# [1963] 2 S.C.R. 904

- **Citation:** [1963] 2 S.C.R. 904
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1963-2-s-c-r-904-2555
- **Pages:** 34

## Headnote

JHI
M•vl.
904
St1PRtml: COtIBT REPORTS {1963)
KALIPADACHOWDHURY
!I.
UNION OF INDIA
( B. P. Snnu, C. J., P. B.
GAJ.B:NDBA.GA.DXA.B,
K. SUllB.A R..i.o, K. N. W &NCHOO and
J. C. SHA.H, JJ. )
Mi,.ing R.gu1ation-Mining Boards, OOMUlt.Uion wilhOtmatitution of boarda, if obligatory-&gulatiooA maM. toitlwut
oonatituting Mining Boarda-Valiclit!I of- Coal Minu .RegulationA, 1957 tefl. 127 (8)-Mine• Act, 1952 (85 of 1952),
... 12, 69.
"
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 extrndcd or for
any group or clasa of mine·. In 1957 only one mining
board i.e. the Bihar Mining Board was in e:Wtence 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
regula'tion was published it should be referred to every Min•
'
ing Board concerned and th~t it ahall not be published uritil
each such Mining Board had had a reasonable opportunity
of reporting on it. The Central Government referred the
draft of the (',oal Mines Regulations to the Bihar Mining
Board which circulated the draft to all .the membera 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 1 (i) it was incumbent upon the Central Government under a. 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 o( the
Blhar Mining Board did not amount to consultation with the
Board within the meaning of s. 59(3).
Held (Per majority, Subba Rao, J., ciiaaeflling), that
the Coal Mines Regulations, 1957, had been duly framed
and publlahed. Section 59(3) merely provided that if a 1
Mining Board was in exiatence at the relevant time it waa
ohlipl«)' Oil lhc CCAtral Government to comwt h before
•
.. •
2S.C.R.
SUPREME (l()UR~ REPORTS
90ti
the draft· Regulation was published. But s. 12 was not
mandatory and it was not obligatory on the Central Govern·
m•nt to constitute any or all of the Mining Boards. There
was nothing in the Act or 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 rcferr·
ed to it and to decide cases which may be referred. to it under
s. 81. The .working of the Act 1vas 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 t!;e draft was settled
and the regulations were finally made.
Banwarilal Agarwalla v. Stat~ of Bihar, [1962J l S;C.R.
33, explained.
He/,d, 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 C~ntral 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 (S)
as . the Boards were not in existence.
A fair
construction of ss.
I 2 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
Board• .and to refer the regulations to. them b

## Text

_Characters 0–39,887 of 65,989. This is a partial read: ask again with offset=39887 for what follows._

JHI
M•vl.
904
St1PRtml: COtIBT REPORTS {1963)
KALIPADACHOWDHURY
!I.
UNION OF INDIA
( B. P. Snnu, C. J., P. B.
GAJ.B:NDBA.GA.DXA.B,
K. SUllB.A R..i.o, K. N. W &NCHOO and
J. C. SHA.H, JJ. )
Mi,.ing R.gu1ation-Mining Boards, OOMUlt.Uion wilhOtmatitution of boarda, if obligatory-&gulatiooA maM. toitlwut
oonatituting Mining Boarda-Valiclit!I of- Coal Minu .RegulationA, 1957 tefl. 127 (8)-Mine• Act, 1952 (85 of 1952),
... 12, 69.
"
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 extrndcd or for
any group or clasa of mine·. In 1957 only one mining
board i.e. the Bihar Mining Board was in e:Wtence 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
regula'tion was published it should be referred to every Min•
'
ing Board concerned and th~t it ahall not be published uritil
each such Mining Board had had a reasonable opportunity
of reporting on it. The Central Government referred the
draft of the (',oal Mines Regulations to the Bihar Mining
Board which circulated the draft to all .the membera 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 1 (i) it was incumbent upon the Central Government under a. 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 o( the
Blhar Mining Board did not amount to consultation with the
Board within the meaning of s. 59(3).
Held (Per majority, Subba Rao, J., ciiaaeflling), that
the Coal Mines Regulations, 1957, had been duly framed
and publlahed. Section 59(3) merely provided that if a 1
Mining Board was in exiatence at the relevant time it waa
ohlipl«)' Oil lhc CCAtral Government to comwt h before
•
.. •
2S.C.R.
