M/S. Burrakur Coal Co., Ltd. Vs. The
Union of India & Ors  INSC 42 (10 February 1961)
SINHA, BHUVNESHWAR P.(CJ) DAS, S.K.
AYYANGAR, N. RAJAGOPALA
CITATION: 1961 AIR 954 1962 SCR (1) 44
R 1965 SC 632 (11) RF 1969 SC 125 (8) RF 1973
Coal Mines-Law Providing for respecting for
coal and acquisition-Validity-"Un-worked land", meaning of-"To
undertake any operation in the land", meaning of-Coal Bearing Areas (Acquisition
and Development) Act, 1957.(20 of 1957), ss. 4,5,6,7 8, 13, 14-Constitution of India, Arts. 31A(1)(e), 31(2).
The Coal Bearing Areas (Acquisition and
Development) Act, 1957, was enacted, as indicated in the preamble, for
providing for the acquisition by the State of un-worked land containing or
likely to contain coal deposits, and under S. 4(1) of the Act,-the Central
Government was empowered to issue a notification with reference to its
intention to prospect for coal from land in any locality. By s. 5(b) any mining
lease granted to a person and in respect of which a notification had been
issued shall cease to have effect, and under s. 7 the Central Government was
entitled to acquire the mining rights within a period of two or three years
from the date of the notification. On July 29, 1960, the Central Government published a notification under s, 4(1) of the Act in respect of an area included in
the colliery in which the petitioners had acquired mining rights. Between the
year 1932 and the month of May, 1960, the colliery was not worked because it
was uneconomical to work it, but the petitioners made an application on
December 3, 1959, to the Coal Board for permission to reopen the Colliery and
though no reply was received from the Board, the petitioners commenced drilling
operations in May, 1960, but discontinued them from August 12, 1960, in view of
the notification. The petitioners challenged the validity of the notification
on the ground that the preamble of the Act and ss. 4, 5, 6, 7 and 8 show that
the Act was applicable only to uncorked mines which must mean virgin lands,,
and not to those which were being worked at the time of notification or which
were worked in the past, whereas the petitioners' coal field had been worked
and the working had ceased for some time only due to the unremunerative market
for the produce. The petitioners also contended that the Act contravened Arts.
19(1)(g) and 31(2) of the Constitution of
India on the grounds (1) that the effect of a notification under the Act was to
prevent an owner or lessee of a mine from working for two or three years, which
was too long a period and, therefore, the restrictions could not be regarded as
45 reasonable, (2) that the Act did not contain any provision for compensation
for the deprivation of the petitioners' right to carry on their business for
two or three years, and (3) that s. 13 of the Act, though it dealt with the
payment of compensation, did not provide for compensation for mineral rights.
Held: (1) that the expression "uncorked
land" occurring in the preamble of the Coal Bearing Areas (Acquisition and
Development) Act, 1957, means land-which was not being worked at the time of
the notification issued under the Act and includes dormant mines.
Where the object or meaning of a enactment is
not clear, the preamble may be resorted to to explain it.
In re the Kerala Education Bill, 1957, 
(2) that the Act is applicable not only to
virgin lands but also to dormant collieries or unworked lands, including mines
which were worked in the past but mining operations therein are not being
carried on at present.
(3) that the expression "to undertake
any operation in the land" in S. 5(b) of the Act refers to the undertaking
of an operation on land not for the first time only but at the resumption of an
operation which had been abandoned or discontinued. The resumption of the
working of a mine after a casual closure or a closure in the ordinary course of
the working of a mine would not fall within the bar created by s. 5(b).
(4) that the restrictions imposed upon an
owner or lessee of a mine by which he is prevented from working his mine for a
certain period of time under ss.4 and 5 of the Act are not unreasonable and
that the Act does not contravene Art.
19(1)(g) of the Constitution.
(5) that such restrictions amount to a
modification of his rights within the meaning of Art. 31A(1)(e) of the
Constitution; and that the validity Of ss. 4 and 5 Of the Act cannot be
challenged on the ground that they infringe Art. 31(2) in view of the
provisions of Art. 31A(1)(e).
Thakur Raghbir. Singh v. Court of Wards,
Ajmer,  S.C.R. 1049, explained.
Sri Ram Ram Narain Medhi v. State of Bombay,
 Supp. 1 S. C. R. 489, Atma Ram v. The State of Punjab,  Supp. r
S.C.R. 748 and In re Delhi Laws Act, 1912,  S.C.R.
793, relied on.
(6) that the Act cannot be challenged on the
ground that ss. 5(a) and 13 do not provide for payment of compensation for
mineral rights, because ss. 13 and 14 lay down the principles on which
compensation is to be determined, and under Art31(2) such a law cannot be
called in question on the ground of the inadequacy of the compensation
ORIGINAL JURISDICTION: Petitions Nos. 241 and
242 of 1960.
Petitions under Art. 32 of the Constitution
of India for enforcement of Fundamental Rights.
P. B. DaS, K. Choudhoury, Balbhadra Prasad
Singh and I. N. Shroff, for the petitioners.
