Full Judgment Text
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PETITIONER:
BANWARILAL AGARWALLA
Vs.
RESPONDENT:
THE STATE OF BIHAR AND OTHERS
DATE OF JUDGMENT:
10/02/1961
BENCH:
GUPTA, K.C. DAS
BENCH:
GUPTA, K.C. DAS
SINHA, BHUVNESHWAR P.(CJ)
DAS, S.K.
AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.
CITATION:
1961 AIR 849 1962 SCR (1) 33
CITATOR INFO :
F 1957 SC 397 (43)
R 1963 SC 134 (6,7,13,22)
ACT:
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, 1957-Mines Act..1923 (4 of 1923).
s..10-Mines Act, 1952 (3.5 of 1952), ss. 59(3),76-
Constitution of India, Art. 14.
HEADNOTE:
Section 76 of the Mines Act, 1952, provides that where the
owner of a mine is a private company any one of the
shareholders thereof may be prosecuted and punished under
this Act for any offence for which the owner of the mine is
punishable. The appellant who was a shareholder and a
director of a private company owning a colliery, was
prosecuted for an offence under S. 74 Of the Act for
contravention of Regulations 107 and 127 Of the Coal Mines
Regulations, 1957. He challenged the validity of the
prosecution on the grounds (1) that S. 76 of the Act in pur-
suance of which he who was not himself the owner of the
colliery but only one of the directors and shareholders had
been prosecuted, was void as it violated Art. 14 of ’the
Constitution of India, and (2) that the Coal Mines
Regulations, 1957, were invalid as they had been framed in
contravention of s. 59 (3) of the Act, inasmuch as there was
no consultation with a Mining Board before they were
published as required by that sub-section. It was not
disputed that when the Regulations were framed, no Mining
Board as required under s. 12 Of the Act had been con-
stituted. and so there had been no reference to any such
Board,
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but it was alleged that there was consultation with the
Mining Board constituted under s. 10 of the Mines Act, 1923.
Held: (1) that the words "any one" in S. 76 of the Mines
Act, 1952, should be interpreted as "every one" and that
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under that section every one of the shareholders of a
private company owning the mine was liable to prosecution.
Accordingly, s. 76 did not contravene Art. 14 Of the Con-
stitution.
Chief Inspector of Mines v. Lala Karam Chand Thapar,[1962]
1S. C. R. 9, followed.
(2) that compliance with the provisions in s. 59 (3) Of the
Act was mandatory.
State of U. P. v. Manbodhan Lai Srivastava, [1958] S. C. R.
533, distinguished.
Quaere, whether consultation with the Mining Boards con-
stituted under the provisions of the Mines Act, 1923, would
be sufficient compliance with s. 59 (3) Of the Mines Act,
1952.
JUDGMENT:
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 B. H. Dhebar, for the respondents.
1961. February 10. The Judgment of the Court was delivered
by
DAs GUPTA, J.-On February 20, 1958, there occurred in the
Central Bhowra Colliery, in Dhanbad in Bihar an accident as
a result of which 23 persons lost their lives. After an
inquiry under. a. 24 of the Mines Act, 1952, into the causes
of and the circumstances attending the accident, and the
publication of the report of the inquiry, a complains was
prepared by the Regional Inspector of Mines, (Dhanbad, under
the direction of the Chief Inspector of Mines, Dhanbad,
before the Sub-Divisional Officer, Dhanbad, against the
appellant for an offence under s. 74 of the Mines Act, 1952,
for contravention of regulations 107 and 127 of the Coal
Mines Regulations, 1957. The Central
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Bhowra Colliery belongs, and belonged at the relevant date
to a private company, viz., M/s. Central Bhowra Colliery
Co., Private Limited. The appellant is and was a
shareholder and a director of this company. After the Sub-
Divisional Officer took cognizance of the complaint and
issued processes against him, the appellant made an
application to the Patna High Court under Art. 226 of the
Constitution, for the issue of an appropriate writ for
quashing the criminal proceedings. This application was
summarily dismissed. It if; against that order of dismissal
that this appeal has been filed by special leave obtained
from this Court.
The two main grounds on which the prayer for quashing the
proceedings was based were: (1) that s. 76 of the Mines Act,
1952, in pursuance of which the appellant, who was not
himself the owner of the colliery company, but only one of
the directors and shareholders has been prosecuted, is void
as it violates Art. 14 of the Constitution; (2) the Coal
Mines Regulations, 1957, are invalid having been framed in
contravention of a. 59(3) of the Mines Act, 1952. These two
contentions were also urged before us 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
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interpretation of the word "any one" in s. 76 was raised in
Criminal Appeals Nos. 98 to 106 of 1959 (Chief Inspector of
Mines etc.) (1) and it has been decided there that the word
"any one" should be interpreted there as "every one". Thus
under s. 76 every one of the shareholders of a private
company owning the mine, and every one of the directors of a
public company owning the mine is liable to prosecution. No
question of violation of Art. 14 therefore
arises.
