# Appeals Nos. 100 to 106 dismissed. ' BANW ARILAL AGARW ALLA v. February zo. • THE STATE OF BIHAR AND OTHERS

- **Citation:** [1962] 1 S.C.R. 33
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Writ Peti- Chief Insp"tor of tions Nos. 475 and 476 of 1956
- **Bench:** B. P. Sinha, s. K. DAS, K. c. DAS GUPTA, N. Rajagopala Ayyangar, J. R. MunHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/appeals-nos-100-to-106-dismissed-banw-arilal-agarw-alla-v-february-zo-the-state-2127
- **Pages:** 11

## Headnote

Coal Mines-Colliery company-Contravention of coal mines
regulations-Prosecution of directors of private company-Legality
-Regulations not referred to Mining Board-Effect-Coal Mines
Regulations, r957-Mines Act. r923 (4 of r923), s. Io-Mines Act,
r952 (35 of r952), ss. 59(3), 76-Constitution of India, Art. I4 .
Section 76 of the Mines Act, r952, provides that where the
owner of a mine is a private company any one of the shareholders
thereof may be prosecuted and punished nnder this Act for any
offence for which the owner of the mine is punishable. The
appellant who was a shareholder and a director of a private
company owning a colliery, was prosecuted for an offence under
s. 74 of the Act for contravention of Regulations ro7 and r27 of
the Coal Mines Regulations, 1957. He challenged the validity
of the prosecutio\l on the grounds (r) that s. 76 of the Act in pursuance of which he who was not himself the owner of the colliery
but only one of the directors and shareholders had been prosecuted, was void as it violated Art. r4 of the Constitution of India,
and (2) that the Coal Mines Regulations, r957, were invalid as
they had been framed in contravention of s. 59 (3) of the Act,
inasmuch as there was no consultation with a Mining Board
before they were published as required by that sub-section. It
was not disputed that when the Regulations were framed, no
Mining Board as required under s. I2 of the Act had been con-
~ stituted, and so there had been no reference to any such Board,
5
Banwarilal
Agarwalla
v.
State of Biliar
Das Gupta J.
34
SUPREME COURT REPORTS
[1962]
but it was alleged that there was consultation with the Mining
Board constituted under s. ro of the Mines Act, r923.
Held:
(r) that the words "any one" ins. 76 of the Mines
Act, r952, should be interpreted as "every one" and that under
that section every one of the shareholders of a private company
owning the mine was liable to prosecution.
Accordingly, s. 76 did not' contravene Art. r4 of the Constitution.
Chief Inspector of Mines v. Lala Karam Chand Thapar,
[r962] r S. C. R. 9, followed.
(2) that compliance with the provisions in s. 59 (3) of the
Act was mandatory.
State of U. P. v. Manbodhan Lal Srivastava, [r958] S. C. R.
533, distinguished.
Quaere, whether consultation with the Mining Boards constituted under the provisions of the Mines Act, 1923, would be
sufficient compliance with s. 59 (3) of the Mines Act, 1952.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 131 of 1959.
Appeal by special leave from the judgment and
order dated November 21, 1958, of the Patna High
Court in M. J. C. No. 805 of 1958.
G. S. Pathak, S. C. Banerjee and P. K. Chatterjee,
for the appellant.
R. Ganapathy Iyer and R.H. Dhebar, for the respondents.
•
1961. February 10. The Judgment of the Court
was delivered by
DAS GUPTA, J.-On February 20, 1958, there occurred in the Central Bhowra Colliery, in Dhanbad in
Bihar an accident as a result of which 23 persons los.t
their lives. After an inquiry under s. 24 of the Mines
Act, 1952, into the causes of and the circumstances
attending the accident, and the publication of the
report of the inquiry, a complaint was prepared by
the Regional Inspector of Mines, Dhanbad, under the
direction of the Chief Inspector of Mines, Dhanbad,
before the Sub-Divisional Officer, Dhanbad, against
the appellant for an offence under s. 74 of the Mines
Act, 1952, for contravention of regulations 107 and 127 ,
of the Coal Mines Regulations, 1957. The Central
•
'
•
•
I S.C.R. SUPREME COURT REPORTS
35
Bhowra Colliery belongs, and belonged at the relevant
date to a private company, viz., M/s. Central Bhowra
Colliery Co., Private Limited. The appellant is and
was a shareholder and a director of this company.
