Sanjeev Coke Manufacturing Company Vs.
Bharat Coking Coal Ltd. & ANR [1982] INSC 93 (10 December 1982)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) SEN, AMARENDRA NATH (J) BHAGWATI, P.N.
VENKATARAMIAH, E.S. (J) ISLAM, BAHARUL (J)
CITATION: 1983 AIR 239 1983 SCR (1)1000 1983
SCC (1) 147 1982 SCALE (2)1193
CITATOR INFO :
F 1984 SC 326 (21,26,52,57,94,100) F 1984 SC
374 (16,17) RF 1986 SC1466 (13,14) RF 1988 SC 782 (29,40) R 1990 SC 123 (27) D
1990 SC1771 (13) R 1992 SC 847 (64) RF&R 1992 SC 938 (22,33) RF 1992 SC 999
(14)
ACT:
(A) Constitution of India, 1950, Articles 226
and 32- Practice and Procedure-In proceedings involving constitutional issues,
courts cannot travel beyond their scope.
(B) Interpretation of Statutes-Rules of
Construction- Value of grammar.
(C) Constitution of India, 1950-Legislative
validity of-Tests for determination-Affidavits made in the courts to sustain
legislation, value of.
(D) Constitution of India, 1950, Articles
39(b), 31C and 14-Directive Principle of State Policy under Article
39(b)-Immunity of challenge under Article 31 C on ground of violation of
Article 14 is not permissible, Coking Coal Mines (Nationalisation) Act 36 of
1972.
(E) Constitution of India, Article 14-Whether
Coking Coal Mines (Nationalisation) Act is violative of Art. 14.
(F) Judicial review of matters of State
policy like scheme of Nationalisation-Proceedings under Article 226.
(G) Constitution of India, Article
39(b)-Whether "material resources of the community" referred to is
confined to "natural resources".
(H) Constitution of India, Article 31 C (as
amended by the Constitution Forty Second Amendment Act 1976, and Articles 14
and 39 Scope of-Article 31 C with its extended protection is constitutionally
valid.
(I) Coking Coal Mines (Nationalisation) Act
(Act 36 of 1972) Sections 3 (g), 3(b) and 4(1)-The definition of "Coke
oven plants" in Section 3(b) should be read together with clauses (vi) and
(x) of 3(i) defining "mine" for understanding the correct description
of "Mines" in the Act.
(J) Costs in proceedings under Articles 226
or 32 when the grievances are not frivolous, cost should not be awarded, when
the petition is dismissed.
1001
HEADNOTE:
Consequent to the passing of the Coking Coal
Mines (Emergency Provisions) Act, 1971, which was replaced by the Coking Coal
Mines (Nationalisation) Act, 1972, the Coal Mines (Taking Over of Management)
Act, 1973 and the Coal Mines (Nationalisation) Act, 1973, all coal mines known
to exist in the country were nationalised, whether they are coking coal mines
or non-coking mines. Along with them coke oven plants in or belonging to the
mines were also nationalised. In addition twelve specified coke oven plants not
belonging to the owners of the mines, but known to exist near about the mines
were also nationalised. All other coke oven plants were left out of the scheme
of nationalisation for private exploitation.
Sanjeev Coke Manufacturing Company, Bhowra
Coke Company who were owners of the coke oven plants described in items 2 and 9
of the Second Schedule filed writ petitions in the Calcutta High Court
challenging the inclusion of their coke oven plants in the Second Schedule as
violative of the provisions of Article 14 of the Constitution. The writ
petitions were withdrawn to the Supreme Court under Article 139 A.
Dismissing the petitions, the Court ^
HELD: 1. It is not open to a court to answer
academic or hypothetical questions on such considerations, such as that they
dealt with Constitutional amendments and not ordinary law, which of their own
force permitted violation of freedoms through laws passed for certain purposes,
particularly so when serious constitutional issues are involved. Judges are not
authorised to make disembodied pronouncements on serious and cloudy issues of
constitutional policy without battle lines being properly drawn. Judicial
pronouncements cannot be immaculate legal conceptions. It is but right that no
important point of law should be decided without a proper lis between parties
properly ranged on either side and a crossing of the swords.
It is in expedient for the Supreme Court to
delve into problems which do not arise and express opinion thereon.
[1016 A-C]
2. Adjectives are attractive forensic aids
but in matters of interpretation they are diverting intruders. They should not
be allowed to get the better of the nouns which they qualify. [1020 G-H] 3:1.
Validity of legislation is not to be judged merely by affidavits filed on behalf
of the State, but by all the relevant circumstances which the court may
ultimately find out and more especially by what may be gathered from what the
legislature has itself said. [1029 F-G] 3:2. Courts are not really concerned
with the hollowness or the self-condemnatory nature of the statements made in
the affidavits filed by the respondents to justify and sustain the legislation.
The deponents of the affidavits filed into court may speak for the parties on
whose behalf they swear to the statements. They do not speak for the Parliament
and Parliament is never before the Court. Once a statute leaves Parliament
House, the Court's is the only authentic voice which may echo (interpret) the
Parliament.
This the court will do with reference to the
language of the statute and other permissible aids. [1029 A-D] 1002 3:3. No act
of Parliament can be struck down because of the understanding or
misunderstanding of Parliamentary intention by the executive government or
because their (the Government's) spokesmen do not bring out relevant
circumstances but indulge in empty and self defeating affidavits. They do not
and cannot bind Parliament. [1029 E- F] 4:1. The Coking Coal Mines
(Nationalisation) Act 1972 is a legislation for giving effect to the policy of
the State towards securing the principle specified in Article 39(b) of the
Constitution and is, therefore, immune under Article 31-C from attack on the
ground that it offends the fundamental right guaranteed by Article 14. [1027
C-D] 4:2. By the Coking Coal Mines Nationalisation Act all coking coal mines
known to exist in the country were nationalised. Other coke oven plants which
did not belong to the owners of the mines but which were located near about the
nationalised coking coal mines were also identified and nationalised by express
provision to that effect. At that stage of the rationalisation and
nationalisation of the coal mining industry, it was apparently thought
necessary and sufficient to nationalise such coke oven plants as were in or
belonged to the nationalised coking coal mines or as were identified as located
near the nationalised coking coal mines, leaving out all other coke oven
plants. [1021 F-H; 1022 A-B] 4:3. The object of the coking coal Mines
(Nationalisation Act is to recognise and reconstruct coking coal mines and coke
oven plants for the purpose of protecting, conserving and promoting scientific
development of the resources of coking coal needed to meet the growing requirements
of the Iron and Steel Industry and for matters connected therewith and
incidental thereto. The requirements of the Iron and Steel industry are
recognised as 'Growing requirements' and it is found necessary to protect
conserve and promote the scientific development of resources of coking coal so
as to meet those 'growing requirements' The Act is contemplating the future. If
the object of the Act is to provide for the future, it does not make any
difference, if in the past or in the present, the hard coke produced by the
nationalised coking coal mines is diverted elsewhere than the Iron and Steel
Industry. The requirements of the Iron and Steel Industry which are to be met
by the nationalised coke oven plants are its growing requirements, that is to say,
its future requirements. [1026 E-H; 1027 A] 5:1. The Coking Coal Mines
(Nationalisation) Act is not violative of Article 14 of the Constitution. There
has been no such infringement, as could be seen from the facts of the right
guaranteed under Article 14. [1027 D; 1028 F] 5:2. The process of
nationalisation of the Coal industry is, of course, not complete as yet.
Nationalisation of any industry or means of production may not be and need not
be effected all at once. It may be achieved in stages.
If in the process of nationalisation some
units are left out in the earlier stages either because it is so planned or
because of some mistake it cannot be said that there has been a violation of
Article 14. Nor can any inference be drawn of discrimination from the
circumstance that subsequently eighty seven new coke oven plants have been
allowed to come up. Obviously there is demand for hard coke from industries
other than the iron and steel industry and normally, 1003 the State does not
want to stifle those industries by making it difficult for them to obtain their
requirements, especially since the production of the Nationalised Coke Oven
Plants has first to meet the requirements of the iron and steel industry. What
is important to note is that these eighty seven new coke oven plants are not
situated in or about coal mines though they are in the coal field area, as
indeed they are bound to be. [1028 E-H]
6. The distribution between public, private
and joint sectors and the extent and range of any scheme of nationalisation are
essentially matters of State policy which are inherently inappropriate subjects
for judicial review. Scales of justice are just not designed to weigh competing
social and economic factors. In such matters legislative wisdom must prevail
and judicial review must abstain. The contention that Article 39(b) would be
attracted, if the industry as a whole was nationalised and not if only a part
of the industry was nationalised is, therefore, misplaced. [1026 B-D] 7:1. The
expression "Material resources of the community" as used in Article
39(b) of the Constitution is not confined to natural resources; it is not
confined to resources owned by the public; it means and includes all resources,
natural and man-made, public and private-owned.
[1026 A-B] 7:2. The expression "material
resources of the community" means all things which are capable of
producing wealth for the community. There is no warrant for interpreting the
expression in so narrow a fashion as to confine it to public-owned material
resources and exclude private owned material resources. The expression involves
no dichotomy. The words must be understood in the context of the constitutional
goal of establishing a sovereign, socialist, secular' democratic republic.
