Kali Pada Chowdhury Vs. Union of India
[1962] INSC 194 (3 May 1962)
03/05/1962 GAJENDRAGADKAR, P.B.
GAJENDRAGADKAR, P.B.
SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K.
WANCHOO, K.N.
SHAH, J.C.
CITATION: 1963 AIR 134 1963 SCR (3) 904
CITATOR INFO:
R 1982 SC1413 (19)
ACT:
Mining Regulation--Mining Boards,
consultation with-Constitution of boards, if obligatory--Regulations made
without constituting Mining Boards--Validity of-Coal Mines Regulations, 1957
reg. 127 (3)--Mines Act, 1952 (35 of 1952), SS. 12, 59.
HEADNOTE:
Section 12 of the Mines Act, 1952, provides
that the Central Government may constitute a Mining Board for any part of the
territories to which the Act extended or for any group or class of mine-. In
1957 only one mining board i.e. the Bihar Mining Board was in existence and
other mining boards were not constituted. Section 57 empowers the Central
Government to make Regulations. Section 59(3), as it then stood, provided that
before the draft of any regulation was published it should be referred to every
Mining Board concerned and that it shall not be published until each such
Mining Board had had a reasonable opportunity of reporting on it. The Central
Government referred the draft of the Coal Mines Regulations to the Bihar Mining
Board which circulated the draft to all the members of the Board and the
members communicated their opinions individually to the Central Government.
Thereafter, the Regulations were duly published and came into force. The
petitioner's, who were being prosecuted in Bengal for violation of the
Regulations, contended that the Regulations were invalid as : (i) it was
incumbent upon the Central Government under 's. 12 of the Act to constitute all
the Mining Boards and to refer the draft Regulations to all the Boards before
they. could be published under s. 59. and (ii) the communication of opinions by
individual members 'of the Bihar Mining Board did not amount to consultation
with the Board within the meaning of s. 59(3).
Held (Per majority, Subba Rao, J.,
dissenting), that the 'Coal Mines Regulations, 1957, had been duly framed and
published. Section 59(3) merely provided that if a Mining Board was in
existence at the relevant time it was obligatory on the Central Government to
consult it before 905 the draft Regulation was published. But s. 12 was not
mandatory and it was not obligatory on the Central Government to constitute any
or all of the Mining Boards.
There was nothing in the Actor. in the context
which justified reading the word "may" in s. 12 as "shall".
The Mining Board constituted under s. 12 had to perform two functions, viz., to
make a report in respect of regulations or rules referred to it and to decide
cases which may be referred to it under s. 81. The working of the Act was not
dependent on the constituting of Mining Boards. This construction of s. 12 did
not render the provisions of s.
59(3) nugatory. Apart from consulting the
Boards, all parties affected by the draft had an opportunity to make their
suggestions or objections and these had to be considered before the draft was
settled and the regulations were finally made.
Banwarilal Agarwalla v. state of Bihar,
[1961] 1 S.C.R. 33, explained.
Held, further, that the requirement of s. 59(3)
had been complied with in referring the draft Regulations to the Bihar Mining
Board. All that s. 59(3) required was that a reasonable opportunity should be
given to the Board to make its report. How the Board chose to make its report,
was not a matter which the Central Government could control.
Per Subba Rao, J.-,The Coal Mines Regulations
were not validly made. The Supreme Court had directly decided in Banwarilal v.
State of Bihar that the Regulations were bad as there was no consultation with
any Mining Board under s. 59 (3) as the Boards were not in existence. A fair
construction of ss. 12 and 59 (3) of the Act' also showed that if the Central
Government wanted to' make regulations under s. 57 it had to appoint Mining
Boards and to refer the regulations to them before publication. If the Central
Government wanted to exercise the power under s. 59 it had first to exercise
the power under s. 12. The power to make regulations was coupled with a duty to
consult the Mining Boards, and to discharge its duty it was incumbent upon the
Central Government to appoint the Mining Boards. Apart from this, the
Regulations is so far as they purported to regulate mines in West Bengal had
not been validly made as no Mining Board for the West Bengal area had been consulted
before making the Regulations. The Act did not empower the Central Government
to make regulations in regard to mines in one part of the country by consulting
a Board constituted for another part of the Country.
906 Banwarilal Agarwalla v. State of Bihar.
[1962] 1 S.C.R. R33, followed.
Alcock Ashdown & Co. v.. The Chief
Revenue Authority, Bombay, A. I. R. 1923 P. C. 138, referred to.
ORIGINAL JURISDICTION: Criminal Appeal Writ
Petition No. 15 of 1962 Petition under Art. 32 of the Constitution of India for
the enforcement of Fundamental Rights.
B. Sen and K. L. Hathi for the petitioner.
C. K.. Daphtary, Solicitor-General of India,
B. B. L.
Iyengar and B. H. Dhebar, for the
respondents.
S.Choudhury, S. C. Banerjee and P. K.
Chatterjee for the Intervener.
1962. May 3. The judgment of Sinha, C. J.,
Gajendradagkar, Wanchoo and Shah, JJ., was delivered by Gajendragadkar, J.,
Subba Rao, J. delivered a separate Judgment.
GAJENDRAGADKAR, J.-The four petitioners who
are in charge of the working of the mine owned by the colliery known as
Salanpur ,A" Seam Colliery in the District of Buidwan, are being
prosecuted for the alleged contravention of the provisions of Regulation 127(3)
of the Coal Mines Regulations, 1957, framed under the Mines Act, 1952 (35 of 1952)
(hereinafter called the Act). By their petition filed under Art.. 32 of the
Constitution, the petitioners pray that an order or writ in the mature of
prohibition should be issued quashing the said criminal proceedings on the
ground that the said proceedings contravene Art. 20(1) of the Constitution and
as such, are void. To this petition have been impleaded as opponents 1 to 4,
the Union of India, the Chief Inspector of mines, Dhanbad (W.B.), the Regional
Inspector of Mines, Sitarampur and the Sub-Divisional Magistrate, Asansol,
respectively. The prosecution of 907 the petitioners has commenced at the
instance of opponents 2 and 3 and the case against them is being tried by
opponent No. 4. The petitioners' contention is that Regulation No. 127(3)whose
alleged contravention has given rise to thepresent proceedings against them is
invalid, ultra vires and inoperative and so, the prosecution of the petitioners
contravenes Art. 20(1) of the Constitution. It is on this basis that they want
the said proceedings to be quashed and ask for an order restraining opponents 2
and 3 from proceeding with the case and opponent No. 4 from trying it. The case
in question is C. 783 of 1961 pending in the court of opponent No. 4.
