Full Judgment Text
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PETITIONER:
M/s. BURRAKUR COAL CO., LTD.
Vs.
RESPONDENT:
THE UNION OF INDIA AND OTHERS (And connected petition)
DATE OF JUDGMENT:
10/02/1961
BENCH:
MUDHOLKAR, J.R.
BENCH:
MUDHOLKAR, J.R.
SINHA, BHUVNESHWAR P.(CJ)
DAS, S.K.
SARKAR, A.K.
AYYANGAR, N. RAJAGOPALA
CITATION:
1961 AIR 954 1962 SCR (1) 44
CITATOR INFO :
R 1965 SC 632 (11)
RF 1969 SC 125 (8)
RF 1973 SC1461 (90)
ACT:
Coal Mines-Law Providing for respecting for coal and ac-
quisition-Validity-"Unworked land", meaning of-"To undertake
any operation in the land", meaning of-Coal Bearing Areas
(Acquisition and Development) Act, 1957.(20 of 1957), ss.
4,5,6,7 8, 13, 14-Constitution of India, Arts. 31A(1)(e),
31(2).
HEADNOTE:
The Coal Bearing Areas (Acquisition and Development) Act,
1957, was enacted, as indicated in the preamble, for
providing for the acquisition by the State of unworked land
containing or likely to contain coal deposits, and under S.
4(1) of the Act,-the Central Government was empowered to
issue a notification with reference to its intention to
prospect for coal from land in any locality. By s. 5(b) any
mining lease granted to a person and in respect of which a
notification had been issued shall cease to have effect, and
under s. 7 the Central Government was entitled to acquire
the mining rights within a period of two or three years from
the date of the notification. On July 29, 1960, the Central
Government published a notification under s, 4(1) of the Act
in respect of an area included in the colliery in which the
petitioners had acquired mining rights. Between the year
1932 and the month of May, 1960, the colliery was not worked
because it was uneconomical to work it, but the petitioners
made an application on December 3, 1959, to the Coal Board
for permission to reopen the Colliery and though no reply
was received from the Board, the petitioners commenced
drilling operations in May, 1960, but discontinued them from
August 12, 1960, in view of the notification. The
petitioners challenged the validity of the notification on
the ground that the preamble of the Act and ss. 4, 5, 6, 7
and 8 show that the Act was applicable only to unworked
mines which must mean virgin lands,, and not to those which
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were being worked at the time of notification or which were
worked in the past, whereas the petitioners’ coal field had
been worked and the working had ceased for some time only
due to the unremunerative market for the produce. The
petitioners also contended that the Act contravened Arts.
19(1)(g) and 31(2) of the Constitution of India on the
grounds (1) that the effect of a notification under the Act
was to prevent an owner or lessee of a mine from working for
two or three years, which was too long a period and,
therefore, the restrictions could not be regarded as
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reasonable, (2) that the Act did not contain any provision
for compensation for the deprivation of the petitioners’
right to carry on their business for two or three years, and
(3) that s. 13 of the Act, though it dealt with the payment
of compensation, did not provide for compensation for
mineral rights.
Held: (1) that the expression "unworked land" occurring
in the preamble of the Coal Bearing Areas (Acquisition and
Development) Act, 1957, means land-which was not being
worked at the time of the notification issued under the Act
and includes dormant mines.
Where the object or meaning of a enactment is not clear, the
preamble may be resorted to to explain it.
In re the Kerala Educatiion Bill, 1957, [1959] S.C.R. 995.
referred.
(2) that the Act is applicable not only to virgin lands but
also to dormant collieries or unworked lands, including
mines which were worked in the past but mining operations
therein are not being carried on at present.
(3) that the expression "to undertake any operation in the
land" in S. 5(b) of the Act refers to the undertaking of an
operation on land not for the first time only but at the
resumption of an operation which had been abandoned or
discontinued. The resumption of the working of a mine after
a casual closure or a closure in the ordinary course of the
working of a mine would not fall within the bar created by
s. 5(b).
(4) that the restrictions imposed upon an owner or lessee
of a mine by which he is prevented from working his mine for
a certain period of time under ss.4 and 5 of the Act are not
unreasonable and that the Act does not contravene Art.
19(1)(g) of the Constitution.
(5) that such restrictions amount to a modification of his
rights within the meaning of Art. 31A(1)(e) of the
Constitution; and that the validity Of ss. 4 and 5 Of the
Act cannot be challenged on the ground that they infringe
Art. 31(2) in view of the provisions of Art. 31A(1)(e).
Thakur Raghbir. Singh v. Court of Wards, Ajmer, [1953]
S.C.R. 1049, explained.
Sri Ram Ram Narain Medhi v. State of Bombay, [1959] Supp. 1
S. C. R. 489, Atma Ram v. The State of Punjab, [1959] Supp.
r S.C.R. 748 and In re Delhi Laws Act, 1912, [1951] S.C.R.
793, relied on.
