# STATE OF MEGHALAYA v. ALL DIMASA STUDENTS UNION, DIMA-HASAO DISTRICT COMMITTEE & ORS

- **Citation:** [2019] 8 S.C.R. 297
- **Court:** Supreme Court of India
- **Decided:** 2019-07-03
- **Case number:** Civil Appeal No.10720 of 2018
- **Bench:** Ashok Bhushan, K.M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-meghalaya-v-all-dimasa-students-union-dima-hasao-district-committee-ors-34069
- **Pages:** 142

## Headnote

National Green Tribunal Act, 2010: ss.14, 15 and 16 -
Jurisdiction of National Green Tribunal (NGT) - Orders by NGT
imposing ban on mining - Whether orders passed by NGT were
without jurisdiction being beyond the purview of ss.14, 15 and 16
of the NGT Act, 2010 - Held: Cognizance was taken by NGT when
application O.A.73 of 2014 on 17.4.2014 was admitted and order
was issued - There were clear allegation in the application that
inspite of various remedial measures set out in the report of expert,
no proper and effective remedial measures were taken by the
concerned authorities of the State - The pleadings in the
application clearly alleged environmental degradation due to
illegal coal mining - It was further stated that inaction of
authorities had 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 allegations made in the application
were sufficient for NGT to exercise its jurisdiction as conferred by
s.14 - Both the component as appearing in sub-section 1 of s.14,
that is (i) substantial question relating to environment and (ii) such
question arises out of the implementation of the enactments
specified in Schedule I, were involved - NGT after adverting to
O.A.No.73 of 2014 on 17.04.2014 had called for various reports
from different committees including State Pollution Control Board
- It was not a case of mere allegation 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
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NGT by which environmental degradation of water, air and surface
of the land was proved - Therefore, there was sufficient allegation
regarding substantial questions relating to environment and
violation of enactments in Schedule I - There was no substance in
the appellant's submission that NGT has no jurisdiction to
entertain the case and pass orders - In cases pertaining to
environmental matter, the State has to act as facilitator and not as
obstructionist - The submission for the State that NGT exceeded its
jurisdiction under ss.14 and 15 in entertaining O.A.No.73 of 2014
is rejected - Constitution of India - Art.48A - Water (Prevention
and Control Pollution) Act, 1974 - Air (Prevention and Control of
Pollution) Act, 1981 - Environment (Protection) Act, 1986.
National Green Tribunal Act, 2010: s.19(1) - Under Or.26
r.10A CPC, a Court can appoint commission for scientific
investigation - This power can very well be exercised by the NGT
also - NGT while asking expert to give a report is not confined to
the four corners of r.10A and its jurisdiction is not shackled by
strict terms of Or.21 r.10A by virtue of s.19(1) of the NGT Act - r.24
of National Green Tribunal (Practice and Procedure) Rules, 2011
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 - There is no lack of jurisdiction in NGT
in directing for appointment of a committee and to obtain a report
from a Committee - Code of Civil Procedure, 1908 - Or.26 r.10A -
Commission/Committee - National Green Tribunal (Practice and
Procedure) Rules, 2011 - r.24.
Land Laws: Land tenure system - Nature of land tenure in
the Hills Districts of State of Meghalaya - 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 right - Thus, the tribals

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STATE OF MEGHALAYA
v.
ALL DIMASA STUDENTS UNION,
DIMA-HASAO DISTRICT COMMITTEE & ORS.
(Civil Appeal No.10720 of 2018)
JULY 03, 2019
[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]
National Green Tribunal Act, 2010: ss.14, 15 and 16 -
Jurisdiction of National Green Tribunal (NGT) - Orders by NGT
imposing ban on mining - Whether orders passed by NGT were
without jurisdiction being beyond the purview of ss.14, 15 and 16
of the NGT Act, 2010 - Held: Cognizance was taken by NGT when
application O.A.73 of 2014 on 17.4.2014 was admitted and order
was issued - There were clear allegation in the application that
inspite of various remedial measures set out in the report of expert,
no proper and effective remedial measures were taken by the
concerned authorities of the State - The pleadings in the
application clearly alleged environmental degradation due to
illegal coal mining - It was further stated that inaction of
authorities had 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 allegations made in the application
were sufficient for NGT to exercise its jurisdiction as conferred by
s.14 - Both the component as appearing in sub-section 1 of s.14,
that is (i) substantial question relating to environment and (ii) such
question arises out of the implementation of the enactments
specified in Schedule I, were involved - NGT after adverting to
O.A.No.73 of 2014 on 17.04.2014 had called for various reports
from different committees including State Pollution Control Board
- It was not a case of mere allegation 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
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NGT by which environmental degradation of water, air and surface
of the land was proved - Therefore, there was sufficient allegation
regarding substantial questions relating to environment and
violation of enactments in Schedule I - There was no substance in
the appellant's submission that NGT has no jurisdiction to
entertain the case and pass orders - In cases pertaining to
environmental matter, the State has to act as facilitator and not as
obstructionist - The submission for the State that NGT exceeded its
jurisdiction under ss.14 and 15 in entertaining O.A.No.73 of 2014
is rejected - Constitution of India - Art.48A - Water (Prevention
and Control Pollution) Act, 1974 - Air (Prevention and Control of
Pollution) Act, 1981 - Environment (Protection) Act, 1986.