Regulation 127(3) is a part of the Coal Mines
Regulations framed by opponent No. 1 in exercise of the powers conferred upon
it by section 57 of the Act, the same having been previously published as
required by sub-section (1) of B. 59 of the said Act. Regulation 127(3)
provides that no working which has approached within a distance of 60 metres of
any disused or abandoned workings (not being workings which have been examined
and found to be free from accumulation of water or other liquid matter),
whether in the same mine or in an adjoining mine, shall be extended further
except with the prior permission in writing of the Chief Inspector and subject
to such conditions as he may specify therein. There is a proviso and
explanation attached to this provision, but it is unnecessary to refer to them.
The case against the petitioners is that they have contravened the provisions
of Regulation 127(3) in that they extended the working of the mine further than
the permitted limits without the prior permission in writing of opponent No. 2.
The petitioners' case is that this Regulation is invalid and inoperative and
so, its contravention cannot validly be made 908 the basis of their prosecution
having regard to the provisions of Art. 20(1) of the Constitution.
According to the petitioners opponent No, 1
is no doubt conferred with the power of making Regulations under s. 57 of the
Act but O. as it stood at the relevant time, has imposed an obligation on
opponent No. 1 that the draft of the said Regulations shall not be published
unless the Mining Boards therein specified have had a reason. able opportunity
of reporting to it as to the expediency of making the Regulations in question
and as to the suitability of its provisions. The petitioners allege that at the
relevant time, 'when the Regulations were made in 1957, no Mining Boards bad
been established under s. 12 of the Act.
Three Boards had been established under s. 10
of the Indian Mines Act of 1923, but as a result of the subsequent amendments
made in the provisions of s. 10, the composition of two of the 'said Boards
became invalid with the result that two of them could not be treated as Boards
validly constituted. These invalid Boards were the Madhya Pradesh Mining Board
and the West Bengal Mining Board. A third Board existed at the relevant time
and that is the Bihar Mining Board. This Board had been constituted on the 22nd
February, 1946 under s. 10 of the earlier Act as it then stood. The petitioner'
case is that it was obligatory for opponent No. 1 to consult all the three
Boards and since to out of the three Boards were not properly constituted, the
fact that reference was made to the individual members of the said two invalid
Boards did not satisfy the requirement of s. 59(3). According to the petition,
a reference was made to the Bihar Mining Board, but the Board did not, make a
report to opponent No. 1 as a Board but its individual members communicated
their opinions to opponent No. 1.
Therefore, on the whole, s. 59(3) had not
been complied with and that makes the whole body 909 of Regulations issued in
1957 invalid and inoperative.
That, in brief, is the basis on which the
petitioners want the criminal proceedings pending against them to be quashed.
The respondents dispute the main contention
of the petitioners that s. 59(3) has not been complied with.
According to them, s. 59(3) has been duly
complied with and the Regulations made ire valid. The respondents concede that
two of the three existing Boards were invalid; but their case is that it is
only the validly existing Board that had to be consulted and the Bihar Mining
Board, which was the validly existing Board at the relevant time, had been dulyconsulted.
The respondents allege that the fact that individual members of the Bihar Mining
Board communicated their opinions to opponent No. 1 does not introduce any
infirmity in the Regulations which were subsequently published in the Gazette
and which, under S.
59(5) have, in consequence, the effect as if
enacted in the Act.
On behalf of the petitioners, Mr. Sen
contends that s. 59(3) 'imposes 'an obligation on the Central Government to
consult the Boards therein specified and he argues that reading s. 12 of the
Act in the light of s. 59(3), it follows that the Central Government has to
constitute Mining Boards for the areas or mines in respect of which the
Regulations are intended to be made and since two of the Boards had not been
validly constituted, s. 12 had not been complied with and s. 59(3) had been
contravened. Mr. Sen suggested that his contention about the mandatory
character of the provisions contained in sections 12 and 59(3) is concluded by
a recent decision of this Court. On the other hand, the learned
Solicitor-General for the respondents contends that the said decision has no
material or direct bearing on the question about the construction of s. 12. He
concedes that 910 the said decision has concluded the point that the
requirement of a. 59(3) is mandatory. It is, therefore, necessary, in the first
instance, to examine the effect of the said decision.
In "Banwari Lal Agarwalla v. State of
Bihar" (1), this Courthad occasion to consider the validity of the
prosecution launched against the appellant on the ground of the contravention
of one of the Regulations made in 1957.
It appears that in that case, the respondents
stated before the Court that the Mining Boards constituted under s.10 of the
Act of 1923 were continuing to operate at the time the relevant Regulations
were framed and that there was full consultation with the said Mining Boards
before the said Regulations were framed. The respondents, no doubt, contended
that s.59(3) was directory and not mandatory and according to them, no
obligation had been imposed upon the Central Government to consult Mining
Boards even if they were in existence. Alternatively, it was suggested that the
Mining Boards which had been constituted under the earlier Act were continued
under the Act by virtue of s.24 of the General Clauses Act and that the said
Boards bad been duly consulted. On the other hand, the appellant urged that the
Boards to which the respondents referred were not validly constituted under the
Act and had not been properly consulted. It was also argued on his behalf that
both sections 12 and 59(3) were mandatory. It is in the light of these facts
that the effect of the decision of this Court in Banwari Lal's case (1) has to
be appreciated.