After the Sub-Divisional Officer took cognizance of
the complaint and issued processes against him, the
appellant made an application to the Patna High
Court under Art. 226 of the Constitution, for the issue
of an appropriate writ for quashing the criminal proce

## Text

' •
1 s.c.R. SUPREME COURT REPORTS
33
d 99
z96r
We, therefore, allow the Appeals Nos. 98 an
,
__
set aside the orders of the High Court in Writ Peti- Chief Insp"tor of
tions Nos. 475 and 476 of 1956 and order that these
Mines
writ petitions be rejected. Appeals Nos. 103 and 104
v.
Lala Karam
are dismissed_
Chand Thapar
Appeals Nos. 98 and 99 allowed.
Das Gupta J.
Appeals Nos. 100 to 106 dismissed.
'
BANW ARILAL AGARW ALLA
v.
February zo.
•
THE STATE OF BIHAR AND OTHERS
•
•
(B. P. SINHA, c. J., s. K. DAS, K. c. DAS GUPTA,
N. RAJAGOPALA AYYANGAR and
J. R. MunHOLKAR, JJ.)
Coal Mines-Colliery company-Contravention of coal mines
regulations-Prosecution of directors of private company-Legality
-Regulations not referred to Mining Board-Effect-Coal Mines
Regulations, r957-Mines Act. r923 (4 of r923), s. Io-Mines Act,
r952 (35 of r952), ss. 59(3), 76-Constitution of India, Art. I4 .
Section 76 of the Mines Act, r952, provides that where the
owner of a mine is a private company any one of the shareholders
thereof may be prosecuted and punished nnder this Act for any
offence for which the owner of the mine is punishable. The
appellant who was a shareholder and a director of a private
company owning a colliery, was prosecuted for an offence under
s. 74 of the Act for contravention of Regulations ro7 and r27 of
the Coal Mines Regulations, 1957. He challenged the validity
of the prosecutio\l on the grounds (r) that s. 76 of the Act in pursuance of which he who was not himself the owner of the colliery
but only one of the directors and shareholders had been prosecuted, was void as it violated Art. r4 of the Constitution of India,
and (2) that the Coal Mines Regulations, r957, were invalid as
they had been framed in contravention of s. 59 (3) of the Act,
inasmuch as there was no consultation with a Mining Board
before they were published as required by that sub-section. It
was not disputed that when the Regulations were framed, no
Mining Board as required under s. I2 of the Act had been con-
~ stituted, and so there had been no reference to any such Board,
5
Banwarilal
Agarwalla
v.
State of Biliar
Das Gupta J.
34
SUPREME COURT REPORTS
[1962]
but it was alleged that there was consultation with the Mining
Board constituted under s. ro of the Mines Act, r923.
Held:
(r) that the words "any one" ins. 76 of the Mines
Act, r952, should be interpreted as "every one" and that under
that section every one of the shareholders of a private company
owning the mine was liable to prosecution.
Accordingly, s. 76 did not' contravene Art. r4 of the Constitution.
Chief Inspector of Mines v. Lala Karam Chand Thapar,
[r962] r S. C. R. 9, followed.
(2) that compliance with the provisions in s. 59 (3) of the
Act was mandatory.
State of U. P. v. Manbodhan Lal Srivastava, [r958] S. C. R.
533, distinguished.
Quaere, whether consultation with the Mining Boards constituted under the provisions of the Mines Act, 1923, would be
sufficient compliance with s. 59 (3) of the Mines Act, 1952.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 131 of 1959.
Appeal by special leave from the judgment and
order dated November 21, 1958, of the Patna High
Court in M. J. C. No. 805 of 1958.
G. S. Pathak, S. C. Banerjee and P. K. Chatterjee,
for the appellant.
