion 4(1) does not apply with regard to pri -

vately owned/community owned land in Hills

Districts of Meghalaya. Further, word ‘any

area’ under Section 4(1) also has significance

which does not have any exception. Further

phrase “except under and in accordance with

terms and condition with a mining lease

granted under the Act” are also significant

196

which make the intent and purpose of prohibi -

tion clear and loud.

7) The statutory scheme delineated by Section

13(2)(f) and the Minerals (Concession) Rules,

1960 clearly contemplate grant of mining

lease, with regard to both the categories of

land, i.e., land in which minerals vest in the

Government, and the land in which minerals

vest in a person other than the Government.

8) The Mines Act, 1952 contains various provi -

sions regarding inspection of mining operation

and management of mines. The provisions of The

Mines Act, 1952 are mandatory to be followed

before working a mine. The regulations namely

Coal Mines Regulations, 2017 also contains

several regulatory provisions which need to be

followed while working a mine by a mining

lease holder. The enforcement of Mines Act,

1952 and the Regulations, 2017 have to be en -

sured by the State in the public interest.

197

9) As per statutory regime brought in force by

notification dated 15.01.2016 issued under En -

vironment (Protection) Act, 1986, environmen -

tal clearance is required for a project of

coal for mining of any extent of area. While

implementing statutory regime for carrying

mining operations in the Hills Districts of

the State of Meghalaya, the State of Meghalaya

has to ensure compliance of not only MMDR Act,

1957 but Mines Act, 1952 as well as Environ -

ment (Protection)Act, 1986.

10)In Hill District of State of Meghalaya for

carrying coal mining operations in privately

owned/community owned land it is not the State

Government which shall grant the mining lease

under Chapter V of Rules, 1960, but it is the

private owner/community owner of the land, who

is also the owner of the mineral, who shall

grant lease for mining of coal as per provi -

sions of Chapter V of Rules, 1960 after ob -

198

taining previous approval of the Central Gov -

ernment through the State Government.

11)The State of Meghalaya has ample power and ju -

risdiction under the Act, 1957 and Rules, 1960

to check, control and prohibit coal mining op -

erations in Hill Districts of State of Megha -

laya.

12)The Union having made declaration by Section 2

of 1957 Act taking under its control regula -

tion and development of mineral, the power of

Autonomous District Council to legislate on

the subject shall also be denuded as that of

the State Legislature.

13)In event the mining is carried out by a mining

lease holder as per the provisions of Act,

1957 and Rules, 1960 with an approved mining

plan there can be no objections in carrying of

such mining operations under the regulation

and control of the State of Meghalaya. We

clarify that in event mining operations are

199

undertaken in privately owned/community owned

land in Hills Districts of Meghalaya in accor -

dance with mining lease with approved mining

plan as per Act, 1957 and Mineral Concessions

Rule, 1960, the ban order dated 17.04.2014 of

the tribunal of the NGT shall not come in way

of carrying mining operations.

14)Under Order 26 Rule 10A of the Civil Procedure

Code, a Court can appoint commission for sci -

entific investigation. The power which can be

exercised by a Court under Order 26 Rule 10A

of CPC can very well be exercised by the NGT

also. The NGT while asking expert to give a

report is not confined to the four corners of

Rule 10A and its jurisdiction is not shackled

by strict terms of Order 21 Rule 10A by virtue

of 19(1) of the NGT Act.

15)Rule 24 of National Green Tribunal (Practice

and Procedure) Rules, 2011 empowers the Tri -

bunal to make such orders or give such direc -

tions as may be necessary or expedient to give

200

effect to its order or to secure the ends of

justice. The power given to the Tribunal is

coupled with duty to exercise such powers for

achieving the objects. There is no lack of ju -

risdiction in NGT in directing for appointment

of a committee and to obtain a report from a

Committee.

16)The direction to constitute a fund namely

“Meghalaya Environment Protection and Restora -

tion Fund”, is also saved under the above

power.

17)NGT by directing for constitution of committee

has not delegated essential judicial func -

tions. The Tribunal had kept complete control

on all steps which were required to be taken

by the committees and has issued directions

from time to time. The State is always at lib -

erty to obtain appropriate directions if ag -

grieved by any act of the committee. The mat -

ter being pending before the Tribunal all acts

of the committee are under direct control of

201

the Tribunal and if the committee oversteps in

any direction the same can very well be cor -

rected by the Tribunal on the matter being

brought before it.

18)NGT by issuing direction to constitute the

committee for transportation of the extracting

mineral, for preparing time bound action plan

to deal with the restoration of environment

and to ensure its implementation does not in

any manner interfere with the powers of the

District or Regional Councils. The District

and Regional Councils are free to exercise all

their powers and committee constituted by the

Tribunal is only concerned with the Environ -

mental degradation and illegal coal mining.

The committees report or direction of the Tri -

bunal in no manner encroaches upon the admin -

istration of Tribal areas by the District and

Regional Councils.