Das Gupta, J., who spoke for the Court set
out in his judgment the argument of the appellant that both sections 12 and 59
were mandatory, but, as the judgment shows, the Court considered the question
as to whether s.59 (3) was mandatory and came to (1) (1962) 1 S.C.R. 33.
911 the conclusion that it was. The Court did
not consider whether s.12 was mandatory and in the course of the judgment,
there is no reference at all either to the question of construing s.12 or to
its effect. Having held that s.59 (3) was mandatory, the Court remanded the
case to the learned Magistrate before whom the proceeding were pending with a
direction that he should try the issue as to whether the Boards constituted
under the earlier Act validly functioned under the Act and whether they had
been duly consulted. It would be noticed that if the Court had considered the
question about the mandatory character of the provisions of s.12, it would have
construed the said provisions and would have addressed itself to the question
as to whether the failure of the Central Government to constitute valid Boards
as suggested by the appellant in that case itself made the impugned Regulation
invalid. This course was not adopted obviously for the reason that the
respondents pleaded that the requisite Boards were in existence and had been
consulted and so, the controversy between the parties was narrowed down to the
question as to whether s. 59 (3) requires that the Central Governments must
consult existing Boards or not. Apparently, the respondents contended that even
if Boards have been constituted under s.
1 2, it is not obligatory on the Central
Government to consult them under s.59(3). The requirement about the said
consultation is directory and not mandatory. It is this contention which has
been rejected by the Court and having held that s.59 (3) was mandatory and that
existing Board must be consulted before Regulations are framed, the question of
fact which then fell to be considered was remitted to the trial Magistrate for
his decision.
Therefore, we are satisfied that the effect
of the decision of this Court in Banwari Lal Agarwalla's case is that if a
Board is in existence at the relevant time, it is obligatory, on the Central
Government to consult it before a draft 912 Regulation is published and in that
sense s.59(3) is mandatory. It would, we think, not be right to assume that the
contention of appellant that s.12 like a.59(3) is mandatory was decided without
discussing the question about its construction and its effect. The facts
pleaded by the respondents in that case made it unnecessary to decide the
appellant's contention based on the mandatory character of s.12. Therefore we
do not think Mr. Sen is justified in contending that the point which he seeks
to raise in the present appeal about the effect of s. 12 is concluded by the
decision in Banwari Lal Agarwalla's case. That being so, we must proceed to
examine Mr. Sens contention on the merits.
At this stage, it is necessary to read both
sections 12 and
59. Section 12 deals with the constitution of
Mining Boards. Section 12(1) provides that the Central Government may
constitute for any part of the territories to which the Act extends, or for any
group or class of mines, a Mining Board consisting of seven persons as
specified in clauses (a) to(e). The point which calls for our decision is
whether the first part of s. 12(.1) imposes an obligation on the Central Government
to constitute Board when it is proposed to make Regulations to which s.59(3)
applies.
Section 59 as it stood in the Act prior to
its amendment in 1959 read thus:"59 (1) 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.
(2) The-date to be specified in accordance,
with clause (3) of section 23 of the General Clauses Act, 1897 (10 of 1897), as
that after which a draft of regulations or rules proposed to be 913 made will
be taken under consideration, shall not be less than, three months from the
date on which the draft of the proposed regulations or rules is published for
general information.
(3) Before the draft of any regulation is 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.
(4) No rule shall be made unless the draft
thereof has been referred to every Mining Boar( constituted in that part of the
territories to which this Act extends which is affected by the rule, and unless
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.
(5) Regulations and rules shall be published
in the Official Gazette and, on such publication, shall have effect as if
enacted in this Act.
(6) The provisions of sub-sections (1), (2)
and( 4) shall not apply to the first occasion on which rules referred to in
clause (d) or clause (e) of section 58 are made.
914 (7) The regulations and rules made under
sections 57 and 58 shall be laid down before Parliament, as soon as may be,
after they are made." The petitioners' contention is that in construing
section 12, we must have regard to the provisions of s.59(3).
By an amendment made in 1959 by Act 62 of
1959, sub. s(3) of s. 59 has been deleted and combined provision is made both
for regulations and rules by subsection (4) by making a suitable amendment in
the said sub-section so as to include both regulations and rules within its
scope. Sub-section (4) thus amended reads thus:
"59(4). No regulation or rule shall be
made unless the draft thereof has been referred to every Mining Board
constituted in that part of the territories to which this Act extends which is
affected by the regulation or rule and unless 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." Before construing s.12, it may
be useful to refer to the relevant provisions of the Act which confer power on
or assign some duties or functions to the said Boards. Section 14(1) provides
inter alia that a Board constituted under s. 12 may exercise such of the powers
of an Inspector under thisAct as it thinks necessary or expedient to exercise
for the purpose of deciding or reporting upon any matter referred to it.
Section 14(2) confers upon the Board the powers of a Civil Court for the
purposes therein specified.
It would thus be seen that the Boards
constituted under s. 12 may have occasion 915 either to make a report in
respect of regulations or rules referred to them tinder s. 59, or' they may
have to decide cases sent to them under s. 81. Section 59 which speaks of
reference of the rules and regulations to the Boards has already been cited.
Section 81(1) provides that if the court trying any case instituted at the
instance of the Chief Inspector or other officers therein specified is of
opinion that the case is one which should, in lieu of a prosecution, be
referred to a Mining Board, it may stay the criminal proceedings, and report
the matter to the Central Government with a view to such reference being made.
Section 81(2) authorises the Central
Government either to refer the case to the Mining Board or to direct the court
to proceed with the trial. Thus, if the Central Government decides to refer a
pending criminal case to the Board, the Board has to decide it. That is the
two-fold function which may be assigned to the Board under provisions of the
Act.