National Green Tribunal Act, 2010: s.19(1) - Under Or.26
r.10A CPC, a Court can appoint commission for scientific
investigation - This power can very well be exercised by the NGT
also - NGT while asking expert to give a report is not confined to
the four corners of r.10A and its jurisdiction is not shackled by
strict terms of Or.21 r.10A by virtue of s.19(1) of the NGT Act - r.24
of National Green Tribunal (Practice and Procedure) Rules, 2011
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 - There is no lack of jurisdiction in NGT
in directing for appointment of a committee and to obtain a report
from a Committee - Code of Civil Procedure, 1908 - Or.26 r.10A -
Commission/Committee - National Green Tribunal (Practice and
Procedure) Rules, 2011 - r.24.
Land Laws: Land tenure system - Nature of land tenure in
the Hills Districts of State of Meghalaya - 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 right - Thus, the tribals owned
the land and also owned the minerals - Constitution of India -
Art.244, sub-clause (2) - Mines and Minerals.
Mines and Minerals Development Regulation Act, 1957:
Applicability of the provisions of Act of 1957 in Tribal areas within
the State of Meghalaya, included in Schedule VI of the Constitution
- Schedule VI of the Constitution is a provision for Administration
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of Tribal areas in the State of Meghalaya - There is nothing in
Schedule VI which may indicate about the inapplicability of Act,
1957 with regard to the Hills Districts of State of Meghalaya - In
the report of the Comptroller and Auditor General of India for the
year ended 31st March, 2013 also it is clearly stated that Act, 1957
is fully applicable for regulation of mines and regulation of minerals
in the State of Meghalaya - Moreover, there was no notification
issued by the President under Para 12A(b) of Schedule VI which
empowers the President, with respect to any Act of Parliament, by
notification, to direct that it shall not apply to an autonomous district
or an autonomous region in the State of Meghalaya, or shall apply
to such district or region or any part thereof subject to such
exceptions or modifications as he may specify in the notification -
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 - Constitution of India -
Schedule VI, Para 12A sub-clause (b) - Mines Act, 1952.
Mines and Minerals Development Regulation Act, 1957:
Legislative competence of State of Meghalaya to frame Mining
Policy - Directions of NGT to the State of Meghalaya to frame policy
- Propriety of - Held: Meghalaya Mines and Minerals Policy, 2012
and Draft Guidelines of coal mining activities in the State framed
by Mining and Geology Department of the Government - Policy of
2012 contemplated regulatory regime for mining lease by the State
- The Guidelines mentioned about the unregulated and unscientific
mining being carried out in the State of Meghalaya - 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
stood denuded - However, under MMDR Act, 1957 as well as the
MC Rules, 1960, several statutory obligations/jurisdictions have
been conferred on the State of Meghalaya - 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
- Several other aspects relating to mining like, rehabilitation,
STATE OF MEGHALAYA v. ALL DIMASA STUDENTS UNION,
DIMA-HASAO DISTT COMMITTEE
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reclamation and restoration have to be effectively implemented by
the State for which also, it may be required to frame a policy -
Policy of 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 - Thus, direction of NGT to declare Mining
Policy by the State of Meghalaya cannot be said to be without
jurisdiction - However, the State in its Mining Policy can only include
those areas where it has jurisdiction under the MMDR Act, 1957
and the Rules framed thereunder - Constitution of India - Mineral
Concession Rules, 1960.
