2019 (7) TMI 1957 - SC - Indian Laws

Jurisdiction of NGT - 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? - HELD THAT - 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 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 is rejected. 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? - HELD THAT - 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 - 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. 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 - 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. 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? - HELD THAT - 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 - A notification dated 14.09.2006 was issued by the Ministry of Environment and Forests in exercise of power Under Section 3(3) of the Environment Protection Act, 1986. Section 3 of the Act, 1986 which provided for requirements of prior environmental clearance with regard to projects enumerates therein. Schedule to the notification listed the projects or activities requiring prior environmental clearance. Mining of minerals included at Item No. 1(a) but even for mining project requirement of minimum 5 hectares area was required for applicability of the project. 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. 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? - HELD THAT - As per the statutory provisions contained in Rules, 1960 especially Chapter V, a mining lease for minerals, which belongs to a private owner or a community owner, it is not the State Government, which is entitled to receive any application or grant any mining lease, but it is the private owner or community owner, who is entitled to grant a lease for mining minerals owned by them. 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 THAT - The State is 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 mining lease for winning the minerals - 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. Whether the power to allot land for mining purposes is vested in Autonomous District Councils? - HELD THAT - Para 9(1) confines to the licences or leases of minerals granted by government of the State. Schedule VI which constitute the District Councils and Regional Councils enumerates their powers. Para 9 refers to licences or leases for extraction of minerals granted by the Government of the State. Para 9 only deals with share of the royalties to District Councils as agreed upon between the Government of the State and the District Councils - paragraph 12(A)(a) itself contemplates that any law made by District Council or Regional Council which is repugnant to any law of the State shall be void. Thus, the status of law made by District Council or Regional councils has to give way to the law made by the State. There can be no doubt that District Council and Regional Council cannot make any law which may be repugnant to the provisions of the Parliamentary Act. 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. Whether the order of National Green Tribunal dated 17.04.2014 directing for complete ban on mining is unsustainable? - 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 Tribunals? - HELD THAT - The manner in which the mining is being carried out by the tribals cannot be approved which is clearly in violation of statutory regime under 1957 Act and 1960 Rules but in event the mining is carried out by tribals or their assignees as per the provisions of 1957 Act and 1960 Rules, there can be no objections in carrying such mining under the Regulation and control of State of Meghalaya. We thus clarify that in event mining operations are undertaken by the tribals or other owners of hills districts of Meghalaya in accordance with mining lease obtained from the State of Meghalaya as per 1957 Act and Mineral Concessions Rule, 1960, the ban order dated 17.04.2014 of the tribunal shall not come in its way of carrying mining operations. The ban order is for 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. 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? - Whether the NGT committed error in directing for constitution of fund, namely, Meghalaya Environment Protection and Restoration Fund? - HELD THAT - 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. 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? - HELD THAT - 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 - 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. 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? - HELD THAT - The amount, which has been directed by NGT to be deposited by State of Meghalaya is neither a penalty nor a fine imposed on the State. The amount has been directed to be deposited for carrying out steps regarding restoration of environment. We further agree with the submission of the learned Counsel for the Appellant that the said amount cannot be said to be amount of damages to be paid by the State - There are 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 permitted to transfer an amount of Rs. 100 Crores from the amount lying in the MEPRF to the Central Pollution Control Board. The Central Pollution Control Board as directed by the Tribunal (NGT) shall utilise the aforesaid amount of Rs. 100 Crores only for restoration of the environment - appeal allowed in part. 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? - HELD THAT - The mining of coal in contravention of Section 4(1) invites penalties as enumerated in Section 21. The present is not a case where any kind of penalty has been imposed on the miners except that the amount of royalty as payable on mining of coal is being collected by the State as penalty. It is true that the State Government has power Under Section 21(5) to recover from such person the minerals so raised, or, where such material has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, but it is for the State Government to exercise its power Under Section 21(5) by way of penalty - 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. 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? - HELD THAT - The expenses of transportation shall be borne by the State of Meghalaya, Coal India Ltd. or by both, which expenses shall be deductible from the price received of the coal. The State of Meghalaya shall be entitled to royalty and payment towards MERP Fund as well as taxes out of the price of the coal. After deduction of cost of transportation, the payment of royalty and payment to MERP fund and taxes plus 10% of value of the coal to be given to Coal India Ltd. for the above exercise, balance amount shall be disbursed to the owner of the coal towards its price, which disbursement shall be the responsibility of the State. The Coal India Ltd. after taking its expenses for transportation with 10% of price of the coal shall remit the entire amount to the State and it is for the State after deducting the royalty and payment to the MERP Fund and taxes to pay back the balance of the amount to the owner. The coal, which has been seized by the State in illegal transportation or illegal mining for which different cases have been registered by the State, is not to be dealt with as directed above. The said seized coal shall be dealt by the State in accordance with Section 21 of the Act, 1957 and on being satisfied, the State can take a decision to recover the entire quantity of coal so illegally raised without lawful authority and the said cases has to be separately dealt with in accordance with law. Application filed by different applicants seeking order of transportation of the different quantities stand disposed of.