M. C. Setalvad, Attorney-General of India, B.
Sen and R. H. Dhebar, for the respondents.
1961. February 10. The Judgment of the Court
was delivered by MUDHOLKAR, J.-The petitioner in W. P. 241 of 1960, Messrs.
Burrakur Coal Co., Ltd., and the petitioner
in W. P. 242 of 1960, Messrs. East India Coal Co., Ltd., claim to have acquired
mining rights in two blocks in Mouza Sudamdih and Mouza Sutikdih respectively
situated in Dhanbad district in the State of Bihar. On July 28, 1960, the
Central Government published a notification bearing no. S. 0. 1927 under s. 4
of the Coal Bearing Areas (Acquisition and Development) Act, 1957 (no. 20 of
1957), stating its intention to prospect for coal in an area approximately five
sq. miles which includes Sudamdih colliery aud Sutikdih colliery. The
petitioners have stated in their respective petitions that in consequence of
the issue of the aforesaid notification they are precluded from carrying on any
mining operations in the respective collieries and that the Central Government
is entitled to acquire mining rights in the area covered by the notification
within a period of two years from the date of notification or within such
further period not exceeding one year as the Central Government may specify by
notification in the Official Gazette. The petitioners have come up to this
Court under Art. 32 of the Constitution contending that the aforesaid
notification is ultra vires and illegal inasmuch as it interfere,% with their
fundamental right to own property and to carry on business.
Assuming that an incorporated company is a
citizen we may point out that the East India Coal Co., Ltd. is incorporated in
the United Kingdom while the Burrakur Coal Co., Ltd. is 47 incorporated in
India. Therefore, in so far as the rights conferred by Art. 19 are concerned it
may only be the latter which is entitled to the protection of the Constitution
but not the former company. Both the petitioners, however, contend that the
right conferred by Art. 31(2) of the Constitution is also infringed by the
aforesaid notification and if their contention is correct they will be entitled
to protection in respect of that right inasmuch as it is not limited to the
citizens of India as is the case with regard to the rights enumerated in Art.
19. Both the petitions were argued together though the arguments were addressed
mainly with reference to the case of Burrakur Coal Co., Ltd.
and, therefore, it is that case with which we
will deal fully. After dealing with the arguments advanced with reference to
that case we will deal briefly with the other case.
The challenge to the notification rests on
two grounds, firstly that the notification is ultra vire8 the Act and secondly
that the Act is itself ultra vires the Constitution.
The petitioner's learned counsel Mr. P. R.
Das contends that the Act applies to "uncorked" coal mines which
according to him, mean virgin lands-and not to those which are being worked at
present or which were worked in the past. In support of this contention he
strongly relies upon the preamble to the Act. The preamble runs thus:
"An Act to establish in the economic
interest of India greater public control over the coal mining industry and its
development by providing for the acquisition by the State of uncorked land
containing or likely to contain, coal deposits or of rights in or over such
land, for the extinguishment, or modification of such rights accruing by virtue
of any agreement, lease, licence or otherwise. and for matters connected
therewith." His argument proceeds to the length of saying that even
abandoned mines are not touched by the Act. According to him, however, the
Sudamdih colliery was not an abandoned mine nor could it be regarded as
abandoned because, though it was not actually worked 48 between the year 1932
and the month of May. 1960. the petitioner had purchased it for a large
consideration amounting to over Rs. 1,46,000 and thereafter it paid annually
the minimum rent and royalty which totals upto over Rs. 1,23,000 from May 1,
1939, to June 30, 1960. According to the petitioner the mine was not actually
worked during this period because in the petitioner's opinion it was
uneconomical to work it. The petitioner in fact made' an application on
December 3, 1959, to the Coal Board as required by the provisions of the Coal
Mines (Conservation and Safety) Act, 1952 (XII of 1952), for permission to
reopen the colliery but it did not receive any reply from the Coal Board. Even
so, the petitioner commenced drilling operations in the beginning of May, 1960
and carried them on till August 12, 1960, during which a depth of 235 ft. was
reached at one point. The petitioner, however, stopped these operations
consequent upon the publication of the impugned notification in the Gazette of
August 6, 1960. We are mentioning. these facts because on their basis a further
argument is raised by Mr. Das to the effect that prior to the issue of the
notification the mine was being actually worked. Before, however, we deal with
that argument we must consider the main contention of Mr. Das which is to the
effect that the Act applies only to virgin land.
Mr. Das contended that the preamble to an Act
is a key to understanding the provisions of the Act and referred us in this
connection to the advisory opinion of this Court in re the Kerala Education
Bill, 1957 In that case Das, C. J., who delivered the opinion of the Court has
"The long title of the said Bill (The
Kerala Education Bill, 1957) describes it as A Bill to provide for the better organization
and development of educational institutions in the State'. Its preamble recites
thus: 'Whereas it is deemed necessary to provide for the better organization
and development of educational institutions in the State providing a varied and
comprehensive educational service (1)  S.C.R. 995, 1022.