Mines and Minerals Development Regulation Act, 1957: s.4(1)
- Whether the statute requires obtaining lease for winning the
minerals in so far as mining of coal from privately owned land/
community owned land are concerned - Held: For carrying out
mining operations in privately owned land in hills districts of
Meghalaya, obtaining a mining lease is a statutory requirement
under the MMDR Act, 1957 and the Rules, 1960 - Mineral
Concession Rules, 1960.
Mines and Minerals Development Regulation Act, 1957:
Whether the power to allot land for mining purposes is vested in
Autonomous District Councils - Held: The District Council does
not have any power to make any law with regard to grant of mining
lease - The mining leases for winning the major minerals has to be
granted in accordance with 1957 Act and Mineral Concession Rules,
1960 - Khasi Hills District (Trading by Non Tribals) Regulation,
1954 - United Khasi Jaintia Hills Autonomous District (Management
and Control of Forest) Rules, 1960 - Khasi Hills Autonomous District
(Trading by Non Tribals) Rules, 1959,.
Mines and Minerals Development Regulation Act, 1957:
Whether the order of NGT dated 17.04.2014 directing for complete
ban on mining is unsustainable - Held: The use of natural resources
plays major role in carrying out development - A fine balance has
to be maintained in utilisation of natural resources and its
conservation and preservation - By order of NGT dated 17.04.2014,
the Rat hole mining/illegal mining was prohibited throughout the
State of Meghalaya - In OA No.73 of 2014 in which said order was
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passed, sufficient materials were on record including experts report
which proved that illegal coal mining in the State of Meghalaya
was degrading the environment - NGT after considering all pleas
and materials affirmed order dated 17.04.2014 and refused to
withdraw the ban - No error in the order of NGT reaffirming its
ban order.
Mines and Minerals Development Regulation Act, 1957:
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 - Held: Tribals are the owners of
the land who carry on mining of coal in their land by which they
earn their substantial livelihood - In event mining operations are
undertaken by the tribals or other owners of hills districts of
Meghalaya in accordance with mining lease obtained from the State
of Meghalaya as per 1957 Act and Rules, 1960, the ban order dated
17.04.2014 of NGT 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
- Mineral Concession Rules, 1960.
Mineral Concession Rules, 1960: Chapter V - Procedure for
grant of mining lease and authority/person, who is competent to
grant such lease - Held: As per the statutory provisions contained
in Rules, 1960, especially Chapter V, a mining lease for minerals,
which belongs to a private owner or a community owner, it is not
the State Government, which is entitled to receive any application
or grant any mining lease, but it is the private owner or community
owner, who is entitled to grant a lease for mining minerals owned
by them.
Mineral Concession Rules, 1960: Chapter IV and Chapter V
- Distinction between - Chapter IV deals with grant of mining leases
in respect of land in which the minerals vest in the Government and
Chapter V deals with procedure for obtaining a prospecting licence
or mining lease in respect of land in which the minerals vest in a
person other than the Government - 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
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except that by virtue of r.45(i) certain conditions of mining lease as
contained in r.27 under Chapter IV are made applicable for mining
lease under Chapter V.
Mineral Concession Rules, 1960: Chapter V - Whether the
State of Meghalaya has any statutory control over the mining of
coal from privately owned/community owned land in Hills Districts
of State of Meghalaya - Held: State of Meghalaya has jurisdiction
and power to ensure that no mining of coal should take place except
when a mining lease is granted under the Rules, 1960 - The statutory
scheme delineated by s.13(2)(f) and the 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
- Mines and Minerals Development Regulation Act, 1957 -
s.13(2)(f).
Mines and Minerals: Jurisdiction of NGT - Constitution of
committee - 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 and whether the NGT committed
error in directing for constitution of fund, namely, Meghalaya
Environment Protection and Restoration Fund - Held: There is no
lack of jurisdiction in the NGT to direct for appointment of committee
or to obtain a report from a committee - A Fund has been constituted
by NGT, namely, "Meghalaya Environment Protection and
Restoration Fund" - NGT could have passed any order or direction
to secure ends of justice which power especially conferred by Rule
24 - Direction to constitute Fund is thus also saved under such
power - National Green Tribunal Act, 2010.