R. Ganapathy Iyer and R.H. Dhebar, for the respondents.
•
1961. February 10. The Judgment of the Court
was delivered by
DAS GUPTA, J.-On February 20, 1958, there occurred in the Central Bhowra Colliery, in Dhanbad in
Bihar an accident as a result of which 23 persons los.t
their lives. After an inquiry under s. 24 of the Mines
Act, 1952, into the causes of and the circumstances
attending the accident, and the publication of the
report of the inquiry, a complaint was prepared by
the Regional Inspector of Mines, Dhanbad, under the
direction of the Chief Inspector of Mines, Dhanbad,
before the Sub-Divisional Officer, Dhanbad, against
the appellant for an offence under s. 74 of the Mines
Act, 1952, for contravention of regulations 107 and 127 ,
of the Coal Mines Regulations, 1957. The Central
•
'
•
•
I S.C.R. SUPREME COURT REPORTS
35
Bhowra Colliery belongs, and belonged at the relevant
date to a private company, viz., M/s. Central Bhowra
Colliery Co., Private Limited. The appellant is and
was a shareholder and a director of this company.
After the Sub-Divisional Officer took cognizance of
the complaint and issued processes against him, the
appellant made an application to the Patna High
Court under Art. 226 of the Constitution, for the issue
of an appropriate writ for quashing the criminal proceedings. This application was summarily dismissed.
It is against t,hat order of dismissal that this appeal
has been filed by special leave obtained from this
Court.
.
The two main grounds on which the prayer for
quashing the proceedings was based were: (1) that s .
76 'of the Mines Act, 1952, in pursuance of which the
appellant, who was not himself the owner of the
colliery company, but only one of the directors and
shareholders has been prosecuted, is void as it violates
·Art. 14 of the Constitution; (2) the Coal Mines Regulations, 1957, are invalid having been framed in contravention of s. 59(3) of the Mines Act, 1952. These
two contentions were also urged before us in appeal.
The first contention is based on an assumption that
the word "any one" in s. 76 means only "one of the
directors, and only one of the shareholders". This
question as regards the interpretation of the word "any
one" ins. 76 was raised in Criminal Appeals Nos. 98 to
106 of 1959 (Chief Inspector of Mines etc.)(') and it has
been decided there that the word "any one" should be
interpreted there as "every one". Thus under s. 76
every one of the shareholders of a private company
owning the mine, and every one of the directors of a
public company owning the mine is liable to prosecution. No question of violation of Art. 14 therefore
arises.
As regards the other contention that the regulations
are invalid the appellant's argument is that the provisions of s. 12 and s. 59 of the Mines Act, 1952, are
mandatory. Section 12 provides:-
"(!) The Central Government may constitute for
any part of the territories to which this Act extends,
(r) [1962] t
S.C.R. g.
I96I
Banwarilal
Agarwalla
v.
State of Bihar
Das Gupta J.
Banwarilal
Agarwalla
v.
State of Bihar
Das Gupta j.
36
SUPREME COURT REPORTS
[1962]
or for any·group or class of mines, a Mining Board
'
consisting of-
(a) a person in the service of the Government, not
being the Chief Inspector or an Inspector, appointed
by the Central Government to act as Chairman;
(b) the Chief Inspector or an Inspector appointed
by the Central Government;
(c) a person, not being the Chief Inspector or an
Inspector, appointed by the Central Government;
(d) two persons nominated by owners of mines or
,
their representatives in such manner as may be
prescribed;
(e) two persons to represent the interest of miners,
who shall be nominated in accordance with provisions laid down in the section."
Section 59 empowers the Central Government to
make regulations consistent with the Act for all or
any of the purposes mentioned therein, while s. 58
empowers the Central Government to make rules consistent with the Act for all or any of the purposes
mentioned therein. Section 59 after providing in its
first sub-section that the power to make regulations
and rules conferred by sections 57 and 58 is subject to
the condition of the regulations and rules being made
after previous publication provides in its third sub-
•
section further conditions as regards the making of
regulations. This sub-section runs thus:-
"Before the draft of any regulation is published
under this section it shall be referred to every Mining
Board which is, in the opinion of the Central Government concerned with the subject dealt with by the
'
regulation, and the regulation shall not be so
published until each such Board has had a reasonable opportunity, of reporting as to the expediency
of making the same and as to the suitability of
its provisions."
A similar provision was made in the fourth sub-section as regards the making of rules. By an amendment made in 1959 these two sub-sections have been
combined into one.