Mr. Sen contends that if s. 59(3) is
mandatory, it follows that consultation with the relevant Board was treated as
essential by the legislature before the Central Government finalised the
regulations ; and from this obligation imposed by s. 59(3), it must follow as a
corollary that the relevant Boards must be constituted by the Central
Government' under s. 12. In other words, the argument is that a. 59(3)
postulates the existence of the relevant Boards and makes it obligatory on the
Central Government to consult them and this can be satisfied only if the
Central Government is compelled to constitute Boards under section 12. Prima
facie., there is some force in this contention. But, on the other hand, if s.
59(3) is read as imposing an obligation on the Central Government to consult
the Board if it is in existence, then no corollary would follow from the
mandatory character of the said provision as 916 is suggested by Mr. Sen.
Section 59(3) as it stood before the amendment of 1959, provides that every
Mining Board which, in the opinion of the Central Government, is concerned with
the subject dealt with by the regulation, shall be consulted ; and this means
that there should be a Mining Board before it is consulted and that the said
Mining Board should, in the opinion of the Central Government, be concerned
with the subject dealt with by the regulation.
This provision does not mean that a Mining
Board must be constituted, for that is the subject-matter of the provisions
contained in s. 12. If s. 12 is not mandatory, then s. 59(3) must be read in
the light of the position that it is open to the Central Government to
constitute the Board or not to constitute it, and that being so, s. 59(3) would
then mean only this and no more that if the Board is in existence and it is
concerned with the subject, it must be consulted.
Similarly, a. 59(4) as it stands after the
amendment of 1959, requires that the draft of the rule or regulation shall be
referred to every. Mining Board constituted in 'that part of the territories to
which the Act extends which is affected by. the regulation or rule. That again
means no more than this that if a Board is constituted in the part of the
territories which is affected by the regulation, it shall be consulted. It is
not as if this construction adds any words in s. 59(3) or s. 59(4); it merely
proceeds on the basis that s.12(1) is not mandatory. Therefore. in our opinion,
in construing s. 12 (1) it would not be logical to assume that S. 59(3) or
s.59(4) imposes an obligation on the Central Government to constitute a Board,
because as we have just indicated the constitution of the Boards is not the
subject-matter of s.59 (3) or s. 59 (4) ; that is the subject-matter' of 917
the Central Government to constitute a Board must be determined in the light of
the construction of s. 12.
Reverting then to the material words used in
s. 12 itself, if, it seems clear that the said words do not permit the
construction for which Mr. Sen contends. It is not disputed that the context
may justify the view that the use of the word "may" means
"'shall"; but if we substitute the word "shall" for
"may" in s. 12(1), it would be apparent that the argument about the
mandatory character of the provisions of s. 12(1) would just not work. To say
that the Central Government shall constitute for any part of the territories to
which the Act extends, or for any group or class of mines a Mining Board, would
emphatically being out the contradiction between the obligation sought to be
introduced by the use of the word "shall" and the obvious discretion
left to the Central Government to constitute the Board for any part of the
territories or any group or class of mines' The discretion left to the Central
Government in the matter of constitution of Boards which is so clearly writ
large in the operative part of the said provision indicates that in the
context, "may" cannot mean "shall". Section 12(1) really
leaves it to the discretion of the Central Government to constitute a Board for
any part of the territories and that means, it may not constitute a Board for
some parts of the territories. Likewise, discretion is left to the Central
Government to constitute. a Board for a group or class of mines and that means
that for some groups or classes of mines, no Board need be constituted. Whether
or not Boards should be constituted for parts of territories or for groups or
classes of mines, has been left to be determined by the Central Government
according, to the requirements of the territories or the exigencies of the groups
or classes of mines. Therefore, we are 918 unable to accept the argument that
a. 12(1) imposes an obligation on the Central Government to constitute Boards
in order that in making regulations, there should be appropriate Boards who
have to be consulted under s. 59(3).
The directory nat ner of the provisions of s.
121(1) rather strengthen the construction placed upon s. 59(3) by this Court in
the case of Banwari Lal Agarwalla that if there are Boards in existence, they
must be consulted before draft regulations are published under section 59. But
that is very different from saving that Boards must be constituted in all areas
or in respect of all groups or classes of mines which are intended to be
covered by the regulations ,proposed to be made by the Central Government.
Mr. Sen relied on section 5 for showing that
the use of the word "may" in that section really means
"shall". The said section provides that the Central Government may
appoint such a person as possesses the prescribed qualifications to be the
Chief Inspector of Mines for all territories to which the Act extends; and it
may be conceded that the implementation of the material provisions of the Act
depends upon the appointment of the Chief Inspector of Mines and so, in the
context, "'may" in a. 5 would really mean ,'shall" so far as the
appointment of the Chief Inspector is concerned.
But this section itself shows that
"may" may not necessarily mean ,'shall" in regard to the
appointment of Inspectors contemplated by the latter part "may" means
"may" or it means ""shall". would inevitably depend
upon the context in which the said word occurs and as we have just indicated,
the context of s. 12(1) is not in favour of the construction for which Mr. Sen
contends. It cannot be said that like the appointment of the Chief Inspector of
Mines, the constitution of the Boards 919 is essential for the working of the
Act, for, without the constitution of the-Boards, the working of the Act can
smoothly proceed apace. We have already pointed out that there are only two
functions which can be assigned to the Boards; under s. 81(2) it is;
discretionary for the Central Government to refer a pending criminal case to
the Board or not, and under a. 59(3) consultation with the Board is necessary
only if the Board is in existence. Therefore, the working of the Act is not
necessarily dependent on the constitution of the Boards, and that distinguishes
the context or s. 12 from the context of section 5.
There is another provision of the Act to
which reference may be made in this connection. Section 61 deals with the
making of the bye-laws. Section 61(1) provides that the owner, agent or manager
of a mine may, and shall, if called upon to do so by the Chief Inspector, or
Inspector, frame and submit to the Chief Inspector or Inspector a draft of
bye-law,% in the manner indicated in the said sub-section.
Section 61(2), inter alia, authorises the
Chief Inspector or the'Inspector to propose amendments in the said draft.