SUPREME (l()UR~ REPORTS
90ti
the draft· Regulation was published. But s. 12 was not
mandatory and it was not obligatory on the Central Govern·
m•nt to constitute any or all of the Mining Boards. There
was nothing in the Act or 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 rcferr·
ed to it and to decide cases which may be referred. to it under
s. 81. The .working of the Act 1vas 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 t!;e draft was settled
and the regulations were finally made.
Banwarilal Agarwalla v. Stat~ of Bihar, [1962J l S;C.R.
33, explained.
He/,d, 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 C~ntral 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 (S)
as . the Boards were not in existence.
A fair
construction of ss.
I 2 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
Board• .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 dts<iharge its duty it was incumbent upon the Central Govermnent
to appoint the Mining Boards. Apart from this,· the Regul·
atiom 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 miri,es
in one part of the country by consulting a Board constituted
for another part of the Country.
'
•
1908
Kaliflad• Cloo""""".1
••
Union of lnl.ia
906
SUPREME COt::RT RFPCJM'S [1963]
1161
B1111wanlal .dg11no<Ula v. Stau q/ Bihar. [ 1962] I S. c.
Kolil~.1 . R. 33, followed.
rr.;;qf1"41•
Akoc.1: Aahdown It Co. v. The Chief Revmu AuUwrity,
Bombay, A. I. R. 1923 P. C. 138, referred to.
ORIGINAL
JumsDIOTION : Criminal Appeal
Writ Petition No. 15 of 1962
Petition under Art. 32 of the Constitution of
India for the enforoement of Fundamental Right.a.
B. Sen andK. L. Halhi for the petitioner.
C. K. Daphtary, Solicitor-General of India, B.
R.L. Iyengar and R.H. DMbar, for the respondents.
S. Chaudhury, S. C. Banerjee and P. K. Chatt£rjee
for the Intervener.
1962. May 3. The judgment of Sinha, C. J.,
Gajendradagkar, W ancboo and Shah, J J ., wa.s
delivered by Gajendragadkar, J., Subba Ra.o, J.
delivered a eeparate Judgment.
Goi<ndra'}al>.or J.
GAJENDRAGADKAR, J .-The four petitionel'll
who are in charge of the working of the mine
owned by the colliery known as Sa.lanpur '•A".
Sea.m Colliery in the District of Burdwan, are
being prosecuted for tbe alleged oontraventiori of
the provisions of Hegulation 127(3) of the Coal
Mines Hegula.tions, 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 nature of prohibition should be ill81led
quashing the said criminal proceedings on the
ground that the said proceedings contravene Art.
21)( l) of the Constitution and as such, are void.
To
this petition have been impleatlcd as opponents
1 to 4, the Union of India, the Chief Inspector of
Min011, Dhanbad (W.B.), the Regional Inspector
of Mines, Sitarampur and the Sub-Divisional Magistrate, Aaanaol, respectively. The proseoution of
\'
'
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t
"
2 S.C.R.
SUPREME COURT REPORTS
907
the petitioners has Mmmenoed at the instance of
opponen~s 2 a.nd 3 and the case against .t~em i~
·being tried by opponent No. 4. The pet1t1oners
contention is that Regulation No. 127(3) whose
alleged contravention ,has given rise to the present
proceedi~s against them is inval~d, uUra vires ~r;id
inoperative and so, the prosecution of the pet1t10ners contravenes Art. 20( 1) of the Constitution. It
is on this basis that they want the said proceedings
to be qua.shed and ask for an order restraining
opponents 2 and 8 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. pa.rt.of the Coal Mines
Regulations framed by opponent No. 1 in exercise
of the powers conferred ·upon it by section 57 of
the Aot, the same having been previously published
as required, by sub-section (1) of s. 59 of the said
Act.· Regulation 127(3) provides that no working
which hag approached wit,hin a distance of 6tl
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 ca8e 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
1962
Ka!ipada Chowdhury
v.
Union of India
G•jendra1adka1 J.
1'61
Xa'ifJrida CJt<,wdhuT'
••
Un;on of Tntlia
Gafendrag?d~ar J,
908
SUPREME COURT REPORTS (1963]
the basis of their prosecution having regard to the
provisions of Art. 20(1) of the Constitution.
Ac<'ording to the petitioners, opponent No. 1
is no doubt conferred with the power of making
Regulations under s. 57 of the Act, buts. 59(3), as
it stood at the rfolevant time, has imposed an obJi.
gation on opponent No. I that the draft of the
ea.id Regulations shall not be publishPd unless the
Mining Boards therein specified have had a reason·
able opportunity of reportinl!' to It as to the expediency of making the Regulations in question and·
as to the suitability of its provisions. The petitioners a.liege that at the relevant time, when the
Regulations were made in 1957, no Mining Bo11rds
had been established under s. 12 of the Act.
