Meghalaya High Court
State Of Meghalaya And Ors vs Shri. Tangkham M Sangma And Ors on 26 November, 2015
Author: Uma Nath Singh
Bench: Uma Nath Singh, Tnk Singh, S R Sen
1
THE HIGH COURT OF MEGHALAYA
SHILLONG
REVIEW PET. No. 10/2015
1. State of Meghalaya, represented by
Secretary to the Government of
Meghlaya, District Council Affairs
Department, Shillong.
2. Commissioner and Secretary, Home
Department, Government of
Meghalaya, Shillong.
3. Deputy Commissioner, North Garo
Hills District, Resubelpara.
4. Deputy Commissioner, South Garo
Hills District, Baghmara.
5. Deputy Commissioner, East Garo
Hills District, Williamnagar.
6. Superintendent of Police, North Garo
Hills District, Resubelpara.
7. Superintendent of Police, South
Garo Hills District, Baghmara.
:::: Review Petitioners
- Versus -
1.Shri. Tangkham M Sangma,
Son of Shri Monsing Ch. Marak,
Resident of Lower Hawakhana Tura,
West Garo Hills, Meghalaya.
2. GHADC, represented by Secretary,
Executive Committee, GHADC, Tura.
3. Chairman, GHADC, Tura.
4. Chief Executive, GHADC, Tura.
5. The Chief Forest Officer, GHADC, Tura :::: Respondents
- AND -
2REVIEW PET. No. 11/2015
1. Shri Balios Swer, Son of Smti Simal Swer, R/o 16, Khliehriat West, East Jiantia Hills, 793002, Meghalaya.
2. Shri Emlangky Lamare, Son of Shri Jolly Lyngdoh, R/o Lumshnong, East Jaintia Hills, 793002, Meghalaya.
3. Smti Lalbiaksami Thianglai, R/o Sutnga Pohskul, P.O. & P.S. Khliehriat, East Jaiñtia Hills, Meghalaya.
4. Shri Da-Iomiki Pdang, S/o Smti H. Pdang, R/o Lumshnong (Narpuh Dollarship) East Jaiñtia Hills, Meghalaya.
5. Shri Moses Nongtdu, S/o Shri Kondrick Shylla, R/o Byndihati, East Jaiñtia Hills, Meghalaya :::: Review Petitioners
- Versus -
1. Shri. Tangkham M Sangma, Son of Shri Monsing Ch. Marak, Resident of Lower Hawakhana Tura, West Garo Hills, Meghalaya & Ors.
:::: Respondents BEFORE THE HON'BLE MR. JUSTICE UMA NATH SINGH, CHIEF JUSTICE THE HON'BLE MR JUSTICE TNK SINGH & THE HON'BLE MR JUSTICE S R SEN For the Review Petitioners : Dr. BP Todi, Sr. Adv. In Review Pet. No. 10 of 2015
Mr. K. Paul, Adv.
In Review Pet. No. 11 of 20153
For the Respondents : Mr. S. Dey, Adv.
Mr. HL Shangreiso, Adv.
Date of hearing : 14.10.2015
Date of Judgment & Order : 26.11.2015
JUDGMENT AND ORDER
(Uma Nath Singh, C.J.)
This order shall also dispose of connected Review Petition No. 13 of 2015, as both these matters have been filed to seek review of the judgment and order dated 30.06.2015 passed in WP(C) No. 140 of 2014. MC No. 10 of 2015 (Application for condonation of delay in filing the review petition) with review petition and amended review petition duly supported by affidavit of Ms. A. Nikhla, Deputy Secretary, Forest & Environment Department has been filed by the State. The relief(s) that has been prayed for in that Review Petition on reproduction would read as:
"It is therefore prayed that you Lordships would be pleased to admit this review petition, and modify the Judgment and Order dated 30.06.2015, by deleting wording "(i) in consultation with the CEC."
With the direction to comply with the statutory provisions as laid down in the Forest (Conservation) Act, 1980 in respect of forest clearance of environment clearance and/or may pass such further or other order/orders as your Lordships may deem fit and proper."