Section 61(3) then lays down that if within a
period of two months from the date on which' any draft bye-laws or draft
amendments are sent by the Chief Inspector or Inspector to the owner, agent or
manager under sub-section (2), and the Chief Inspector or Inspector and the
owner, agent or manager are unable to agree as to the terms of the bye-laws to
be made under sub-section (1), the Chief Inspector or Inspector shall refer the
draft bye-laws for settlement to the Mining Board, or where there is no Mining
Board, to such officer or authority as the Central Government may, by general
or special order, appoint in this behalf It would be noticed that this
sub-section assumes that there may not be in existence a Mining Board in the
area where the mine 920 in question is situated or for the group or class of
mines to which the said mine belongs. Now, if the petitioners' construction of
s. 12 read with s. 59(3) is accepted, it would follow that in order to make the
regulations binding on all the mines situated in the whole of the country,
there must be Mining .Board in respect of all the said mines either
territory-wise or group-wise or class-wiseand that would not be consistent with
the assumption made by section 61(3) that in certain areas or in respect of
certain groups or classes of mines a Mining Board may not be in existence.
It is in this indirect way that s.61(3)
supports the construction which we are disposed to place on section 12(1).
It is then urged that if the respondents'
construction of s.12 is upheld, s. 59(3) or s. 59(4) would be rendered nugatory
and the whole purpose of consuiting the Boards would be defeated. We are not
impressed by this argument.
In testing the validity of this argument, it
is necessary to recall the scheme of s. 59. Section 57 confers power on the
Central Government to make regulations and s. 58 confers power on the said
Government to make, rules as therein specified respectively. Section 59(1)
requires that the power. to make regulations is subject to the condition that
the said regulations would be made after previous publication. Section 59(2)
then provides for the period which has to pass before the said draft can be
taken into consideration. Section 59(3) refer to the consultation with the
Boards. Logically, consultation with the Boards is the first step to be taken
in making ,regulations; publication of the draft regulations is' the second
step; allowing the prescribed period to pass before the draft is considered is
the third step and publishing the regulations after considering them is the
last step. After the regulations are thus published, they shall have effect as
if enacted in the Act. That is S. 59,5). The 921 'first publication is the
publication of the draft under s. 23(3) of the General Clauses Act and it is
significant that the object of this publication is to invite objections or,
suggestions from persons or bodies affected by the draft regulations. Section
23(4) of the General Clauses Act provides that the authority having power to
make the rules or, regulations shall consider any objection or suggestion which
may be received with respect to the draft before the date specified therein, so
that the whole object ,of publishing the draft is to give notice to the parties
concerned with the regulations which are intended to be framed and the object
of the requirement that the said draft will not be considered until the
prescribed period has passed is to enable parties concerned to file their
objections. Therefore, the scheme of s. 59 clearly shows that apart from
consulting the Boards to which s. 59(3) refers, all parties affected, by the
draft would have an opportunity to make their suggestions or objections and
they would be considered before the draft is settled and regulations are
finally made. Therefore, in our opinion, it would not be correct to say that
the construction of s.
59(3) for which the respondents contend would
enable the Central Government to make regulations without consulting the
opinion of persons affected by them. The result then is that s. 12(1) is
directory and not .mandatory and s. 59(3), or a. 59(4) after the amendment in
1959 is mandatory in the sense that before the draft regulation is published,
it is obligatory for the Central Government to consult the Board which is
constituted under s. 12. If no Board is constituted, there can be, and need be,
no consultation.
It is in the light of this position that the
grievance made by the petitioners against the validity of their prosecution has
to be judged. We have already noticed that it is common ground 922 between the
parties that the Madhya Pradesh Minning Board and the West Bengal Mining Board
which were constituted under a. 10 of the Act of 1923 have become invalid after
the amendment of s. 10 by the Amending Act 5 of 1935. Under s.
10 as it originally stood, the Board was
constituted by the Provincial Government and it was composed of five members.
After the amendment, a Board had to be
constituted by the Central Government and, it was to consist of seven members.
That is why the respondents concede that the
Madhya Pradesh and West Bengal Mining Boards could not be said to be validly
constituted for the purpose of s. 12 even by the application of s. 24 of the General
Clauses Act. The position then is that at the time when the regulations were
framed in 1947, there, was only one Board which properly constituted and that
is the Bihar Mining Board. It was constituted in 1946 and by virtue of a. 24 of
the General Clauses Act, it continued as a valid Board under s.12. This Board
has been consulted by the Central Government before the regulations were made.
It is not disputed that the draft regulations were sent by the Central
Government to the Bihar Mining Board through the State Government It_ appears
that after the Board received the said draft, it was circulated by the Chairman
of the Board to all the members of the Board and the members communicated their
opinions individually. It is argued that the communication by individual
members of the Board of their opinions to the Central Government cannot be said
to amount to the consulation with the Board and so, it is urged that the
requirement of s.59(3) has not been complied with. We do not think there is any
substance in this argument. All that s.59(3) requires is that a reasonable
opportunity should be 'given to the Board to make its report as to the
expediency or the suitability of the proposed regulations. How 923 the Board
chooses to make its report is not a matter, which the Central Government can
control. The Central Government has discharged its obligation as' soon as it is
shown that a copy of the draft regulations was sent to the Board, and if the
Board thereafter, instead of making a collective report, chose' to. sent
individual opinions, that cannot be said to constitute the contravention of
s.59(3). Indeed, s.59(3) does not impose an obligation on the Board to make any
report at all It is true that since under s.14, the Board is empowered to make
a report, it is unlikely that any Board, when consulted, would refuse to make a
report. But, nevertheless, the position still remains that if the Board refused
tomake a report, that will not introduce any infirmity in the regulations which
the Central Government may ultimately frame and publish under s.59(5). We must
accordingly hold that the regulations framed in 1957 have been duly framed and
published under s.59(5) and as such, they shall have effect as if enacted in
the Act.
The result is, the petition fails and is
dismissed.