As regards the other contention that the regulations are
invalid the appellant’s argument is that the provisions of
s. 12 and s. 59 of the Mines Act, 1952, are mandatory.
Section 12 provides:-
"(1) The Central Government may constitute for
any part of the territories to which this.
Act extends,
(1) [1962] 1 S.C.R. 9.
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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 if;
published under this section it shall be
referred to every Mining Board which is, in
the opinion of the Central Government
concerned with the subject dealt with by the
regulation, and the regulation shall not be so
published until each such Board has had a
reasonable opportunity, of reporting as to the
expediency of making the same and as to the
suitability of its provisions."
A similar provision was made in the fourth sub-section as
regards the making of rules. By an amendment made in 1959
these two subsections have been combined into one.
It was not disputed before us that when the Regulations were
framed, no Board as required under s. 12
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had been constituted, and so, necessarily there had been no
reference to any Board as required under s. 59. The question
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raised is whether the omission to make such a reference make
the rules invalid. As has been recognised again and again
by the courts, no general rule can be laid down for deciding
whether any particular provision in a statute is mandatory,
meaning thereby that non-observance thereof involves the
consequence of invalidity or only directory, i.e., a
direction the non-observance of which does not entail the
consequence of invalidity, whatever other consequences may
occur. But in each case the court has to decide the
legislative intent. Did the legislature intend in making
the statutory provisions that nonobservance of this would
entail invalidity or did it not? To decide this we have to
consider not only the actual words used but the scheme of
the statute, the intended benefit to public of what is
enjoined by the visions and the material danger to the
public by pro the contravention of the same. In the present
case we have to determine therefore on a consideration of
all these matters whether the legislature intended that the
provisions as regards the reference to the Mines Board could
be contravened only on pain of invalidity of the regulation.
Looking at the language of the section, we find, the
legislature, after saying in the first part of sub-s. (3),
that before any regulation is published, it "shall be"
referred to every Mining Board which is, in the opinion of
the Central Government concerned with the subject, and goes
on to say in the latter part, that the regulation "shall
not" be published until each Board has had a reasonable
opportunity of reporting as to the expediency and
suitability of the 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
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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) far providing for
the ventilation of mines; (r) for providing for proper
lighting of mines and regulating the use of safety amps
therein;-are sufficient to show that the very purpose of the
Act may well be defeated unless suitable and practical
regulations are framed to help the achievement of this
purpose, Arbitrary and haphazard regulations without full
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consideration of their practicability and ultimate effect on
the efficient working of the mines, would, apart from, often
defeating the purpose of the Act, affect injuriously the
general economy of the country.
That we are entitled to presume, is the reason behind the
legislature’s anxiety that Mining Boards should have an
opportunity of examining regulations, and expressing their
opinion before they are finalised. As has been already
mentioned s. 12 which deals with the formation of boards
provides for representation thereupon of two persons
nominated by owners of mines or their representatives and
two persons to re. present the interests of persons employed
in mines, in
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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 express-
ing their opinion. It is true that the law does not require
concurrence of the Board with the regulations proposed. It
is reasonable to expect however that when a Board has
expressed an opinion in favour of the rejection or
modification of a proposed regulation, the department would
not treat it lightly. But, even where the opinion expressed
by the Board is not accepted the very fact that there has
been such an examination by the Board, and a consequent re.
examination by the department is likely to minimise the
risks to public welfare.
There can be little doubt therefore that generally speaking
strict obedience of the command in sub-s. 3 of s. 59
regarding consultation with the Mining Board is likely to
promote public 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 possible de-lay; and much valuable time may be lost if
a reference must be made to all the Mining Boards concerned
and opportunity given to them to express their opinion
before regulations are made. In such cases, public interest
may well be endangered if regulations, in order to be valid
have to conform,to the requirements of previous consultation
with, the Mining Boards. We find however that such cases of
emergency have been specially dealt with in a. 60 of the
Act, the operative portion of which runs thus:-
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"Notwithstanding anything contained in subsec-
tions (1), (2) and (3) of section 59,
regulations under clause (1) and clauses (k)
to (a) excluding clause (1) of s. 57 may be
made without previous publication and without
previous reference to Mining Boards, if the
Central Government is satisfied that for the
prevention of apprehended danger or the speedy
remedy of conditions likely to cause danger it
is necessary in making such regulations to
dispense with the delay that would result from
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such publication and reference".