Mines and Minerals: Judicial powers of NGT - Whether NGT
by constituting Committees has delegated essential judicial powers
to the Committees - Held: 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
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delegation of essential judicial powers of the NGT to the committee
- The Katakey committee was constituted by NGT on 31.08.2018 -
The constitution of the committee and its functions entrusted were
with the object to implement the orders passed by NGT - For the
restoration of environment, NGT by its order dated 31.08.2018 has
directed the committee to submit its action plan and reports by
e-mail - NGT, thus, had kept complete control on all steps which
were required to be taken by the committee and issued directions
from time to time - Thus, the submission that the essential judicial
powers of the NGT had been delegated to the committee is not tenable
- The matter being pending before NGT of acts of the committee are
under direct control of NGT and if the committee oversteps in any
direction the same can very well be corrected by NGT on the matter
being brought before it - National Green Tribunal Act, 2010.
Mines and Minerals: Whether constitution of the committee
encroaches the constitutional scheme of the Tribal areas under
Art.244(2) and Art.275(1) and Schedule VI of the Constitution -
Para 3 of the Schedule VI enumerates the powers of the District
Council and Regional Council to make laws - The powers of the
District and Regional Councils are enumerated under Para 3 - In
the directions of NGT 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 NGT finding out that an unregulated coal mining has damaged
environment and has caused the pollution including water pollution
- It is not case of the appellant that District and Regional Councils
have framed any law for restoration of environment which is being
breached by the committee or its acts - The District and Regional
Councils are free to exercise all their powers and the committee
constituted by NGT is only concerned with the Environmental
degradation and illegal coal mining - The committees' report or
direction of NGT in no manner encroaches upon the administration
of Tribal areas by the District and Regional Councils - Constitution
of India - Arts.244(2), 275(1).
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DIMA-HASAO DISTT COMMITTEE
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Mines and Minerals: Whether direction to deposit Rs.100/-
crores by the State of Meghalaya by order dated 04.01.2019 of
NGT is sustainable - NGT by its order dated 04.01.2019 had directed
the State of Meghalaya to deposit an amount of Rs.100 Crores with
the Central Pollution Control Board, which was to be spent for
restoration of environment - The State of Meghalaya aggrieved by
this direction filed appeal - Held: The amount, which has been
directed by NGT to be deposited by State of Meghalaya is neither a
penalty nor a fine imposed on the State - The amount has been
directed to be deposited for carrying out steps regarding restoration
of environment - The said amount cannot be said to be amount of
damages to be paid by the State - 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 - In the ends of justice, the direction of
NGT dated 04.01.2019 is modified 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 shall utilise the amount of Rs.100 Crores
only for restoration of the environment.
Mines and Minerals Development Regulation Act, 1957:
ss.4(1), 21 - Coal - Vesting in Government - 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 - By order dated
31.03.2016, NGT had permitted transportation of coal till 15.5.2016
under terms and conditions as enumerated therein and 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 - Propriety of NGT's order dated
31.03.2016 - Held: Coal mining was illegally going on in the Hills
District of State of Meghalaya without there being any mining lease
- The entire mining was, thus, is clear in contravention of s.4(1) of
Act, 1957 which attracted penalties under s.21 - The present is not
a case where any kind of penalty was imposed on the miners except
that the amount of royalty as payable on mining of coal was collected
by the State as penalty - State Government has power under s.21(5)
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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 State Government to exercise its power under s.21(5)
by way of penalty - The NGT did not give any reason as to how
coal shall automatically vest in the State - The right of recovery of
mineral as contemplated under s.21(5) would not amount to say
that proprietary right of owner of the minerals is lost rather State
under s.21(5) exercises its power to recover the mineral which has
been raised without any lawful authority - Thus, 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.