(6) that the Act cannot be challenged on the ground that
ss. 5(a) and 13 do not provide for payment of compensation
for mineral rights, because ss. 13 and 14 lay down the
principles on which compensation is to be determined, and
under Art- 31(2) such a law cannot be called in question on
the ground of the inadequacy of the compensation provided.
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JUDGMENT:
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ORIGINAL JURISDICTION: Petitions Nos. 241 and 242 of 1960.
Petitions under Art. 32 of the Constitution of India for
enforcement of Fundamental Rights.
P. B. DaS, K. Choudhoury, Balbhadra Prasad Singh and I. N.
Shroff, for the petitioners.
M. C. Setalvad, Attorney-General of India, B. Sen and R.
H. Dhebar, for the respondents.
1961. February 10. The Judgment of the Court was delivered
by
MUDHOLKAR, J.-The petitioner in W. P. 241 of 1960, Messrs.
Burrakur Coal Co., Ltd., and the petitioner in W. P. 242 of
1960, Messrs. East India Coal Co., Ltd., claim to have
acquired mining rights in two blocks in Mouza Sudamdih and
Mouza Sutikdih respectively situated in Dhanbad district in
the State of Bihar. On July 28, 1960, the Central
Government published a notification bearing no. S. 0. 1927
under s. 4 of the Coal Bearing Areas (Acquisition and
Development) Act, 1957 (no. 20 of 1957), stating its
intention to prospect for coal in an area approximately five
sq. miles which includes Sudamdih colliery aud Sutikdih
colliery. The petitioners have stated in their respective
petitions that in consequence of the issue of the aforesaid
notification they are precluded from carrying on any mining
operations in the respective collieries and that the Central
Government is entitled to acquire mining rights in the area
covered by the notification within a period of two years
from the date of notification or within such further period
not exceeding one year as the Central Government may specify
by notification in the Official Gazette. The petitioners
have come up to this Court under Art. 32 of the Constitution
contending that the aforesaid notification is ultra vires
and illegal inasmuch as it interfere,% with their
fundamental right to own property and to carry on business.
Assuming that an incorporated company is a citizen we may
point out that the East India Coal Co., Ltd. is incorporated
in the United Kingdom while the Burrakur Coal Co., Ltd. is
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incorporated in India. Therefore, in so far as the rights
conferred by Art. 19 are concerned it may only be the latter
which is entitled to the protection of the Constitution but
not the former company. Both the petitioners, however,
contend that the right conferred by Art. 31(2) of the
Constitution is also infringed by the aforesaid notification
and if their contention is correct they will be entitled to
protection in respect of that right inasmuch as it is not
limited to the citizens of India as is the case with regard
to the rights enumerated in Art. 19. Both the petitions
were argued together though the arguments were addressed
mainly with reference to the case of Burrakur Coal Co., Ltd.
and, therefore, it is that case with which we will deal
fully. After dealing with the arguments advanced with
reference to that case we will deal briefly with the other
case.
The challenge to the notification rests on two grounds,
firstly that the notification is ultra vire8 the Act and
secondly that the Act is itself ultra vires the
Constitution.
The petitioner’s learned counsel Mr. P. R. Das contends that
the Act applies to "unworked" coal mines which according to
him, mean virgin lands-and not to those which are being
worked at present or which were worked in the past. In
support of this contention he strongly relies upon the
preamble to the Act.The preamble runs thus:
"An Act to establish in the economic interest
of India greater public control over the coal
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mining industry and its development by
providing for the acquisition by the State of
unworked land containing or likely to contain,
coal deposits or of rights in or over such
land, for the extinguishment, or modification
of such rights accruing by virtue of any
agreement, lease, licence or otherwise. and
for matters connected therewith."
His argument proceeds to the length of saying that even
abandoned mines are not touched by the Act. According to
him, however, the Sudamdih colliery was not an abandoned
mine nor could it be regarded as abandoned because, though
it was not actually worked
48
between the year 1932 and the month of May. 1960. the
petitioner had purchased it for a large consideration
amounting to over Rs. 1,46,000 and thereafter it paid
annually the minimum rent and royalty which totals upto over
Rs. 1,23,000 from May 1, 1939, to June 30, 1960. According
to the petitioner the mine was not actually worked during
this period because in the petitioner’s opinion it was
uneconomical to work it. The petitioner in fact made’ an
application on December 3, 1959, to the Coal Board as
required by the provisions of the Coal Mines (Conservation
and Safety) Act, 1952 (XII of 1952), for permission to
reopen the colliery but it did not receive any reply from
the Coal Board. Even so, the petitioner commenced drilling
operations in the beginning of May, 1960 and carried them on
till August 12, 1960, during which a depth of 235 ft. was
reached at one point. The petitioner, however, stopped
these operations consequent upon the publication of the
impugned notification in the Gazette of August 6, 1960. We
are mentioning. these facts because on their basis a further
argument is raised by Mr. Das to the effect that prior to
the issue of the notification the mine was being actually
worked. Before, however, we deal with that argument we must
consider the main contention of Mr. Das which is to the
effect that the Act applies only to virgin land.