[1022 H; 1023 A-B] 7:3. When Article 39(b) refers to material resources of the
community it does not refer only to resources owned by the community as a
whole, but it refers also to resources owned by individual members of the
community.
Resources of the community do not mean public
resources only but include private resources as well The distribution envisaged
by Article 39(b) necessarily takes within its stride the transformation of
wealth from private-ownership into public-ownership and is not confined to that
which is already public-owned. [1023 G-H; 1024 A-B] State of Karnataka v.
Ranganathan Reddy, [1978] 1 S.C.R. 641 @ 689 followed.
8:1. The question of the validity of Article
31 C stands concluded by the decision of the Supreme Court in Keshavananda
Bharati's case. in which it was expressly ruled that Article 31 C, as it stood
at that time i.e., as inserted by the Constitution (Twenty-fifth Amendment)
Act, 1971, was constitutionally valid. No doubt the protection of Article 31C
was at that time confined to law giving effect to the policy of the clauses (b)
and (c) of Article 39. By the Constitution Forty Second Amendment Act, the
protection was extended to all laws giving effect to all or any of the principles
laid down in Part IV. The dialectics, the logic and the rationale involved in
upholding the validity of Article 31C when it confined its protection to laws
enacted to further Article 39(b) or Article 39(c) should uncompromisingly lead
to the same resolute 1004 conclusion that Article 31 C with its extended
protection is also constitutionally valid. It cannot also be said that the
nature of the Directive Principles enunciated in other Articles of Part IV of
the Constitution is so drastic or different from the Directive Principle in
clauses (b) and (c) of Article 39, that the extension of constitutional
immunity to laws made to further those principles would afford the basic
structure of the constitution Any observations made to the contrary in Minerva
Mills' case, [1981] 1 S.C.R. 206 may be held to be obiter. [1016 D-H] 9:2. To
contend that a law founded on discrimination is not entitled to the protection
of Article 31 C, as such a law can never be said to further the directive
principles affirmed in Article 39(b) would be to put the cart before the horse.
If the law made to further directive principle is necessarily
non-discriminatory or is based on a reasonable classification, then such law
does not need any protection such as that afforded by Article 31 C. Such law
would be valid on its own strength, with no aid from Article 31 C. To make it a
condition precedent that a law seeking the haven of Article 31 C must not be
discriminatory or based on reasonable classification is to make Article 31 C
meaningless. If Article 14 is not offended, no one need give any immunity from
an attack based on Article 14. [1019 A; 1020 A-B] The broad egalitarian
principle of social and economic justice for all was was implicit in every
Directive Principle, and, therefore, a law designed to promote a directive
principle, even if it came into conflict with the formalistic and doctrinaire
view of equality before the law, would most certainly advance the broader
egalitarian principle and the desirable constitutional goal of social and
economic justice to all. If the law was aimed at the broader egalitarianism of
the Directive Principles, Article 31 C protected the law from needless,
unending and rancourous debate on the question whether the law contravened
Article 14's concept of equality before the law.
The law seeking the immunity afforded by
Article 31 C must be a law directing the policy of the State towards securing a
Directive Principle. The object of the law must be to give effect to the
Directive Principle and the connection with the Directive Principle must not be
"same remote or tenuous connection". [1020 B-F] 9:3. When Article 31
C comes in, Article 14 goes out.
There is no scope for bringing in Article 14
by a side wind as it were, that is, by equating the rule of equality before the
law of Article 14 with the broad egalitarianism of Article 39(b) or by treating
the principle of Article 14, as included in the principle of Article 39(b). To
insist on nexus between the law for which protection is claimed and the
principle of Article 39(b) is not to insist on fulfilment of the requirement of
Article 14. They are different concepts and in certain circumstances, may even
run counter to each other. That is why the need for the immunity afforded by
Articles 31 C. [1021 A-B] 10:1. The word "Mine" as defined in Section
3(j) of the Coking Coal Mines (Nationalisation) Act 36 of 1972 does include
'Coke Oven Plant'. If the definition of 'Coke Oven Plant' in Section 3(b) is
read alongside clauses (vi) and (x) of Section 3(j) which defines mine, it
becomes plain that 'coke oven plant' belonging to or in a mine is treated as
comprised in 'mine' as defined. Therefore, all coke oven plants belong to or in
the mines mentioned in the First Schedule, 1005 by the very force of definition
of 'mine', go with the mines and the right, title, and interest thereto vest in
the Central Government under Section 4(1) of the Act. [1008 D-F; 1010 D] Bharat
Coking Coal Ltd. v. P.K. Agarwala and Anr, [1979] 3 S.C.R. 609, over ruled.
10:2. The object of the Coking Coal Mines (Nationalisation)
Act was to nationalise all coking coal mines and coke oven plants situated in
or about the mines whether or not they belonged to the owners of the mines.
Those which belonged to the owners of the
mines, went with the mines, but [those which did not belong to the owners of
the mines, obviously did not go with the mines, and separate provision had to
be made for their nationalisation, and payment of compensation etc. That was
the reason for the separate definition of "Coke Oven Plant" and the
separate provision for the nationalisation of certain coke oven plants. The
reason was not any dichotomy between the word 'mine' on the one hand and the
words "coke oven plant" on the other. [1010 E-F] 10:3. All coke oven
plants were not nationalised; only those which were situated in or about the
nationalised coking coal mines were nationalised. There was no separate
legislation providing for the take over of all coke oven plants but as a part
of the legislation to take over coking coal mines, such coke oven plants were
also nationalised.
Quite obviously coke oven plants situated in
or about coal mines had to be nationalised along with the mines in the
interests of convenience and efficiency of the coal industry and to minimise
the opportunities for clandestine operations for which the coal industry has
become notorious. Coke oven plants away from the mines were not touched either
by the Coking Coal (Emergency Provisions) Act or the Coking Coal
(Nationalisation) Act. [1010 H; 1011 A-C] Amarendra Nath Sen, J. (Contra) costs
generally follow event. When a citizen is deprived of his property by a State
action and feels aggrieved by the act of the State and approaches the Court and
if it cannot be said that his grievance is absolutely frivolous, the citizen in
such a case should not be saddled with the costs simply because the Court finds
that his grievance has no valid legal basis.
[1034 G-H]
ORIGINAL JURISDICTION : Transferred Cases
Nos. 1 and 2 of 1980.
Transferred from the Calcutta High Court
Matter No. 307 of 1979 with the petitions pending in the Court.
WITH
Special Leave Petition (Civil) No. 2020 of 1980.
From the Judgment and Order dated the 27th
November, 1979 of the Calcutta High Court in F.M.A.T. No. 3124 of 1979.
S.N. Kacker, A.K. Ganguli and G.S. Chatterjee
for the Petitioner in Transferred Case No. 1 of 1980.
1006 M.C. Bhandare, Sukumar Bose, G.S.
Chatterjee and Miss Mirdula Ray for Transferred Case No. 2 of 1980.
G.S. Chatterjee for the Petitioner.
L.N. Sinha, Attorney General, M.L. Verma and
Miss A. Subhashini for the Respondents.
The following Judgment were delivered
CHINNAPPA REDDY, J. In these cases, Sanjeev Coke Manufacturing Co. and Sunil
Kumar Ray, representing the Bhowra Coke Company question the nationalisation of
the Coke Oven Plants belonging to them.
The history of the legislation concerning the
take-over of the Management and the Nationalisation of Coal Mines has been set
out in some of the earlier judgments of this Court (Tara Prasad Singh v. Union
of India, etc.(1) and it is not necessary for us to recall here that history in
any great detail. The Coking Coal Mines (Emergency Provisions) Act, 1971, the Coking
Coal Mines (Nationalisation) Act, 1972, the Coal Mines (Taking Over of
Management) Act, 1973, and the Coal Mines (Nationalisation) Act, 1973 were
respectively enacted in that order.
First came the Coking Coal Mines (Emergency)
Provision.
Act 1971 which provided for the taking over
of the management of coking coal mines and coke oven plants pending
nationalisation of such mines and plants. Sec. 3(1) of the Act declared that on
and from the appointed day, the management of all coking coal mines shall vest
in the Central Government. All coking coal mines which were known to exist were
specified in the First Schedule to the Act and Sec. 3(2) declared that those
were the coking coal mines whose management vested in the Central Government
under sub- sec. (1). It was further provided that if any coal mine was found,
after investigation made by the Coal Board, to contain coking coal, a
declaration to the effect shall be made by the Board and thereupon the
management of such mine shall vest in the Central Government and the mine shall
be deemed to be included in the First Schedule. The idea clearly was not to
leave out of the management of the Central Government any coking coal mine. The
words 'mine', 'coking coal mine' and 'coke oven plant' were separately defined
in 1007 the Act. 'Mine' was defined widely enough that 'coking coal mine' would
take within its expanse 'coke oven plants' belonging to or in a mine. By the
very force of the definition of 'mine', the management of coke oven plants
belonging to or in coking coal mines also stood vested in the Central
Government from the appointed day. This aspect of the matter will be considered
in slightly greater detail when we refer to the provisions of the Coking Coal
Mines Nationalisation Act. As one may well expect, there were some coke oven
plants which were situated near about coking coal mines but which did not
belong to the owners of such mines and the management of which did not,
therefore, automatically vest in the Central Government along with the vesting
of the management of the coking coal mines. It was apparently thought necessary
and desirable that the management of such coke oven plants also should be taken
over. Twelve such coke oven plants were identified and specified in the Second
Schedule and by Sec. 7 of the Act the management of the coke oven plants
specified in Second Schedule were declared to vest in the Central Government.