It was not disputed before us that when the Regula- •
tions were framed, no Board as required under s. 12
•
1 S.C.R. SUPREME COURT REPORTS
37
had been constituted, and so, necessarily there had
been no reference to any Board as required under
s. 59. The question raised is whether the omission to
make such a reference make the rules invalid. As
has been recognised again and again by the courts, no
general rule can be laid down for deciding whether
any particular provision in a statute is mandatory,
meaning thereby that non-observance thereof involves
the consequence of invalidity or only directory, i.e., a
direction the non-observance of which does not entail
the consequence of invalidity, whatever other consequences may occur. But in each case the court has
to decide the legislative intent. Did the legislature
intend in making the statutory provisions that nonobservance of this would entail invalidity or did it
not? To decide this we have to consider not only the
actual words used but the scheme of the statute, the
intended benefit to public of what is enjoined by the
provisions and the material danger to the public by
the contravention of the same. In the present case we
have to determine therefore on a consideration of all
these matters whether the legislature intended that
the provisions as regards the reference to the Mines
Board could be contravened only on pain of invalidity
of the regulation .
Looking at the language of the section, we find, the
legislature, after saying in the first part of sub-s. (3),
that before any regulation is published, it "shall be"
referred to every Mining Board which is, in the opinion
of the Central Government concerned with the subject, and goes on to say in the latter part, that the
regulation "shall not" be published until each Board
has had a reasonable opportunity of reporting as to
the expediency and suitability of the provisions.
While it is true that language is only one of the
many considerations which have to be taken into account in deciding whether a requirement is directory
or mandatory, it is legitimate to note that the language used in this case is emphatic and appears to be
designed to express an anxiety of the legislature that
the publication of the regulation, which is condition
precedent to the making of the regulations, should
I96I
Banwarilal
Agarwalla
v.
State of Bihat>
Das Gupta j
1961
BanwarilaI
Agarwalla
v.
State of Bihar
Das Gupta ].
38
SUPREME COURT REPORTS
[1962]
itself be subject to two conditions precedent-first, a
reference to the Mining Boards concerned, and secondly, that sufficient opportunity to the Board to make
a report as regards the expediency and suitability of
the proposed regulations.
The cause of this anxiety becomes patent, when one
examines the matters on which regulations can be
made. Even a cursory examination of the purposes
set out in the 27 clauses of s. 57 shows that most of
them impinge heavily on the actual working of the
mines. To mention only a few of these, viz., cl. (c)
under which regulations may be made for prescribing
the duties of owners, agents and managers of mines
and of persons acting under them; (g) for determining
the circumstances in which and the conditions subject
to which it shall be lawful for more mines than one to
be under a single manager; (j) for prohibiting, restricting or. regulating the employment of adolescents and
women in mines; (k) for providing for the safety of
the persons employed in a mine; (m) for providing for
the safety of the roads and working places in mines;
(n) for the inspection of workings and sealed off fire
areas in a mine; ( o) for providing for the ventilation
of mines; (r) for providing for proper lighting of mines
and regulating the use of safety lamps therein;-are
sufficient to show that the very purpose of the Act
may well be defeated unless suitable and practical
regulations a.re framed to help the achievement of
this purpose.
Arbitrary and haphazard regulations
without full consideration of their practicability and
ultimate effect on the efficient working of the mines,
would, apart from, often defeating the purpose of the
Act, affect injuriously the general economy of the
country.
That, we are entitled to presume, is the reason
behind the legislature's anxiety that Mining Boards
should have an opportunity of examining regulations,
and expressing their opinion before they are finalised.
As has been already mentioned s. 12 which deals with
the formation of boards provides for representation
thereupon of two persons nominated by owners of
mines or their representatives and two persons to represent the interests of persons employed in mines, in
•
I
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1 S.C.R. SUPREME COURT REPORTS
39
addition to three persons representing the Government. The constitution is calculated to ensure that
all aspects including on the one hand the need for
securing the safety and welfare of labour and on the
other hand the practicability of the provisions proposed from the point of view of the likely expense and
other considerations can be thoroughly examined. It is
certainly to the public benefit that Boards thus constituted should have an opportunity of examining
regulations proposed in the first place, by an administrative department of the government and of expressing their opinion. It is true that the law does not
require concurrence of the Board with the regulations
proposed. It is reasonable to expect however that
when a Board has expressed an opinion in favour of
the rejection or modification of a proposed regulation,
the department would not treat it lightly. But, even
where the opinion expressed by the Board is not
accepted the very fact that there has been such an
examination by the Board, and _a consequent reexamination by the department is likely to minimise
the risks to public welfare.
