Meghalaya High Court
Shri Lawyerson War vs . State Of Meghalaya & Ors on 24 November, 2022
Bench: Sanjib Banerjee, W. Diengdoh
Serial No.01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
PIL No.18/2019 with
MC (PIL) No.5/2022
Heard on: 21.11.2022
Date of Judgment: 24.11.2022
Shri Lawyerson War Vs. State of Meghalaya & ors
Jrop Singh Nongkhlaw & ors Vs. Lawyerson War
Coram:
Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner : Ms. S. Alam, Adv with
Mr. S. Dey, Adv
Mr. S. Deb, Adv
Ms. C.B. Lalrinawmi, Adv
For the Respondents : Mr. A. Kumar, Advocate General with
Mr. S. Sengupta, Addl.Sr.GA
Ms. S. Laloo, GA
Dr. N. Mozika, DSGI with
Ms. A. Pradhan, Adv
Appearance:
For the Applicants : Mr. K. Paul, Sr.Adv with
Mr. S. Chanda, Adv
For the Respondent : Mr Ms. S. Alam, Adv with
Mr. S. Dey, Adv
Mr. S. Deb, Adv
Ms. C.B. Lalrinawmi, Adv
i) Whether approved for Yes
reporting in Law journals etc.:
ii) Whether approved for publication Yes/No
in press:
Page 1 of 30
JUDGMENT
Hon'ble, the Chief Justice:
At the outset it must be recorded that there has been a considerable twist in the matter, in the sense that the perceived original grievance bears little resemblance to the ultimate bone of contention.
2. When this petition, filed in public interest, was received, the Court was minded to entertain the same on the ground that a valuable mineral and natural resource, which this idyllic State tucked away in one corner of the vast country was endowed with, was sought to be willy-nilly squandered without a care for tomorrow. The premise on which this Court found an element of public interest in the matter was the manner in which limestone was being permitted to be quarried in the State and the resultant likelihood of the imminent depletion of its finite resources. The fundamental premise remains unaltered though there has, undoubtedly, been a twist in the tale.
3. Keeping the basic grievance - of the rapid depletion of limestone deposits in the State - in mind, the course that this petition has charted over the last six months or so may be noticed from the orders passed herein. The petition was received and progressed for nearly three years in rather timid fashion till it appeared to spring to life with an order made on April 5 this year. It must be acknowledged that for most of the Page 2 of 30 interregnum an invisible virus and the several lockdowns that it brought in its wake disrupted Court activities as it, indeed, threw life across the globe into disarray like never before.
4. The order dated April 5, 2022 noticed that documents relied upon by the petitioner revealed that an amendment had been brought about in the Meghalaya Minor Minerals Concession Rules, 2016 on January 29, 2018 with what appeared to be a disingenuous design to facilitate illegal quarrying and mining. In the backdrop of the wanton illegal mining of coal that remained unchecked till orders of the National Green Tribunal and the Supreme Court beginning 2016 came to be made, it was a serious issue. Indeed, it was a matter that alarmed the Court, particularly since around the same time it came to the notice of this Court that despite the strict orders of the NGT and the Supreme Court pertaining to illegal coal- mining, the State had done little to implement the same and there were reports of tragic deaths caused by rathole-mining pouring in from several parts of the State.
5. To continue with the order dated April 5, 2022, the Court found that a new definition was added to the Rules of 2016 by introducing, inter alia, clause (u) to define the word "incidental":
"(u) "incidental" in the context of extraction of minor minerals means such an unintended extraction which arises out of non-Page 3 of 30
mining activities such as construction of roads or other major infrastructural projects."
6. This Court observed in the relevant order that the definition was not exhaustive and it only referred to certain activities like construction of roads and other major infrastructural projects as falling within the meaning of "incidental extraction" of minor minerals, but the definition deliberately left it open to interpretation and application in other cases. This Court observed that a person may dig deep in his ground to extract some minor minerals and claim to have "incidentally" extracted the same while preparing the ground for cultivation. To boot, the Court relied on an official list that showed wanton plundering of limestone by euphemistically referring to it as "incidental" extraction and the Administration endorsing such activity.