Next, The Coking Coal Mines (Nationalisation)
Act, 1972 was enacted "to provide for the acquisition and transfer of the
right, title and interest of the owner of the coking coal mines specified in
the First Schedule, and the right, title and interest of the owners of such
coke oven plants as are in or about the said coking coal mines with a view to
reorganising and reconstructing such mines and plants for the purpose of protecting,
conserving and promoting scientific development of the resources of coking coal
needed to meet the growing requirements of the iron and steel industry and for
matters connected therewith or incidental thereto". By Section 4 of the
Act the right, title and interest of the owners in relation to the coking coal
mines specified in the First Schedule stands transferred to and vests
absolutely in the Central Government. The First Schedule mentions the names of
214 coking coal mines, with their location and with the names and addresses of
the owners of the mines. 'Coking coal mine' is defined by Section 3(c) to mean
"a coal mine in which there exist one or more seams of coking coal,
whether exclusively or in addition to any seam of other coal".
'Mine' is, defined by s. 3(j) to mean
"any excavation where any operation for the purpose of searching for or
obtaining minerals has been or is being carried on", and to include, among
other things.
"(vi) all lands, buildings, works,
adits, levels, planes, machinery and equipment, vehicles, railways, tramways
and 1008 sidings belonging to, or about, a mine;" and "(x) all lands,
buildings and equipment belonging to, or in, a mine where the washing of coal
or manufacture of coke is carried on;" We may also notice here the
definition of 'Coke Oven Plants' as in s. 3(b) which is as follows :
"coke oven plant" means the plant
and equipment with which the manufacture of hard coke has been, or is being,
carried on, and includes- (i) ... ... ...
(ii) ... ... ...
(iii) ... ... ...
(iv) ... ... ...
(v) all lands, buildings and equipment
belonging to the coke oven plant where the washing of coal is carried on, (vi)
... ... ...
If the definition of 'coke oven plant' in s.
3(b) is read alongside clause (vi) and (x) of s. 3(j) which defines mine, it
becomes plain that 'coke oven plant' belonging to or in a mine is treated as
comprised in 'mine' as defined.
Therefore, all coke oven plants belong to or
in the mines mentioned in the First Schedule, by the very force of the definition
of 'mine', go with the mines and the right, title and interest thereto vest in
the Central Government under s. 4(1) of the Act. But the object of the Act was
not merely to acquire the right, title and interest of the owners of the coking
coal mines specified in the First Schedule including the coke oven plants in or
belonging to such coking coal mines but also to acquire the right, title and
interest of the owners of coke oven plants which were generally, in or about
such coking coal mines, even if they did not belong to the owners of such
mines. Apparently, it was not thought sufficient to acquire the coke oven
plants in the acquired mines or belonging to the owners of the acquired mines
but it was thought necessary, also, to acquire the coke oven plants which were
near about the acquired mines. So a separate provision had to be made in the
Act to acquire such 1009 coke oven plants as were near about the acquired mines
but did not belong to the owners of the mines. Twelve such coke oven plants,
the same twelve coke oven plants which were mentioned in the Second Schedule to
the Coking Coal Mines (Emergency Provisions) Act, are again specified in the
Second Schedule to the Coking Coal Mines Nationalisation Act too and s. 5 of
the Act provides that the right, title and interest of the owners of each of
the coke oven plants specified in the Second Schedule, being the coke oven
plants which are situated in or about the coking coal mines specified in the
First Schedule also vest in the Central Government. Thus, all coke oven plants
which belonged to or which were in the mines specified in the First Schedule
stood transferred to the Central Government along with those mines and, in
addition, the twelve coke oven plants specified in the Second Schedule which
did not belong to the mines but which were near about coking coal mines also
stood transferred to the Central Government.
In order that the ground may straight away be
cleared, we must mention here that in Bharat Coking Coal Ltd. v. P.K. Agarwala
and Anr.(1) Krishna Iyer and A.P. Sen, JJ. considered the definitions of
"Mine" and "coke oven plant" in the Coking Coal Mines
(Nationalisation) Act, 1972 and expressed the view, wrongly in our opinion,
that 'Coking Coal Mine' did not include a 'coke oven plant'. The learned judges
appear to have thought that there was a dichotomy between the word 'mine' on
the one hand and the words 'coke oven plant' on the other and that was why
separate provision was made in the same Act for the nationalisation of mines
and coke oven plants. The learned Judges observed :
"It must be said in fairness to counsel
that there was some bafflement when confronted by these provisions although on
a broader consideration, we are clear in our mind that a dichotomy was made by
the statute between mines on the one hand as defined in Section 3(j) and coke
oven plants as defined in s. 3(b) on the other. To give meaning to this
dichotomy one has to read coke oven plants as clearly out from the mines, which
in turn means that mere equipment where washing of coal or manufacture of coal is
done as a simple subsidiary or an equipment or machinery which is a small part
of a mine cannot be exalted to the position of 1010 a coke oven plant which, as
Section 3(b) bears out, is an important but separate equipment with which the
manufacture of hard coke is carried on. This is a processing of considerable
significance, for coal that is extracted from a colliery has an independent
existence. It cannot be confused with a minor item such as is covered by s.
3(j)(xi) or (x) of the Act. It is easy to find industrial similarity when we
are referring to oil mines. It is one thing to take over oil fields and minor
machinery or equipment that may be attached thereto necessary for the very
mining operation, but by no stretch of imagination can it be said that nationalisation
of oil fields or mines also covers oil refineries. In this view, we think that
there is no substance in the submission on behalf of the appellant (Union of
India) that mine by definition includes coke oven" We are afraid, we are
unable to agree with the view expressed by Krishna Iyer and A.P. Sen, JJ. that
'coal mine' as defined in s. 3(j) particularly cls. (vi) and (x) does not
include 'coke oven plant'. As already mentioned by us, there were in existence
'coke oven plants' in or about coking coal mines, some of which belonged to the
owners of the mines and some to persons other than the owners of the mines. The
object of the Coking Coal Mines (Nationalisation) Act was to nationalise all
coking coal mines and coke oven plants situated in or about the mines whether
or not they belonged to the owners of the mines. Those which belonged to the
owners of the mines went with the mines but those which did not belong to the
owners of the mines, obviously, did not so go with the mines and separate
provision had to be made for their nationalisation, and payment of compensation
etc. That was the reason for the separate definition of 'coke oven plant' and
the separate provision for the nationalisation of certain coke oven plants. The
reason was not any dichotomy between the word 'mine' on the one hand and the
words 'coke oven plant' on the other as was supposed in Bharat Coking Coal Ltd.
v. P.K. Agarwala. As was said, the separate definition of coke oven plant and
the separate provision for the nationalisation of coke oven plants was
necessary to cover those coke oven plants which were situated in or about the
nationalised mines but which did not belong to the owners of those mines. It is
important to note that all coke oven plants were not nationalised; only those
which were situated in or about the nationalised coking coal mines were
nationalised. There was no separate legislation providing for the take-over of
all coke oven plants but as a 1011 part of the legislation to take over coking
coal mines, such coke oven plants as were in or about the mines were also
nationalised. Quite obviously coke oven plants situated in for about coking
coal mines had to be nationalised along with the mines in the interests of
convenience and efficiency of the coal industry and to minimise the
opportunities for clandestine operations for which the coal industry has become
notorious. Coke oven plants away from the mines were not touched either by the
Coking Coal (Emergency Provisions Act) or the Coking Coal Mines (Nationalisation)
Act.
The Coking Coal Mines (Nationalisation) Act,
1972 was followed soon thereafter by the Coal Mines (Taking Over of Management)
Act, 1973. Coal Mine is defined by sec. 2(b) of the Act to mean a mine in which
there exists one or more seams of coal. It is seen that the definition of coal
mines takes in coking coal mines also. Mine is defined by Section 2(g) in
practically the same terms as in Section 3(j) of the Coking Coal Mines
(Nationalisation) Act with some differences which are not material for the
purposes of this case. Sec. 3(1) provides that on and from the appointed day,
the managements of all coal mines shall vest in the Central Government. The
provision is peremptory; all coal mines whether they are coking coal mines or
non-coking coal mines are included; none is excluded. Sec. 3(2) further
provides that the coal mines specified in the schedule to the Act shall be
deemed to be the coal mines the management of which shall vest in the Central
Government under sub-sec. (1) and further that if the existence of any coal
mine comes to the knowledge of the Central Government, the Central Government
shall make a declaration about the existence of such mine and the management of
such coal mine shall thereupon be deemed to vest in the Central Government and
the coal mine deemed to be included in the schedule. After the Coal Mines (Taking
over of management) Act 1972, came the Coal Mines (Nationalisation) Act, 1973
which was enacted "to provide for the acquisition and transfer of the
right, title and interest of the owners in respect of the coal mines specified
in the schedule with a view to re-organising and re-constructing such coal
mines so as to ensure the rational, coordinated and scientific development and
utilisation of coal resources consistent with the growing requirements of the
country in order that the ownership and control of such resources are vested in
the State and thereby so distributed as best to subserve the common good and
for matters connected therewith or incidental thereto".