Mines and Minerals: Coal - Whether assessed and unassessed
coal which has already been extracted and lying in different
Districts of Meghalaya be permitted to be transported - Mechanism
to be adopted for disposal of such coal - Held: Coal being major
mineral and useful for different industries and projects, appropriate
disposal of extracted coal is of a paramount importance - Entire
extracted coal lying at various places is 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 - 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 said four districts including
the details of the quantities and the details of owners being available
with it, it may ensure that the entire coal are handed over to the
Coal India Ltd., as per the mode and manner to be formulated by
Katakey Committee, in consultation with officers of the Coal India
Ltd. and State of Meghalaya - Commissioner and Secretary of the
State in the Department of Mining and Geology alongwith the
officers of Coal India Ltd. are directed to deliberate with the Katakey
committee to finalise a comprehensive plan for transportation and
handing over of the coal to Coal India Ltd. for disposal/auction as
per rules of Coal India Ltd. - It is for the Coal India Ltd. to decide
as to venue, where they shall receive the coal and finalise the process
of disposal and auction of the coal - It shall be the duty of the State
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of Meghalaya and its officers especially Deputy Commissioner of
the area concerned to enter details of quantity of the coal, name of
the owner and place from where it is collected - State of Meghalaya
shall be entitled to royalty and payment towards MERP Fund as
well as taxes out of the price of the coal - The Coal India Ltd. after
taking its expenses for transportation with 10% of price of the coal
shall remit the entire amount to the State and State after deducting
the royalty and payment to the MERP Fund and taxes would pay
back the balance of the amount to the owner - The coal, which has
been seized by the State in illegal transportation or illegal mining
for which different cases have been registered by the State shall be
dealt by the State in accordance with s.21 of the Act, 1957 and on
being satisfied, the State can take a decision to recover the entire
quantity of coal so illegally raised without lawful authority and the
said cases has to be separately dealt with in accordance with law -
All I.A.s filed by different applicants seeking order of transportation
of the different quantities disposed of - The Katakey committee in
consultation with State of Meghalaya and officers of Coal India
Ltd. would finalise appropriate mode and manner to affect the
transport and disposal of the coal in the above manner.
Mines Act, 1952: Mines Act, 1952 contains various provisions
regarding inspection of mining operation and management of mines
- The provisions of the Mines Act, 1952 are mandatory to be followed
before working a mine - The regulations namely Coal Mines
Regulations, 2017 also contains several regulatory provisions which
need to be followed while working a mine by a mining lease holder
- The enforcement of Mines Act, 1952 and the Regulations, 2017
have to be ensured by the State in the public interest.
Mines and Minerals: Coal mining in the Hills Districts of the
State of Meghalaya - As per statutory regime brought in force by
notification dated 15.01.2016 issued under Environment
(Protection) Act, 1986, environmental clearance is required for a
project of coal for mining of any extent of area - While implementing
statutory regime for carrying mining operations in the Hills Districts
of the State of Meghalaya, the State of Meghalaya has to ensure
compliance of not only MMDR Act, 1957 but Mines Act, 1952 as
well as Environment (Protection) Act, 1986.
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Judicial Appreciation: Committee - Work appreciated - The
Katakey committee and its various members and participants have
done a commendable job in studying and examining various aspects
of environment in the State of Meghalaya and several valuable
suggestions have been given by the committee, which are also being
implemented to mitigate the suffering of the citizens consequent to
the illegal coal mined.
Disposing of the appeals, the Court
HELD: Whether orders passed by the National Green
Tribunal are without jurisdiction being beyond the purview of
Sections 14, 15 and 16 of the National Green Tribunal Act, 2010?
1. 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. Hence, there was sufficient allegation regarding
substantial questions relating to environment and violation of
enactments in Schedule I. There were reports of the Meghalaya
State Pollution Control Board before the State Government
pointing out environmental degradation and the Tribunal having
taken up the issue, the submission on behalf of the State that the
Tribunal has no jurisdiction is not expected from the State
Government who is under 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. The submission for the State that the Tribunal
exceeded its jurisdiction under Sections 14 and 15 in
entertaining O.A.No.73 of 2014 is rejected. [Paras 67, 68, 72]
[373-E-H; 376-A]
Techi Tagi Tara v. Rajendra Singh Bhandari and
Others (2018) 11 SCC 734 : [2017] 12 SCR 956 -
distinguished.
STATE OF MEGHALAYA v. ALL DIMASA STUDENTS UNION,
DIMA-HASAO DISTT COMMITTEE
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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?
2.1 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. [Para 73] [376-C-E]
2.2 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. In the Hills Districts of State of
Meghalaya, the most of the lands are either privately or
community owned in which State does not claim any right. Thus,
private owners of the land as well as community owners have
both the surface right as well as sub-soil right. Tribals owned the
land and also owned the minerals, which is an inescapable
conclusion. [Paras 73, 75] [376-E-G; 378-E-F]
Thressiamma Jacob and Others v. Geologist,
Department of Mining and Geology and Others (2013)
9 SCC 725 : [2013] 7 SCR 863 - referred to.
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Raja Anand Brahma Shah v. The State of Uttar Pradesh
and Others AIR 1967 SC 1081 : [1967] SCR 373 -
followed.
2.3 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. 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. [Paras 76, 77, 78] [378-G-H;
379-C]
2.4 Mines and Minerals (Development and Regulation)
Act, 1957 has been enacted to provide for development and
regulation of mines and minerals under the control of the Union.