SUBBA RAO, J.-I regret my, inability to
agree. The facts relevant to the question raised lie in a small compass. The
petitioners are in charge of the working of a mine, known as Salanpur
"A" Seam Colliery, in the District of Burdwan, West Bengal. On the
allegation that they contravened the provisions of Regulation 127(3) of the
Coal Mines Regulations, 1957 (hereinafter called the Regulations), a criminal
complaint was filed against them in the Court of Sub-divisional Magistrate,
Asansol, and the said Magistrate has taken cognizance of the said complaint
under s. 190(1) (c) of the Code of Criminal Procedure, read with s. 73 of the Mines
Act, 1952 .(hereinafter called the Act).
The petitioners challenge the validity of the
maid Regulations on the ground that they were 924 made in contravention of the
provisions of s. 59(3) of the Act. Section 59(3) of the Act imposes a condition
on the Central Government to give a reasonable opportunity to a Mining Board
before making regulations in exercise of the power conferred on it by the Act.
Under s.10 of the Indian Mines Act, 1923, the Central Government in the year
1946 constituted the Bihar Mining Board with jurisdiction over the area covered
by the Province of Bihar. The Central Government sent the draft Regulations to
the said Board.
The Chairman of the Board circulated the said
draft Regulations to all the members of the Board and the members communicated
their opinions individually to the Central Government. Thereafter the Central
Government made the said Regulations governing the whole of India, except Jammu
and Kashmir, and to every coal mine therein, in compliance with the other
provisions of s. 59 of the Act.
The question in this petition is whether the
Regulations so made after consulting the Bihar, Board alone would be valid and
in force in the West Bengal area so as to sustain a criminal prosecution on the
basis of an infringement of the said Regulation in respect of a mine in that
area.
This question may be divided into two parts,
namely (1) where the Central Government has' not constituted a Mining Board,
can it ignore the condition laid down under s. 59(3) of the Act and (2) if
giving a reasonable opportunity within the meaning of s. 59(3) of. the Act is
necessary condition for the validity of the Regulations made thereunder, can
the Central Government validly make a regulation in respect of West Bengal
after giving such a reasonable opportunity to a Mining Board constituted for
Bihar ? In my view, the first question is directly 925 covered by the decision
of this Court in Banwari Lal V. State of Bihar(,). There, Das Gupta J.,
delivered the judgment of the Court. As it is contended that the said decision
should be confined only a case where a Mining Board has been validly
constituted under the Act and should not be applied to a case where such a
Board has not been constituted, it would be necessary to scrutinize the
decision carefully to ascertain' the exact scope of the said decision. The
facts of that case where there was an accident in the Central Bhowra Colliery
in Dhanbad in Bihar, as a result of which 23 persons lost their lives the
Regional Inspector of Mines, Dhanbad filed a complaint against the appellant
for allegedly committing an offence under s. 74 of the Mines Act, 1952, i.e.,
for contravening regulations 107 and 127 of the Coal Mines Regulations, 1957 ;
after the Sub-Divisional Officer took Cognizance of the complaint, the
appellant made an application to the Patna High Court under Art. 226 of the
Constitution contesting the validity of the said proceedings on the ground,
inter alia, that there was no Mining Board constituted under S. 12 of the Act
and therefore the Central Government had made the Regulations without,
consulting Mining Board as it, should do under s. 59(3) of the Act. The second
ground on which a prayer for quashing the proceedings was based, with which
alone we are now concerned, was stated in the judgment thus : "the Coal
Mines Regulations, 1957, are invalid having been framed in contravention of S.
59(3) of the Mines Act, 1952." The contention of learned counsel, who
elaborated this ground, was stated thus : "'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."
Then the, learned Judge quoted in extenso s. 59(3) of the Act and (1) (1962) 1
S.C.R. 33.
926 proceeded to state the relevant basic
facts and posed the question raised in the case thus:
"It was not disputed before us that when
the Regulations were framed, no. Board , as required under s. 12 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." It is manifest from the question so
posed that the question considered by the Court was whether the making of the
Regulation without reference to a Mining Board, as it was not in existence,
would be invalid. Then the learned Judge considered the language of a. 59(3) of
the Act and observed at P. 851 :
"............... 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 it;
condition precedent to the making of the
regulations, should itself be subject to two conditions precedent-first, a
reference to the Mining Board concerned, and secondly, that sufficient
opportunity to the Board to make & report as regards. the expediency and
suitability of the proposed regulations." The learned Judge then proceeded
to considered the reasons for imposing such a condition and observed.
"Even a cursory examination of the
purposes set in the 27 clauses of s. 57 shows that that most of them impinge
heavily on the actual working of the mines. To mention only a few of these are
sufficient to 927 show that the very purpose of the Act may will be defeated
unless suitable and practical regulations are' framed to help the achievement
of this purpose." Then he pointed out that s. 12 of the Act unabled the
Government to appoint Boards providing representations for different interests
which would be in a position to help the Central Government to make suitable
and practical regulations. In the words of the learned Judge, "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 provision proposed from the point of view of the
likely expense and other considerations can be throughly 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." According to him, the constitution of the Board in the manner
prescribed served a real purpose and, therefore the constitution by the Central
Government with such 'a Board was made a condition of the making of the
Regulations. When it was contended that the insistence upon consultation might
effect the public welfare under emergent circumstances he.
pointed out that under s. 60 of the Act,
which provided for such a contingency, the Central Government might make
regulations without previous reference to Mining Boards and therefore no such
'consideration could prevent the Court from holding that' the giving of an
opportunity to the Board was a condition precedent to the exercise of the power
of making regulations. The learned Judge summarised his reasoning thus:
928 "'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 which 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 expressing 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 a. 59 will
be valid for a single day." The learned Judge concluded his discussion
thus, a' p. 853 :
"For all the reasons giving above, we
are of opinion that the provisions of S. 59(3( of the Mining Act, 1952, are
mandatory." Pausing here for a moment, I find it very difficult to bold
that this Court held, expressly or by necessary implication, that s. 59(3) of
the Act was mandatory only if the concerned Board was in existence. The
argument advanced, the question 929 posed, the reasons given and the conclusion
arrived at were all against giving such a limited scope to the said judgment,
It was contended that both s. 12 and s. 59 were mandatory.