Mr. Das contended that the preamble to an Act is a key to
understanding the provisions of the Act and referred us in
this connection to the advisory opinion of this Court in re
the Kerala Education Bill, 1957 In that case Das, C. J., who
delivered the opinion of the Court has observed:
"The long title of the said Bill (The Kerala
Education Bill, 1957) describes it as A Bill
to provide for the better organisation and
development of educational institutions in the
State’. Its preamble recites thus: ’Whereas
it is deemed necessary to provide for the
better organisation and development of
educational institutions in the State provid-
ing a varied and comprehensive educational
service
(1) [1959] S.C.R. 995, 1022.
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throughout the State’. We must, therefore,
approach the substantive provisions of the
said Bill in the light of the policy and
purpose deducible from the terms of the
aforesaid long title and the preamble and so
construe the clauses of the said Bill as will
subserve the said policy and purpose".
While. holding that it is permissible to look at the
preamble for understanding the import of the various clauses
contained in the Bill this Court has not said that full
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effect should not be given to the express provisions of the
Bill even though they appear to go beyond the terms of the
preamble. It is one of the cardinal principles of
construction that where the language of an Act is clear, the
preamble must be disregarded. Though, where the object or
meaning of an enactment is not clear, the preamble may be
resorted to explain it. Again, where very general language
is used in an enactment which, it is clear must be intended
to have a limited application, the preamble may be used to
indicate to what particular instances the enactment is
intended to apply (1).. We cannot, therefore, start with the
preamble for construing the provisions of an Act, though we
would be justified in resorting to it, nay, we will be
required to do so, if we find that the language used by
Parliament is ambiguous or is too general though in point of
fact Parliament intended that it should have a limited
application.
Mr. Das then contended that the various provisions of the
Act clearly show that Parliament intended the Act to apply
only to virgin land. In support of this contention he
referred to the provisions of as. 4,5,6, 7 and 8 of the Act.
He pointed out that whenever it appears to the Central
Government that coal is likely to be obtained from land in
any locality it is empowered by sub-a. (1) of s. 4 to give
notice of its intention to prospect for coal therein.
According to him, where a mine has been worked at some time-
in the past all the necessary information would be available
in the working plan of the mine, and, by way of illustration
pointed out that the fullest information
(1) Craies-Interprotation of Statutes, 5th Edn., pp. 188,
189.
50
was available in the working plan, Annexure B1 of the
Sudamdih colliery. He further pointed out that this
information was in fact in the possession of the Government
as would appear from Annexure B which was appended to the
notification of July 20, 1960. We may point out that this
annexure sets out that this is a statement of percentage of
worked and unworked areas in different coal mines and. after
setting out the various seams which have been proved, the
percentages of worked and unworked areas have been specified
therein. Prospecting, according to Mr. Das, would be
necessary only if nothing is known about an area and
therefore there can possibly be no need for prospecting when
a mine has been worked. Admittedly, sub-s. (1) of a. 4 does
not specifically say that it applies to unworked land. All
the same, according to Mr. Das, it must be so construed as
to apply to unworked land only; for, there would be no need
for the Government to undertake prospecting for coal in
worked land on which there is a colliery.
We cannot accept the argument of Mr. Das. The bulk of the
coal in a mine is underground and even though the existence
of some seems may have been proved in particular areas it is
impossible to say that the information obtained when it was
prospected once or when it was being worked, as to the
quality and quantity of coal or the dimensions of the seams
is complete. The seams are not necessarily horizontal and
more often are inclined and sometimes even folded. Then
again there may be faulting in the strata of coal as a
result of which an impression may be created that a seam has
disappeared at a particular place though further borings or
drilling may show that even. beyond that point but at
greater depths the same seam reappears. So where a mine was
worked in the past but mining operations therein were
stopped either because the coal therein was thought to have
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been exhausted or because it was not thought to be of a
sufficiently good quality such as to make the working of the
mine economic, further prospecting may well reveal the
existence of additional coal bearing strata or of a better
type of coal than that found
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earlier. On the plain language of sub-a. (1) of s. 4 the
Central Government has been empowered to issue a
notification with reference to its intention of prospecting
any land in a locality and not only such land as is virgin
in the sense in which Mr. Das uses that expression.
Then Mr. Das referred sub-s. (3) of a. 4 and said that the
whole of the country has been subjected to a geological
survey of a very detailed kind and all known coal fields are
mentioned in one report or the other of the department of
Geological Survey of India. Collieries which have been
worked at some time in the past must have been mentioned in
one of these reports and., therefore, it would be wholly
unnecessary for the legislature to confer upon the
Government the power as is done by cl. (a) of sub-s. (3) of
s. 4 to enter upon and survey any land in the locality in
which such colliery is situate. The very fact that power
has been given to the Central Government to enter upon and
survey land for’ the purpose of ascertaining whether there
is any coal in that land shows that the legislature had in
mind only that land which has not been mentioned as coal
bearing in any of the reports of the Geological Survey of
India. Here again we may point out that the object of
survey of land is to enable the Government to satisfy itself
not merely about the fact that any coal exists in that land
but also about the quality and quantity of coal therein and
whether it would be an economical proposition to work the
mines already existing on that land.