7. At the same time, the Court noticed that though the Rules pertaining to transportation of minerals had not been altered, yet "incidental challans" came to be issued for minor minerals that had been "incidentally" extracted in terms of the definition of "incidental" introduced as Rule 2(u) of the said Rules of 2016. This Court recorded that the petitioner's response to queries made under the Right to Information Act, 2005 revealed that though Rule 2(u) pertaining to "incidental" extraction of minor minerals was incorporated in 2018, it Page 4 of 30 was only by a notification of January 19, 2021 that Rule 26 of the said Rules of 2016 was amended to incorporate sub-rule (4) pertaining to the transportation of minor minerals "incidentally" extracted.
8. A chart relied upon by the petitioner on the basis of information obtained under the RTI Act enumerated more than hundred cases of large amounts of minor minerals having been "incidentally" extracted in the State. The order dated April 5, 2022 recorded three of the instances where amounts as much as 99,061 MT, 42,907 MT and 34,621 cubic metre of limestone, were said to have been "incidentally" extracted in course of construction of a farmhouse, a residential pathway and paving the way to a paddy field, respectively. The relevant order observed that there were several such instances of large scale "incidental" extraction of limestone without the relevant extraction being in course of any construction of any road or of any infrastructural project. An apparent nexus between illegal coal-mining and "incidental" extraction of limestone was also noticed in a list issued by the Divisional Forest Officer of the Jaintia Hills Territorial Division, Jowai, a region which has seen rampant illegal coal-mining that prompted suo motu proceedings to be initiated by this Court.
9. The order lamented that it was only the Forest Department of the State which was entrusted with the matter of monitoring licences and Page 5 of 30 permits under the said Rules of 2016 without there being any separate specialised authority in such regard. This Court assessed that tens of crores of rupees in revenue may have been lost to the State, in the State sponsoring the illegal extraction of minor minerals by tweaking the definition provision and including "incidental" within its fold without following it up by maintaining any check or balance as to how the "incidentally" extracted limestone or minor mineral had been obtained or was being transported or dealt with. A detailed report was called for.
10. The time to receive the State's report in terms of the order dated April 5, 2022 was enlarged by an order of April 25, 2022 and the matter was taken up in right earnest next on May 6, 2022.
11. The relevant order recorded that the State had filed an action taken report and that several amendments had been made to the Rules of 2016 to plug the loopholes that existed therein. The substantive part of the rest of the order needs to be seen to appreciate how the matter may have taken a slightly different trajectory thereafter:
"While it is appreciated that the State makes a clean breast of the earlier mistakes in the said Rules of 2016, the petitioner maintains that the illegal mining of limestone continues unabated even though the State has no authority to grant any permission for any limestone quarrying since limestone is a major mineral and, only in the exceptional case when limestone is used in kilns for manufacturing of lime as building material, would limestone be regarded as a minor mineral. According to the petitioner, on the Page 6 of 30 basis of the permits or permissions issued or granted by the State, influential persons are carrying on regular business in limestone and selling the limestone to parties in Bangladesh or even to cement manufacturers in Meghalaya and nearby States. "Since the allegation of limestone being extracted and openly sold with State permission has not been squarely levelled in the original petition, it will be open to the petitioner to use a supplementary affidavit to indicate the petitioner's perception as to the present position in such regard.
"In the meantime, whether or not the loopholes have been plugged as submitted by the State, the State should ensure that no extraction of limestone is permitted without obtaining appropriate sanction under the Mines and Minerals (Development and Regulation) Act, 1957."
12. After the matter meandered through several adjournments to receive the petitioner's supplementary affidavit and the State's response thereto, it came to be substantially heard on June 23, 2022 when the petitioner produced a copy of a challan pertaining to limestone mining that the petitioner claimed brought the irregularities in such regard to light. By the order made on June 23, 2022, the petitioner was required to disclose the relevant challan and the connected documents by way of an affidavit without being obliged to indicate the source of obtaining the challan. The State was called upon to confirm whether the copy documents were authentic. The petitioner's contention was also recorded that challans of the kind produced in Court were being used by persons Page 7 of 30 to cite the same as a licence to export limestone to a neighbouring country, though the licence issued was in respect of a minor mineral.
