Banwarilal Agarwalla Vs. The State of
Bihar & Ors  INSC 43 (10 February 1961)
10/02/1961 GUPTA, K.C. DAS
GUPTA, K.C. DAS SINHA, BHUVNESHWAR P.(CJ) DAS, S.K.
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1961 AIR 849 1962 SCR (1) 33
CITATOR INFO :
F 1957 SC 397 (43) R 1963 SC 134 (6,7,13,22)
Coal Mines Colliery company-Contravention of
coal mines regulations-Prosecution of directors of Private companyLegality
Regulations not referred to Mining Board-EffectCoal Mines Regulations, 1957-Mines
Act..1923 (4 of 1923). s..10-Mines Act, 1952 (3.5 of 1952), ss. 59(3),76Constitution
of India, Art. 14.
Section 76 of the Mines Act, 1952, provides
that where the owner of a mine is a private company any one of the shareholders
thereof may be prosecuted and punished under this Act for any offence for which
the owner of the mine is punishable. The appellant who was a shareholder and a
director of a private company owning a colliery, was prosecuted for an offence
under S. 74 Of the Act for contravention of Regulations 107 and 127 Of the Coal
Mines Regulations, 1957. He challenged the validity of the prosecution on the
grounds (1) that S. 76 of the Act in pursuance of which he who was not himself
the owner of the colliery but only one of the directors and shareholders had
been prosecuted, was void as it violated Art. 14 of 'the Constitution of India,
and (2) that the Coal Mines Regulations, 1957, were invalid as they had been
framed in contravention of s. 59 (3) of the Act, inasmuch as there was no
consultation with a Mining Board before they were published as required by that
sub-section. It was not disputed that when the Regulations were framed, no
Mining Board as required under s. 12 Of the Act had been constituted. and so
there had been no reference to any such Board, 34 but it was alleged that there
was consultation with the Mining Board constituted under s. 10 of the Mines
Act, 1923. Held: (1) that the words "any one" in S. 76 of the Mines Act,
1952, should be interpreted as "every one" and that under that
section every one of the shareholders of a private company owning the mine was
liable to prosecution.
Accordingly, s. 76 did not contravene Art. 14
Of the Constitution.
Chief Inspector of Mines v. Lala Karam Chand
Thapar, 1S. C. R. 9, followed.
(2) that compliance with the provisions in s.
59 (3) Of the Act was mandatory.
State of U. P. v. Manbodhan Lai Srivastava,
 S. C. R.
Quaere, whether consultation with the Mining
Boards constituted under the provisions of the Mines Act, 1923, would be sufficient
compliance with s. 59 (3) Of the Mines Act, 1952.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 131 of 1959.
Appeal by special leave from the judgment and
order dated November 21, 1958, of the Patna High Court in M. J. C. No. 805 of
G. S. Pathak, S. C. Banerjee and P. K.
Chatterjee, for the appellant.
R. Ganapathy Iyer and B. H. Dhebar, for the respondents.
1961. February 10. The Judgment of the Court
was delivered by DAs GUPTA, J.-On February 20, 1958, there occurred in the
Central Bhowra Colliery, in Dhanbad in Bihar an accident as a result of which
23 persons lost their lives. After an inquiry under. a. 24 of the Mines Act,
1952, into the causes of and the circumstances attending the accident, and the
publication of the report of the inquiry, a complains was prepared by the Regional
Inspector of Mines, (Dhanbad, under the direction of the Chief Inspector of
Mines, Dhanbad, before the Sub-Divisional Officer, Dhanbad, against the
appellant for an offence under s. 74 of the Mines Act, 1952, for contravention
of regulations 107 and 127 of the Coal Mines Regulations, 1957. The Central 35
Bhowra Colliery belongs, and belonged at the relevant date to a private
company, viz., M/s. Central Bhowra Colliery Co., Private Limited. The appellant
is and was a shareholder and a director of this company. After the Sub Divisional
Officer took cognizance of the complaint and issued processes against him, the
appellant made an application to the Patna High Court under Art. 226 of the
Constitution, for the issue of an appropriate writ for quashing the criminal
proceedings. This application was summarily dismissed. It if; against that
order of dismissal that this appeal has been filed by special leave obtained
from this Court.
The two main grounds on which the prayer for
quashing the proceedings was based were: (1) that s. 76 of the Mines Act, 1952,
in pursuance of which the appellant, who was not himself the owner of the
colliery company, but only one of the directors and shareholders has been
prosecuted, is void as it violates Art. 14 of the Constitution; (2) the Coal
Mines Regulations, 1957, are invalid having been framed in contravention of a.