III Posing the question to be decided, the
learned Judge clearly referred to "the omission to make such a
reference".
The word "such" clearly refers to
the omission to make a reference, as no Boardwas constituted under s. 12 of the
Act. So, as regards the posing of the question there was absolutely no
ambiguity and the learned Judge had clearly in mind what the Court was asked to
decide upon. The reasons given by the learned Judge for holding that it was obligatory
of the Central Government to consult the Board before the making the regulation
would equally apply whether the Board existed or not. The conclusion arrived at
by the learned Judge that consultation with such a Board was a condition
precedent for the exercise of the power would apply to both the cases. If it
was a condition precedent for the exercise of the power, how could it cease to
be one if a Board was not in existence? The condition is not the existence of
the Board, but the consultation with a Board.
In one case, the Government would not consult
the Board though it existed, and in the other case it would not consult, as the
Board did not exist. In either case, the condition was broken. But it is said
that the last three, paragraphs of the judgment make it clear that the learned
Judge was not considering the case where a Board had not been constituted.
There, the learned Judge was considering the question whether the Mining Boards
constituted under s.
10 of the Mines Act, 1923, were continuing to
operate at the time the Regulation were made and there was full consultation
with the ,Mining Boards before the, Regulations were framed. put tile learned
Judge was not able to decide that 930 question, as there was not sufficient
material on the record. Therefore, this Court directed the Magistrate to decide
that question. I fail to see how these paragraphs in any way help us to hold
that this Court confined its decision only to a case where a Board has been
constituted.
On the other hand, the observations in the
first of these three paragraphs clearly indicate to the contrary. The relevant
observations are "As has been pointed out above, it was not disputed
before us that at time when the regulations were framed to now 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." This
shows that the entire judgment up to that point proceeded on the basis that
there was no consultation with the Mining Board, as no such Board was
constituted.
Thereafter the learned Judge was only
considering the alternative contention advanced by the State, namely, that the
pro-existing Board was consulted and that that consultation was sufficient
compliance with the provisions of s. 59(3) of the Act. If I might analyse the
mind of the learned Judge, the process of reasoning may be summarized thus: On
behalf of the appellant it was argued that there was no consultation with the
Board as it was not constituted under s. 12 of the Act and, therefore, the
Regulations made under the Act without such consultation were void. The learned
Judge accepted the contention. Then it was argued for the Government that though
there was no consultation with the Board constituted under s. 12 of the Act,
consultation with a pre-existing Board would be enough compliance with the
section. As there was no material on the record, the learned Judge could 931
not decide on that question and therefore directed it to be decided by the
Magistrate. On the other hand, as it was common case that no Board under s. 12
of the Act had been constituted, if the contention of the Government, now
pressed before us, was correct, no other question would have arisen for,
according to the State, a. 59 (3) could not be invoked in a case where no Board
had been in existence. The plea that there was a consultation with the
pre-existing Board was taken not by the appellant but by the State and such a
plea would be unnecessary if s. 58 (3) of the Act did not lay down the
condition of consultation with the Board when it did not exist.
To my mind, the judgment of the Court is
clear and unambiguous on this point and it decided that, as there was no
consultation with any Mining Board under s. 59(3) of the Act, as the Board was
not in existence, the Regulations were bad. The present argument is an attempt
to persuade us to go back on a clear pronouncement on the point by a
Constitution Benchof the Court.
That apart, I am satisfied on a true
construction of the provisions of s. 12 and a. 59(3) of the Act that the
Central Government has to exercise the power under s. 12 if it intends to
exercise the power under a. 59 of the Act. Under s. 12, ,the Central Government
may constitute for any part of the territories to which this Act extends or for
any group or class of mines, a Mining Board", consisting of persons with
specific qualifications representing different interests in the mines. Under
,R. 59, the power to make regulation conferred by a. 57 is subject to the
condition of the regulations being made after previous publication, and under
sub-s. (3) thereof ""Before the draft of any regulations is published
under this section,it shall be referred to every Mining Board which is, the
opinion of the Central Government, con932 cerned 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". As
interpreted by this Court, the said condition is a condition precedent for the
making of the Regulations under the said section. If the contention of the
learned Solicitor-General be accepted, the condition may have to be disannexed
from the power by a situation brought about the conscious withholding of the
exercise of the connected power by the Central Government under s. 12 of the
Act. Central Government by its own default can ignore the condition imposed in
public interest. The construction leading to this anomalous result can. not be
accepted unless the provisions compel us to do so. It is a well settled
principle of construction that when it is possible to do so, it is the duty of
the Court to construe provisions which appear to conflict so that they
harmonies. To put it differently, of two possible constructions, one which
gives a consistent meaning to different parts of an enactment should be
preferred. In the instant case, the two sections can be harmonized without
doing violence to the language used. Section 12 is an enabling provision under
it a power it; given to the Central Government to appoint a Mining Board.
Section 57, read with s. 59, confers another power on the Central Government to
make regulation subject to, among others a condition that the draft of the
regulations shall be referred to a Mining Board. These two powers are
connected: if they are read together, as we should do in an attempt to
reconcile them, it could be reason'. ably hold that the power conferred under
a. 12 has to be exercised by the Central Government if it intends to make
regulations under s. 57-of the Act. This construction carries out the full
intention of Legislature in enacting s.59 as interpreted by this 933 Court.
Both the powers can be exercised without the one detracting from the other. The
construction suggested by the respondents enables the Central Government to
defeat the public purpose underlying the imposition of the condition under s.59
of the Act and that suggested by the petitioners enables the exercise of the
two powers without the one coming into conflict with the other. I would on the
principle of harmonious construction, prefer 'to accept the latter construction
to the former.