49 throughout the State'. We must, therefore,
approach the substantive provisions of the said Bill in the light of the policy
and purpose deducible from the terms of the aforesaid long title and the
preamble and so construe the clauses of the said Bill as will sub serve the
said policy and purpose".
While. holding that it is permissible to look
at the preamble for understanding the import of the various clauses contained
in the Bill this Court has not said that full effect should not be given to the
express provisions of the Bill even though they appear to go beyond the terms
of the preamble. It is one of the cardinal principles of construction that
where the language of an Act is clear, the preamble must be disregarded.
Though, where the object or meaning of an enactment is not clear, the preamble
may be resorted to explain it. Again, where very general language is used in an
enactment which, it is clear must be intended to have a limited application,
the preamble may be used to indicate to what particular instances the enactment
is intended to apply (1).. We cannot, therefore, start with the preamble for
construing the provisions of an Act, though we would be justified in resorting
to it, nay, we will be required to do so, if we find that the language used by
Parliament is ambiguous or is too general though in point of fact Parliament
intended that it should have a limited application.
Mr. Das then contended that the various
provisions of the Act clearly show that Parliament intended the Act to apply
only to virgin land. In support of this contention he referred to the
provisions of as. 4,5,6, 7 and 8 of the Act.
He pointed out that whenever it appears to
the Central Government that coal is likely to be obtained from land in any
locality it is empowered by sub-a. (1) of s. 4 to give notice of its intention
to prospect for coal therein.
According to him, where a mine has been
worked at some time in the past all the necessary information would be
available in the working plan of the mine, and, by way of illustration pointed
out that the fullest information (1) Craies- Interprotation of Statutes, 5th
Edn., pp. 188, 189.
50 was available in the working plan,
Annexure B1 of the Sudamdih colliery. He further pointed out that this
information was in fact in the possession of the Government as would appear
from Annexure B which was appended to the notification of July 20, 1960. We may
point out that this annexure sets out that this is a statement of percentage of
worked and un-worked areas in different coal mines and. after setting out the
various seams which have been proved, the percentages of worked and un-worked
areas have been specified therein. Prospecting, according to Mr. Das, would be
necessary only if nothing is known about an area and therefore there can
possibly be no need for prospecting when a mine has been worked. Admittedly,
sub-s. (1) of a. 4 does not specifically say that it applies to un-worked land.
All the same, according to Mr. Das, it must be so construed as to apply to un-worked
land only; for, there would be no need for the Government to undertake
prospecting for coal in worked land on which there is a colliery.
We cannot accept the argument of Mr. Das. The
bulk of the coal in a mine is underground and even though the existence of some
seems may have been proved in particular areas it is impossible to say that the
information obtained when it was prospected once or when it was being worked,
as to the quality and quantity of coal or the dimensions of the seams is
complete. The seams are not necessarily horizontal and more often are inclined
and sometimes even folded. Then again there may be faulting in the strata of
coal as a result of which an impression may be created that a seam has
disappeared at a particular place though further borings or drilling may show
that even. beyond that point but at greater depths the same seam reappears. So
where a mine was worked in the past but mining operations therein were stopped
either because the coal therein was thought to have been exhausted or because
it was not thought to be of a sufficiently good quality such as to make the
working of the mine economic, further prospecting may well reveal the existence
of additional coal bearing strata or of a better type of coal than that found
51 earlier. On the plain language of sub-a. (1) of s. 4 the Central Government
has been empowered to issue a notification with reference to its intention of
prospecting any land in a locality and not only such land as is virgin in the
sense in which Mr. Das uses that expression.
Then Mr. Das referred sub-s. (3) of a. 4 and
said that the whole of the country has been subjected to a geological survey of
a very detailed kind and all known coal fields are mentioned in one report or
the other of the department of Geological Survey of India. Collieries which
have been worked at some time in the past must have been mentioned in one of
these reports and., therefore, it would be wholly unnecessary for the
legislature to confer upon the Government the power as is done by cl. (a) of
sub-s. (3) of s. 4 to enter upon and survey any land in the locality in which
such colliery is situate. The very fact that power has been given to the
Central Government to enter upon and survey land for' the purpose of
ascertaining whether there is any coal in that land shows that the legislature
had in mind only that land which has not been mentioned as coal bearing in any
of the reports of the Geological Survey of India. Here again we may point out
that the object of survey of land is to enable the Government to satisfy itself
not merely about the fact that any coal exists in that land but also about the
quality and quantity of coal therein and whether it would be an economical
proposition to work the mines already existing on that land.
Indeed a perusal of the provisions of sub-a.
(4) of s. 4 would show that the Act is not restricted to uncorked lands only
but applies equally to those lands on which there are existing mines but those
mines are not being worked. That subsection reads as follows:
"In issuing a notification under this
section the Central Government shall exclude there from that portion of any
land in which coal mining operations are actually being carried on in
conformity with the provisions of any enactment, rule or order for the time
being in force or any premises on which any process ancillary to the getting,
dressing or 52 preparation for sale of coal obtained as a result of such
operations is being carried on are situate".