Indeed a perusal of the provisions of sub-a. (4) of s. 4
would show that the Act is not restricted to unworked lands
only but applies equally to those lands on which there are
existing mines but those mines are not being worked. That
sub.section reads as follows:
"In issuing a notification under this section
the Central Government shall exclude therefrom
that portion of any land in which coal mining
operations are actually being carried on in
conformity with the provisions of any
enactment, rule or order for the time being in
force or any premises on which any process
ancillary to the getting, dressing or
52
preparation for sale of coal obtained as a
result of such operations is being carried on
are situate".
Under this provision the Central Government is required to
exclude that portion of any land in which coal mining
operations are being carried on "in conformity with any
enactment, rule or order". This would indicate that the
language of sub-s. (1) of s. 4 was understood as applying
also to that land in which coal mining operations were
actually being carried on. Unless we hold so, the whole of
sub-s. (4) would be rendered otiose. Mr. Das, however, says
that sub-s. (4) enacts a "rule of exclusion" and that it had
been enacted by way of abundant caution. We cannot accede
to this argument for the simple reason that if the language
of sub-s. (1) of s. 4 is capable of being interpreted as
applying to any land in which coal mining operations are
actually being carried on, then there is all the greater
reason why that provision should be held also to apply to
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land in which coal mining operations were carried on in the
past, though they are not being carried on at present. If
Parliament was cautious enough to exclude land in which coal
mining operations are actually being carried on why did it
stop there and not exercise the same caution with respect to
land in which coal mining operations were once being carried
on but have now ceased? For, on the plain meaning of the
word "unworked" such lands would more readily fall within
the terms of sub-s. (1) of s. 4 than land in which coal
mining operations were actually being carried on, that
is to say, "worked lands".
Then Mr. Das referred to cl.-(b) of s. 5 which runs thus:
"any mining lease in so far as it authorises
the lessee or any person claiming through him
to undertake any operation in the laid, shall
cease to have effect for so long as the
notification under that sub. section is in
force".
He contended that what this provision prohibits is the
undertaking of any operation in the land and not carrying on
of an operation. Undertaking of an operation, according to
himself ’relates to the- initial
53
working of the mine and riot to the resumption of work on
the mine after work thereon had stopped nor to carrying on
work on a mine the working of which had not been stopped.
As a consequence of the issue of a notification under sub-s.
(1) or s. 4 what the lessee of a mining lease is prohibited
from doing is undertaking any operation on land-on which no
operations were being carried on. But he is not prohibited
from continuing to carry on operations which he was carrying
on at the date of the notification. We cannot, however,
accede to the contention that the resumption of mining
operations on a land is outside the bar created by this pro-
vision. The words used in the section are "to undertake any
operations in the land" which, according to the Concise
Oxford Dictionary mean "to enter upon (work, enterprise,
responsibility)". The meaning of the provision, therefore,
is that what the lessee is prohibited from doing is
something which he was not doing at the date
of the notification though he was authorised to do it under
his lease. Thus if a colliery was not functioning at the
date of the notification then by virtue of the provisions of
a. 5(b) he would not be permitted to work it. Undoubtedly
the provision has to be interpreted reasonably and it does
not mean that if the notification came into force on the
Monday and the mine was not worked on Sunday because of a
holiday, the lessee was prohibited by the notification from
working it. The resumption of working of a mine after a
casual closure or a closure in the ordinary course of
working a mine would not fall within the bar created by s.
5(b). In this connection we may refer to r. 7 of the Coal
Mines Regulations of 1957, which provides that when it is
intended to reopen a mine after abandonment for a period
exceeding 60 days not less than 30 days notice before
resumption of mining operations must be given to certain
authorities. The Coal Mines Regulations of 1957 have been
framed under s. 57 of the Mines Act of 1952, s. 16 of which
provides for the giving of notice before commencement of
mining operations. It is in the light of these provisions
that we must interpret the provisions of s. 5(b) of the Act.
So what must be said to have
54
been prohibited would be the undertaking of an operation on
land not for the first time only but also the resumption of
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an operation which had been abandoned or discontinued.
