KRISHNA NAND TRIPATHI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard learned counsel for the parties. This petition has been filed by one of the sitting members of Legislative Assembly of the State of Jharkhand, challenging the legality and validity of Annexure-2, which is purported to be a policy decision of the State Government published in the Gazette on 27th August, 2011, whereby the State Government has taken a decision withdrawing the restriction imposed upon the sale of the iron ore fines.

(2.) Learned counsel for the petitioner submitted that Article 246 of the Constitution of India has demarcated the jurisdiction of the Central Government as well as the State Government and also provided the power where the Central Government and State Government may legislate. The Central Government has been given exclusive power to make laws with respect to the matters enumerated in List-I in the Seventh Schedule appended to the Constitution of India; whereas the State has been given such power under sub-clause (3) of Article 246 and subjects are given in List II of the Seventh Schedule and it is called the 'State List'. In addition to Clause (3) of Article 246 of the Constitution of India, the Parliament has, subject to Clause (l) of Legislature of any State, also been given power to make laws with respect to any of the matters enumerated in List-III in the Seventh Schedule, which is called 'Concurrent List' and, according to the learned counsel for the petitioner, in the Union List (List-I) Entry No. 54, it is specifically provided that law relating to regulation of mines and minerals 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, obviously shall be enacted by the Parliament only. By exercising powers, the Central Government has enacted the Mines and Minerals (Development and Regulation) Act, 1957 and specific declaration has been made in Section 2 of the Act, 1957. There are Rules known as Mineral Conservation and Development Rules, 1988, which have been specifically framed by the Central Government by exercising power conferred under Section 18 of the Act, 1957 and Chapter V has been enacted with clear object to see that the environment in the area, where the mining lease are granted, may not be disturbed and every care has been taken with respect to operations of tailings, slimes and fines as well as the overburden, which may not be at any use or may be a by product, which may adversely affect the environment of the area and, therefore, it has been provided under Rule 31 of the Rules of 1988 that every holder of a prospecting license or a mining lease shall take all possible precautions for protection of environment and control of pollution, while conducting prospecting mining, beneficiation or metallurgical operations in the area and Rule 33(3)(4)(5) & (6) provides for the management of all those materials which can normally be a wastage and as per sub-rule (4) of Rule 33, it is provided that wherever possible, the waste rock, overburden etc. shall be back-filled into the mine excavations with a view to restoring the land to its original use as far as possible. Therefore, all wastages, overburden as well as fines can be used in a particular manner and cannot be sold. Sub rule (6) of Rule 33 is also relevant which specifically deals with the fines, rejects or tailings from mine, beneficiation or metallurgical plants shall be deposited and disposed in a specially prepared tailings, disposal area such that they are not allowed to flow away and cause land degradation or damage to agricultural field, pollution of surface water bodies and ground water or cause floods. Even after making the above declaration and provisions with respect to, not only taking care of the environment issue but making provisions for the dealing with subjects referred above, certain powers have been given to the Controller General, who can issue direction, obviously to carry out the aims and objects of the Rules.

(3.) In view of the above, it is submitted that the State Government has no jurisdiction to issue any direction or frame a Rule or to take a decision with respect to the subjects covered under List-I of Seventh Schedule of the Constitution of India, for which a declaration has been made by the Central Government. In addition to the above, sub-clauses (f) (k) & (I) of Clause(2) of Section 18 also deal with the arrangements for the storage of minerals and stocks thereof, that may be kept by any person and also the regulation of prospecting operation and also certain things in the interest of conservation of systematic development of minerals or for the protection of environment by preventing or controlling pollution which may be caused by prospecting or mining operations and all those powers are conferred in the Central Government. Therefore, in view of the above provisions also, the State Government cannot and could not have issued such direction, so as to allow the sale of the fines.