Three
Boards had been established under s. IO 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 bf" treated as Boards validly constituted.
These invalid Boards were the Madh.va Pradesh
Mining Board and the West Bengal Mining Board.
A third Boa.rd existed at the relevant time and
that is. the Bihar Minin!!' Board. This Board had
been constituted on the 22nd February, 1946 und"r
s. 10 of the earlier Aot as it then stood. The petititioners' case is that it was obligatory for opponent
No. I to consult all the throe Boards and since to out
of the three Boards were not properly constituted,
the fact that reference was ma.de 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 Biha.r
Mining Board, but the Board did not make a. report
to opponent No. I as a Board but its individual
members communicated their opinions to opponent
No. I. Therefore, on the whole, s. 59(3) hau not
been complioJ 1vith and that makes the whole body
•
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•
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2 S.C.R.
SUPREME COURT REPORTS
909
of Regulations issued in 1957 invalid and inopera·
tive. That, in brief, is the basis on which the peti:
tioners want the criminal proceedings vending
against them to be qua8hed.
The respondents dispute the main contention
of the petitioners that s. 59(3) has not been com·
plied with. According to them, H. 59( 3) has been
duly complied with and the Regulations made are
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 consult.ad and the Bihar Mining Board,
which was the validly existing Board at the rele·
vantr time, had been duly consulted. The respon·
dents 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 ~ubsequ
ently 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 con·.
tends thats. 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 ~he light of s. 59(3), it followq that the Cen·
tral Government bas 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 rec1Jnt 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
1962
Kali'pada Choudhury
Y.
Union of lndi4
Gojendragadkar J.
1962
~alipoda Chowdhur,J
.
•.
Union of I ndin
910
SUPREME COURT REPORTS (1963]
the said decision has concluded the point that the
requirement of s. 59(3) is mandatory. It is, there·
fore, necessary, in the first instance, to exmine the
effect of the said decision.
Gaje.dragadkarJ.
In "Banwari Lal Agarwalla v. State of
Bihar'' (1), this Court bad occasion to consider the
validity of the prosecution launched against the
appellant on the.ground pf the contravention of one
of the Regulations ma.de 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 Gover!JmPnt to consult Mining Boards even
if they were in existBnce.
Alternatively, it was
suggested that the i\lining Boards which had been
constituted under the earlier Act were continued
under the A<lt by virtue of s. '24 of the Genera.I
Clauses Act and that the said Boards had been duly
consulted. On the other hand, the appellant urged
that the Boards to which the respondents referred
were not validly con~tituted under the Act and bad
not been properly ronsulted. It was also argued on
his behalf that both sections 12 and 59(3) were mandatory. It is in the light of th~se facts th:it the
effect of the decision of this Court in Banwari Lal's
case(') 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 tha question
as to whether s.59 (3) was mandatory and came to
Pl 11962) 1s.c.R.33,
'
• '
2 S.C.R.
SUPREME COURT REPORTS
911
the conclu~ion that it was. The Court did not con·
19~
1
sider whether s.12 was mandatory and in the course
-- di
f
Kalip ... da ('/ww .ur.}
o the judgment, there is no reference at all either
, .
to t~e questian of construing s.12 or to its ~ffect.
Union •f India
Havmg held that s.59 (3) was mandatory, the Court
--
d
Gojaidragadkar J.
reman ed the case to the learned Magistrate before
w.hom. the proceedings were
pending with a
d1rect10n 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 charaoter of the provisions· of s.12,
it would have construed ·the said provi8ions 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. Apparen- ·
tly, the respondents contended that even if Boards
have been constituted under s.12, it is not obligatory
on the Central Government' to consult them under
•
s.59(3). The requirement about the said consulta·
ti on is directory and not mandatory. It is this con·
tention which has been rejected by the Court and
havin'g held that s.59(3)· was mandatory and that
existing Boards must be consulted before Hegulations are framed, the question of fact which ihen
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
(
190•
Kolipah CMwdltur'
v.
llni.otr t1f India
Gafentl•attlflAar J.
912
SUPREME CX>URT REPORTS (1963]
Regulation is published and in that sense s.59(3) is
mandatory. It would, we think, pot be right to
assume that the contention of appellant that s.12
like s.59(3} is mandatory was decided without discussing the question about its construction and its effect.