The Act came into effect w.e.f. 01.06.1958. Para 12A sub-clause
(b) Schedule VI of the Constitution empowers that the President
may, with respect to any Act of Parliament, by notification, direct
that it shall not apply to an autonomous district or an
autonomous region in the State of Meghalaya, or shall apply to
such district or region or any part thereof subject to such
exceptions or modifications as he may specify in the notification.
No notification has been issued by the President under Para
12A(b), 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.
The report of the Comptroller and Auditor General of India for
the year ended 31st March, 2013 clearly stated that Act, 1957 is
fully applicable for regulation of mines and regulation of minerals
in the State of Meghalaya. [Paras 81 82, 83] [381-G-H; 382-C-E;
383-D]
2.5 Clause 10 of the Mehghalaya Mines and Minerals
Policy, 2012 provides for "Regulatory Framework for Mine
Development and Mining". Sub-clause (b) of Clause 10 required
that application for mineral concession either fresh or renewal is
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to be submitted to the State Government through the Deputy
Commissioner of the District wherein the area applied for is
situated, 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. The
Mining and Geology Department of the Government framed a
draft guidelines for coal mining activity in the State which were
prepared after consultation with the Central Government. The
draft guidelines clearly mentions about the unregulated and
unscientific mining being carried out in the State of Meghalaya.
[Paras 85-87] [383-F-H; 384-A-B]
2.6 There can be no dispute to the preposition that in view
of MMDR Act, 1957, the legislative competence of State of
Meghalaya under Entry 23 List II stood 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. 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.
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.
Thus, direction of NGT to declare Mining Policy by the State of
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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. 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.
[Paras 89, 90, 91] [324-F-G; 385-A-E]
Whether for mining the minerals from privately owned/
community owned land in hills districts of Meghalaya, obtaining
a mining lease is a statutory requirement under the MMDR Act,
1957 and the Mineral Concession Rules, 1960?
3.1 The Act, 1957 has been enacted in reference to Entry
54 List I of Seventh Schedule. 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 denuded. 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.
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. [Paras 95, 97, 99, 100] [386-C-F;
387-B; 388-A-B]
3.2 Section 5 contains restriction on the grant of
prospecting licences and mining lease. The proviso to Section
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5(1) 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. Coal is in Para A of First Schedule. Section 13
provides for Rule making power of Central Government in
respect of minerals. Reading clause (a) and clause (f) of Section
13(2) 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(2)
(f). [Paras 100, 101, 103] [388-B; 389-B-C; 390-A-B]
3.3 The Central Government in exercise of power under
Section 13 has framed Rules, namely, Minerals (Concession)
Rules, 1960. The statutory scheme delineated by Section 13(2)(f)
and the Minerals (Concession) Rules, 1960 clearly 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. There is no exception that when owner himself wants
to win the minerals he does not require any mining lease.
[Paras 104, 105] [390-C-D; 391-B]
Halsbury's Laws of England, Fourth Edition Para 321
- referred to.
3.4 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 said definition
in the Minerals (Concession) Rules, 1960 under Chapter V, it
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cannot be said that no mining lease is contemplated with respect
to land where mineral vests exclusively in a private person.
[Para 111] [394-E-F]
Sri Tarkeshwar Sio Thakur Jiu v. Dar Dass Dey & Co.
and Others (1979) 3 SCC 106 ; State of Karnataka
and Others v. Subhash Rukmayya Guttedar and Others
(1993) 3 Suppl. SCC 290 - referred to
3.5 The Mines Act, 1952 is an Act to amend 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 18 contains duties and responsibilities of owners, agents
and managers. There are various other provisions in the Mines
Act, 1952 which are mandatory to be followed before working
any mine. Section 16 obligates the owner, agent or manager of a
mine to give notice before the commencement of any mining
operation to the District Magistrate of the District in which the
mine is situate. Section 75 of the Mines Act, 1952 also
empowers the District Magistrate to institute prosecution against
any owner, agent or manager for any offence under the Mines
Act, 1952. 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. 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. [Paras 113, 114, 116, 118]
[394-H; 395-A-D; 396-E-F; 397-C-D]
3.6 Section 3 of the Environment Protection Act, 1986 provided for requirements of prior environmental clearance with
regard to projects enumerates therein. 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. 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)
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of Notification dated 14.09.2006 a new notification dated
15.01.2016 has been issued.