13. The Court noticed that a licence for mining limestone as a minor mineral may only be issued if the end-use of the product is as a building material. A prima facie view was also expressed by the Court in the following words:
"Surely, exporting the goods to another country will not amount to the mineral being used for building material even if the same were used for building material in the other country."
14. The order called for a further affidavit from the State to deal with such aspect of the matter upon ascertaining whether any licence issued to any person for mining limestone as a minor mineral was being misused by exporting the mined mineral to any country.
15. The State's comprehensive affidavit in such regard came to be filed on or about August 17, 2022. Such affidavit, inter alia, appended copies of notifications issued by the Union on June 1, 1958, September 12, 1961, August 23, 1989 and February 10, 2015. In addition, the State relied on a letter issued by it on July 18, 2022 to the Ministry of Mines, Government of India and the response thereto of July 25, 2022. Following the Union's response of July 25, 2022, the State put a query to the Directorate-General of Foreign Trade and received a response thereto on Page 8 of 30 August 11, 2022. In effect, the entire thrust of the matter moved from the original grievance of "incidental" extraction of minor minerals to the misuse of the minor mineral licence for limestone granted by the State by the licensees not adhering to the end-use thereof. Not only did the Court ensure that supplementary affidavits to bring the somewhat altered case were on record, but also afforded the State full opportunity to deal with the matter squarely, which the State did by filing the said affidavit on August 17, 2022.
16. Before returning to the State's justification for issuing minor mineral licences to persons exporting limestone, a further order of this Court of September 7, 2022 and the effect of such order may first be seen.
17. The order dated September 7, 2022 referred to the response by the Union Ministry of Mines to the State's query of July 18, 2022. The second paragraph of the Union's response of July 25, 2022 was quoted thus in the relevant order:
"2. The matter has been examined in the Ministry. It is informed that the Central Government in exercise of the powers conferred under Section 3(e) of the MMDR Act has issued notifications no.MII-159(18)-54-A-II dated 01.06.1958 and MII-169(40)/58 dated 12.09.1961 read with notification no.GSR786(E) dated 23.08.1989, vide which it was declared that "kankar and limestone when used in kilns for manufacture of lime used as building material" is a minor mineral."Page 9 of 30
18. The order of September 7, 2022 proceeded to record the petitioner's apprehension that limestone used for any purpose other than for manufacturing lime to be used as a building material was illegal if a minor mineral licence had been issued in such regard. The State made no bones of the fact that a substantial part of the limestone mined in the State pursuant to minor mineral licences was exported. The State submitted that considerable revenue was earned by the State as a result.
19. In the light of the issue which arose, the order dated September 7, 2022 went on to observe as follows:
"However, as observed in a previous order in the present proceedings, when a mineral is exported, the end-use of such mineral, as far as this country or the place where it is mined is concerned, would be the export and not how the material is used in the country of import. This is because neither this country nor the State where the mineral originates will have any control as to the use of the mineral once it is exported to the importing country. The word "end-use" used in the relevant memorandum of July 25, 2022 must be seen to be end-use with reference to how the mineral is dealt with within the territorial limits of this country. "There may not be any difficulty in the matter since limestone may still be mined, for export purpose, as a major mineral. The State has only to be mindful of any minor mineral mining license not being misused by the licensees to extract limestone for the purpose of export thereof. If the end-use is export, the limestone mined will be regarded as a major mineral and a completely different license and control regime has to be adopted for such purpose.
"Let the matter appear a fortnight hence for the State to respond and make alternative arrangements, if deemed fit."Page 10 of 30
20. The matter was next taken up on November 1, 2022 when the State submitted that it had challenged some of the orders passed in the present proceedings before the Supreme Court, including the interpretation given by this Court pertaining to the end-use of limestone. Meanwhile, the petitioner complained that notwithstanding previous orders in these proceedings, in effect, restraining minor mineral licensees from exporting limestone to a neighbouring country, the State had continued issuing minor mineral licences for such purpose in the interregnum. The matter was directed to appear next on November 15, 2022.