Whereas the prayers made in review petition and amended review petition accompanying the Misc. Case No. 13 of 2015 (Application for condonation of delay in filing the review petition), filed by private review petitioners are as: 4
"In the premises aforesaid, it is prayed that Your Lordships may be pleased to call for records and issue notice calling upon the Respondents to show cause as to why the judgment and order dated 30.06.2015 passed by this Hon‟ble Court in W.P. (C) No. 140 of 2014 be not reviewed especially the observations and directions contained in paragraphs 16 to 31 of the judgment and order dated 30.06.2015 passed in W.P. (C) No. 140 of 2014 be not re-examined/reviewed and upon cause or causes being shown and after hearing the parties be pleased to review the judgment and order dated 30.06.2015 passed in W.P. (C) No. 140 of 2014 and/or may pass such further or other order or orders as Your Lordships may deem fit and proper."
2. The petitioners filed Review petitions with application for condonation of delay but on being pointed serious errors, they have filed amended Review Petitions. They have later also submitted additional affidavits. On behalf of the State, Smt A. Nikhla, Deputy Secretary has sworn the additional affidavit on 15.10.2015 which is accompanied by Government‟s Notifications in support of the contentions raised in the Review Petition, whereas private review petitioners have filed Misc. Case No. 13 of 2015 with review petition without any application for permission to file the review which is required for the reason that they were not a party to the writ petition. They have, inter alia, also tried to justify as to why they though not being a party in the writ petition have preferred this review.
3. The brief facts as set out in the impugned judgment and order on the basis of pleadings in the writ petition, upon recapitulated in the essentials are: the writ petitioners established forest check gate for collection of compensatory fee from the trucks transporting minerals like coal and limestone for reclamation of un- classed forests which fall within the jurisdiction of the Garo Hills 5 Autonomous District Council (For short „the GHADC‟). The GHADC was constituted in terms of provisions of paragraph 2 of the Sixth Schedule to the Constitution of India, framed under Article 244 (2) and 275 (1) of the Constitution of India. The council upon being constituted was granted the powers inter alia to manage all forests not being a reserved forest of the Garo Hills District under para 3 (1)(b) of the Sixth Schedule.
4. Accordingly, the GHADC in purported exercise of powers under the Sixth Schedule to the Constitution of India enacted the Garo Hills District (Forest) Act, 1958 (For short „the 1958 Act‟) to provide management of the forests not being a reserved forest in the Garo Hills District and also for levy and collection of forest revenue. In its meeting dated 20.08.2009, the Executive Committee of the GHADC felt the necessity of establishing forest check gates for the purpose of checking illegal transportation of timber and other forest produce like minerals and also for realization of forest revenue. It was also felt necessary to regulate extraction and transportation of various forest produce in order to protect fragile ecology of the forest. Remedial measures were also required in a form of afforestation. As such scheme would require huge investment of finance, therefore, in order to generate that in the form of forest revenue, it was decided to impose a compensatory fee for reclamation of forests on the vehicles transporting minerals like coal and lime stone, through area of un- classed forests. Thus, check gates were set up at different places by the GHADC in 8 (eight) forest ranges of the Garo Hills. The petitioner was also granted permission to collect compensatory fee from the trucks loaded with minerals like coal and limestone for reclamation of un-classed forests falling within the jurisdiction of the GHADC, at 6 Dainadubi, Chokpot and Banghmara. The petitioner thus, set up forest check gates at Nagalpara and Dainadubi in East Garo Hills District, after obtaining all necessary clearance from the competent authorities such as Deputy Commissioner and Superintendent of Police, North Garo Hills District, the Ministry of Road Transport and Highways, Government of India, the PWD (Roads), Williamnagar Circle etc.
5. Thereafter, the Deputy Commissioner, North Garo Hills, vide the letter dated 03.03.2014 convened a meeting on 05.03.2014, which was attended to by all the concerned including the writ petitioner and also the officers of the GHADC. In the said meeting, it was discussed to close down all the unauthorized forest check gates which cause illegal collection without any authority of law. On 11.03.2014, the District Administration of North Garo Hills as a follow up action carried out operation to close down all the unauthorized collection booths. Petitioner‟s check gate though claimed to be legal was also closed. Therefore, he (writ petitioner) preferred WP (C) No. 140 of 2014 which was dismissed vide the impugned judgment by placing reliance on various orders passed by Hon‟ble the Apex Court in the case of TN Godavarman Thirumulpad Vs. Union of India, reported in (2013) 8 SCC 198 and 204, and also the judgments of Hon‟ble the Supreme Court in the case of Centre for Public Interest Litigation & Ors. V. Union of India, reported in (2012) 3 SCC 1 and Goa Foundation v. Union of India & Ors., reported in (2014) 6 SCC 590 apart from several pronouncements on the compensatory fee. The operative part of the impugned judgment in the writ petition reads as : 7
"29............It thus follows from the aforesaid discussions that the State Government, in order to reclaim the damage caused to the forest and the environment, as a result of mining activities, even if permitted under the rules, shall have to draw a comprehensive scheme and create a fund for reclamation wherefor an amount to the extent of not less than 10% of the sale proceeds of the minerals extracted under the licence or lease deed as provided in the judgment of Hon‟ble the Supreme Court in Goa Foundation‟s case and being in accordance with the principle that a "polluter shall pay" can be validly charged.