Under this provision the Central Government
is required to exclude that portion of any land in which coal mining operations
are being carried on "in conformity with any enactment, rule or
order". This would indicate that the language of sub-s. (1) of s. 4 was
understood as applying also to that land in which coal mining operations were
actually being carried on. Unless we hold so, the whole of sub-s. (4) would be
rendered otiose. Mr. Das, however, says that sub-s. (4) enacts a "rule of
exclusion" and that it had been enacted by way of abundant caution. We
cannot accede to this argument for the simple reason that if the language of
sub-s. (1) of s. 4 is capable of being interpreted as applying to any land in
which coal mining operations are actually being carried on, then there is all
the greater reason why that provision should be held also to apply to land in
which coal mining operations were carried on in the past, though they are not
being carried on at present. If Parliament was cautious enough to exclude land
in which coal mining operations are actually being carried on why did it stop there
and not exercise the same caution with respect to land in which coal mining
operations were once being carried on but have now ceased? For, on the plain
meaning of the word "uncorked" such lands would more readily fall
within the terms of sub-s. (1) of s. 4 than land in which coal mining
operations were actually being carried on, that is to say, "worked
Then Mr. Das referred to cl.-(b) of s. 5
which runs thus:
"any mining lease in so far as it authorizes
the lessee or any person claiming through him to undertake any operation in the
laid, shall cease to have effect for so long as the notification under that
sub. section is in force".
He contended that what this provision
prohibits is the undertaking of any operation in the land and not carrying on
of an operation. Undertaking of an operation, according to himself 'relates to the
initial 53 working of the mine and riot to the resumption of work on the mine
after work thereon had stopped nor to carrying on work on a mine the working of
which had not been stopped.
As a consequence of the issue of a
notification under sub-s. (1) or s. 4 what the lessee of a mining lease is
prohibited from doing is undertaking any operation on land-on which no
operations were being carried on. But he is not prohibited from continuing to
carry on operations which he was carrying on at the date of the notification.
We cannot, however, accede to the contention that the resumption of mining
operations on a land is outside the bar created by this provision. The words used
in the section are "to undertake any operations in the land" which,
according to the Concise Oxford Dictionary mean "to enter upon (work,
enterprise, responsibility)". The meaning of the provision, therefore, is
that what the lessee is prohibited from doing is something which he was not
doing at the date of the notification though he was authorized to do it under
his lease. Thus if a colliery was not functioning at the date of the
notification then by virtue of the provisions of a. 5(b) he would not be permitted
to work it. Undoubtedly the provision has to be interpreted reasonably and it
does not mean that if the notification came into force on the Monday and the
mine was not worked on Sunday because of a holiday, the lessee was prohibited
by the notification from working it. The resumption of working of a mine after
a casual closure or a closure in the ordinary course of working a mine would
not fall within the bar created by s. 5(b). In this connection we may refer to
r. 7 of the Coal Mines Regulations of 1957, which provides that when it is
intended to reopen a mine after abandonment for a period exceeding 60 days not
less than 30 days notice before resumption of mining operations must be given
to certain authorities. The Coal Mines Regulations of 1957 have been framed
under s. 57 of the Mines Act of 1952, s. 16 of which provides for the giving of
notice before commencement of mining operations. It is in the light of these
provisions that we must interpret the provisions of s. 5(b) of the Act.
So what must be said to have 54 been
prohibited would be the undertaking of an operation on land not for the first
time only but also the resumption of an operation which had been abandoned or
Mr. Das then contended that a mining area is
always extensive and it is not possible to work on every bit of it
simultaneously and, therefore, if work is carried on at one point in a colliery
the whole colliery must be deemed to be working, that is to say, coal mining
operations must be deemed to have been carried on over the entire area on which
the colliery is situate. In support of his contention he relied upon the
decision of the Privy Council in Nageswar Bux Roy v. Bengal Coal Co., Ltd. (1),
and upon a passage in Halsbury's Laws of England(2). Both the decision of the
Privy Council as well as the passage in Halsbury deal with the question of
possession and state the law to be that a person can be said to be in
possession of minerals contained in a well-defined mining area even though his
actual physical possession is confined to a small portion, that is, to the mine
which is being actually worked. The decision of the Privy Council as well as
the passage in Halsbury are nus not in point. Further it is difficult to see
how an exemption under s. 4(4) is admissible in the case of the Sudamdih
colliery or Sutkidih colliery unless it is shown that they were actually being
worked at the date of the notification in conformity with the provisions of
"any enactment, rule or order for the time being in force". It is an admitted
fact that though a notice was given under s. 16 of the Mines Act, 1952, by the
Sutkidih Colliery, the petitioners in W.P. 242 of 1960, it aid not actually
start working the colliery in view of the impugned notification.
As we have al. ready pointed out the Burrakur
Coal Co., Ltd.
did commence working the Sudamdih Colliery in
May, 1960, even though it had not obtained the permission of the appropriate
We must, therefore, examine here the argument
of Mr. Das that every colliery must be held to be exempted under sub-s.
(4) of S. 4. We have already referred (1)
(1930) L.R. 58 I-A. 29.
(2)..3rd Edn., Vol. 26, p. 630.