21. On such next appointed day, the matter was taken up and the State produced a copy of an order dated November 11, 2022 passed by the Supreme Court on petitions for special leave to appeal carried before it. The relevant part of the Supreme Court order of November 11, 2022 as extracted in the order of November 15, 2022 reads thus:
"In our considered view, it is not necessary for us to go into the merits of the issues involved in these matters, as the main PIL No. 18 of 2019, is still pending adjudication before the High Court of Meghalaya at Shillong.
"Keeping this fact in view, we deem it appropriate to direct that the impugned Order dated 7-9-2022 passed by the High Court, shall remain in abeyance and be not given effect to, till the main case vis. PIL No. 18 of 2019 is decided by the High Court.Page 11 of 30
"Owing to the nature of controversy, we request the High Court to decide the PIL at the earliest and preferably within a period of three months, reckoned from the date of communication of a copy of this Order.
22. After noticing the Supreme Court order of November 11, 2022, this Court's order of November 15, 2022 referred to the circumstances in which the order of September 7, 2022 came to be passed and the relevant interpretation rendered. The Court also observed that there was no prohibition on the State to act in accordance with law and ensure that exporters of limestone obtained licence as a major mineral in accordance with law. It was also recorded that several minor minerals licensees of limestone had filed special leave petitions without applying before this Court. At the same time, since the notifications issued by the Union required interpretation, learned Deputy Solicitor-General of India was requested to represent the Union at the final hearing fixed on November 21, 2022.
23. At such final hearing on November 21, 2022, quite expectedly, an application came through from one of the minor mineral licensees of limestone to express such licensee's point of view. Such licensee, the applicant in Misc. Case No.5 of 2022, has been heard along with the petitioner and the State though Counsel for the Union had not obtained any instructions.
Page 12 of 30
24. According to the petitioner, the export of limestone cannot be made if it has been quarried on the strength of a minor mineral licence as the end-use of the mineral would not be in conformity with the prevailing notification issued by the Union in such regard. The petitioner also relies on judgments reported at (1975) 1 SCC 627 (Rukmani Bai Gupta v. State Government of Madhya Pradesh) and (1976) 2 SCC 911 (Gorelal Dubey v. State of Madhya Pradesh) to emphasise on what the expression "end- use" would mean in the context of limestone being mined under a minor mineral licence.
25. Lamentably, a hopeless case on behalf of the State has been obstinately pursued without any element of reason justifying the State's conduct. Indeed, as has been appropriately pointed out on behalf of the petitioner, the State's own Rules of 2016 make it more difficult for the State to justify the end-use of limestone for export when a minor mineral licence is granted for its quarrying. The Rules of 2016, in such regard refer to "Limestone of any grade" which is a higher case than the mere use of "limestone" in the notifications issued by the Union.
26. The State's specious ground for allowing limestone to be exported under minor mineral licences for quarrying thereof is that there is no express bar to the export of the mineral in any of the notifications Page 13 of 30 issued by the Union. The State's second line of argument is that under Section 15 of the Act of 1957, the State has full authority over and in respect of minor minerals. The State's equally facetious third limb of contention is that despite its detailed query of July 18, 2022 indicating the steps taken by the State and the use of limestone quarried under minor mineral licences issued by the State, a rather terse reply emanated from the Union without so much as an observation that the State was wrong. The final leg of the State's absurd stand is in its reliance on a stray line in a Supreme Court judgment that cannot be regarded as a part of the ratio decidendi in the matter or even as an obiter dictum. Remarkably, the cat slips out of the bag when the State submits that it grants minor mineral licence for quarrying limestone at the rate of Rs.280/- or so per unit as against the rate prescribed by the Union of about Rs.150/- or thereabouts per unit as a major mineral. The State asserts that even the prescribed rate for a major mineral would go to the State coffers, but only that it would be a reduced revenue. The State also acknowledges that additional considerations may come into play when it comes to granting a major mineral licence for quarrying or mining limestone.