30. For the reasons foregoing, we dismiss the writ petition with direction that, except in cases where licence for extraction of minerals has already been granted or lease deed for that purpose has already been entered into in accordance with the directions of Hon‟ble the Supreme Court in the judgments referred to hereinabove, all other mining activities shall have to stop and in future the State shall not grant any licence or enter into a lease deed for extraction of minerals without (i) consultation with the CEC; (ii) drawing a comprehensive scheme and;
(iii) creating a Fund for reclamation in the interest of sustainable development and intergenerational equity, and for the purpose of rectifying the damage caused to the forest and environment."
The main contentions of the Review petitioners are that they were not given opportunity to address on the issues noticed in the directions given vide the impugned judgment which according to them has been passed beyond the pleadings of the writ petition.
6. In addition to the above contentions, by way of additional affidavit Smti A Nikhla, Deputy Secretary, Forest and Environment, Govt. of Meghalaya, has also brought the following documents on record : (i) Notification No. S.O. 1533(E) of the Ministry of Environment and Forest, Govt. of India dated 14.09.2009 (containing directions regarding environmental clearance for new projects /activities /expansion /modernization of existing projects/activities by the Central Government as the case may be); (ii) Notification No. 8 S.O. 3067(E) dated 01.12.2009 issued by Ministry of Environment and Forest, Government of India in exercise of powers conferred by Sub Section 1 and Clause (v) of Sub Section (2) of Section 3 of the Environment (Protection) Act, 1986 read with Clause (d) of Sub Rule
(iii) of Rule 5 of the Environment (Protection) Rules 1986); (iii) Notification No. S.O. 1203(E) dated 23.07.2007 issued by Ministry of Environment and Forest in exercise of powers conferred by Sub Section (3) of Section 3 of the Environment (Protection) Act, 1986 and also in pursuance of the Notification as above of the Govt. of India No. S.O. 1533(E) dated 14.09.2006 issued by the Central Government to constitute State Level Environment Impact Assessment Authority (SLEIAA), Meghalaya; (iv) Notification No. S.O. 411(E) dated 14.03.2012 issued by Ministry of Environment and Forest, Government of India, in exercise of powers conferred by Sub Section (3) of Section 3 of the Environment (Protection) Act, 1986 and also in pursuance of the Government of India Notification No. S.O.1533(E) dated 14.09.2006 and (v) Notification No. S.O. 2125(E) dated 05.08.2015 issued by Ministry of Environment and Forest, Government of India, in exercise of powers conferred under Sub Section (3) of Section 3 of the Environment (Protection) Act, 1986 and also in pursuance of Notification of the Govt. of India in the erstwhile Ministry of Environment and Forest No. S.O. 1533(E) dated 14.09.2006.
7. As regards the pleading on behalf of private review petitioners in Review Petition with Misc. Case No.13 of 2015, it is submitted that the forefathers of petitioners have for several generations carried out quarrying of limestone and other stones on a small scale level in the 9 Khasi Hills District and Jaintia Hills District of Meghalaya. Most of the limestones bearing lands are rocky and are situated in remote hills terrain with sparse vegetation. They are also unfit for any kind of cultivation. Stones quarrying has been the livelihood of their families for generations. The entire life, culture and economy of the local population have revolved only around limestone and stone mining. The petitioners after quarrying of limestone from their lands sell it to local lime kilns and other buyers and earn their livelihood.