The expressions 'coal mine' and 'mine' are
1012 defined on practically the same lines as in the Coal Mines (Taking Over of
Management) Act. Sec. 3(1) declares that on the appointed day, the right, title
and interest of the owners in relation to the coal mines specified in the
schedule shall stand transferred to and shall vest absolutely in the Central
Government free from all encumbrances. Sec. 3(2) provides that if the existence
of any other coal mine comes to the knowledge of the Central Government, after
the appointed day, the provisions of the Coal Mines (Taking over of Management)
Act shall apply to such mine until that mine is nationalised by an appropriate
legislation. We have already mentioned that the expression 'mine' is defined in
the Coal Mines (Taking over of Management) Act and the Coal Mines
(Nationalisation) Act in practically the same terms as in the Coking Coal Mines
(Emergency Provisions) Act and the Coking Coal Mines (Nationalisation) Act. The
definition is so wide, as to take in coke oven plants belonging to or in the
mine. So, all coke oven plants belonging to or in a coal mine are nationalised along
with the mine. But, there are no provisions in the Coal Mines (Nationalisation)
Act 1973 corresponding to Section 5 of and the Second Schedule to the Coking
Coal Mines Nationalisation Act 1972 to cover coke oven plants which are
situated near the coal mines but which do not belong to the owners of the
mines. Therefore, coke oven plants not belonging to or in coal mines (not
already nationalised under the Coking Coal Mines (Nationalisation) Act are left
out of the Coal Mines (Taking over of Management) Act and the Coal Mines
(Nationalisation) Act, 1973. Of course, coke oven plants situated away from the
mines are not touched by either the Coal Mines (Nationalisation) Act, 1973 or
the Coking Coal Mines (Nationalisation) Act, 1972.
The final result of these statutes is that
all coal mines known to exist in the country are nationalised, whether they are
coking coal mines or non-coking coal mines.
Along with them coke oven plants in or
belonging to the mines also stand nationalised. In addition twelve specified
coke oven plants not belonging to the owners of the mines but known to exist
near about the mines are also nationalised. All other coke oven plants are left
out of the scheme of nationalisation. The design revealed by the Acts is that
mining of coal is reserved entirely for the public sector, and so, all existing
coal mines, whether coking coal or non-coking coal, are nationalised and the
management of mines which may be discovered in the future is automatically
taken over by the Central Government until nationalisation by appropriate
legislation; and, the 1013 manufacture of hard coke from coal is reserved for
the joint sector and so all coke oven plants belonging to or in coal mines and
twelve specified coke oven plants are nationalised while all other coke oven
plants are left for private exploitation ; there is no ban against any new coke
oven plants being set up.
Sanjeev Coke Manufacturing Company, who were
the owners of the coke oven plant described in Item 9 of the Second Schedule
and Bhowra Coke Company, who were the owners of the Coke oven plant described
in Item 2 of the Second Schedule filed writ petitions in the Calcutta High
Court challenging the inclusion of these coke oven plants in the Second
Schedule. The writ petitions have been withdrawn to this Court for disposal.
The principal ground of challenge was that other coke oven plants standing in
exactly the same position as the coke oven plants of the petitioners were left
out and had not been nationalised; there was, therefore, rank discrimination.
It was said that as many as eighty seven new coke oven plants were allowed to
come into existence subsequent to the Nationalisation Act and so the
nationalisation of twelve of the existing coke oven plants was ex-facie
arbitrary and discriminatory. There were other grounds, branches and shades of
challenge to which we shall refer later in the course of the judgment. The straight
answer of the Central Government was that the provisions of the Act were immune
from the challenge based on the ground of discrimination because of the
protection afforded by Art.
31C of the Constitution. The Central
Government also defended the inclusion of the coke oven plants of the
petitioners in Second Schedule on merits and explained how it came about that
certain coke oven plants were excluded.
The principal question for consideration,
therefore, is whether the Coking Coal Mines (Nationalisation) Act, 1972 is
entitled to the protection of Art 31C of the Constitution Art 31C of the
Constitution, which was introduced by the Twenty-fifth Amendment Act, 1971, as
it stood before the Forty-second Amendment, provided, "Notwithstanding
anything contained in Article 13, no law giving effect to the policy of the
State towards securing the principles specified in cl (b) or cl.(c) of Art. 39
shall be deemed to be void on the ground that it was inconsistant with, or
takes away or abridges any of the rights conferred by Art. 14, Art. 19 or Art.
31". By the Constitution Forty-second Amendment Act, the protection of
Art. 31C was extended not merely to laws giving effect to the policy of the State
towards securing the principles specified in cl.(b) or (c) 1014 of Art.39 but
to laws giving effect to the policy of the State towards securing all or any of
the principles laid down in Part IV of the Constitution. The constitutionality
of the original Art. 31C as introduced by the Constitution Twenty-fifth
Amendment Act, was upheld by the Court in Keshvananda Bharati v. The State of
Kerala(1) Section 4 of the Constitution Forty-second Amendment Act of 1976
which substituted the words "all or any of the principles laid down in
Part IV" for the words "the principles specified in Cl.(b) or (c) of
Art. 39" was struck down by this Court in Minerva Mills's case(2) on the
ground that the nature and quality of the amendment was such that it virtually
tore away the heart of basic fundamental freedoms by totally withdrawing the
protection of Articles 14 and 19 in respect of a large category of laws; the
amendment destroyed the balance between Part III and Part IV of the
Constitution and thereby ipso facto destroyed the basic structure of the
Constitution. The decision of the Court in Minerva Mills' was strongly relied
upon by Shri A.K. Sen, learned counsel for the petitioners to support his
submissions regarding what he claimed was the true content and interpretation
of Art. 31C. We have some misgivings about the Minerva Mills' decision despite
its rare beauty and persuasive rhetoric.
We confess the case has left us perplexed. In
the first place, no question regarding the constitutional validity of s.4 of
the Constitution Forty-second Amendment Act, 1976 appears to have arisen for
consideration in that case. The question was about the nationalisation and
takeover by the Central Government of a certain textile mill under the
provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974. The
validity of some of the provisions of that Act was impugned. The Act had been
included in the Ninth Schedule to the Constitution by the Constitution
Thirty-ninth Amendment Act, 1975. The validity of Art. 31B which provides
immunity to the Acts and Regulations specified in the Ninth Schedule from
attack based on inconsistency with the Fundamental Rights was challenged and
that question, therefore, directly arose for consideration. The question was,
however, not decided in the Minerva Mills case. Section 39 of the Sick Textile
Undertakings (Nationalisation) Act, 1974, had also declared that the Act was
enacted for giving effect to the policy of the State towards securing the
principles specified in cl.(b) of Art.39 of the Constitution. Article 31C of
the 1015 Constitution which had been introduced into the Constitution by the
Constitution Twenty-fifth Amendment Act 1971 expressly provided that
"Notwithstanding anything contained in article 13, no law giving effect to
the policy of the State towards securing the principles specified in cl.(b) or
cl.(c) of Art. 39 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
article 14, article 19 or article 31". The Sick Textiles (Undertakings)
Nationalisation Act 1974 was passed, we may mention here, before the
Constitution Forty Second Amendment Act came into force. In order, therefore,
to challenge the provisions of the Sick Textile Undertakings (Nationalisation)
Act, 1974 on the ground of inconsistency or abridgement or taking away of the
Fundamental Rights conferred by Art. 14 or Art. 19, it was necessary for the
petitioners to challenge the Constitutional validity of the Constitution
Twenty-fifth Amendment Act, 1971 by which Art. 31C was first introduced into
the Constitution. That, however, was not open to the petitioners because of the
decision of this Court in Keshavananda Bharati's case. It was so conceded too
by the learned counsel who appeared for the petitioner in the Minerva Mills
case. The counsel who appeared, however, chose to question the constitutional
validity of Section 4 of the Constitution Forty-second Amendment Act. 1976 by
which the immunity afforded by Art. 31C was extended by replacing the words
"the principles specified in cl. (b) or cl. (c) of Art. 39" by the
words "all or any of the principles laid down in Part IV". No
question regarding the constitutional validity of s. 4 of the Constitutional
Forty-second Amendment Act, 1976 arose for consideration in the case, firstly,
because the immunity from attack given to a law giving effect to the policy of
the State towards securing the principles specified in cl. (b) or cl. (c) of
Art 39 was given by the Constitution Twenty-fifth Amendment Act 1971 itself and
secondly because the Sick Textile Undertakings (Nationalisation) Act had been
enacted before the Constitution Forty-second Amendment Act, 1976. Yet, counsel
successfully persuaded the Court to go into the question of the validity of s.