There can be little doubt therefore that generally
speaking strict obedience of the command in sub-s. 3
of s. 59 regarding consultation with the Mining Board
is likely to promote public welfare.
Let us now examine the matter from another aspect and ask ourselves the question: what risk there is
to the public welfare of an insistence in all cases that
the omission of consultation as enjoined in s. 59 would
invalidate a regulation. Emergencies may arise, when
in order that the public may not suffer, regulations
must be framed with the least possibje delay; and
much valuable time may be lost if a reference must
be made to all the Mining Boards concerned and
opportunity given to them to express their opinion
before regulations are made. In such cases, public
interest may well be endangered if regulations, in
order to be valid, have to conform to the requirements
of previous consultation with the Mining Boards. We
find however that such cases of emergency have been
specially dealt with in s. 60 of the Act, the operative
portion of which runs thus:-
Banwarilal
Agarwalla
v.
State of Bihar
Das Gupta ].
Banwarilal
Agarwal/a
v.
State of Bihar
Das Gupta ].
40
SUPREME COURT REPORTS
(1962]
"Notwithstanding anything contained in sub-sections (1), (2) and (3) of section 59, regulations under
clause (1) and clauses (k) to (s) excluding clause (1)
of s. 57 may be made without previous publication
and without previous reference to Mining Boards, if
the Central Government is satisfied that for the
prevention of apprehended danger or the speedy
remedy of conditions likely to cause danger it is
necessary in making such regulations to dispense
with the delay that would result from such publication and reference".
Thus, the apprehended danger to public interest from
requiring as a condition of the validity of regulations
previous consultation with the Mining Board is averted.
An examination of all the relevant circumstances,
viz., the language used, the scheme of the legislation,
the benefit to the public on insisting on strict compliance as well as the risks to public interest on insistence on such compliance leads us to the conclusion
that the legislative intent was to insist on these provisions for consultation with the Mining Board as a
prerequisite for the validity of the regulations.
This conclusion is strengthened by the fact that in
s. 60 when providing for the framing of regulations in
certain cases without following the procedure enjoined
in s. 59, the legislature took care to add by a proviso
that any regulation so made "shall not remain in
force for more than two years from the making thereof". By an amendment made in 1959 the period has
been changed to one year.
It is not unreasonable to read this proviso as expressing by implication the legislature's intention that
when the special circumstances mentioned in s. 60 do
not exist and there is no scope for the application of
that section no regulation made in contravention of
s. 59 will be valid for a single day.
Stress was laid on behalf of the respondent on the
fact that s. 59 does not require that regulations must
have the concurrence of the Mining Boards; and it
was pointed out that this Court in State. of U. P. v.
Manbodhan Lal Srivastava(') in holding that Art. 320(3)
\2) [195sJ s.c.R. 533.
' .
f
•
•
J. •
•
•
1 S.C.R. SUPREME COURT REPORTS
41
of the Constitution was not mandatory, relied, inter
alia, on the fact that "the requirement of the consul.
tation with the Commission does not extend to mak-
'ing the advice of the Commission, on these matters,
binding on the government". While it is true that
this Court did attach weight to this circumstance, we
have to remember that this was the only one of the
several circumstances, on the total consideration of
.which, the court decided that the provision for consultation in Art. 320(3) was not mandatory. One of
these circumstances was that Art. 320(3) contained a
proviso, ,which gave a clear indication "of the intention of the Constitution-makers that they did envisage
certain cases or class of cases in which the Commission
need not be consulted". "If the provisions of Art .