8. It is also contended by the private review petitioners that the land tenure system in Khasi Hills District of Meghalaya is totally unique and different from the rest of the country. Here, the lands as well as the minerals underneath belong to the land owners. According to them, their land tenure system is based on the following:
"(i) Socio-political history of these areas; (ii) the fact that these areas were never a part of British India and these areas ceded to the Union of India by an Instrument of Accession signed by the Chiefs of then 25 Khasi States; (iii) land tenure system prevalent in the area prior to signing of Instrument of Accession; (iv) land tenure system prevalent in the area post Instrument of Accession till date; (v) lack of any kind of ryotwari settlement of lands by the British Government before independence of India or by the State Government of Assam or of Meghalaya after independence; and (vi) absence of any law made either by the State or by Parliament vesting all mineral rights in the State. As such, surface rights over the land as well as the minerals below the land belong to the land owners.10
As such, due to its unique land tenure system, the minerals in these private (Ri Kynti) lands do not vest in the State/Government".
9. That apart, in support of their contentions they have also placed heavy reliance on two judgments of Hon‟ble the Apex Court in
(i) Thressiamma Jacob v. Department of Mining and Geology, reported in (2013) 9 SCC 725 and (ii) Lafarge Umiam Mining Pvt. Ltd v. Union of India & Ors, reported in (2011) 7 SCC 338. The aforesaid contentions of the private review petitioners have also been reiterated in their additional/supplementary affidavit dated 13.10.2015 sworn by one Shri B Swer. Apart from what has been submitted herein above, it is also pleaded that the deponent and others have already entered into a commitment with buyers like stone crushers, lime kilns and lime stone importers in Bangladesh for supply of certain quantity of stone/limestone but because of cessation of quarrying activities consequent upon the passing of impugned judgment, they are not in a position to fulfill their commitments which has adversely affected their economic condition.
10. As per the website of Mining and Geology Department, Govt. of Meghalaya, the limestone reserved in Meghalaya is about 15,100 million tones. At present, the mining of limestone in Meghalaya is not developed on account of being carried out on a very small scale level. Further, sandstone and limestone quarrying does not cause any significant damage to the environment for the reason that the land having sandstone and limestone remain barren and not considered fit to grow plants and forest. Only shrub like vegetation 11 can grow in such places provided the area is excavated. Miners of sand stone and other minerals also contribute to the State exchequer by paying royalty. The sandstone and limestone are used for construction works in Meghalaya and the stoppage of quarrying has adversely affected the developmental works in the State. Transportation of sandstone and chips from Assam is extremely expensive and that too has also severely affected the projects. It is also a submission that the Environment (Protection) Act, 1986 and the Forest (Conservation) Act, 1980 do not envisage consultation with „the Centrally Empowered Committee‟ constituted under the directions of the Supreme Court in T.N. Godavarman Thirumulpad‟s case.
11. However, the writ petitioner has not filed any affidavit nor has his counsel made any submission worth noticing, in support or opposition of the submissions of review petitioners. The first question that we need to decide is as to whether it is a fit case for exercise of review jurisdiction. The Full Bench of this Court, in the case of Mrs Venetta Kharsyntiew v. Shri Tushar Nath Bhattacharjee and others, (Review Petn. No. 9 of 2014 in CRP No. 28 of 2013) has discussed the scope of exercise of review jurisdiction vide paragraph 18 as under :
"18. Now, coming to the legal position as settled by Hon‟ble the Apex court from time to time on the issues in hand in various judgments, it would suffice to refer to a few as follows : In Aribam Tuleshwar Sharma v. Aibam Pishak Sharma reported in (1979) 4 SCC 389, it has been held that the power of review is not the same as appellate powers. In the case of Inderchand Jain v. Motilal reported in (2009) 14 SCC 663, it is laid down that while hearing a review petition, the Review Court cannot sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that 12 once a judgment is signed or pronounced, it should not be altered. It is also trite that the exercise of the inherent jurisdiction is not invoked for reviewing any order. In Lily Thomas v. Union of India reported in (2006) 6 SCC 224, it has been clarified that the review is not an appeal in disguise. In para 56 of the judgment, it is observed as :
" 56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise."
In Haridas Das v. Usha Rani Banik reported in (2006) 4 SCC 78, the Hon‟ble Supreme Court has discussed the issue in great detail vide para 13 as:
" 13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing " on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. This court in Thungabhadra Industries Ltd. V. Govt. of AP held as follows (SCR p. 186) [T]here is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by „error apparent‟. A review is by no 13 means and appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error..where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."
12. Moreover, the scope for exercise of review jurisdiction is provided in Section 114 and Order XLVII Rule 1 of the CPC. These provisions are reproduced herein below :
"114. Review.- Subject as aforesaid, any person considering himself aggrieved,-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
Order XLVII Rule 1
1. Application for review of judgment - (1) Any person considering himself aggrieved -
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from the Court of Small causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."