27. It is here that the tragedy really lies that a State government, no less, would subvert the law and act contrary to the constitutional scheme Page 14 of 30 of things to consciously do something not within its authority, only for the purpose of augmenting its revenue. Even if the additional revenue generated is regarded to be for the benefit of the State, the ends do not justify the means.
28. Now to return to the cases cited by the petitioner, to the extent they are apposite in the present context. In the case of Rukmani Bai Gupta, the distinction between minor minerals and major minerals in the context of the Act of 1957 fell for consideration. At this stage, it may do well to see Sections 3(e) and 15(1) of the Act of 1957:
3. Definitions.- In this Act, unless the context otherwise requires,
-
(e) "minor minerals" means building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral; ...
15. Power of State Governments to make rules in respect of minor minerals.- (1) The State Government may, by notification in the Official Gazette, make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith. (1A) ..."
29. By an amendment of 1986, sub-section (1A) has been incorporated in Section 15 of the Act to prescribe, without prejudice to the generality of the power conferred under sub-section (1), rules to be made by State governments for certain matters. However, the remainder Page 15 of 30 of Section 15 of the 1957 Act apart from sub-section (1) thereof, may not be relevant for the immediate discussion.
30. The following passage from paragraph 8 of the judgment in Rukmani Bai Gupta is instructive in the present assessment:
"8. ... Formerly limestone used for burning for manufacture of lime, whatever may be the uses to which such lime may be put, whether as building material or for other purposes, was within the definition of 'minor mineral', but after the amendment, it was only limestone used for burning in kilns for manufacture of lime used as building material that was covered by the definition of minor mineral. When limestone is used for burning for manufacture of lime for industrial or sophisticated purposes otherwise than as building material, it would have to be of superior quality and hence after the amendment, it was classified as major mineral, leaving only limestone used for burning in kilns for manufacture of lime used as building material to be regarded as minor mineral. But in both cases, whether under the original notification or the amended notification, limestone was contemplated to be used for burning for manufacture of lime. The only difference was that in the former, burning could be by any means or process and lime manufactured could be for any purpose including building material, while in the latter, burning could be only in the kilns and for manufacture of lime used only as building material and for no other purpose. ..."
31. The discussion above pertains to the amendment made in the original notification of June 1, 1958 by the subsequent notification of September 12, 1961 (erroneously referred to in the judgment as of September 20, 1961). Both notifications are relied upon by the State in its affidavit of August 17, 2022.
Page 16 of 30
32. As per the original notification of 1958, for limestone to be regarded as a minor mineral, it had to qualify thus: "limestone used for lime burning". By the subsequent notification of 1961, it was specified that "kankar and limestone used in kilns for manufacture of lime used as building material" shall stand substituted in place of "kankar and limestone used for lime burning" in the previous notification of 1958.
33. As held by the Supreme Court in Rukmani Bai Gupta, "kankar and limestone used for lime burning" was rather expansive and it was whittled down in the 1961 notification and made subject to the twin conditions that such kankar and limestone would be used in kilns and only for manufacture of lime used as building material for the kankar and limestone to be regarded as a minor mineral. These twin conditions attached to limestone for it being regarded as a minor mineral have remained unchanged. By a notification of 2015 "limekankar" has been recognised as a minor mineral without any conditions attached. However, the present discussion is confined only to limestone and not extended to either kankar or limekankar, though the same rules as limestone would govern kankar in it being licensed as a minor mineral. Page 17 of 30
34. The same view as in Rukmani Bai Gupta was echoed by the Supreme Court in Gorelal Dubey in the following words at paragraph 10 of the report:
"10. ... After the 1961 notification only that type of limestone would be a minor mineral which is capable of being used for burning in kilns for producing that quality of lime which can ordinarily and generally be used as a building material."
35. The petitioner has also relied on two other judgments reported at 1986 (Supp) SCC 20 (D.K. Trivedi and Sons v. State of Gujarat) and (2008) 5 SCC 772 (S.S. and Co. v. Orissa Mining Corporation Ltd) which are not found to be relevant in the present context.
