SC Order on Coal Mining – Welcome Reprieve for Environmentalists

Patricia Mukhim

A learned advocate from Delhi called up on July 4 morning to ask (a) Why the coal mining lobby of Meghalaya is celebrating (b) what are they actually celebrating?

The answers are (a) the coal lobby has not read the finer details of the SC Order which has lifted the ban on coal mining but put in place stringent regulations. The Court has thrown out the claim that Meghalaya being a Sixth Schedule state is exempt from central mining laws and that the NGT has no jurisdiction over a tribal state that follows traditional mining methods.

It’s enlightening to read the preamble to the July 3 Judgment in the matter of, ‘The State of Meghalaya vs All Dimasa Hasao Students’ Union. It says, “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 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.

The points under consideration of the apex court were as under:

1. 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?
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 52 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 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 53 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 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?

The Court order upheld in letter and spirit all actions taken by the NGT asserting that the Tribunal relied on several ground research including that of Dr OP Singh of NEHU which speaks of Acid Mine Drainage amongst other environmental damages caused by coal mining. The NGT also cited the reports of the State Pollution Control Board which had flagged the issue of grave environmental pollution since 1997 but which the State did not act upon.

The State Government was rapped in the knuckles for standing with the offenders instead of protecting the environment which is its constitutional duty. The Court pointed out that, “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.” Pointing out that in cases pertaining to environmental matter the State has to act as facilitator and not as obstructionist. (Article 48A of the Constitution),the Court says, “The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.”

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. This request for exemption itself expresses recognition of the State of Meghalaya that provisions of Act, 1957 are applicable. The Court therefore concludes that there is nothing in the Sixth Schedule of the Constitution which in any manner excludes the applicability of Act, 1957 in the Tribal areas of Hills District of State of Meghalaya.

The Court held that private owners of the land are also owners of the minerals and the minerals belong to the owners/Tribals but that coal mining was illegally going on unregulated by any statutory law in the Meghalaya without there being any mining lease.  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, the Court said.

While implementing statutory regime for carrying mining operations in  Meghalaya, the State has to ensure compliance of not only MMDR Act, 1957 but Mines Act, 1952 as well as Environment (Protection)Act, 1986, stated the Court order.

The Court also took umbrage at the fact the State Government despite being fully aware of the MMDR Act has argued that no mining lease is to be obtained for privately owned/community owned land by terming it, “unacceptable and not in a good spirit. Our country being governed by the Constitution of India all the States are to implement Parliamentary Acts in true spirit and in the present case the State having been advised time and again by Comptroller and Auditor General and being well aware of its statutory obligation as noticed above it comes ill from the State to contend before this Court that there is no requirement of mining lease for winning the minerals. The above stand of the State taken before this Court gives the impression that instead of implementing the Parliamentary enactment and regulatory regime for mineral regulation some vested interests wants to continue the illegal regime of illegal mining to the benefit of the few persons which is unacceptable and condemnable. We, thus, conclude that the State of Meghalaya has jurisdiction and power to ensure that no mining of coal should take place except when a mining lease granted under Mineral Concession Rules, 1960, Chapter V.”

Henceforth the District Council would 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.

The private owners of the land as well as community owners have both the surface right as well as sub-soil rights. 5) Para 12A sub-clause (b) of Sixth Schedule of the Constitution empowers that the President may, with respect to any Act of Parliament, by 190 notification, direct that it shall not apply to an autonomous district or an autonomous region in the State of Meghalaya, or shall apply to such district or region or any part thereof subject to such exceptions or modifications as he may specify in the notification.

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

As per 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 State of Meghalaya, the State has to ensure compliance of not only MMDR Act, 1957 but Mines Act, 1952 as well as Environment (Protection) Act, 1986. 10).

For carrying coal mining operations in privately owned/community owned land it is not the State Government which shall grant the mining lease under Chapter V of Rules, 1960, but it is the private owner/community owner of the land, who is also the owner of the mineral, who shall grant lease for mining of coal as per provisions of Chapter V of Rules, 1960 after obtaining 193 previous approval of the Central Government through the State Government.

Meghalaya has ample power and jurisdiction under the Act, 1957 and Rules, 1960 to check, control and prohibit coal mining operations. The Union Government having declared by Section 2 of 1957 Act to take under its control regulation and development of mineral, the power of Autonomous District Council to legislate on the subject shall also be denuded as that of the State Legislature.

All mining will henceforth be carried out by a mining lease holder as per the provisions of Act, 1957 and Rules, 1960 with an approved mining plan under the regulation and control of the State of Meghalaya. If mining operations are undertaken in privately owned/community owned land in Meghalaya in accordance with mining lease with approved mining plan as per Act, 1957 and Mineral Concessions Rule, 1960, the ban order dated 17.04.2014 of the tribunal of the NGT shall not come in the way of mining operations.