4 of the Constitution Forty-second Amendment Act. An objection was raised
before the Court by the learned Attorney General that the Court should not
concern itself with hypothetical or academic questions. The objection was
overruled on the ground that the Forty-second Amendment was there for anyone to
see and that the question raised was an important one dealing with, not an
ordinary law, but, a constitutional amendment which had been brought into 1016
Operation and which of its own force permitted the violations of certain
freedoms through laws passed for certain purposes. We have serious reservations
on the question whether it is open to a Court to answer academic or
hypothetical questions on such considerations, particularly so when serious
constitutional issues are involved. We (judges) are not authorised to make
disembodied pronouncements on serious and cloudy issues of constitutional
policy without battle lines being properly drawn. Judicial pronouncements
cannot be immaculate legal conceptions. It is but right that no important point
of law should be decided without a proper lis between parties properly ranged
on either side and a crossing of the swords.
We think it is inexpedient for the Supreme
Court to delve into problems which do not arise and express opinion thereon.
In the second place, the question of the
constitutional validity of Art.31C appears to us to be concluded by the
decision of the Court in Keshavananda Bharati's case.
In Keshavananda Bharati's case, the Court
expressly ruled that Art. 31C as it stood at that time was constitutionally
valid. No doubt, the protection of Art. 31C was at that time confined to laws
giving effect to the policy of the cls. (b) and (c) of Art. 39. By the
Constitution Forty-second amendment Act, the protection was extended to all
laws giving effect to all or any of the principles laid down in Part IV. The
dialectics, the logic and the rationale involved in upholding the validity of
Art.31C when it confined its protection to laws enacted to further Art. 39(b)
or Art.39(c) should, uncompromisingly lead to the same resolute conclusion that
Art. 31C with its extended protection is also constitutionally valid. No one
suggests that the nature of the Directive Principles enunciated in the other
Articles of Part IV of the Constitution is so drastic or different from the
Directive Principles in cls (b) and (c), of Art 39, that the extension of
constitutional immunity to laws made to further those principles would offend
the basic structure of the Constitution. In fact, no such argument appears to
have been advanced in the Minerva Mills case and we find no discussion and no
reference whatsoever, separately to any of the distinct principles enunciated
in the individual Articles of Part IV of the Constitution decision in Minerva Mills.
The argument advanced and the conclusion arrived at both appear to be general,
applicable to every clause of Art. 39, and every Article of Part IV of the
Constitution, no less to clauses (b) and (c) than to the other clauses. We wish
to say no more about 1017 the Minerva Mills case as we are told that there is
pending a petition to review the judgment.
Thirdly, notwithstanding the strong reliance
placed upon Minerva Mills by the learned counsel for the petitioners, we are
not really concerned with the decision in that case since that is not the point
at issue before us.
What the Court held there was that s. 4 of
the Constitution Forty-second Amendment Act was invalid. But we are not faced
with that question here. We are concerned with the validity of the Constitution
Twenty-fifth Amendment Act, 1971 and it was conceded before us, as it was
conceded before the Bench in the Minerva Mills case that the Constitution
Twenty-fifth Amendment Act is constitutionally valid.
The main submission of Shri A K. Sen. learned
counsel for the petitioner in one of the cases was based on the assumption that
Art. 31 C as it stood before the Constitution Forty-second Amendment was
constitutionally valid. Even so, according to Shri Sen, the protection of Art.
31 C would not be available to a legislation which was not shown to have any
real and substantial nexus to the Directive Principles enunciated in cl. (b) or
cl. (c) of Art. 39. Iaw founded on arbitrariness and discrimination he said
could never be said to be a law to further the directive principles in clauses
(b) and (c) of Art. 39. Shri Sen would say that Art. 39(b) itself contemplated
a broader egalitarian principle than that embodied in Art. 14 and, therefore,
it was impossible to conceive of a law offending the egalitarian principle as
furthering the directive principle voiced in Art. 39(b). On these questions, it
was submitted, there was no difference between the views of the majority of the
Judges who decided Minerva Mills and the dissenting Judge. He particularly invited
our attention to the following observations of Bhagwati, J. at pp. 329-330:
"It will, therefore, be seen that if a
law is enacted for the purpose of giving effect to a Directive Principle and it
imposes a restriction on a Fundamental Right, it would be difficult to condemn
such restriction as unreasonable or not in public interest. So also where a law
is enacted for giving effect to a Directive Principle in furtherance of the
constitutional goal of social and economic justice it may conflict with a
formalistic and doctrinaire view of equality before the law, but it would
almost always conform to the principle of equality before the law in its total
magnitude and dimension, because the equality clause in the Constitution does
not speak of more formal equality before the 1018 law but embodies the concept
of real and substantive equality which strikes at inequalities arising on
account of vast social and economic differentials and is consequently an
essential ingredient of social and economic justice. The dynamic principle of
egalitarianism fertilisers the concept of social and economic justice; it is
one of its essential elements and there can be no real social and economic
justice where there is a breach of the egalitarian principle. If, therefore, there
is a law enacted by the legislature which is really and genuinely for giving
effect to a Directive Principle with a view to promoting social and economic
justice, it would be difficult to say that such law violates the principle of
egalitarianism and is not in accord with the principle of equality before the
law as understood not in its strict and formalistic sense, but in its dynamic
and activist magnitude. In the circumstances, the Court would not be
unjustified in making the presumption that a law enacted really and genuinely
for giving effect to a Directive Principle in furtherance of the cause of
social and economic justice, would not infringe any Fundamental Right under
Article 14 or 19". . . . .
If this be the correct interpretation of the
constitutional provisions, as I think it is, the amended Article 31 C does no
more than codify the existing position under the constitutional scheme by
providing immunity to a law enacted really and genuinely for giving effect to a
Directive Principle, so that needlessly futile and time consuming controversy
whether such law contravenes Article 14 or 19 is eliminated." at pp.
337-338: "Now the question is what should be the test for determining
whether a law is enacted for giving effect to a Directive Principle. One thing
is clear that a claim to that effect put forward by the State would have no
meaning or value; it is the court which would have to determine the question.
Again it is not enough that there may be some connection between a provision of
the law and a Directive Principle. The connection has to be between the law and
the Directive Principle and it must be a real and substantial connection. To
determine whether a law satisfies this test, the court would have to examine
the pith and substance, the true nature and character of the law as also its
design and the subject matter dealt with by it together with its object and
scope. If on such examination, the court finds that the dominant object of the
law is to give effect to the Directive Principle, it would accord protection to
the law under the amended Article 31C. But if the court finds that the law
though passed seemingly for giving effect 1019 to a Directive Principle, is, in
pith and substance. One for accomplishing an unauthorised purpose-unauthorised
in the sense of not being covered by any Directive Principle, such law would
not have the protection of the amended Art. 31C.".
. . .
The point I wish to emphasize is that the
amended Article 31C does not give protection to a law which has merely some remote
or tenuous connection with a Directive Principle. What is necessary is that
there must be a real and substantial connection and the dominant object of the
law must be to give effect to the Directive Principle, and that is a matter
which the court would have to decide before any claim for protection under the
amended Article 31C can be allowed.
at pp. 339-340: "Where, therefore,
protection is claimed in respect of a statute under the amended Article 31C,
the court would have first to determine whether there is real and substantial
connection between the law and a Directive Principle and the predominant object
of the law is to give effect to such Directive Principle and if the answer to
this question is in the affirmative, the court would then have to consider
which are the provisions of the law basically and essentially necessary for
giving effect to the Directive Principle and give protection of the amended
Article 31 C only to those provisions. The question whether any particular
provision of the law is basically and essentially necessary for giving effect
to the Directive Principle, would depend, to a large extent, on how closely and
integrally such provision is connected with the implementation of the Directive
Principle. If the court finds that a particular provision is subsidiary or
incidental or not essentially and integrally connected with the implementation
of the Directive Principle or is of such a nature that, though seemingly a part
of the general design of the main provisions of the statute, its dominant
object is to achieve an unauthorised purpose, it would not enjoy the protection
of the amended Article 31(C) and would be liable to be struck down as invalid
if it violates Article 14 or 19." While we broadly agree with much that
has been said by Bhagwati J. in the extracts above quoted, we do not think that
those observations really advance Mr. Sen's contention.
To accept the submission of Shri Sen that a
law founded on discrimination is not entitled to the protection of Art.
31C, as such a law can never be said to be to
further the Directive Principle affirmed in Art. 39(b), would indeed be, to use
a hackneyed phrase, to put the cart before 1020 the horse. If the law made to
further the Directive Principle is necessarily non-discriminatory or is based
on a reasonable classification, then such law does not need any protection such
as that afforded by Art. 31C. Such law would be valid on its own strength, with
no aid from Art. 31C. To make it a condition precedent that a law seeking the
haven of Art. 31C must be non-discriminatory or based on reasonable
classification is to make Art. 31C meaningless.
If Art. 14 is not offended, no one need give
any immunity from an attack based on Art. 14. Bhagwati J. did not say anything
to the contrary. On the order hand, it appears to us, he was at great pains to
point out that the broad egalitarian principle of social and economic justice
for all was implicit in every Directive Principle and, therefore, a law
designed to promote a Directive Principles, even if it came into conflict with
the formalistic and doctrinaire view of equality before the law, would most
certainly advance the broader egalitarian principle and the desirable
constitutional goal of social and economic justice for all.