Let us took at the provisions from a
different perspective.
It is a well established doctrine that when
the power is coupled with a duty of the person to whom it is given to exercise
it, then the exercise of the power is imperative:
see Maxwell on interpretation of Statutes,
11th Edn., p. 234. It has also been bold that "if the object for which the
power is conferred contemplates giving of a right, there would then be a duty
cast on person to whom the power is given to exercise it for the benefit of the
party to whom the right is given when required on his behalf." Dealing
with s. 51, Income-tax Act, 1918 which provides that the Chief Revenue
Authority may" state the case to High Court Lord Phillimore observed in
Alcock Ashdown & Co. v. The Chief Revenue Authority Bombay(1).
"No doubt that the section does not say
that the authority "shall" state the case, it only says that it may
and it is rightly urged that "may" does not mean "shall, only
the capacity or power is given to the authority. But when a capacity or power is
given to a public authority there may be circumstances which couple with the
power a duty to exercise it, and where there is a serious (1) A. 1. R. 1923 P.
C. 138.
934 point of law to be considered there does
lie a duty upon the Revenue authority to state a case for opinion of the Court
and if he does not appreciate that there is such a serious point, it is in the
power of the Court to control him and to order him to state the case."
Under the Act, there are two connected powers a power to appoint a Mining Board
and a power to make regulations subject to a condition. The condition imposed
on the power confers a right on a Mining Board to be consulted before a
regulation is made. A combined reading of s. 12 and ss. 57 and 59 shows that
the power or powers conferred on the Central Government are coupled with a duty
to consult the Board whenever the Central Government seeks to exercise the
power under s.57. I have no hesitation in holding that the power is coupled
with a duty and that the power has to be exercised when the 'duty demands it.
The Central Government in making the Regulations has a duty to consult the
Mining Board and the Mining Board has a right to be so consulted and to
discharge its duty it is incumbent upon the Central Government to exercise the
connected power by appointing the Board.
It is said that under s. 59 of the Act, the
Regulations and the Rules shall be referred to a Mining Board and that under s.
58 the Central Government has the power to make a rule providing for the
appointment of the Chairman and members of the Mining Board and that if s. 59
is mandatory, the Government can never exercise the power under s. 58(a). No
such difficulty could arise under the Act before its amendment in 1959. Under
a. 69(3), as it stood then, the condition of consultation with a Mining Board
was imposed only on the power of the Government to make a. regulation and that
s.57 of the Act which confers a 935 power on the Central Government to make
regulations did not contain any. clause corresponding to cl. (a) of s. 58 of
the Act. That apart, s. 58(a) may legitimately be invoked by the Central'
Government only after a Board had been constituted in regard to the future
appointments. Any. how this argument may have some bearing when this question
of construction of the provisions of s. 59 was raised before this Court on the
last occasion and none at present, as the true construction of the said section
was finally settled by this Court.
That apart, a comparative study of the other
provisions of the Act would also lead to the same conclusion. Under the Act,
there are many enabling provisions empowering the Central Government to appoint
specified authorities to discharge different duties and functions described in
various sections. Should it be held that the Central Government need not
appoint the authorities under any circumstances, the Act would become a dead
letter. Even the appointment of 'the Chief Inspector and Inspectors is left to
the discretion of the Central Government: see s. 5 of the Act. If the Government
need not appoint the Chief Inspector or the Inspectors, the duties and
functions allotted to them could not be discharged or performed. A resonable
construction would, therefore, be that if the said duties and functions have to
be per. formed, the Government hat; to appoint the officers. So too, if the
Central Government seeks to exercise the powers under s. 57 of the Act, read
with s. 59 thereof, it has to appoint the Board. I therefore , hold on a fair
construction of ss. 12 and 59 of the Act, that' the Central Government has a
duty to appoint the, Mining Board if it seeks to exercise its power under s. 57
of the Act.
The next argument is that the Bihar Board has
been consulted in the manner prescribed by 936 s. 59(3) of the Act and,
therefore. the regulation made after such consultation are valid. I cannot
agree with this contention either. The said Board was appointed under s. 10(1)
of the Indian Mines Act, 1923 and it is not disputed that the Board must be
deemed to have been duly constituted under the present Act. It is also not
disputed that the said Board was only constituted to have jurisdiction over the
area comprised in the present Bihar State, that is, it has no jurisdiction over
West Bengal. Under s. 12 of the Act, the Central Government may constitute for
any part of the territories to which this Act extends or for any group or class
of a Mines., a Mining Board. Under s. 59, the Central Government shall refer
the draft to every Mining Board which, in the opinion of the Central Government,
is concerned with the subject dealt with by the regulation'.
Now, can it be said that the Board
constituted for a part of the territories to which the Act extends, namely, to
the State of Bihar, could be a Board concerned with the subject dealt with by
the regulations, namely, the mines in West Bengal area ? The entire object of
s. 59 is to consult the persons intimately connected with the mining operations
of a particular area so that suitable regulations may be made to govern the
working of those mines. It could never have been the intention of the
Legislature to empower the Government to make regulations in regard to mines in
one part of the country by consulting a Board constituted for another part of
the country. Such an intention could not be attributed to the Legislature.
Indeed, the Central Government, when it is constituted the Boards, expressly
indicated its intention that all the Boards, including the Board functioning in
West Bengal, should be consulted, but as the Board constituted there was not
one constituted legally under the Act, the consultation with. the said Board
937 had become futile. I therefore, hold that the Regulations in so far as they
purport to regulate the mines situate in West Bengal have not been validly made
under the Act inasmuch as a condition precedent imposed by s. 59 of the Act on
the exercise of the Government's power to make a regulation was not complied
with.
In the result, I direct the issue of a writ
of prohibition against respondents 1 to 4 restraining them from proceeding with
the criminal case launched against the petitioners.
The petitioners will have their costs.
By COURT : In view of the majority opinion of
the Court the Writ Petition fails and is dismissed.
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