320(3) were of a mandatory character'', observed
Sinha, J., (as he then was), while delivering the judgment of the Court, "the Constitution would not have
left it to the discretion of the head of the executive
government to undo these provisions by making
regulations to the contrary". It has to be noticed, as
pointed out above, that s. 60 of the Mines Act, 1952,
also lays down clear provisions where the consultation
as required in s. 59 need not take place. Here, however, the legislature has not left it to the discretion of
the executive government "to undo these provisions
by making regulations to the contrary". The legislature itself has given clear guidance as to the cases
.;, where such consultation need not be made by the
Government. What is more, the legislature has laid
down that r·egulations made without such consultation
would have a limited life.
In Srivastava's Case (1) this Court quoted with
approval the following observations of the Privy
Council in Montreal Street Railway Company v. Normandin ('):-
"When the provisions of a statute relate to the
performance of a public duty and the case is such
· that to hold null and void acts done in neglect of
this duty would work serious general inconvenience,
(r) [1958] S.C.R. 533·
6
(2) [1917] A.C, 170, r75,
Banwarilal
.Agarwalla
v.
Slate of Bihar
Das Gupta ] .
Banwarilal
Agarwalla
v.
State of Bihar
Das Gupta ].
42
SUPREME COURT REPORTS
[1962]
or injustice to persons who have no control over
those entrusted with the duty, and at the same time
would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them,
though punishable, not affecting the validity of the
acts done."
and applied the principle thus laid down to the case
before it.
There is however no scope in the present case of
applying this principle in support of the directory
nature of s. 59(3). As we have pointed out above, the
inconvenience that might be caused by holding regulations made in contravention of s. 59(3) invalid is
removed by the provisions of s. 60; and on the other
hand to hold that regulations may be validly made
without following the procedure laid down in s. 59even in cases not falling within s. 60-is likely to be
harmful to public interest, and to cause general inconvenience. It is really a converse case of what the Privy
Council had to consider in Montreal Street Railway
Company's Gase (1) and this Court considered in Srivastava's Gase(').
For all the reasons given above, we are of opinion
that the provisions in s. 59(3) of the Mines Act, 1952,
are mandatory.
There remains for consideration the question whether these provisions were complied with before the
Coal Mines Regulations, 1957, were framed.
As has
been pointed out above, it was not disputed before us
that at the time when the regulations were framed no
new Mining Board had been constituted under the
Mines Act, 1952, and consequently no consultation
with any Mining Board constituted under the 1952
Act took place. It has been stated before us however
on behalf of the respondents that the Mining Boards
constituted under s. 10 of the Mines Act, I 923, were
continuing to operate at the time these regulations
were framed and that there was full consultation with
these Mining Boards before these regulations were
framed.
(2) [1958) S.C.R. 533.
•
•
•
_,
1 S.C.R. SUPREME COURT REPORTS
43
If in fact there was such consultation the further
question would arise whether consultation with the
Mining Boards constituted under the provisions of the
Mining Act, 1923, would be sufficient compliance with
the provisions of s. 59(3) of the present Act.
Before
these questions are decided it is not possible to come
to a definite conclusion whether the Coal Mines Regulations, 1957, are valid or not.
As there is not sufficient material before us to decide the question, whether in fact the Mining Boards constituted under s. 10
of the 1923 Act were functioning at the date when
these regulations were made and whether these Boards
were consulted before the regulations were framed,
we have not thought fit to consider here the further
question whether if such consultation had taken place
that would be sufficient compliance with s. 59(3) of
the 1952 Act.
In the circumstances, the proper course, in our opinion, is to direct that the criminal proceedings pending in the court of the sub-divisional magistrate be
disposed of by him or any other magistrate to whom
the case may be transferred in accordance with law,
after deciding the question whether there was consultation with Mining Boards constituted under s. 10 of
t
the Mines Act, 1923, before the regulations were
framed and, if so, whether such consultation amounted to sufficient compliance with s. 59. If his conclusion is that there has not been compliance with the
provisions of s. 59 the regulations must be held to be
invalid and the accused would be entitled to an
•
acquittal; if, on the other hand, he holds that there
has beeri sufficient compliance with the provisions of
s. 59 he should dispose of the case after coming to a
conclusion on the evidence as regards the allegations
made against the appellant in the petition of complaint.
The appeal is disposed of accordingly.
Appeal allowed. Gase remanded.
Banwarilal
Agarwalla
v.
State of Bihar
Das Gupta ].