If the law was aimed at the broader
egalitarianism of the Directive Principles, Art. 31C protected the law from
needless, unending and rancorous debate on the question whether the law
contravened Art. 14's concept of equality before the law. That is how we
understand Bhagwati J's observations. Never for a moment did Bhagwati J. let in
by another door the very controversy which was shut out by Art.
31C. Of course, the law seeking the immunity
afforded by Art. 31 C must be a law directing the policy of the State towards
securing a Directive Principle. Here, we are content to use the very words of
Art. 31C, While we agree with Bhagwati, J. that the object of the law must be
to give effect to the Directive Principle and that the connection with the
Directive Principle must not be 'some remote or tenuous connection', we
deliberately refrain from the use of the words 'real and substantial',
'dominant', 'basically and essentially necessary' and 'closely and integrally
connected' lest anyone chase after the meaning of these expressions, forgetting
for the moment the words of the statute, as happened once when the words
'substantial and compelling reasons' were used in connection with appeals
against orders of acquittal and a whole body of literature grew up on what were
'substantial and compelling reasons'.
As we have already said, we agree with much
that has been said by Bhagwati J. And what we have now said about the
qualifying words is only to caution ourselves against adjectives getting the
better of the noun. Adjectives are attractive forensic aids but in matters of
interpretation they are diverting intruders. These observations have the full
concurrence of Bhagwati J.
1021 We are firmly of the opinion that where
Art. 31C comes in Art. 14 goes out. There is no scope for bringing in Art.
14 by a side wind as it were, that is, by
equating the rule of equality before the law of Art. 14 with the broad
egalitarianism of Art. 39(b) or by treating the principle of Art. 14 as
included in the principle of Art. 39(b). To insist on nexus between the law for
which protection is claimed and the principle of Art. 39(b) is not to insist on
fulfilment of the requirement of Art. 14. They are different concepts and in
certain circumstances, may even run counter to each other. That is why the need
for the immunity afforded by Art. 31C. Indeed there are bound to be innumerable
cases where the narrower concept of equality before the law may frustrate the
broader egalitarianism contemplated by Art. 39(b). To illustrate, a law which
prescribes that every landholder must surrender twenty percent of his holding
as well as a law which prescribes that no one shall hold land in excess of 20
acres, may both satisfy the ritual requirements of Art. 14. But clearly, the
first would frustrate and the second would advance the broader egalitarian
principle. We are, therefore, not prepared to accept the submission of Shri
Sen, that any law seeking the protection of Art. 31C must not be a law founded
on discrimination.
The next question for consideration is
whether the Coking Coal Nationalisation Act is a law directing the policy of
the State towards securing 'that the ownership and control of the material
resources of the community are so distributed as best to subserve the common
good'. Coal is, of course, one of the most important known sources of energy,
and, therefore, a vital national resource. While coal is necessary as a source
of energy for very many industries, coking coal is indispensable for the
country's crucial iron and steel industry. So, Parliament gave the first
priority to coking coal. First there was legislation in regard to the coking
coal mines and then there was legislation in regard to all coal mines, coking
as well as non-coking. By the Coking Coal Mines Nationalisation Act all coking
coal mines known to exist in the country were nationalised. Coke oven plants
which were part of the coking coal mines so nationalised being in or belonging
to the owners of the mines also stood automatically nationalised.
Other coke oven plants which did not belong
to the owners of the mines but which were located near about the nationalised
coking coal mines were also identified and nationalised by express provision to
that effect. At that stage of the rationalisation and nationalisation of the
coal mining industry, it 1022 was apparently thought necessary and sufficient
to nationalise such coke oven plants as were in or belonged to the nationalised
coking coal mines or as were identified as located near the nationalised coking
coal mines, leaving out all other coke oven plants.
The nationalisation of the coking coal mines
and the coke oven plants was 'with a view to reorganising and reconstructing
such mines and plants for the purpose of protecting, conserving and promoting
scientific development of the resources of coking coal needed to meet the
growing requirements of the iron and steel industry and for matters connected
therewith or incidental thereto'. We do not entertain the slightest doubt that
the nationalisation of the coking coal mines and the specified coke oven plants
for the above purpose was towards securing that the ownership and control of
the material resource of the community are so distributed as best to subserve
the common good'. The submission of Shri A.K. Sen was that neither a coal mine
nor a coke oven plant owned by private parties was a 'material resource of the
community'. According to the learned counsel they would become material
resources of the community only after they were acquired by the State and not
until then. In order to qualify as material resources of the community the
ownership of the resources must vest in the community i.e.,the State. A
legislation such as the Coking Coal Mines Nationalisation Act may be a
legislation for the acquisition by the State of Coking Coal Mines and coke oven
plants belonging to private parties but it is not a legislation towards
securing that the ownership and control of the material resources are so
distributed as best to subserve the common good. Shri Sen invited our attention
to the emphasis which Krishna Iyer, J. laid on the word "distribute"
occurring in Art. 39(b) of the Constitution in State of Karnataka v. Ranganatha
Reddy(1) and Krishna Iyer, J's description of it as 'the key word' and the
dissertation on 'the genius of the Article'. Shri Sen urged that if the word
"Distribute" was given its proper emphasis, it would inevitably
follow that material resources must belong to the community as a whole, that is
to say, to the State or the public, before they could be distributed as best to
subserve the common good. Since those material resources which belonged to the
State only could be distributed by the State, Shri Sen argued that material
resources had first to be acquired by the State before they could be
distributed. A law providing for acquisition was not a law for distribution. We
are unable to appreciate the submission of Shri Sen. The expression 1023
'material resources of the community' means all things which are capable of
producing wealth for the community. There is no warrant for interpreting the
expression in so narrow a fashion as suggested by Shri Sen and confine it to
public- owned material resources, and exclude private-owned material resources.
The expression involves no dichotomy. The words must be understood in the
context of the Constitutional goal of establishing a sovereign, socialist,
secular, democratic republic. Though the word 'socialist' was introduced into
the Preamble by a late amendment of the Constitution, that socialism has always
been the goal is evident from the Directive Principles of State Policy. The
amendment was only to emphasise the urgency. Ownership, control and
distribution of national productive wealth for the benefit and use of the
community and the rejection of a system of misuse of its resources for selfish
ends is what socialism is about and the words and thought of Art. 39 (b) but
echo the familiar language and philosophy of socialism as expounded generally
by all socialist writers. To quote a recent writer, "Socialism is, first
of all, a protest against the material and cultural poverty inflicted by
capitalism on the mass of the people. It expresses a concern for the social
welfare of the oppressed, the unfortunate and the disadvantaged. It affirms the
values of equality, a classless society, freedom and democracy. It rejects the
capitalist system and its competitive ethos as being inefficient in its USE OF
RESOURCES--. They (Socialists) want a new system, whether by reform or
revolution, in which productive wealth is OWNED and CONTROLLED by the community
and USED FOR COMMUNAL ENDS".
We may also look at it this way. When we say
that the State of Himachal Pradesh possesses immense forest wealth or that the
State of Bihar possesses immense mineral wealth, we do not mean that the
Governments of the States of Himachal Pradesh and Bihar own the forest and
mineral wealth; what we mean is that there is immense forest and mineral wealth
in the territories of the two States, whether such wealth is owned by the
people as a whole or by individuals. Again, when we talk of, say, a certain
area in Delhi being a Bengali, Punjabi or South Indian area, we do not mean
that the area is owned by Bengalis, Punjabis or South Indians but only that
large numbers of Bengalis, Punjabis or South Indians live in that area. When
Art. 39 (b) refers to material resources of the community it does not refer
only to resources owned by the community as a whole but it refers also to
resources owned by individual members of the community. Resources of the
community do not mean 1024 public resources only but include private resources
as well.
Nor do we understand the word
"distribute" to be used in Art. 39 (b) in the limited sense in which
Shri Sen wants us to say it is used, that is, in the sense only of retail
distribution to individuals. It is used in a wider sense so as to take in all
manner and method of distribution such as distribution between regions,
distribution between industries, distribution between classes and distribution
between public, private and joint sectors. The distribution envisaged by Art.
39(b) necessarily takes within its stride the transformation of wealth from
private-ownership into public ownership and is not confined to that which is
already public-owned. The submissions of Shri Sen are well answered by the
observations of Krishna Iyer, J. in State of Karnataka v. Ranganatha Reddy
which we quote below:
"The key word is distributed and the
genius of the article, if we may say so, cannot but be given fully play as it fulfills
the basic purpose of re-structuring the economic order. Each word in the
article has a strategic role and the whole article is a social mission. It
embraces the entire material resources of the community. Its task is to
distribute such resources. Its goal is so to undertake distribution as best to
sub-serve the common good. It re-organizes by such distribution the ownership
and control.
'Resources' is a sweeping expression and
covers not only cash resources but even ability to borrow (credit resources).
Its meaning given in Black's Legal Dictionary is:
"Money or any property that can be
converted into supplied; means of raising money or supplies;
capabilities of raising wealth or to supply,
necessary wants; available means or capability of any kind".
And material resources of the community in
the context of reordering the national economy embraces all the national
wealth, not merely natural resources, all the private and public sources of
meeting material needs, not merely public possessions. Everything of value or
use in the material world is material resources and the individual being a
member of the community his resources are part 1025 of those of the community.