55 to s. 16 of the Mines Act, 1952, and
regulation 7 of Mining Regulations, 1957. In addition, there is Regulation 3 of
1957 which requires that the notice contemplated by s. 16 should be submitted
in Form I.. No doubt the petitioner had given notice as required by these
provisions. No doubt also that it was necessary for the authorities concerned
to take appropriate action on the notice. But it is difficult to say that the
inaction of the authorities can be availed of by the petitioner. We must give
effect to the plain language of sub-s. (4) of s. 4. That provision in clear
terms makes an exclusion or exemption only with regard to that portion of the
land in which coal mining operations are actually being carried on in
conformity with the provisions of any enactment, rule or order. Therefore, it
is clear that Parliament was exempting only such collieries as were being
worked in consonance 'with the provisions of law. Mr. Das's argument, however,
is that the Act prescribes penalties for the breach of its provisions and of
those of the regulations and so the petitioner could well be visited with an
appropriate penalty but that its right to run the mine could not be affected.
We are not here concerned with the question whether the failure of the
petitioner to comply with the requirements of the Coal Mines Act or of the
Regulations of 1957 precludes the petitioner under that Act or under those
regulations from carrying on mining operations. We are concerned here only with
one point, and that is whether the petitioner could be said in point of fact to
have been carrying on mining operations in accordance with law. That the
petitioner was not doing so is not even denied by Mr. Das and in the
circumstances it is clear that the petitioner is not entitled to the benefit of
sub-s. (4) of s. 4. We should have dealt with this part of Mr. Das's argument
elsewhere but in order to avoid repetition we have thought it convenient to
deal with it here.
Adverting to s. 6(1) of the. Act which deals
with compensation for any necessary damage done under s. 4 of the Act, learned
counsel contended that Parliament plainly intended the Act to apply to virgin
56 If the section was intended to apply to
worked mines there would have been provision, according to learned counsel, for
payment of compensation to the owner or lessee of the mine, for being deprived
of his right to work the mine consequent upon the-. issue of the notification.
It is sufficient to point out that s. 4 does not contemplate entering upon any
land which is actually being worked and there will thus be no deprivation in
fact of the owner's or lessee's right of working the mine. The Act applies only
to "uncorked lands".
This expression would include not only virgin
lands but also lands on which mines may have been opened and worked sometime in
the past but working on those mines was either discontinued or abandoned. Of
course, it is possible to say that the action of the Government would interfere
with the potential right of the owner or the lessee to work the mines and this
would interfere with his right to hold property and carry on his business. When
we deal with the other part of Mr. Das's argument we shall deal with this question.
It was next contended that s. 7 which deals
with the power of the Central Government to acquire land or rights in or over
land notified under s. 4 also indicates the limited operation of the Act.
Sub-section (1) of s. 7 runs thus:
"If the Central Government is satisfied
that coal is obtainable in the whole or any part of the land notified under
sub-section (1) o f section 4, it may, within a period of two years from the
date of the said notification or within such further period not exceeding one
year in the aggregate as the Central Government may specify in this behalf, by
notification in the official Gazette, give notice of its intention to acquire
the whole or any part of the land or of any rights in or over such land, as the
case may be".
The argument was that in respect of mines
which have already been worked at some time in the past all the relevant
material would be at the disposal of the Government even previous to the
issuing of a notification under sub-s. (1) of S. 4 and, therefore, there 57
could be no necessity for the Government to enter on and prospect the land for
being satisfied that coal is obtainable there from. Therefore, the argument
proceeds, the provision could not have been intended to apply to land other
than virgin land. This is really a repetition of the argument which was
addressed to us in connection with sub.
(1) of s. 4 and what we have said with regard
to that subsection would equally apply here.
Sub-section (1) of s. 7 provides for a period
of two years within which a notice of acquisition could be given by the Central
Government. It is argued that this period is too long for keeping out an owner
or lessee of land, the mines on which had been worked in the past and that
Parliament could not have intended this effect. Therefore, the argument
proceeds, this provision also points to the conclusion that the word
"land" wherever it occurs in the Act should be read as virgin land.
Prospecting operations are necessarily prolonged because what lies under the
surface of land cannot be easily ascertained except by undertaking drilling or
other appropriate operations at a number of places. Such operations are bound
to be prolonged. Parliament apparently thought that it would be reasonable to
allow a period of two years to the Government for carrying on the necessary
operations and for, making up its mind. The mere length of the period so
allowed to the Government cannot be regarded as indicative of the intention of
Parliament to give to the word 'land' the -meaning 'virgin land'.
Reliance was placed on the explanation to
sub-a. (1) of s.. 8. That sub-section and the explanation are as follows:
"Any person interested in any land in
respect of which a notification under section 7 has been issued may, within '
thirty days of the issue of the notification, object to the acquisition of the
whole or any part of the land or of any rights in or over such land.
Explanation.-It shall not be an objection
within the meaning of this section for any person to say 58 that he himself
desires to undertake mining operations in the land for the production of coal
and that such operations should not be undertaken by the Central Government or
by any other person".