36. The State, on the other hand, founds its completely illegitimate course of action on a solitary line in a judgment reported at (2012) 4 SCC 629 (Deepak Kumar v. State of Haryana). The matter pertained to notices issued by the State of Haryana proposing to auction the extraction of, inter alia, minor minerals in certain districts and quarrying of minor minerals and riverbeds. At paragraph 19 of the report, the Court noticed the definition of "minor minerals" in Section 3(e) of the Act of 1957 and the clarification in respect of "ordinary sand" in Rule 70 of the Mineral Concession Rules, 1960 framed under the Act of 1957. In observing how minerals had been classified as major and minor minerals, the following sentence finds place at paragraph 19 of the report:
Page 18 of 30
"19. ... It may thus be observed that minerals have been classified into major and minor minerals based on their end use rather than level of production, level of mechanisation, export and import, etc. ..."
37. The State seeks to rely on such observation for it to imply that the end-use rule in the notifications issued under Section 3(e) of the Act of 1957 would not govern the proposed export of the minor mineral.
38. Clearly, such argument is completely flawed and liable to be rejected without further consideration. For a start, observations in orders of Court are not to be read as enactments or edicts on stone. It is only the ratio decidendi which is of paramount importance as that reflects the core decision that has been rendered and which operates as a precedent. Even obiter dictum of the Supreme Court does not operate with the same force though it, obviously, commands high respect and is of great persuasive value; but obiter dictum may not be the law declared by the Supreme Court within the meaning of Article 141 of the Constitution. At any rate, high authorities dating back over a century and endorsed repeatedly by the Supreme Court, instruct that it is only what has been specifically decided in a particular case that will operate as a precedent and not what may appear to have been incidentally decided.
39. With respect, the relevant sentence in Deepak Kumar must be seen in the right perspective. It appears to be a casual sentence; or else Page 19 of 30 the word "import" could never have found a place therein since, in the context of what is defined to be a minor mineral under the 1957 Act, the concept of import is wholly inapposite.
40. The other judgment carried by the State is even more tenuous in its relevance to the present discussion and the issues involved herein. In the judgment reported at (2004) 10 SCC 201 (State of WB v. Kesoram Industries Ltd), paragraph 139 from the majority opinion is placed for its reference to Section 15 of the Act of 1957 and recognition of the distinct areas of operation of Entry 54 of List I in the Seventh Schedule to the Constitution and Entry 23 of List II thereof. However, much time need not be wasted on such aspect, particularly since the discussion in the matter pertained to whether cess could be levied on royalty and, at any rate, the legal question involved has now been referred to a larger Bench in the Supreme Court.
41. Entry 54 in List I of the Seventh Schedule to the Constitution provides thus:
"54. Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest."
Entry 23 of List II of the Seventh Schedule is clear in its wording: Page 20 of 30
"23. Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union."
42. Thus, the extent of State's authority under Entry 23 of List II is subject to the extent to which regulation of mines and mineral development under the control of the Union is declared by Parliament by law. Apart from the express provision in Entry 23 of List II making the field of its operation subservient to the corresponding entry in List I, the general rules as enunciated in Articles 245 and 254 of the Constitution create a limited scope for the State in respect of minor minerals as defined in the Act of 1957. Section 15(1) confers requisite authority on the States to grant quarry leases, mining leases or other mineral concessions in respect of minor minerals and for purposes connected therewith, as long as the regulation by the States is confined to minor minerals as defined in the statute or other minor minerals declared as such by the Central government by a notification in the Union gazette. Nothing in the constitutional scheme of things or in terms of the said Act of 1957 circumscribes the Union's authority to declare a mineral to be a minor mineral in certain circumstances, whether based on its end-use or other considerations. Since the Union has exercised its constitutional authority by a law in such regard made by the Parliament as the Act of 1957, the Page 21 of 30 State's field of operation is confined to minor minerals as defined or as notified, together with the attendant conditions attached thereto.
43. It is an entirely different matter that the State grants a minor mineral licence keeping the twin conditions in mind, but there is a minor aberration by the licensee in the end-use. The State may then take the licensee to task. It may also happen that the licensee does not conform, quite regularly, to the end-use condition and the matter does not come to the notice of the State. In either case, it would not be the State's fault as long as the State has granted the minor mineral licence with the stipulated conditions.