59(3) of the Mines Act, 1952. These two contentions were also urged before us
The first contention is based on an
assumption that the word "any one" in s. 76 means only "one of
the directors, and only one of the shareholders". This question as regards
the interpretation of the word "any one" in s. 76 was raised in
Criminal Appeals Nos. 98 to 106 of 1959 (Chief Inspector of Mines etc.) (1) and
it has been decided there that the word "any one" should be
interpreted there as "every one". Thus under s. 76 every one of the
shareholders of a private company owning the mine, and every one of the
directors of a public company owning the mine is liable to prosecution. No
question of violation of Art. 14 therefore arises.
As regards the other contention that the
regulations are invalid the appellant's argument is that the provisions of s.
12 and s. 59 of the Mines Act, 1952, are mandatory.
Section 12 provides:"(1) The Central
Government may constitute for any part of the territories to which this.
Act extends, (1)  1 S.C.R. 9.
36 or for any group or class of mines, a
Mining Board consisting of(a) a person in the service of the Government, not
being the Chief Inspector or an Inspector, appointed by the Central Government
to act as Chairman;
(b) the Chief Inspector or an Inspector
appointed by the Central Government;
(c) a person, not being the Chief Inspector
or an Inspector, appointed by the Central Government;
(d) two persons nominated by owners of mines
or their representatives in such manner as may be prescribed;
(e) two persons to represent the interest of
miners, who shall be nominated in accordance with provisions laid down in the
section." Section 59 empowers the Central Government to 'make regulations
consistent with the Act for all or any of the purposes mentioned therein, while
s. 58 empowers the Central Government to make rules consistent with the Act for
all or any of the purposes mentioned therein. Section 59 after providing in its
first sub-section that the power to make regulations and rules conferred by
sections 57 and 58 is subject to the condition of the regulations and rules
being made after previous publication-provides in its third sub.
section further conditions as regards the
making of regulations. This sub-section runs thus:"Before the draft of any
published under this section it shall be
referred to every Mining Board which is, in the opinion of the Central
Government concerned with the subject dealt with by the regulation, and the
regulation shall not be so published until each such Board has had a reasonable
opportunity, of reporting as to the expediency of making the same and as to the
suitability of its provisions." A similar provision was made in the fourth
sub-section as regards the making of rules. By an amendment made in 1959 these
two subsections have been combined into one.
It was not disputed before us that when the
Regulations were framed, no Board as required under s. 12 37 had been
constituted, and so, necessarily there had been no reference to any Board as
required under s. 59. The question raised is whether the omission to make such
a reference make the rules invalid. As has been recognised again and again by
the courts, no general rule can be laid down for deciding whether any
particular provision in a statute is mandatory, meaning thereby that
non-observance thereof involves the consequence of invalidity or only
directory, i.e., a direction the non-observance of which does not entail the
consequence of invalidity, whatever other consequences may occur. But in each
case the court has to decide the legislative intent. Did the legislature intend
in making the statutory provisions that nonobservance of this would entail
invalidity or did it not? To decide this we have to consider not only the
actual words used but the scheme of the statute, the intended benefit to public
of what is enjoined by the visions and the material danger to the public by pro
the contravention of the same. In the present case we have to determine
therefore on a consideration of all these matters whether the legislature
intended that the provisions as regards the reference to the Mines Board could
be contravened only on pain of invalidity of the regulation.
Looking at the language of the section, we
find, the legislature, after saying in the first part of sub-s. (3), that
before any regulation is published, it "shall be" referred to every
Mining Board which is, in the opinion of the Central Government concerned with
the subject, and goes on to say in the latter part, that the regulation
"shall not" be published until each Board has had a reasonable
opportunity of reporting as to the expediency and suitability of the
While it is true that language is only one of
the many considerations which have to be taken into account in deciding whether
a requirement is directory or mandatory, it is legitimate to note that the
language used in this case is emphatic and appears to be designed to express an
anxiety of the legislature that the publication of the regulation, which is
condition precedent to the making of the regulations, should 38 itself be
subject to two conditions precedent-first, a reference to the Mining Boards
concerned, and secondly, that sufficient opportunity to the Board to make a
report as regards the expediency and suitability of the proposed regulations.
The cause of this anxiety becomes patent,
when one examines the matters on which regulations can be made, Even a cursory
examination of the purposes set out in the 27 clauses of s.