Mr. Das then contended that a mining area is always
extensive and it is not possible to work on every bit of it
simultaneously and, therefore, if work is carried on at one
point in a colliery the whole colliery must be deemed to be
working, that is to say, coal mining operations must be
deemed to have been carried on over the entire area on which
the colliery is situate. In support of his contention he
relied upon the decision of the Privy Council in Nageswar
Bux Roy v. Bengal Coal Co., Ltd. (1), and upon a passage in
Halsbury’s Laws of England(2). Both the decision of the
Privy Council as well as the passage in Halsbury deal with
the question of possession and state the law to be that a
person can be said to be in possession of minerals contained
in a well-defined mining area even though his actual
physical possession is confined to a small portion, that is,
to the mine which is being actually worked. The decision of
the Privy Council as well as the passage in Halsbury are nus
not in point. Further it is difficult to see how an
exemption under s. 4(4) is admissible in the case of the
Sudamdih colliery or Sutkidih colliery unless it is shown
that they were actually being worked at the date of the
notification in conformity with the provisions of "any
enactment, rule or order for the time being in force". It
is an admitted fact that though a notice was given under s.
16 of the Mines Act, 1952, by the Sutkidih Colliery, the
petitioners in W.P. 242 of 1960, it aid not actually start
working the colliery in view of the impugned notification.
As we have al. ready pointed out the Burrakur Coal Co., Ltd.
did commence working the Sudamdih Colliery in May, 1960,
even though it had not obtained the permission of the
appropriate authorities.
We must, therefore, examine here the argument of Mr. Das
that every colliery must be held to be exempted under sub-s.
(4) of S. 4. We have already referred
(1) (1930) L.R. 58 I-A. 29.
(2)..3rd Edn., Vol. 26, p. 630.
55
to s. 16 of the Mines Act, 1952, and regulation 7 of Mining
Regulations, 1957. In addition, there is Regulation 3 of
1957 which requires that the notice contemplated by s. 16
should be submitted in Form I.. No doubt the petitioner had
given notice as required by these provisions. No doubt also
that it was necessary for the authorities concerned to take
appropriate action on the notice. But it is difficult to
say that the inaction of the authorities can be availed of
by the petitioner. We must give effect to the plain lan-
guage of sub-s. (4) of s. 4. That provision in clear terms
makes an exclusion or exemption only with regard to that
portion of the land in which coal mining operations are
actually being carried on in conformity with the provisions
of any enactment, rule or order. Therefore, it is clear
that Parliament was exempting only such collieries as were
being worked in consonance ’with the provisions of law. Mr.
Das’s argument, however, is that the Act prescribes penal-
ties for the breach of its provisions and of those of the
regulations and so the petitioner could well be visited with
an appropriate penalty but that its right to run the mine
could not be affected. We are not here concerned with the
question whether the failure of the petitioner to comply
with the requirements of the Coal Mines Act or of the
Regulations of 1957 precludes the petitioner under that Act
or under those regulations from carrying on mining
operations. We are concerned here only with one point, and
that is whether the petitioner could be said in point of
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fact to have been carrying on mining operations in accord-
ance with law. That the petitioner was not doing so is not
even denied by Mr. Das and in the circumstances it is clear
that the petitioner is not entitled to the benefit of sub-s.
(4) of s. 4. We should have dealt with this part of Mr.
Das’s argument elsewhere but in order to avoid repetition we
have thought it convenient to deal with it here.
Adverting to s. 6(1) of the. Act which deals with
compensation for any necessary damage done under s. 4 of the
Act, learned counsel contended that Parliament plainly
intended the Act to apply to virgin land.
56
If the section was intended to apply to worked mines there
would have been provision, according to learned counsel, for
payment of compensation to the owner or lessee of the mine,
for being deprived of his right to work the mine consequent
upon the-. issue of the notification. It is sufficient to
point out that s. 4 does not contemplate entering upon any
land which is actually being worked and there will thus be
no deprivation in fact of the owner’s or lessee’s right of
working the mine. The Act applies only to "unworked lands".
This expression would include not only virgin lands but also
lands on which mines may have been opened and worked
sometime in the past but working on those mines was either
discontinued or abandoned. Of course, it is possible to say
that the action of the Government would interfere with the
potential right of the owner or the lessee to work the mines
and this would interfere with his right to hold property and
carry on his business. When we deal with the other part of
Mr. Das’s argument we shall deal with this question.
It was next contended that s. 7 which deals with the
power of the Central Government to acquire land or rights in
or over land notified under s. 4 also indicates the limited
operation of the Act. Sub-section (1) of s. 7
runs thus:
"If the Central Government is satisfied that
coal is obtainable in the whole or any part of
the land notified under sub-section (1) o
f
section 4, it may, within a period of two
years from the date of the said notification
or within such further period not exceeding
one year in the aggregate as the Central
Government may specify in this behalf, by
notification in the official Gazette, give
notice of its intention to acquire the whole
or any part of the land or of any rights in or
over such land, as the case may be".
The argument was that in respect of mines which have already
been worked at some time in the past all the relevant
material would be at the disposal of the Government even
previous to the issuing of a notification under sub-s. (1)
of S. 4 and, therefore, there
57
could be no necessity for the Government to enter on and
prospect the land for being satisfied that coal is
obtainable therefrom. Therefore, the argument proceeds, the
provision could not have been intended to apply to land
other than virgin land. This is really a repetition of the
argument which was addressed to us in connection with sub.