44. But what is happening here is that the State is granting a minor mineral licence without imposing the twin conditions attached to the use of the limestone for it to be regarded as a minor mineral. The State here is openly canvassing the export of limestone by licensees granted minor mineral licences. Whether it is for the State's revenue or for any other more noble consideration, it does not matter. The State's authority is only to grant a minor mineral licence subject to the end-use of mineral as specified. In the State allowing export of limestone upon granting a minor mineral licence therefor, the State is acting in excess of the authority available to it under the constitutional scheme and the mechanism Page 22 of 30 envisaged by the Act of 1957 and the notifications issued under Section 3(e) thereof.
45. The authority available to a State, no less, has to be exercised rationally and reasonably. It is completely irrational and totally uncalled for, for the State to grant minor mineral licence for mining or quarrying limestone when fully conscious that the end-use is otherwise than for manufacture of lime used as a building material. Indeed, there is no insurmountable problem here, as emphasised in the order of September 7, 2022. If the purpose of quarrying or mining limestone is the export thereof, a major mineral licence has to be obtained for the purpose, subject to the attendant formalities in such regard. The State cannot subvert the mechanism put in place by a law of Parliament by openly allowing limestone to be mined or quarried under a minor mineral licence for it to be ultimately exported.
46. In the context of the end-use as indicated in the notifications issued by the Union, the end-use has, per force, to be completed within the territory of India. Limestone quarried or mined under a minor mineral licence may be used for the manufacture of lime used for building material in the same State or in a State other than where the mineral originates. At any rate, to the extent feasible, both the State and the minor Page 23 of 30 mineral licensee are obliged to give effect to the end-use condition in such regard. There may be some minor seepage for which neither the licensee nor the licensor may be pulled up; but the process cannot be subverted in the manner it has been.
47. As a matter of fact, the State itself makes a distinction between the use of minor minerals in industry and the use of minor minerals other than in industry. The State's Rules of 2016 have carved out the two separate schedules in such regard. When the State is as conscious in making a distinction between the use of minor minerals in industry and otherwise than in industry, the State allowing limestone to be exported when quarried or mined under a minor mineral licence is completely unacceptable and in abject derogation of the scheme of things under the Act of 1957 and the State's obligation in terms of the Constitution to adhere thereto.
48. When an end-use, as in the present context, is specified, the end- use must be verifiable. As in the principle of E&OE in accounting, minor aberrations may be excepted, but what comes to light here is State- sponsored subversion and a kind of misadventure that does not behove its status.
Page 24 of 30
49. None of the grounds pressed into service by the State to justify its conduct holds any water. It is true that the notifications issued by the Central government do not expressly prohibit export, but that is quite besides the point. There may be times when a definition or a formal mandate is couched in words that indicate a sense of exclusivity or, conversely, a sense of not being exhaustive. The distinction can be understood by comparing the notifications of 1958, 1961 and 1989 on the one hand and the notification of 2015 on the other. The same matter has been refined and amended from what it read in the 1958 notification to what it was altered to in the 1961 notification and what now applies in terms of the 1989 notification. All three notifications carved out a distinction as to whether the same mineral would be regarded as a major mineral or as a minor mineral based on the specific condition of end-use indicated therein. On the other hand, the 2015 notification indicates several minerals which would fall in the category of minor minerals, irrespective of any other consideration.
50. When an exception is carved out in a category and specified, such exception has to be regarded as exhaustive and not merely indicative. Limestone, as in the present case, would be a minor mineral only if used in kilns for manufacture of lime used as a building material. That would Page 25 of 30 imply that in all other situations limestone would have to be regarded as a major mineral. The moment limestone is mined for the purpose of its export, that would have to be on the basis of limestone in such a situation being regarded as a major mineral.
51. As to the State's perceived complete authority over and in respect of minor minerals, the issue has already been addressed; just as the discussion hereinabove has also dealt with the State's reliance on a stray line in a Supreme Court judgment.