The facts pleaded hy the respondents in that case
made it unneceBBary 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 nece888.ry to read both
sections 12 and 59. Section 12 deals with the constitution of Mining Boards. Section 12( l) provides
tb~t the Central Government may oonstitute 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 &gulations to which
s.59(3) applies.
Section 59 as it stood in the Act prior to its
..
'
amendment in 1959 read thus:-
f
"59 (I) 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 aooordance
with clause ( 3) of section 23 of the
General Clauses Act, 1897
(I 0 of
I 897), as that after which a draft of
regulations or rules propoeed to be
2 S.C.R.
SUPREME COURT REPORTS
913
made will be taken. under oonsidera1!62
tion, , shall not be. less than three
KalipadiJ CAou:dhury
?
months from the date on which the
••
.,
draft of the proposed regulations or
Union of India
rules is published for general inforGojendrtJgadka1 J.
mation.
'
(3) Before the draft of any regulation is
published under this section, it shall
be referred t? every Mining Board
which is, in the opinion of the Central
~·
Government, I concerned with the
subject dealt Jwith by the regulation
. and the reg. htion shall not be so
published until each such Board has
had a reasdnable opportunity of
reporting as~ to the expediency of
making the s me and as to the suitability of its provisions.
.
(4) No rule shall be made unless the
t
draft thereof has been referred to
'
every Mining · Boar<l constituted in
that part of the territories to which
·this Act exte'nds w_hich is affected by
the rule, and' unless each such Boa.rd
has had a reasonable opportunity of
reporting as to the expediency of
making the same and as to the suit·
ability 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.
~
1961
KaliP•rl.s Chowdhury
••
Union of India
Caje11drag!ldka., J.
914
SUPREME COURT RE.PORTS [1963]
(7) The regulations and rules made
under sections 57 and 513 shall be laid
down before Parliament, as soon as
may be, after they a.re 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 I 9f.9 by Act 62 of
1959, sub. s(3) of B. 59 has been deleted and combined provision is made both for regulations and rules
by sub-section (4) by making a suita.blo amendment
in the said sub-section so as to include both regulation~ and rules within its scope. Sub-section (4) thus
amended reads thus:
"59(4). No regulation or rule shall be made
unleSB the draft thereof has been
referred to every Mining Board constituted in th11t part of the territories
to which this Act extends which is
affected by the regulation or rule anq
unleBB 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 a. 12 may exercise such of
the powers of an Inspector under this Act a.s it
thinks neoeseary or expedient to exeroise for the
purpose of deciding or reporting upon any matter
referred to it. 8ection 14(2) confers upon the
Boa.rd the pow.era of a Civil Court for the purposes
therein specified. It would thus be seen that the
Boards constituted under s. 12 may have occasion
'
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2 S.C.R.
SUPREME COURT REPORTS
915
either to make a report · in respect of regulations
or rules referred to them under 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( l) provides that if the court
trying any case instituted at the instance of the
Chief Inspector or other officers therein specified
is of opinion tliat 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 niade. 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.· Thrts, if the Central Govern·
ment 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 s. 59(3) postulates the existence
of the ·relevant . Boards and makes it obligatory
on the Central Government to. consult them and
this can be satillfied 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
1962
Kalipada Chowdlu.r;
v.
Union OJ·lndia
Gaiendrr gadl ar J
19111
KaiiJada Cltowihur7
v.
Unicn of India
916
SUPREME COURT REPORTS [1963]
is suggested by Mr. Sen. Section 59(3) as it stooci
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, Rhall be consulted ; and
this means that there should be a Mini11g 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 tlaat
a Mining Board muat be constituted, for that is
the subject-matter of the provisions contained in
s. 12. If s. 12 is not mandatory, then s. 59(11)
muat 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, s. 59(4) as it stands after the
amendment of 1959, requires that 'the dr!!oft of the
rule or regulation shall be referred to every Mining
Board constituted in that part of the territories
to which the Act exteuds which is affected by the
regulation or rule. Thlit 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 (I) it would not be logical to
assume thats. 59(3) or e.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 (ii)
or s. 59 (4); that is the subje<lt-matter of
s. 12 and, so, whether or not it is obligatory on
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)
•
2 S.Q.R.
.SUPREME COURT REPORTS
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 b"ing out the contradiction
·between the obligation sought to be introduced by
the use of the word "shall" and the obvious dis'
oretion 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 Boe.rd 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 le!t to be determined by
the Central Government according to the requiremen ts of the territories or the exigencies of the
groups or classes of mines. Therefore, we are
Kalipada Ohowdhur_y
••
Union of Indio
OaJendragad!ar J.