(1) of s. 4 and what we have said with regard to that sub-
section would equally apply here.
Sub-section (1) of s. 7 provides for a period of two years
within which a notice of acquisition could be given by the
Central Government. It is argued that this period is too
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long for keeping out an owner or lessee of land, the mines
on which had been worked in the past and that Parliament
could not have intended this effect. Therefore, the
argument proceeds, this provision also points to the
conclusion that the word "land" wherever it occurs in the
Act should be read as virgin land. Prospecting operations
are necessarily prolonged because what lies under the
surface of land cannot be easily ascertained except by
undertaking drilling or other appropriate operations at a
number of places. Such operations are bound to be
prolonged. Parliament apparently thought that it would be
reasonable to allow a period of two years to the Government
for carrying on the necessary operations and for, making up
its mind. The mere length of the period so allowed to the
Government cannot be regarded as indicative of the intention
of Parliament to give to the word ’land’ the -meaning
’virgin land’.
Reliance was placed on the explanation to sub-a. (1) of
s.. 8. That sub-section and the explanation are as follows:
"Any person interested in any land in respect
of which a notification under section 7 has
been issued may, within ’ thirty days of the
issue of the notification, object to the
acquisition of the whole or any part of the
land or of any rights in or over such land.
Explanation.-It shall not be an objection
within the meaning of this section for any
person to say
58
that he himself desires to undertake mining
operations in the land for the production of
coal and that such operations should not be
undertaken by the Central Government or by any
other person".
It was argued that in the explanation the words used are "to
undertake mining operations" and not "to carry on mining
operations" and therefore the Act could not be intended to
apply to worked mines. Here again the argument is similar
to that advanced on the basis of cl. (b) of s. 5 and what we
have said regarding it would equally apply here.
Adverting to s. 13 of the Act which deals with compensation
for prospecting licences ceasing to have effect and rights
under mining leases being acquired, it was contended that as
there is no provision for compensation in respect of the
minerals lying underground, Parliament could not be deemed
to have enacted this law for the purpose of acquiring mines
which have been worked in the past. According to Mr. Das if
we have understood him right, when a person has acquired
land either as an owner or as a lessee carrying with it the
rights to win minerals and has opened in that land mines
which he worked for sometime, there takes place a severance
between the right to the surface and right to the minerals
and that consequently such person will thereafter be holding
the minerals as separate tenement, that is, something apart
from the land demised and this separate tenement cannot be
acquired under the terms of the present Act or, if it can be
so acquired, it has to be specifically compensated for.
Reference to the several provisions of the Act and in
particular to those of s. 13 indicates, according to learned
counsel, the limited scope of the Act. It is difficult to
appreciate the contention that merely because the owner or
the lessee of a land had opened mines on that land, a
severance is effected between the surface and the
underground minerals. It may be that a trespasser by
adverse possession for the statutory period can acquire
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rights to underground minerals. It may also be that if that
happens the surface rights would become severed from the
mineral rights as a result of which the
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minerals underground would form a separate tenement. It is,
however, difficult to see how the owner or the lessee of
land who has right to win minerals can effect such a
severance between the mineral rights and surface rights by
opening and operating the mines of that land. For, even
while he is carrying on mining operations he continues to
enjoy the surface rights also. We cannot, therefore, accept
the contention that there was any severance of the mineral
rights and surface rights in either of these two cases.
It is no doubt true that s. 13 does not make any specific
provision for compensation in respect of minerals, but on
the other hand it provides in the explanation to el. (a) of
sub-s. (5) that the value of minerals lying in the land
shall not be taken into consideration in assessing
compensation. Whether the absence of a provision for
compensation’ would make the Act ultra vire8 in so far as it
contemplates acquisition of land will be considered
presently. We may, however, point out that the Act does not
make provision for compensation for minerals in respect of
even virgin land and the argument of Mr. Das would equally
apply to such land. Therefore, no point can be made from
the absence of a provision for compensation for minerals
that the Act was applicable only to virgin lands. For all
these reasons it is clear that the notification is not ultra
vires the Act because, in our view the Act applies not only
to virgin lands but also to dormant collieries or unworked
lands.
To sum up, in our view, the preamble of this Act need not be
resolved to for construing its provisions and in particular
for understanding the meaning of the word "land" used in the
Act; that even if the preamble is taken into consideration
the expression "unworked land" occurring in the preamble
should be given its ordinary meaning, that is to say, land
which was not being worked at the time of the notification
issued under the Act, which would include dormant mines;
that the provisions of the Act and in particular those of
sub-s. (4) of s. 4 and s. 5(b) clearly militate against the
contention that the Act was intended to apply only to virgin
lands, to the exclusion of land on
60
which there are dormant mines, and that the absence of a
provision in s. 13 of the Act providing for compensation for
mineral rights cannot by itself justify the conclusion that
the Act was intended to apply to virgin land only.