It appears that the review jurisdiction can be invoked also on the ground if an important matter is not produced at the time of hearing or "for any other sufficient reason" as well. In the instant 14 case, the aforesaid five notifications as now placed on record alongwith the affidavit of Smti A. Nikhla, Deputy Secretary to the Government of Meghalaya, were not brought to the notice of the Court when the writ petition was heard and reserved for judgment. Moreover, the review petitioners have also contended that they were not given opportunity to address on the issues covered by the directions which are contained in the penultimate paragraph of the judgment as :
"30. For the reasons foregoing, we dismiss the writ petition with direction that, except in cases where licence for extraction of minerals has already been granted or lease deed for that purpose has already been entered into in accordance with the directions of Hon‟ble the Supreme Court in the judgments referred to hereinabove, all other mining activities shall have to stop and in future the State shall not grant any licence or enter into a lease deed for extraction of minerals without (i) consultation with the CEC; (ii) drawing a comprehensive scheme and;
(iii) creating a Fund for reclamation in the interest of sustainable development and intergenerational equity, and for the purpose of rectifying the damage caused to the forest and environment."
13. Thus, the review petitioners deserve to be granted our indulgence in the interest of justice butthatnevertheless since the notifications brought on record by the Deputy Secretary only go to facilitate the implementation of our judgment impugned herein and various judgments of Hon‟ble the Supreme Court, we need not exercise the review jurisdiction. What is required is not the exercise of review but issuance of clarificatory orders that the five notifications mentioned hereinabove have been issued to constitute the Agency called the „State Level Environment Impact Assessment Authority (SLEIAA), Meghalaya‟ under Section 3 of the Environment (Protection) Act, 1986, in compliance of and in line with the mandate 15 of the order dated 9.5.2002 of Hon‟ble the Supreme Court in TN Godavarman Thirumalpad‟s case which provided that till the Central Government constitutes a statutory Agency as contemplated by Section 3 of the Environment (Protection) Act, 1986, it is necessary and expedient that an authority be constituted at the national level to be called „the Central Empowered Committee‟.
14. Now, coming to the question as to whether this Court can deal with the issue not directly impugned in the writ petition while passing the judgment, it would suffice to say that the issue involved in the writ petition related to collection of compensatory fee for reclaiming unclassed forest. Thus, even if there was no specific prayer, yet the grounds and pleadings of the writ petition were sufficient to warrant the directions as contained in the impugned judgment. A three-Judge Bench of Hon‟ble the Apex Court in Godrej Sara Lee Limited v. Assistant Commissioner (AA) and Another, reported in (2009) 14 SCC 338, has held that the ground itself is sufficient for passing a judgment or granting relief even in the absence of an specific prayer.
15. In view of the above discussions, we are not required to exercise the review jurisdiction even though the aforesaid notifications were not available, for whatever reason, before the Court during the hearing of the writ petition. As such, the impugned judgment is modified only to a limited extent that since the statutory agency namely, State Level Environment Impact Assessment Authority (SLEIAA), Meghalaya has been constituted, now State shall seek clearance from the SLEIAA for grant of any license or lease for 16 extraction of minerals which shall act in accordance with law instead of CEC. As regards second and third directions, namely, (ii) drawing a comprehensive scheme and (iii) creating a fund for reclamation in the interest of sustainable development and intergenerational equity and for the purpose of rectifying the damage caused to the forest and environment, we do not find a valid ground to interfere for the simple reason that the private writ petitioners have heavily relied upon the mandate of judgment in Lafarge Umiam Mining Pvt Ltd v. Union of India and Others, reported in (2011) 7 SCC 338 in their review petition which has dealt with the issues behind the directions No.(ii) and (iii) of the impugned judgment passed in writ petition. The judgment in Lafarge Umiam Mining has been discussed and relied in Goa Foundation‟s case (supra). Our directions No. (ii) and (iii) of the impugned judgment are only based on the ratio of the Goa Foundation‟s case. Thus, we decline to consider the prayer for review of the said directions No.(ii) and (iii).
16. Thus, both the review petitions, namely, Review Petn. with Misc. Case No.10 of 2015 and Review Petn. with Misc. Case No.13 of 2015 stand disposed of with the aforesaid limited indulgence. Further, in view of grant of indulgence in the Review Petitions, both the Misc. Cases for condonation of delay are allowed.
JUDGE JUDGE CHIEF JUSTICE dev/sylvana