19)The amount which has been directed by NGT to

be deposited by State of Meghalaya is neither

202

a penalty nor a fine imposed on the State of

Meghalaya. We accept the submissions of the

learned counsel for the appellant that State

of Meghalaya has very limited source of fi -

nances and putting an extra burden on the

State of Meghalaya to make payment of Rs. 100

Crores from its own financial resources may

cause great hardship to the State of Megha -

laya. Ends of justice be served in modifying

the direction of NGT dated 04.01.2019 to the

extent that State is permitted to transfer an

amount of Rs. 100 Crores from the amount lying

in the MEPRF to the Central Pollution Control

Board. The Central Pollution Control Board as

directed by the Tribunal shall utilize the

aforesaid amount of Rs.100 Crores only for

restoration of the environment in the State of

Meghalaya.

20)The coal extracted and lying in open after

15.05.2016 does not automatically vest in the

State of Meghalaya and the owner of the coal

203

or the person who has mined the coal shall

have the proprietary right in the mineral

which shall not be lost.

21)The suggestion of learned Amicus Curiae that

entire extracted coal lying at various places

in hills districts of Meghalaya be directed to

be taken over by Coal India Ltd. is accepted.

The Coal India Ltd. may dispose of the same as

per its normal method of disposal and proceeds

be dealt with as per directions issued.

22)The State having carried out the assessment of

the coal lying in the aforesaid four districts

including the details of the quantities and

the details of owners being available with it,

it may ensure that entire coal is handed over

to the Coal India Ltd., as per the mode and

manner to be formulated by Katakey Committee

in consultation with officers of the Coal In -

dia Ltd. and the State of Meghalaya.

204

23)It is for Coal India Ltd. to decide as to

venue, where they shall receive the coal,

i.e., either at any of its depot or any other

place in the State of Meghalaya and it is for

the Coal India Ltd. to finalise the process of

disposal and auction of the coal. It shall be

the duty of the State of Meghalaya and its of -

ficers especially Deputy Commissioner of the

area concerned to enter details of quantity of

the coal, name of the owner and place from

where it is collected. All concerned shall

take steps to ensure weighment of the coal

when it is received by Coal India Ltd.

24)The expenses of transportation shall be borne

by the State of Meghalaya, Coal India Ltd. or

by both, which expenses shall be deductible

from the price received of the coal. The State

of Meghalaya shall be entitled to royalty and

payment towards MERP Fund as well as taxes out

of the price of the coal. After deducting its

expenses for transportation with 10% of price

205

of the coal, the Coal India Ltd. shall remit

the balance amount to the State and it is for

the State after deducting the royalty and pay -

ment to the MERP Fund and taxes to pay back

balance the amount to the owner.

25)The coal which has been seized by the State in

illegal transportation and illegal mining for

which different cases have been registered by

the State, is not to be dealt with as directed

above. The seized coal shall be dealt by the

State in accordance with Section 21 of the

Act, 1957 and on being satisfied, the State

can take a decision to recover the entire

quantity of coal so illegally raised without

lawful authority.

192. In view of the foregoing discussions and con -

clusions, all these appeals are decided in the fol -

lowing manner: -

1)Civil Appeal No. 10720 of 2018, Civil Appeal

No. 10611 of 2018, Civil Appeal No. 10907 of

206

2018 and Civil Appeal No………………of 2019 (arising

out of Civil Appeal Diary No. 3067 of 2018)

are dismissed subject to declaration and

clarification of law as made above.

2)Civil Appeal No. 5272 of 2016 is allowed

setting aside the order of NGT dated

31.03.2016 to the extent it declared that all

extracted coal after 15.05.2016 shall vest in

the State of Meghalaya.

3)Civil Appeal No. 2968 of 2019 is partly

allowed permitting the State of Meghalaya to

transfer the amount of Rs.100 Crores to

Central Pollution Control Board from the

Meghalaya Environment Protection and

Restoration Fund which amount shall be used by

Central Pollution Control Board only for

restoration of Environment.

4)All I.As. seeking direction for transportation

of coal are disposed of directing: -

i)All extracted coal as assessed by State of

Meghalaya lying in different districts of

207

State of Meghalaya which as per order of

NGT is in custody of State of Meghalaya

shall be handed over to Coal India Ltd.

for proper disposal.

ii)The Katakey Committee after discussion

with Coal India Ltd. and State of

Meghalaya shall formulate a mechanism for

transport, weighment of all assessed coal.

iii)The Coal India Ltd. shall auction the coal

so received by it as per its best judgment

and remit the proceed to State to the

extent as directed above.

iv)All coal seized by the State for which

cases have already been registered shall

be dealt by the State in accordance with

Section 21 of 1957 Act.

193. Before we close, we record our appreciation

for valuable assistance rendered by learned counsel

for the parties which enable us to decide several im -

portant issues in these appeals. We also record our

208

appreciation for assistance rendered by learned Ami -

cus Curiae Shri Colin Gonsalves, Senior Advocate.

......................J.

( ASHOK BHUSHAN )

......................J.

( K.M. JOSEPH )

New Delhi,

July 03,2019