Now we come to the second part of the argument. It is
contended that ss. 4, 5 and 6 invade the fundamental rights
of the petitioner under Art. 19(1)(g) of the Constitution
because under s. 5, a mining lease ceases to have effect for
two years and possibly for three years. Mr. Das concedes
that reasonable restrictions can be placed by the State upon
the rights enumerated in this article in the interests of
the general public but he contends that the period of two to
three years is too long and, therefore, the restrictions
cannot be regarded as reasonable. We have already indicated
that prospecting operations, in their very nature, must take
a long time to complete and presumably Parliament had fixed
this period after bearing in mind this factor and also on
the basis of expert advice. Of course, there are no
pleadings to that effect in the affidavit of the State. But
in our opinion the petitioner cannot be permitted to
complain of the absence of pleadings because it has not
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itself stated in the petition what would be reasonable time
for conducting prospecting operations. We are, therefore,
unable to accede to the argument.
The next attack, and that is a more formidable one, is based
upon the ground that the Act does not contain any provision
for compensation for the deprivation of the petitioners
right to carry on its business for two to three years and
that consequently one of its fundamental rights is
infringed. It is no doubt true that in a. 13(4) which deals
with the question of compensation there is no provision for
payment of compensation for the deprivation of the right of
a mine owner or a lessee to carry on his business for a
period of two or three years, but the petitioner cannot
complain about it. In Art. 31A, cl. (1), sub-el. (e), of
the Constitution, which was inserted by the Constitution
First Amendment Act, 1951, it is provided that
"notwithstanding anything contained in Art. 13, no
61
law providing for............... the extinguishment or
modification of any rights accruing by virtue of any
agreement, lease or licence for the purpose of searching
for, or winning, any mineral or mineral oil, or the
premature termination or cancellation of any such agreement,
lease or licence, shall be deemed to be void on :the ground
that it is inconsistent with, or takes away or abridges any
of the rights conferred by Art. 14, Art. 19 or Art 31." Then
follows a proviso with which we are not concerned. The
effect of a notification under s. 4(1) of the Act read with
s. 5(b) is to prevent an owner or lessee of a mine from
working his mine far a certain period of time. His rights
are thus modified by the notification. According to Mr.
Das, however, the effect of the notification is to suspend
the rights of a mine-owner or lessee of the mine for a
certain period and that such suspension is not modification.
In this connection he relied upon the observations of
Mahajan, J., (as he then was), in Thakur Raghbir Singh v.
Court of Wards, Ajmer (1). That was a case where, in
connection with a notification issued under the Court of
Wards Act, the learned Judge observed that the word
"modification" used in the aforesaid provision of the
Constitution does not include suspension of a right. The
observations made in that case fell for consideration by
this Court in Sri Ram Ram Narain Medhi v. The State of
Bombay (2) and Atma Ram v. The State of Punjab and Ors. (3).
Explaining them this Court observed in the latter case:
"Those observations must be strictly limited
to the facts of the case, and cannot possibly
be extended to the provisions of Acts wholly
dissimilar to those of the Ajmer Tenancy and
Land Records Act, XLII of 1950, which was the
subject-matter of the challenge in the case
then before this Court. This Court held, on a
construction of the provision of that Act,
that they only suspended the right of
management but did not amount to any
extinguishment or modification of any
proprietary rights
(1) [1953] S.C.R. 1049,1053.
(2) [1959] Supp. S.C.R. 489, 519
(3) [1959] SUPP. S.C.R. 748, 767.
62
in an estate. The provisions of the Act then
under consideration of this Court, have
absolutely no resemblance to those of the Act
now before us, and it is impossible to put a
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similar interpretation on these provisions.
In the recent decision of this Court (not yet
reported) this Court had been invited to apply
the observations of this Court referred t
o
above, to the provisions of the Bombay Act.
It was pointed out in that case that those
observations of Mahajan, J., (as he then was),
must be read as limited to an Act which only
brings about a suspension of the right of
management of an estate, and could not be
extended to the provisions of an Act which
either extinguishes or modifies certain rights
of a proprietor in an estate or a portion
thereof".
This Court did not intend to lay down as law in Thakur
Raghbir Singh v. Court of Wards, Ajmer (1) that Art.
1A(i)(e) is inapplicable to a case where the property rights
of a person are kept in abeyance for a certain period. The
meaning of the word "modify" fell to be considered, in re
The Delhi Laws Act, 1912 As pointed out in the -opinion of
Kania, C. J., the word "modify" means, according to Oxford
Dictionary, to limit, restrain, to assuage, to make less
severe, rigorous, or decisive; to tone down". It also means
"to make partial changes in; to alter without radical
transformation". In Rowland Burrows"’Words and Phrases’,
the word "modify" has, however, been defined as meaning
"vary, extend or enlarge, limit or restrict". According to
the learned Chief Justice "It has been held that
modification implies an alteration. it may narrow or enlarge
the provisions of the former Act".