57 shows that most Of them impinge heavily on
the actual working of the mines. To mention only a few of these, viz., cl. (c)
under which regulations may be made for prescribing the duties of owners,
agents and managers of mines and of persons acting under them; (g) for
determining the circumstances 'in which and the conditions subject to which it
shall be lawful for more mines than one to be under a single manager; (j) for
prohibiting, restricting or regulating the employment of adolescents and women
(k) for providing for the safety of the
persons employed in a mine; (m) for providing for the safety of the roads and
working places in mines; (n) for the inspection of workings and sealed off fire
areas in a mine; (o) far providing for the ventilation of mines; (r) for
providing for proper lighting of mines and regulating the use of safety amps
therein;-are sufficient to show that the very purpose of the Act may well be
defeated unless suitable and practical regulations are framed to help the
achievement of this purpose, Arbitrary and haphazard regulations without full
consideration of their practicability and ultimate effect on the efficient
working of the mines, would, apart from, often defeating the purpose of the
Act, affect injuriously the general economy of the country.
That we are entitled to presume, is the
reason behind the legislature's anxiety that Mining Boards should have an
opportunity of examining regulations, and expressing their opinion before they
are finalised. As has been already mentioned s. 12 which deals with the
formation of boards provides for representation thereupon of two persons
nominated by owners of mines or their representatives and two persons to re.
present the interests of persons employed in mines, in 39 addition to three
persons representing the Government. The constitution is calculated to ensure
that all aspects including on the one hand the need for securing the safety and
welfare of labour and on the other hand the practicability of the provisions
proposed from the point of, view of the likely expense and other considerations
can be thoroughly examined. It is certainly to the public benefit that Boards
thus constituted should have an opportunity of examining regulations proposed
in the first place, by an administrative department of the government and of
expressing their opinion. It is true that the law does not require concurrence
of the Board with the regulations proposed. It is reasonable to expect however
that when a Board has expressed an opinion in favour of the rejection or
modification of a proposed regulation, the department would not treat it lightly.
But, even where the opinion expressed by the Board is not accepted the very
fact that there has been such an examination by the Board, and a consequent re.
examination by the department is likely to
minimise the risks to public welfare.
There can be little doubt therefore that
generally speaking strict obedience of the command in sub-s. 3 of s. 59
regarding consultation with the Mining Board is likely to promote public
Let us now examine the matter from another
aspect and ask ourselves the question: what risk there is to the public welfare
of an insistence in all cases that the omission of consultation as enjoined in
s. 59 would invalidate a regulation. Emergencies may arise, when in order that
the public may not suffer. regulations must be framed with the least possible
de-lay; and much valuable time may be lost if a reference must be made to all
the Mining Boards concerned and opportunity given to them to express their
opinion before regulations are made. In such cases, public interest may well be
endangered if regulations, in order to be valid have to conform,to the
requirements of previous consultation with, the Mining Boards. We find however
that such cases of emergency have been specially dealt with in a. 60 of the
Act, the operative portion of which runs thus:40 "Notwithstanding anything
contained in subsections (1), (2) and (3) of section 59, regulations under
clause (1) and clauses (k) to (a) excluding clause (1) of s. 57 may be made
without previous publication and without previous reference to Mining Boards,
if the Central Government is satisfied that for the prevention of apprehended
danger or the speedy remedy of conditions likely to cause danger it is
necessary in making such regulations to dispense with the delay that would
result from such publication and reference".
Thus, the apprehended danger to public
interest from requiring as a condition of the validity of regulations previous
consultation with the Mining Board is averted.
An examination of all the relevant circumstances,
viz., the language used, the scheme of the legislation, the benefit to the
public on insisting on strict compliance as well as the risks to public
interest on insistence on such compliance leads us to the conclusion that the
legislative intent was to insist on these provisions for consultation with the
Mining Board as a prerequisite for the validity of the regulations.
This conclusion is strengthened by the fact
that in s. 60 when providing for the framing of regulations in certain cases
without following the procedure enjoined in s. 59, the legislature took care to
add by a proviso that any regulation so made "shall not remain in force
for more than two years from the making thereof". By an amendment made in
1959 the period has been changed to one year.
It is not unreasonable to read this proviso
as ex. pressing by implication the legislature's intention that when the
special circumstances mentioned in s. 60 do not exist and there is no scope for
the application of that section no regulation made in contravention of s.59
will be valid for a single day.
Strew was laid on behalf of the respondent on
the fact that s. 59 does not require that regulations must have the concurrence
of the Mining Boards; and it was pointed out that this Court in State of U. P.
v. Manbodhan Lal Srivastava (2) in holding that Art. 320(3) (2)  S.C.R.
41 of the Constitution was not mandatory,
relied, inter alia, on the fact that "the requirement of the consultation
with the Commission does not extend to making the advice of the Commission, on
these matters, binding on the government".