It was argued that in the explanation the
words used are "to undertake mining operations" and not "to
carry on mining operations" and therefore the Act could not be intended to
apply to worked mines. Here again the argument is similar to that advanced on
the basis of cl. (b) of s. 5 and what we have said regarding it would equally
Adverting to s. 13 of the Act which deals
with compensation for prospecting licences ceasing to have effect and rights
under mining leases being acquired, it was contended that as there is no
provision for compensation in respect of the minerals lying underground,
Parliament could not be deemed to have enacted this law for the purpose of
acquiring mines which have been worked in the past. According to Mr. Das if we
have understood him right, when a person has acquired land either as an owner
or as a lessee carrying with it the rights to win minerals and has opened in
that land mines which he worked for some time, there takes place a severance
between the right to the surface and right to the minerals and that
consequently such person will thereafter be holding the minerals as separate
tenement, that is, something apart from the land demised and this separate
tenement cannot be acquired under the terms of the present Act or, if it can be
so acquired, it has to be specifically compensated for.
Reference to the several provisions of the
Act and in particular to those of s. 13 indicates, according to learned
counsel, the limited scope of the Act. It is difficult to appreciate the
contention that merely because the owner or the lessee of a land had opened mines
on that land, a severance is effected between the surface and the underground
minerals. It may be that a trespasser by adverse possession for the statutory
period can acquire rights to underground minerals. It may also be that if that
happens the surface rights would become severed from the mineral rights as a
result of which the 59 minerals underground would form a separate tenement. It
is, however, difficult to see how the owner or the lessee of land who has right
to win minerals can effect such a severance between the mineral rights and
surface rights by opening and operating the mines of that land. For, even while
he is carrying on mining operations he continues to enjoy the surface rights
also. We cannot, therefore, accept the contention that there was any severance
of the mineral rights and surface rights in either of these two cases.
It is no doubt true that s. 13 does not make
any specific provision for compensation in respect of minerals, but on the
other hand it provides in the explanation to el. (a) of sub-s. (5) that the
value of minerals lying in the land shall not be taken into consideration in
assessing compensation. Whether the absence of a provision for compensation'
would make the Act ultra vire8 in so far as it contemplates acquisition of land
will be considered presently. We may, however, point out that the Act does not
make provision for compensation for minerals in respect of even virgin land and
the argument of Mr. Das would equally apply to such land. Therefore, no point
can be made from the absence of a provision for compensation for minerals that
the Act was applicable only to virgin lands. For all these reasons it is clear
that the notification is not ultra vires the Act because, in our view the Act
applies not only to virgin lands but also to dormant collieries or unworked
To sum up, in our view, the preamble of this
Act need not be resolved to for construing its provisions and in particular for
understanding the meaning of the word "land" used in the Act; that
even if the preamble is taken into consideration the expression "unworked
land" occurring in the preamble should be given its ordinary meaning, that
is to say, land which was not being worked at the time of the notification
issued under the Act, which would include dormant mines;
that the provisions of the Act and in
particular those of sub-s. (4) of s. 4 and s. 5(b) clearly militate against the
contention that the Act was intended to apply only to virgin lands, to the
exclusion of land on 60 which there are dormant mines, and that the absence of
a provision in s. 13 of the Act providing for compensation for mineral rights
cannot by itself justify the conclusion that the Act was intended to apply to
virgin land only.
Now we come to the second part of the
argument. It is contended that ss. 4, 5 and 6 invade the fundamental rights of
the petitioner under Art. 19(1)(g) of the Constitution because under s. 5, a
mining lease ceases to have effect for two years and possibly for three years.
Mr. Das concedes that reasonable restrictions can be placed by the State upon
the rights enumerated in this article in the interests of the general public
but he contends that the period of two to three years is too long and,
therefore, the restrictions cannot be regarded as reasonable. We have already
indicated that prospecting operations, in their very nature, must take a long
time to complete and presumably Parliament had fixed this period after bearing
in mind this factor and also on the basis of expert advice. Of course, there
are no pleadings to that effect in the affidavit of the State. But in our
opinion the petitioner cannot be permitted to complain of the absence of
pleadings because it has not itself stated in the petition what would be
reasonable time for conducting prospecting operations. We are, therefore,
unable to accede to the argument.
The next attack, and that is a more
formidable one, is based upon the ground that the Act does not contain any
provision for compensation for the deprivation of the petitioners right to
carry on its business for two to three years and that consequently one of its
fundamental rights is infringed. It is no doubt true that in a. 13(4) which
deals with the question of compensation there is no provision for payment of
compensation for the deprivation of the right of a mine owner or a lessee to
carry on his business for a period of two or three years, but the petitioner
cannot complain about it. In Art. 31A, cl. (1), sub-el. (e), of the
Constitution, which was inserted by the Constitution First Amendment Act, 1951,
it is provided that "notwithstanding anything contained in Art. 13, no 61
law providing for............... the extinguishment or modification of any
rights accruing by virtue of any agreement, lease or licence for the purpose of
searching for, or winning, any mineral or mineral oil, or the premature
termination or cancellation of any such agreement, lease or licence, shall be
deemed to be void on :the ground that it is inconsistent with, or takes away or
abridges any of the rights conferred by Art. 14, Art. 19 or Art 31." Then
follows a proviso with which we are not concerned. The effect of a notification
under s. 4(1) of the Act read with s. 5(b) is to prevent an owner or lessee of
a mine from working his mine far a certain period of time. His rights are thus
modified by the notification. According to Mr. Das, however, the effect of the
notification is to suspend the rights of a mine-owner or lessee of the mine for
a certain period and that such suspension is not modification.