Thus, the apprehended danger to public interest from
requiring as a condition of the validity of regulations
previous consultation with the Mining Board is averted.
An examination of all the relevant circumstances, viz., the
language used, the scheme of the legislation, the benefit to
the public on insisting on strict compliance as well as the
risks to public interest on insistence on such compliance
leads us to the conclusion that the legislative intent was
to insist on these provisions for consultation with the
Mining Board as a prerequisite for the validity of the
regulations.
This conclusion is strengthened by the fact that in s. 60
when providing for the framing of regulations in certain
cases without following the procedure enjoined in s. 59, the
legislature took care to add by a proviso that any
regulation so made "shall not remain in force for more than
two years from the making thereof". By an amendment made in
1959 the period has been changed to one year.
It is not unreasonable to read this proviso as ex. pressing
by implication the legislature’s intention that when the
special circumstances mentioned in s. 60 do not exist and
there is no scope for the application of that section no
regulation made in contravention of s.59 will be valid for a
single day.
Strew was laid on behalf of the respondent on the fact that
s. 59 does not require that regulations must have the
concurrence of the Mining Boards; and it was pointed out
that this Court in State of U. P. v. Manbodhan Lal
Srivastava (2) in holding that Art. 320(3)
(2) [1958] S.C.R. 533.
41
of the Constitution was not mandatory, relied, inter alia,
on the fact that "the requirement of the consultation with
the Commission does not extend to making the advice of the
Commission, on these matters, binding on the government".
While it is true that this Court did attach weight to this
circumstance, we have to remember that this was the only one
of the several circumstances, on the total consideration of
which, the court decided that the provision for consultation
in Art. 320(3) was not mandatory. One of these
circumstances was that Art. 320(3) contained a proviso,
which gave a clear indication "of the intention of the
Constitution-makers that they did envisage certain cases or
class of cases in Which the Commission need not be
consulted". "If the provisions of Art. 320(3) were of a
mandatory character", observed Sinha, J., (as he then was),
while delivering the judgment of the Court, "the
Constitution would not have left it to the discretion of the
head of the executive government to undo these provisions by
making regulations to the contrary". It has to be noticed,
as pointed out above, that s. 60 of the Mines Act, 1952,
also lays down clear provisions where the consultation as
required in s. 59 need not take place. Here, however, the
legislature has not left it to the discretion of the
executive government "to undo these provisions by making
regulations to the contrary". The legislature itself has
given clear guidance as to the cases where such consultation
need not be made by the Government. What is more, the
legislature has laid down that regulations made without such
consultation would have a limited life.
In Srivastava’s Case (1) this Court quoted with approval the
following observations of the Privy Council in Montreal
Sirgeet Railway Company v. Nor. mandin ("):-
"When the provisions of a statute relate to
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the performance of a public duty and the case
is such that to hold null and void acts done
in neglect of this duty would work serious
general inconvenience,
(1) [1958] S.C.R. 533.
(2) [1917] A.C. 170, 175.
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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 incon-
venience. It is really a converse case of what the Privy
Council had to consider in Montreal Street Railway Company’s
Case (1) and this Court considered in Srivastava’s Case (2).
For all the reasons given above, we are of opinion that the
provisions in s. 59(3) of the Mines Act, 1952, are
mandatory.
There remains for consideration the question whether these
provisions were complied with before the Coal Mines
Regulations, 1957, were I framed. As has been pointed out
above, it was not disputed before us that at the time when
the regulations were framed no new Mining Board had been
constituted under the Mines Act, 1952, and consequently no
consultation with any Mining Board constituted under the
1952 Act took place. It has been stated before us however
on behalf of the respondents that the Mining Boards
constituted under s. 10 of the Mines Act, 1923, were
continuing to operate at the time these regulations were
framed and that there was-full consultation with these
Mining Boards before these regulations were
framed.
(1) [1917] A.C. 170, 175.
(2) [1958] S.C.R. 533.
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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
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of the sub-divisional magistrate be disposed of by him or
any other magistrate to whom the case may be transferred in
accordance with law, after deciding the question whether
there was consultation with Mining Boards constituted under
s. 10 of the- Mines Act, 1923, before the regulations were
framed and, if so, whether such consultation amounted to
sufficient compliance with s. 59. If his conclusion is that
there has not been compliance with the provisions of s. 59
the regulations must be held to be invalid and the accused
would be entitled to an acquittal; if, on the other hand, he
holds that there has been sufficient compliance with the
provisions of s. 59 he should dispose of the case after
coming to a conclusion on the evidence as regards the
allegations made against the appellant in the petition of
complaint.
The appeal is disposed of accordingly.
Appeal allowed. Case remanded.
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