To exclude ownership of private resources from the coils of Article 39(b) is to
cipherise its very purpose of redistribution the socialist way. A directive to
the State with a deliberate design to dismantle feudal and capitalist citadels
of property must be interpreted in that spirit and hostility to such a purpose
alone can be hospitable to the meaning which excludes private means of
production or goods produced from the instruments of production. Shri A.K. Sen
agrees that private means of production are included in `material resources of
the community' but by some baffling logic excludes things produced. If a car
factory is a material resource, why not cars manufactured? `Material' may cover
everything worldly and `resources', according to Random House Dictionary, takes
in `the collective wealth of a country or its meas of producing wealth: money
or any property that can be converted into money; assets'. No further argument
is needed to conclude that Articles 39(b) is ample enough to rope in buses. The
motor vehicles are part of the material resources of the operators.
The next question if whether nationalisation
can have nexus with distribution. Should we assign a narrow or spacious sense
to this concept? Doubt less, the latter, for reasons so apparent and eloquent.
To `distribute', even in its simple dictionary meaning, is to `allot, to divide
into classes or into groups' and `distribution' embraces `arrangement,
classification, placement, disposition, apportionment, the way in which items,
a quantity, or the like, is divided or apportioned; the system of dispersing
goods throughout a community' (see Random House Dictionary). To classify and
allocate certain industries or services or utilities or articles between the
private and the public sectors of the national economy is to distribute those
resources. Socially conscious economists will find little difficulty in
treating nationalisation of transport as a distributive process for the good of
the community. You cannot condemn the concept of nationalisation in our Plan on
the score that Article 39(b) does not envelope it. It is a matter of public
policy left to legislative wisdom whether a particular scheme of take-over
should be undertaken".
1026 We hold that the expression `Material
resources of the community' is not confined to natural resources; it is not
confined to resources owned by the public; it means and includes all resources,
natural and man-made, public and private-owned.
The learned counsel submitted that Art. 39(b)
would be attracted if the industry as a whole was nationalised and not if only
a part of the industry was nationalised.
According to him, all the coke oven plants
wherever they existed had to be nationalised and no privately owned coke oven
plants could be allowed to be set up in the future, if Art. 39(b) was to be
applied. We are unable to see any force in this submission. The distribution
between public, private and joint sectors and the extent and range of any
scheme of nationalisation are essentially matters of State policy which are
inherently in appropriate subjects for judicial review. Scales of justice are
just not designed to weigh competing social and economic factors. In such
matters legislative wisdom must prevail and judicial review must abstain.
Another submission of the learned counsel was
that the coke produced by the nationalised coke oven plants was always sold in
the open market in the past and was never used by the steel industry because
steel plants had their own captive coke ovens to meet their requirements. That
the coke produced by the nationalised coke oven plants was previously used and
is even now being used by consumers other than those of the steel industry is
neither here nor there since we are really concerned with the future for which
the Act provides. The object of the Coking Coal Mines (Nationalisation) Act is
to reorganize and reconstruct coking coal mines and coke oven plants for the
purpose of protecting, conserving and promoting scientific development of the
resources of coking coal needed to meet the growing requirements of the Iron
and Steel Industry and for matters connected therewith and incidental thereto.
The requirements of the Iron and Steel Industry are recognized as `growing
requirements' and it is found necessary to protect, conserve and promote the
scientific development of resources of coking coal so as to meet those growing
requirements. The Act is contemplating the future. If the object of the Act is
to provide for the future, we do not see what difference it makes if in the
past or in the present, the hard coke produced by the nationalised cocking coal
mines is diverted elsewhere than the Iron and Steel Industry. The requirements
of the Iron any Steel Industry which are to be met by the 1027 nationalised
coke oven plants are its growing requirements, that is to say, its future
requirements. The design of nationalisation as it appears from the statute
itself, including the preamble, is that the increasing future demands of the
iron and steel industry are to be met by the nationalised coke oven plants and
demands of other industry are to be met by the non-nationalised and new coke
oven plants That the iron and steel industry is not now utilising the hard coke
produced by the nationalised coke oven plants is not material since the
industry is expected to expand, its requirements of hard coke are expected to
grow and the nationalised coke oven plants are to be harnessed and be in
readiness to meet those requirements.
In view of the foregoing discussion, we hold
that the Coking Coal Mines (Nationalisation) Act, 1972 is a legislation for
giving effect to the policy of the State towards securing the principle
specified in Art. 39(b) of the Constitution and is, therefore, immune, under
Art.
31(C), from attack on the ground that it
offends the fundamental right guaranteed by Art. 14.
But we do not also see that there is any
merit in the attack based on Art. 14. The facts that we are able to gather from
the several affidavits filed in the case are like this: In the beginning, that
is, when the Coking Coal Mines (Nationalisation) Act was passed, there were in
existence seventy five coke oven plants. Later, that is, after the
Nationalisation Acts came into force, eighty seven new coke oven plants came
into existence. Now, out of the original seventy five coke oven plants, forty
six were parts or units of the coking coal mines which were nationalised by the
Coking Coal Mines (Nationalisation) Act. Those forty six coke oven plants stood
nationalised as parts or units of the Coking Coal Mines. Another coke oven
plant which was in the same position went out of the statutory nationalisation
design by reason of the judgment of this Court in Bharat Coking Coal Company v.
P.K. Agarwala and another, a judgment from which we have now retracted. We are
told that the coke oven plant which was the subject matter of Bharat Coking
Coal Company v. P.K. Agarwala has since been acquired by the Central Government
by private treaty. Out of the remaining twenty six coke oven plants, twelve
were identified as situated near nationalised Coking Coal Mines and so they
were expressly specified in the 1972 Nationalisation Act and nationalised.
1028 Of the remaining fourteen, eleven were
parts or units of non-coking Coal Mines and they too stood nationalised when
non-coking coal Mines also were nationalised by the Coal Mines Nationalisation
Act, 1973. That leaves out three pre- existing coke oven plants unaccounted.
After the passing of the Nationalisation Acts, eighty seven new coke oven
plants were allowed to come into existence. Thus, finally, we have three
pre-existing and eighty seven new coke oven plants outside the nationalisation
scheme.
From the additional affidavit filed by P.R.
Desai on behalf of Bharat Coking Coal Limited, it transpires that when the Coking
Coal Mines (Nationalisation) Act, 1972 was passed, fourteen coke oven plants
were left out as they were not situated in or about coking coal mines but they
were expected to be nationalised when the coal mines in which they were located
or to which they belonged were to be nationalised by the Coal Mines
(Nationalisation) Act, 1973.
In fact, eleven coke oven plants were so
nationalised. But it was later discovered that three coke oven plants,
Nichitpur Coke Oven Plant, Shri Gopinathpur Coke Oven Plant and Royal Tisra
Coke Oven Plant did not belong to the owners of the collieries after which they
were named and near which they were located. So they were not covered by the
1973 Nationalisation Act too. Quite obviously, legislation is now necessary to
nationalise these three coke oven plants also.
The process of nationalisation of the coal
industry is, of course, not complete yet. Nationalisation of any industry or
means of production may not be and need not be effected all at once. It may be
achieved in stages. If in the process of nationalisation, some units are left
out in the earlier stages, either because it is so planned or because of some
mistake, we do not think we can possibly say that there has been a violation of
Art. 14. Nor can we draw any inference of discrimination from the circumstance
that subsequently eighty seven new coke even plants have been allowed to come
up. Obviously, there is demand for hard coke from industries other than the
iron and steel industry and, naturally, the state does not want to stifle those
industries by making it difficult for them to obtain their requirements,
especially since the production of the Nationalised Coke oven plants has first
to meet the requirements of the iron and steel industry. What is important to
note is that these eighty seven new coke oven plants are not situated in or
about coal mines though they are in the coal field area, as indeed they are
bound to be.
1029 Shri Ashok Sen drew pointed attention to
the earlier affidavit filed on behalf of Bharat Coking Coal Company and
commented severally on the alleged contradictory reasons given therein for the
exclusion of certain coke oven plants from the Coking Coal Mines
(Nationalisation) Act. But, in the ultimate analysis, we are not really to
concern ourselves with the hollowness or the self-condemnatory nature of the
statements made in the affidavits filed by the respondents to justify and
sustain the legislation. The deponents of the affidavits filed into Court may
speak for the parties on whose behalf they swear to the statement.
They do not speak for the Parliament. No one
may speak for the Parliament and Parliament is never before the Court.
After Parliament has said what it intends to
say, only the Court may say what the Parliament meant to say. None else.
Once a statute leaves Parliament House, the
Court's is the only authentic voice which may echo (interpret) the Parliament.
This the court will do with reference to the language of the statute and other
permissible aids. The executive Government may place before the court their
understanding of what Parliament has said or intended to say or what they think
was Parliament's object and all the facts and circumstances which in their view
led to the legislation. When they do so, they do not speak for Parliament. No
Act of Parliament may be struck down because of the understanding or
misunderstanding of Parliamentary intention by the executive government or
because their (the Government's) spokesmen do not bring out relevant
circumstances but indulge in empty and self-defeating affidavits. They do not
and they cannot bind Parliament.