In this connection he relied upon the
observations of Mahajan, J., (as he then was), in Thakur Raghbir Singh v.
Court of Wards, Ajmer (1). That was a case
where, in connection with a notification issued under the Court of Wards Act,
the learned Judge observed that the word "modification" used in the
aforesaid provision of the Constitution does not include suspension of a right.
The observations made in that case fell for consideration by this Court in Sri
Ram Ram Narain Medhi v. The State of Bombay (2) and Atma Ram v. The State of
Punjab and Ors. (3). Explaining them this Court observed in the latter case:
"Those observations must be strictly
limited to the facts of the case, and cannot possibly be extended to the
provisions of Acts wholly dissimilar to those of the Ajmer Tenancy and Land
Records Act, XLII of 1950, which was the subject-matter of the challenge in the
case then before this Court. This Court held, on a construction of the
provision of that Act, that they only suspended the right of management but did
not amount to any extinguishment or modification of any proprietary rights (1)
 S.C.R. 1049,1053.
(2)  Supp. S.C.R. 489, 519 (3) 
SUPP. S.C.R. 748, 767.
62 in an estate. The provisions of the Act
then under consideration of this Court, have absolutely no resemblance to those
of the Act now before us, and it is impossible to put a similar interpretation
on these provisions.
In the recent decision of this Court (not yet
reported) this Court had been invited to apply the observations of this Court
referred t o above, to the provisions of the Bombay Act.
It was pointed out in that case that those
observations of Mahajan, J., (as he then was), must be read as limited to an
Act which only brings about a suspension of the right of management of an
estate, and could not be extended to the provisions of an Act which either
extinguishes or modifies certain rights of a proprietor in an estate or a
This Court did not intend to lay down as law
in Thakur Raghbir Singh v. Court of Wards, Ajmer (1) that Art.
1A(i)(e) is inapplicable to a case where the
property rights of a person are kept in abeyance for a certain period. The
meaning of the word "modify" fell to be considered, in re The Delhi
Laws Act, 1912 As pointed out in the -opinion of Kania, C. J., the word
"modify" means, according to Oxford Dictionary, to limit, restrain,
to assuage, to make less severe, rigorous, or decisive; to tone down". It
also means "to make partial changes in; to alter without radical
transformation". In Rowland Burrows"'Words and Phrases', the word
"modify" has, however, been defined as meaning "vary, extend or
enlarge, limit or restrict". According to the learned Chief Justice
"It has been held that modification implies an alteration. it may narrow
or enlarge the provisions of the former Act".
Bearing in mind the principle that a
constitutional enactment must be construed liberally we would be right in
according the dictionary meaning to the word " modification"
occurring in the aforesaid provision. Mr. Das, however, contends that for a
thing to amount to a modification of a right it must be of a permanent
character and not of a temporary duration. We see no ground whatsoever for
holding that for a (1)  S.C.R. 1049,1053.
(2)  S.C.R. 793-4.
63 thing to be a modification it must be of a
permanent duration. A right may well be modified for all time or for a limited
duration and in either case the right must be regarded as having been modified.
For these reasons we hold that the provisions of Art. 31A, cl. (1)(e), debar
the petitioners from challenging the validity of ss. 4 and 5 of the Act on the
ground that they infringe the provisions of Art. 31(2) of the Constitution.
What remains to be considered is whether the
provisions permitting acquisition of land are ultra vires the Constitution
because they offend Art. 31(2) of the Constitution. According to the learned
Attorney-General the petitioners have no present grievance on that score
because the notification in question empowers the State only to prospect for
coal in the petitioner's land and not to acquire it. We cannot accept this
contention. The whole object of Parliament in enacting the law was to empower
the State to acquire coal bearing lands. Prospecting on a piece of land for
coal is merely a stage preceding the actual acquisition of that land. If,
therefore, those provisions of the law which deal with the question 'of
acquisition are unconstitutional the whole Act will be rendered
Article 31(2) of the Constitution, as amended
by the Fourth Amendment Act, 1955, runs thus:
"No property shall be compulsorily
acquired or requisitioned save for a public purpose and save by authority of a
law which provides for compensation for the property so acquired or
requisitioned and either fixes the amount of the compensation or specifies the
principles on which, and the manner in which, the compensation is to be
determined and given;
and no such law shall be called in question
in any court on the ground that the compensation provided by that law is not
Mr. Das pointed out that s. 13 of the Act,
though it deals with the payment of compensation, does not contain any
provision for payment of compensation for mineral rights.