52. Apropos the relevant Union Ministry's terse reply to the State's letter of July 18, 2022, it must be said that the second paragraph of the response of July 25, 2022 has said it all. The State and the Union are partners in governance. It would not augur well for the Union to point an accusatory finger at a State once the Union indicates the legal position on the issue. Implicit in the Union's response to the State's query was the assertion that the State may not have been mindful of its limited scope of authority in view of the matter pertaining to the regulation of minerals having been enacted upon by the Parliament. Similarly, the reply issued by the DGFT to the State's query would not imply that there is no restriction on the export of limestone. The DGFT made it clear that such export would be governed by any law in operation in such regard. Page 26 of 30
53. A further point has been taken by the State as to the locus standi of the petitioner and his motive to carry the matter to Court. When faulty or flawed administrative functioning is brought to the knowledge of a constitutional Court, the petitioner is treated as a mere informant as the Court takes up cudgels on behalf of the citizens to test the conduct of the State or the Union in a matter where the Court perceives there is an element of public interest. The informant may be a felon, but it must be remembered that the petitioner's conduct is not on trial as much is the conduct of the Union or any State in a matter of public interest. Accordingly, the petitioner's status or conduct is irrelevant in the present case, once the petitioner has brought to the knowledge of the Court a matter of public interest and the Court has entertained the same.
54. In the light of the State's admitted conduct, the future course of action by the State will have to meet a higher test than was ordinarily required. When limestone is permitted to be quarried or mined under a minor mineral licence in the State, the State is now required to keep a strict vigil on the end-use thereof and ensure that no part of it is exported in any manner or form.
55. PIL No.18 of 2019 is disposed of by directing the State to not allow the export of limestone that is mined or quarried by persons under Page 27 of 30 a minor mineral licence by obtaining regular end-use certificates from the licensees, verifying the same and presenting annual reports in such regard for cross-verification by the office of the Accountant-General under the aegis of the Comptroller and Auditor-General of India. This process will continue for the next 10 years unless interdicted by an express order of a competent Court.
56. For the State's conduct in the issuance of minor mineral licence for limestone used for export thereof, the State will pay damages assessed at Rs.2 crore which will go towards the purchase of additional equipment for cancer treatment at the specialised unit therefor installed at the Civil Hospital, Shillong. Again, the Accountant-General will audit and verify the purchase of equipment exclusively from the damages awarded and not from funds that may otherwise be made available by the State to the relevant unit. Such money has to be put in by the end of January, 2023.
57. In view of the State's affidavits indicating that the loopholes that had arisen upon the introduction of Rule 2(u) in the Rules of 2016 have been plugged, the State is directed to ensure that large scale limestone "incidentally" extracted is not dealt with without reference to the State. The State should indicate, by formulating a rule in such regard, specifying a much lower threshold of, say, up to 50 MT of minor mineral being Page 28 of 30 "incidentally" extracted; but any quantum in excess thereof, even if it is "incidentally" extracted, would have to be made over to the State for the State to deal with the same in accordance with law.
58. At the end of the day, the State is in the position of a trustee protecting the natural resources of the State in the interest of its people and for their benefit. The rule would apply more strictly in this State almost completely governed by the Sixth Schedule to the Constitution where the land and the resources under the land have been recognised to be the property of the tribes and its tribal folk. The State has a duty to ensure the preservation of a precious natural resource for future generations rather than exhaust the entire deposits over one or two Assembly terms.
59. A line may be expended in disposing of the application filed by a minor mineral licensee being MC (PIL) No.5 of 2022. It is laughable that a genuine limestone mining leasee engaged in exporting the mineral would support the State's cause, as the applicant has purported to do, though obtaining a minor mineral licence costs the licensee much more than obtaining a major mineral licence for the same purpose. Page 29 of 30
60. MC (PIL) No.5 of 2022 is dismissed with costs assessed at Rs.10,000/- to be paid to the Meghalaya State Legal Services Authority within a fortnight from date.
(Sanjib Banerjee) Chief Justice I agree.
(W. Diengdoh) Judge Meghalaya 24.11.2022 "Lam DR-PS"
Page 30 of 30