198ll -
/Ca/;pada Cli.wdhu,.,
••
Unioti oJ Indio
-
Cajtndragadlcar J.
918
SUPREME COURT REPORTS [1963]
unable to a.ocopt the argument thats. 12(1) imposes
a.n obligation on the Central Government to constitute Boards in order that in ma.king regulations,
there should be appropriate Boards who ha.vo to
be cousulted under s. 59(3).
The diroctory na.t ner
of the provisions of s. 121 ( l) rather strengthen the
construction placed upon s. 59(3) by this Court
in the case of Ba.nwa.ri La.I Agarwalla. that if there
are Boards ih existenoe, they must bo consulted
before dra.ft regula.tions are published under section 59.
But that is very different from sa.ving
tha.t Boards must be constituted in all- a.reas or
in respect of a.II groups or cl&l!ses of mines which
are intended to be covered by the regulations
proposed to be made by the Central Government ..
Mr. Se.n relied on section 5 for showing that
the use of the word "ma.y" in that section really
means "shall"·· The ea.id section provides that tho
Central Government may a.ppoint such a person as
possesses the prescribed qua.lifioations to be the
Chief Inspector of Mines for all territories to which
the Act extends; and it may be conceded tha.t the
implementa.tion of the ma.teria.1
provi~ions of the'
Act depends upon the appointment of tho Chief
Inspector of Mines and so, in the context, "ma.y"
in s. 5 would rea.lly mea.n "she.II" so fa.r a.s the
appointment of the Chief Inspector is concerned.
But this section itself shows tha.t "may" may not
necessa.rily mean "shall" in regard to the appointment of Inspectors contempla.ted by the latter pa.rt
of the said section.
Whether or not the word.
"may" mt1ans "may' or it mea.ns "shall" would
inevitably d11pend upon the oontext in which tho
ea.id word occurs a.nd a.a we have just indicated,
the context of s. 12(1) is not in favour of the construction for which Mr. Son contends. It oa.nnot
be said that like the appointment of the Chief
Inspector of llfines, the constitution of the Boards.
..
I
•
'
I
-
2 S.C.R.
SUPREME COURT REPORTS·
919
1962
---
is essential for the working of the Aot, for, with·
out the constitution of the Boards, the working of
the Aot can .smoothly prooeed apace.
We have
already pointed out that there are only two funo·
tions which can be assigned to the Boards;. under
s. 81(2) it is discretionary for the Central Govern·
meut to refer a pendinir criminal case to the Board
or not, and under s. 59(3) oonsultation 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 conte;t or s. 12 from the
context of section 5.
If alip ,,dii Ohl)UJdhu ~'
There is another provision of the Act to
which reference may he made in this connection.
Seotion 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 Iilspeotor, or Inspector, frame and
submit to the Chief Inspector or Inspector a draft of
bye-laws in the manner indicated in the said sub-sec·
tion.
Section 61(2), inter alia, authorises the
Chief Inspector or the Inspector to propose amend·
ments in the s<.Lid draft. Section 61(3) then lays
down that if within a period. of two months from
the
date
on
which any draft bye-laws pr
draft amendments are sent by the Chief Inspector or
Inspe·ctor to the owner, agent or ·man~ger 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.Jaws to'he made
under sub-section ( l); 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,
~ppoint in this behalf. It would be noticed that this
sub-section assumes that there may not be in existence a Mb1ing Board in the area where the mine
••
Unit.n of In.d1a
Gaj~ratla<lkar J . ·
IraJ;/Jat/o Ch=dlii<r7
••
Union of Indio
920
SUPREME OOURT REPORTS [1963)
in question is situated or for the group or ola~s of
mines to which the said mine belon2R. Now, if thfl
petitioners' construction of e. 12 read with s. 59t3)
is accepted, it would follow that in order to make
the regulations binding on all the minee 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 claaa-wise; and tha.t
would not be consistent with the assumption made
by sPction 61(3) that in certain aree.e or in respect
of certain groups or cl&880s of minee a Mining Board
may not be in existence. It is in this indirect way
that s.61 (3) eopports the construction which we a.re
disposed to pla.ce on section 12(1).