Summary

Issues Involved:
1. Jurisdiction of NGT under Sections 14, 15, and 16 of the NGT Act, 2010.
2. Applicability of MMDR Act, 1957 in Tribal areas of Meghalaya.
3. Requirement of mining lease for privately/community-owned land under MMDR Act, 1957 and Mineral Concession Rules, 1960.
4. Authority to grant mining leases for privately/community-owned land.
5. Statutory control of the State of Meghalaya over coal mining.
6. Power of Autonomous District Councils in allotting land for mining.
7. Validity of NGT's complete ban on mining.
8. Modification of the ban in the interest of the State and Tribals.
9. NGT's jurisdiction to constitute committees.
10. NGT's jurisdiction to constitute the Meghalaya Environment Protection and Restoration Fund.
11. Delegation of judicial powers to committees and encroachment on the administration of Tribal areas.
12. Sustainability of the direction to deposit Rs. 100 crores by the State of Meghalaya.
13. Validity of NGT's order that all remaining coal shall vest in the State after 15.05.2016.
14. Permission for transportation of assessed and unassessed coal.

Detailed Analysis:

1. Jurisdiction of NGT under Sections 14, 15, and 16 of the NGT Act, 2010:
The application O.A. No. 73 of 2014 made out sufficient allegations of environmental degradation due to illegal coal mining, which fell within the jurisdiction of the NGT under Section 14. The NGT had the authority to address substantial questions relating to the environment arising from the implementation of enactments specified in Schedule I of the NGT Act, 2010.

2. Applicability of MMDR Act, 1957 in Tribal areas of Meghalaya:
The MMDR Act, 1957, extends to the whole of India, including the Hills Districts of Meghalaya. There is no notification under Para 12A(b) of the Sixth Schedule exempting the application of the MMDR Act in these areas. Thus, the Act is applicable in the Tribal areas of Meghalaya.

3. Requirement of mining lease for privately/community-owned land under MMDR Act, 1957 and Mineral Concession Rules, 1960:
Section 4(1) of the MMDR Act, 1957, mandates that no person shall undertake mining operations except under a mining lease granted under the Act. This applies to both government and privately/community-owned lands. The statutory scheme under Section 13(2)(f) and the Mineral Concession Rules, 1960, also contemplates the grant of mining leases for minerals vested in private persons.

4. Authority to grant mining leases for privately/community-owned land:
Under Chapter V of the Mineral Concession Rules, 1960, it is the private or community owner of the land who grants the mining lease, not the State Government. The State Government's role is to ensure compliance with the statutory requirements, including obtaining previous approval from the Central Government.

5. Statutory control of the State of Meghalaya over coal mining:
The State of Meghalaya has ample power under the MMDR Act, 1957, and the Mineral Concession Rules, 1960, to regulate and control coal mining operations. The State is responsible for ensuring that mining operations are conducted legally and in compliance with environmental and safety regulations.

6. Power of Autonomous District Councils in allotting land for mining:
The Autonomous District Councils do not have the power to make laws regarding the grant of mining leases, as this power is denuded by the Union's declaration under Section 2 of the MMDR Act, 1957. The Councils can only exercise powers that are not repugnant to the laws made by the State or the Union.

7. Validity of NGT's complete ban on mining:
The NGT's order dated 17.04.2014, imposing a complete ban on illegal coal mining, was justified based on the evidence of environmental degradation. However, the ban does not extend to mining operations conducted legally under a mining lease with an approved mining plan as per the MMDR Act, 1957, and the Mineral Concession Rules, 1960.

8. Modification of the ban in the interest of the State and Tribals:
The ban order does not prevent legal mining operations conducted under a valid mining lease. Tribals and other owners can carry out mining operations in compliance with the statutory requirements, ensuring both environmental protection and economic benefits.

9. NGT's jurisdiction to constitute committees:
The NGT has the jurisdiction to constitute committees to obtain expert reports and ensure the implementation of its orders. This power is derived from Section 19 of the NGT Act, 2010, and Rule 24 of the National Green Tribunal (Practice and Procedure) Rules, 2011.

10. NGT's jurisdiction to constitute the Meghalaya Environment Protection and Restoration Fund:
The NGT has the authority to direct the constitution of a fund like the Meghalaya Environment Protection and Restoration Fund to secure the ends of justice and ensure the restoration of the environment.

11. Delegation of judicial powers to committees and encroachment on the administration of Tribal areas:
The NGT's constitution of committees does not delegate essential judicial powers but ensures the implementation of its orders. The committees' actions do not encroach upon the administration of Tribal areas by the District and Regional Councils.

12. Sustainability of the direction to deposit Rs. 100 crores by the State of Meghalaya:
The direction to deposit Rs. 100 crores is not a penalty but a measure to ensure the availability of funds for environmental restoration. However, the State of Meghalaya is permitted to transfer the amount from the Meghalaya Environment Protection and Restoration Fund to the Central Pollution Control Board.

13. Validity of NGT's order that all remaining coal shall vest in the State after 15.05.2016:
The coal extracted and lying in open after 15.05.2016 does not automatically vest in the State. The owners retain their proprietary rights in the coal, subject to compliance with statutory requirements.

14. Permission for transportation of assessed and unassessed coal:
The entire extracted coal lying at various places in the Hills Districts of Meghalaya is to be taken over by Coal India Ltd. for proper disposal. The proceeds from the auction of the coal will be distributed as per the directions issued by the Court. The State of Meghalaya, in consultation with the Katakey Committee and Coal India Ltd., will finalize the mechanism for transportation and disposal of the coal.