Not only that, but the explanation to cl. (a)
of s. 5 clearly lays down that in computing the 64 compensation for the land
the value of minerals will not be taken into account. The acquisition of
mineral rights would, therefore, according to him, be impermissible under Art.
31(2) without payment of compensation. The learned Attorney-General quite
rightly pointed out that s. 13 deals with the whole subject of payment of
compensation to the owner or lessee of the mine for his entire interest in the
land including the rights to minerals and even though that section specifically
says that the value of the minerals cannot be taken into account in determining
the amount of compensation, the concluding words of Art. 31(2) preclude the
petitioners from challenging the law. Mr. Das pointed out that the only ground
on which the Central Government in their affidavit have tried to sustain the
validity of the provisions relating to the acquisition of land under the Act is
that a challenge to the validity of the law is barred by the provisions of Art.
3lA(1)(e) and that it is not now open to the Central Government to say that the
law can be sustained on another ground. We cannot accept this contention. Where
the validity of a law made by a competent legislature is challenged in a Court
of law that Court is bound to presume in favour of its validity. Further, while
considering the validity of the law the court will not consider itself
restricted to the pleadings of the State and would be free to satisfy itself
whether under any provision of the Constitution the law can be sustained. There
is no doubt that the entire Act cannot be sustained by resorting only to Art.
31A(1)(e) or to Art. 31(2A) of the Constitution because these provisions do not
deal with the question of acquisition and the Attorney-General fairly admitted
that it could not be so sustained. The opening words of sub-s. (2) of s. 13
"Where the rights under a mining lease
are acquired under this-Act, there shall be paid to the person interested
compensation, the amount of which shall be a sum made up of the following
Then follow the items which have to be added
up Undoubtedly they are items of expenditure and 65 interest on such
expenditure. Sub-section (3) deals with the procedure to be adopted where the
rights acquired under s. 9 relate only to part of the land covered by the
mining lease. Sub-section (4) deals with the compensation to be paid where the
mining lease ceases to have effect for any period under cl. (b) of s. 5.
Subsection (5) provides for payment of compensation for any land acquired under
s. 9 and lays down the principles to be followed in computing the compensation.
Sub-section (6) provides for payment of compensation for damage done to the
surface of any land or any works thereon and in respect whereof no provision
for compensation is made elsewhere in the Act. Sub-section (7) deals with the
question of compensation for maps, charts and other documents. Section 14 of
the Act deals with the method of determining the compensation. It will be clear
from these provisions that the Act specifies the principles on which and the
manner in which the compensation should be determined and given. This is all
that is required of a law relating to the acquisition of property by Art. 31(2)
of the Constitution. Where provisions of this kind exist in a law that Article
lays down that such law cannot be called in question in any court on the ground
that the compensation provided by that law is not adequate. Here compensation
is specifically provided for the land which is to be acquired under the Act.
The land includes all that lies beneath the surface or, as Mr. Das put it, all
that is "locked up " in the land. Parliament has laid down in sub-B.
(5) of s. 13 how the value of this land is to be calculated. The contention
that the provisions made by Parliament for computing the amount of compensation
for the land do not take into account the value of the minerals is in effect a
challenge to the adequacy of the compensation payable under the Act. The
concluding words of Art. 31(2) preclude such a challenge being made.
But Mr. Das contended that the minerals are
separate tenement and have to be separately compensated for. We have already
dealt with the contention of Mr. Das that the minerals underlying the surface
are a separate tenement and we need not repeat here all 66 that we have said
before. In our opinion the minerals cannot be regarded as a separate tenement
except perhaps in a case of a trespass and, therefore, there is no question of
the law providing for a separate compensation for them.
Apart from that if minerals have become a
separate tenement then the present Act may not apply to such a tenement at all.
As we have pointed out the coal contained in the two collieries in question is
not held by the respective petitioners as a tenement separate from the surface.
In the circumstances the challenge to the validity of the Act on the ground
that it offends Art. 31(4) of the Constitution fails, and we dismiss the petition
We must say a few words about W. P. 242 of
1960. Out of 737 bighas of land held by the petitioner in that writ petition,
we are informed that 321 bighas have been worked. The working,of this mine was
closed in the year 1928 on the ground that the mine was flooded. An application
Was made by the petitioner for reopening the mine on June 5, 1957.
Repeated reminders were sent subsequently but
there was no reply to any of them either. In its application the petitioner, it
may be stated, did not apply for opening new mines. Since the necessary
permission was not received, it did not commence any operations. We are
informed that over a million tons of coal was extracted by the petitioner from
its colliery in the past. Even so, we do not think that any different
considerations could apply to the petitioner's case from those which apply to
the case of the Burrakar Coal Co. The petitioner's colliery was also dormant
for too long a period and was thus an "un-worked mine". The impugned
Act and the notification made there under both apply to it in the same way as
they apply to the Sudamdih colliery belonging to Burrakur Coal, Co., Ltd. The
writ petition thus fails and is dismissed with costs.
Cost of the hearing be paid half and half by
the two petitioners. There will be only one hearing fee, to be divided equally
between the two petitioners.