Validity of legislation is not to be judged
merely by affidavits filed on behalf of the State, but by all the relevant
circumstances which the court may ultimately find and more especially by what
may be gathered from what the legislature has itself said. We have mentioned
the facts as found by us and we do not think that there has been any
infringement of the right guaranteed by Art. 14.
In the Writ Petition filed by Sanjeev Coking
Coal Company, a question has been raised about the identity of the coke oven
plant, sought to be taken over. Item 9 of the Second Schedule to the Coking
Coal Mines (Nationalisation) Act is as follows:- 1030 ___________________________________________________________
Sl. Name of the coke Location of the Name & address No. oven plant coke
oven plant of the owners of the coke oven plant ____________________________________________________________
x xx xxx xxx
9. New Sudamdih New Sudamdih Col- Sanjeev
Coke Manu- liery, Post office facturing Company, Patherdih, Distt. Care of H.
D. Dhanbad. Adjmera, Post Office Patherdih District Dhanbad.
x xx xxx xxx The submission of the petitioner
was that Item 9, which was the new Sudamdih Coke Oven Plant did not belong to
the petitioners, but non-the-less they were wrongly shown as the owners. Taking
advantage of the error, that is, the wrong description of the owner, the
Central Government had taken over the coke oven plant belonging to them, though
it was not the New Sudamdih coke oven plant at all. The submission of the
petitioners would suggest that there were two coke oven plants-one belonging to
the New Sudamdih mine and the other belonging to the Sanjeev Coking Coal
Company and that as a result of the mixing up of the names of the plant and
owner, the coke oven plant belonging to the petitioners has been taken over.
The respondents have denied that there were two coke oven plants-one belonging
to the owners of the mine and another belonging to the Sanjeev Coking Coal
Company. It is submitted on behalf of the respondents that there was only one
coke oven plant and that as it did not belong to the owners of the mine, it had
to be included separately in the Second Schedule. If it was part of the mine or
if it belonged to the owners of the mine, there was no need to include it
separately in the Second Schedule. That there has never been any real doubt
about the identity of the coke oven plant that was meant to be taken over and
in fact taken over is clear from the very statements in the affidavit filed on
behalf of the petitioners. In paragraph 19 of the petition, it is stated:
"Your peti- 1031 tioner's coke oven plant is included in the Second
Schedule in Item No. 9 thereof." In paragraph 23, it is stated: "Your
petitioner states that your petitioner has never been the owner of any coke
oven plant by the name of New Sudamdih, the name of the coke oven plant of your
petitioner is Sanjeev Coke Manufacturing Company's coke oven plant.
Although the said coke oven plant is situated
near New Sudamdih Colliery as every coke oven plant has got to be situated near
a colliery, the address of the coke oven plant of your petitioner is not New
Sudamdih Colliery. Your petitioner states that the name of your petitioner's
coke oven plant has been wrongly given in the second schedule to the said
Act." We do not think there is any possible doubt about the identity of
the coke oven plant shown as Item No.
9 in the second schedule to the Coking Coal
Mines (Nationalisation) Act. It is the coke oven plant belonging to the Sanjeev
Coking Coal Company.
One point which was touched by Shri A. K.
Sen, the learned counsel for Sunil Kumar Ray, was that in any event the coaltar
plant of the petitioners did not vest in the Government, as a result of the Nationalisation
Act. Shri Sen, however, conceded that the definition of coke oven plant was
wide enough to include the coaltar plant.
Therefore, he did not press the point.
In the result, the Writ Petitions of Sanjeev
Coking Coal Company and Sunil Kumar Ray are both dismissed with costs,
quantified at Rs. 10,000/- in each case.
AMARENDRA NATH SEN, J. I have had the benefit
of reading in advance the judgment of my learned Brother Chinnappa Reddy, J.
All the material facts have been set out in the judgment of my learned brother
who has also carefully considered all the arguments which were advanced from
the Bar. It does not, therefore, become necessary for me to reproduce the same
in this judgment.
After tracing the history of the relevant
Acts and analysing the provisions thereof my learned brother has held:-
"The final result of these statutes is that all coal mines known to exist
in the country are nationalised, whether they are coking coal mines or
non-coking coal mines.
1032 Along with them coke oven plants in or
belonging to the mines also stand nationalised. In addition twelve specified
coke oven plants not belonging to the owners of the mines but known to exist
near about the mines are also nationalised. All other coke oven plants are left
out of the scheme of nationalisation. The design revealed by the Acts is that
mining of coal is reserved entirely for the public sector, and as, all existing
coal mines, whether coking coal or non-coking coal, are nationalised and the
management of mines which may be discovered in the future is automatically
taken over by the Central Government until nationalised by appropriate
legislation; and, the manufacture of hard coke from coal is reserved for the
joint sector and so all coke oven plants belonging to or in coal mines and
twelve specified coke oven plants are nationalised while all other coke oven
plants are left for private exploitation; there is no ban against any new coke
oven plants being set up." I entirely agree with these observations. In
these writ petitions, the validity of the inclusion of the coke oven plants
belonging to the petitioners in the second schedule has been challenged mainly
on the ground that other coke oven plants standing in exactly the same position
as the coke oven plants of the petitioners were left out and had not been
nationalised. The petitioners complain that there has been a clear violation of
Art. 14 of the Constitution.
The principal answer of the Central
Government to the charge of discrimination is that the provisions of the Act
are immune from the challenge based on the ground of discrimination in view of
the protection afforded by Art.
31C of the Constitution. The Central
Government also contends that the inclusion of the coke oven plants of the
petitioners in the second schedule is clearly justified without any
infringement of Art. 14 of the Constitution.
My learned brother on a consideration of the
facts and circumstances of the case and the submissions made on behalf of the
respective parties has come to the conclusion that there is no merit in the
attack based on Art. 14. He has also held that Art. 31C of the Constitution
will in any event afford a clear answer to the charge of discrimination, if
there be any; and he has further expressed the 1033 view that the declaration
in the instant case that the law is for giving effect to the policy of the
State towards securing "that the ownership and control of the material
resources of the community are so distributed as to best sub=serve the common
good" as enumerated in Art. 39 (b) of the Constitution, is clearly
justified.
I must frankly confess that I had doubts in
my mind as to the legality of the nationalisation of the coke oven plants of
the petitioners in view of the discrimination alleged. But on an anxious and
very careful consideration of the matter I have come to the conclusion that in
the facts and circumstances of this case it cannot be said that there has been
any such discrimination as infringe Art. 14 of the Constitution.
My learned brother Chinnappa Reddy, J. in his
judgment observed:- "Coke oven plants which were part of the coking coal
mines as nationalised being in or belonging to the owners of the mines also
stood automatically nationalised. Other coke oven plants which did not belong
to the owners of the mines but which were located near about the nationalised
coking coal mines were also identified and nationalised by express provision to
that effect. At that stage of the rationalisation and nationalisation of the
coal mining industry, it was apparently thought necessary and sufficient to
nationalise such coke oven plants as were in or belonged to the nationalised
coking coal mines or as were identified as located near the nationalised coking
coal mines, leaving out all other coke oven plants.
The nationalisation of the coking coal mines
and the coke oven plants was `with a view to reorganising and reconstructing
such mines and plants for the purpose of protecting, conserving and promoting
scientific development of the resources of coking coal needed to meet the
growing requirements of the iron and steel industry and for matters connected
therewith or incidental thereto'. We do not entertain the slightest doubt that
the nationalisation 1034 of the coking coal mines and the specified coke oven
plants for the above purpose was towards securing that `the ownership and
control of the material resources of the community are so distributed as best
to subserve the common good.' I agree with these observations. To my mind,
therefore, there was a logical basis for the nationalisation of the coke oven
plants of the petitioners, leaving out a few and I am not satisfied that there
has been any rank or arbitrary discrimination in violation of Art. 14. I am
further of the opinion that even if on the basis of a doctrinaire and formalistic
attitude, it could be said that Art. 14 had been infringed, Art. 31C of the
Constitution and the appropriate declaration, in the peculiar facts and
circumstances of this case, would provide the necessary remedy for such
violation, if there be any. Applicability of Art. 31C and the validity of the
declaration will, to my mind, depend on the particular facts and circumstances
of a case. In the present case as the State has enacted the law in directing
its policy towards securing the principles formulated in Art. 39 (b) of the
Constitution, Art. 31C is properly attracted and the declaration is valid.
The decision of this Court in Minerva Mills
case relied on by Mr. Sen, is not of any great assistance and in the view that
I have taken it does not become necessary for me to refer to the same. It has
been represented to us that the said decision is pending review in this Court.
I, therefore, refrain from dealing with the said decision and from making any
observations or comments on the same.
I agree with my learned brother that these
writ petitions must fail and should be dismissed. Costs generally follow event.
To my mind, however, when a citizen is deprived of his property by a State
action and feels aggrieved by the act of the State and approaches the Court and
if it cannot be said that his grievance is absolutely frivolous, the citizen in
such a case should not be saddled with the costs simply because the Court finds
that his grievance has no valid legal basis. To my mind, it cannot be said that
the Writ petitions filed by the petitioners were vexatious particularly in view
1035 of the earlier decision of this Court in Bharat Coking Coal Ltd. v. P.K.
Agarwala.(1) I would, therefore, dismiss these writ petitions without any order
as to costs.
S.R. Petition dismissed.
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