While it is true that this Court did attach
weight to this circumstance, we have to remember that this was the only one of
the several circumstances, on the total consideration of which, the court
decided that the provision for consultation in Art. 320(3) was not mandatory.
One of these circumstances was that Art. 320(3) contained a proviso, which gave
a clear indication "of the intention of the Constitution-makers that they
did envisage certain cases or class of cases in Which the Commission need not
be consulted". "If the provisions of Art. 320(3) were of a mandatory
character", observed Sinha, J., (as he then was), while delivering the
judgment of the Court, "the Constitution would not have left it to the
discretion of the head of the executive government to undo these provisions by
making regulations to the contrary". It has to be noticed, as pointed out
above, that s. 60 of the Mines Act, 1952, also lays down clear provisions where
the consultation as required in s. 59 need not take place. Here, however, the
legislature has not left it to the discretion of the executive government
"to undo these provisions by making regulations to the contrary". The
legislature itself has given clear guidance as to the cases where such
consultation need not be made by the Government. What is more, the legislature
has laid down that regulations made without such consultation would have a
In Srivastava's Case (1) this Court quoted
with approval the following observations of the Privy Council in Montreal
Sirgeet Railway Company v. Nor. mandin ("):"When the provisions of a
statute relate to the performance of a public duty and the case is such that to
hold null and void acts done in neglect of this duty would work serious general
inconvenience, (1)  S.C.R. 533.
(2)  A.C. 170, 175.
42 or injustice to persons who have no
control over those entrusted with the duty, and at the same time would not
promote the main object of the Legislature, it has been the practice to hold
such provisions to be directory only, the neglect of them, though punishable,
not affecting the validity of the acts done." and applied the principle
thus laid down to the case before it.
There is however no scope in the present case
of applying this principle in support of the directory nature of s. 59(3). As
we have pointed out above, the inconvenience that might be caused by holding
regulations made in contravention of s. 59(3) invalid is removed by the
provisions of s. 60;
and on the other hand to hold that
regulations may be validly made without following the procedure laid down in s.
59even in cases not falling within s. 60-is likely to be harmful to public
interest, and to cause general inconvenience. It is really a converse case of
what the Privy Council had to consider in Montreal Street Railway Company's
Case (1) and this Court considered in Srivastava's Case (2).
For all the reasons given above, we are of
opinion that the provisions in s. 59(3) of the Mines Act, 1952, are mandatory.
There remains for consideration the question
whether these provisions were complied with before the Coal Mines Regulations,
1957, were I framed. As has been pointed out above, it was not disputed before
us that at the time when the regulations were framed no new Mining Board had
been constituted under the Mines Act, 1952, and consequently no consultation
with any Mining Board constituted under the 1952 Act took place. It has been
stated before us however on behalf of the respondents that the Mining Boards
constituted under s. 10 of the Mines Act, 1923, were continuing to operate at
the time these regulations were framed and that there was-full consultation
with these Mining Boards before these regulations were framed.
(1)  A.C. 170, 175.
(2)  S.C.R. 533.
43 If in fact there was such consultation the
further question would arise whether consultation with the Mining Boards
constituted under the provisions of the Mining Act, 1923, would be sufficient
compliance with the provisions of s. 59(3) of the present Act. Before these
questions are decided it is not possible to come to a definite conclusion
whether the Coal Mines Regulations, 1957, are valid or not.
As there is not sufficient material before us
to decide the question, whether in fact the Mining Boards constituted under s.
10 of the 1923 Act were functioning at the date when these regulations were
made and whether these Boards were consulted before the regulations were
framed, we have not thought fit to consider here the further question whether
if such consultation had taken place that would be sufficient compliance with
s. 59(3) of the 1952 Act.
In the circumstances, the proper course, in
our opinion, is to direct that the criminal proceedings pending in the court of
the sub-divisional magistrate be disposed of by him or any other magistrate to
whom the case may be transferred in accordance with law, after deciding the
question whether there was consultation with Mining Boards constituted under s.
10 of the Mines Act, 1923, before the regulations were framed and, if so,
whether such consultation amounted to sufficient compliance with s. 59. If his
conclusion is that there has not been compliance with the provisions of s. 59
the regulations must be held to be invalid and the accused would be entitled to
an acquittal; if, on the other hand, he holds that there has been sufficient
compliance with the provisions of s. 59 he should dispose of the case after
coming to a conclusion on the evidence as regards the allegations made against
the appellant in the petition of complaint.
The appeal is disposed of accordingly.
Appeal allowed. Case remanded.