,
It is then urged tha.t if the respondents' con·
•truction of s.12 is upheld, s. 59(3) ors. 59(4) would
be rendered nugatory and the whole purpose of consulting the Boarda would be defeated. We are not
impressed by this argument. In testing the validity
of this argument, it is neceS&ary 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 rule• as
therein
specified
respectively.
Section
59( I)
requires that the power to ma.ke regulations is
subject to the condition tbat the said regulations
would be made after previous publication. Section
59( 2) thE>n provides for the period which has to pass
before the said draft can be taken into consider&·
tion. Section 59(3) refer to th., consultation with
the Boards.
Lo1rically, con•ultation with the
Boards is the first step to be taken in making
regula.t.ions ; publication of the draft regulatiom
is -the seoond 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 le.et step. After the regu ·
lations are thus published, they shall have effect
as if enacted in the Act. That is e. 59,5). The
;
·•
)
2 S.C.R.
SUPREME COURT REPORTS
921
first publication is tha publication of the draft
1962
under s. 23(3} of the Ganeral Clauses Act and it
is significant that tha object oC-this publication is
Kalipadav~h.wcl/Jur'
to invite objections or suggestions from person9 or
Union of rrnua
bodies affected by the draft regulations. Section
"d
Oai1nriragadkar J.
23(4) of the· General Clauses Act prov1 es 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 t: .•. a whole
object of publishing the draft is to giv£ notice to
the parties concerned with the regulations which
a.re 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)
refera, a.II parties affected by the draft would have
an opportunity to make their suggesti!)ns or
objections and they would be considered before the
draft is settled and regulations a.re 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 s. 59(41 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 ma.de by the petitioners against the
validity of their prosecution has to be judged. We
have already noticed that it is common ground
1961
Kol pada CMu:dhu•y
••
Union?/ India
922
SUPREME COURT REPORTS [1963]
between the parties that the Madhya. Pradesh
llfin11ing
Board and the West Bengal
Mining
Board which were constituted under s. IO of the
Act of 1923 ha.ve become invalid after the amend·
ment of s. IO by the Amending Act 5 of 1935.
Under s. I 0 as it originally stood, the Board was
constituted by the Provincial Government and it
was composed of five members. After the amend.
ment, a. Board had to be constituted by the Central
Government and it was to consist of seven members. Th11.t is why the respondents concede that the
Madhya. Pradesh and West Bengal Mining Boards
could not be ea.id to be validly constituted for the
purpose of s. 12 even by the application of s. 24
of the Genera.I 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 .!\fining Board.·
It was constituted in 1946 and by virtue of s. 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 ma.de. It is not disputed that the draft regu·
lations were sent by the C<Jntral Government to the
Bihar Mining Boa.rd through the State Governm mt.
It appears that after the Boa.rd received the Bllid
draft, it was circulated by the Chairman of the Board
to all the members of the Board and the memb~r~
communieated their · opinions individually. It is
argued that the communication by individual
members of the Boa.rd of their opinions to the
Central Government cannot be said to amount to
the consulation with the Boa.rd and so, it is urged
th11.t 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) requi~es is that
a reBfonable opportunity should be given to the
Board to make its report as to the expediency or
the suitablity of the proposed regulations.
How
•
•
•
j
•
\
2 S.C.R.
SUPREME COURT REPoRTS
923
the Board chooses to make its report is not a matter
1 whi<ih 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
nnder s.14, the Board is empowered to make a
report, it is unlikcly that any Board, when consulted, would refuse to make a report. But, nevertheleSB, the position still remains that if the Board
refused to make a report, that will not introduce
any infirmity in the regulations which the Central
Govemment may ultimately frame and publish
under s.69(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.
SUBl!A RA.o, 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,
Asan11ol, and the said Magistrate has taken cogni·
zance of the said complaint under s. 190(l)(c) of
the Code of Criminal Procedure, read with s. 73
of the Mines Act; 1952 (herein.after ca.lied the Act).
The petitioners challenge the validity of the
la.id Begula.tfons on the ground that they were
19~·
KalipJda Cii.wdlru,,
••
Union oj India
Gojendragadkar J,
s..w..11 .. J.
11161
lr•lipada Cliowdhury
••
Utti•n oflnrlia
Sa6bo&oJ.
924
SUPREME COURT REPORTS (1963]
made in contravention of tl1e provisions of s. 59(3)
of the Act. Section 59( 3) of the Act imposes a
condition ou thll Ce!ltral Govcrnm<'nt to give a
reas•1nahle opportunity to a. l\lioing Board before
making regultLtions in "xeroise of the power
conferred on it by tho Act.