Bearing in mind the principle that a constitutional
enactment must be construed liberally we would be right in
according the dictionary meaning to the word " modification"
occurring in the aforesaid provision. Mr. Das, however,
contends that for a thing to amount to a modification of a
right it must be of a permanent character and not of a
temporary duration. We see no ground whatsoever for holding
that for a
(1) [1953] S.C.R. 1049,1053.
(2) [1951] S.C.R. 793-4.
63
thing to be a modification it must be of a permanent
duration. A right may well be modified for all time or for
a limited duration and in either case the right must be
regarded as having been modified. For these reasons we hold
that the provisions of Art. 31A, cl. (1)(e), debar the
petitioners from challenging the validity of ss. 4 and 5 of
the Act on the ground that they infringe the provisions of
Art. 31(2) of the Constitution.
What remains to be considered is whether the provisions
permitting acquisition of land are ultra vires the
Constitution because they offend Art. 31(2) of the
Constitution. According to the learned Attorney-General the
petitioners have no present grievance on that score because
the notification in question empowers the State only to
prospect for coal in the petitioner’s land and not to
acquire it. We cannot accept this contention. The whole
object of Parliament in enacting the law was to empower the
State to acquire coal bearing lands. Prospecting on a piece
of land for coal is merely a stage preceding the actual
acquisition of that land. If, therefore, those provisions
of the law which deal with the question ’of acquisition are
unconstitutional the whole Act will be rendered
unconstitutional.
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Article 31(2) of the Constitution, as amended by the Fourth
Amendment Act, 1955, runs thus:
"No property shall be compulsorily acquired or
requisitioned save for a public purpose and
save by authority of a law which provides for
compensation for the property so acquired or
requisitioned and either fixes the amount of
the compensation or specifies the principles
on which, and the manner in which, the
compensation is to be determined and given;
and no such law shall be called in question in
any court on the ground that the compensation
provided by that law is not adequate".
Mr. Das pointed out that s. 13 of the Act, though it deals
with the payment of compensation, does not contain any
provision for payment of compensation for mineral rights.
Not only that, but the explanation to cl. (a) of s. 5
clearly lays down that in computing the
64
compensation for the land the value of minerals will not be
taken into account. The acquisition of mineral rights
would, therefore, according to him, be impermissible under
Art. 31(2) without payment of compensation. The learned
Attorney-General quite rightly pointed out that s. 13 deals
with the whole subject of payment of compensation to the
owner or lessee of the mine for his entire interest in the
land including the rights to minerals and even though that
section specifically says that the value of the minerals
cannot be taken into account in determining the amount of
compensation, the concluding words of Art. 31(2) preclude
the petitioners from challenging the law. Mr. Das pointed
out that the only ground on which the Central Government in
their affidavit have tried to sustain the validity of the
provisions relating to the acquisition of land under the Act
is that a challenge to the validity of the law is barred by
the provisions of Art. 3lA(1)(e) and that it is not now open
to the Central Government to say that the law can be
sustained on another ground. We cannot accept this
contention. Where the validity of a law made by a competent
legislature is challenged in a Court of law that Court is
bound to presume in favour of its validity. Further, while
considering the validity of the law the court will not
consider itself restricted to the pleadings of the State and
would be free to satisfy itself whether under any provision
of the Constitution the law can be sustained. There is no
doubt that the entire Act cannot be sustained by resorting
only to Art. 31A(1)(e) or to Art. 31(2A) of the Constitution
because these provisions do not deal with the question of
acquisition and the Attorney-General fairly admitted that it
could not be so sustained. The opening words of sub-s. (2)
of s. 13 read thus:
"Where the rights under a mining lease are
acquired under this-Act, there shall be paid
to the person interested compensation, the
amount of which shall be a sum made up of the
following items, namely............
Then follow the items which have to be added up Undoubtedly
they are items of expenditure and
65
interest on such expenditure. Sub-section (3) deals with
the procedure to be adopted where the rights acquired under
s. 9 relate only to part of the land covered by the mining
lease. Sub-section (4) deals with the compensation to be
paid where the mining lease ceases to have effect for any
period under cl. (b) of s. 5. Subsection (5) provides for
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payment of compensation for any land acquired under s. 9 and
lays down the principles to be followed in computing the
compensation. Sub-section (6) provides for payment of com-
pensation for damage done to the surface of any land or any
works thereon and in respect whereof no provision for
compensation is made elsewhere in the Act. Sub-section (7)
deals with the question of compensation for maps, charts and
other documents. Section 14 of the Act deals with the
method of determining the compensation. It will be clear
from these provisions that the Act specifies the principles
on which and the manner in which the compensation should be
determined and given. This is all that is required of a law
relating to the acquisition of property by Art. 31(2) of the
Constitution. Where provisions of this kind exist in a law
that Article lays down that such law cannot be called in
question in any court on the ground that the compensation
provided by that law is not adequate. Here compensation is
specifically provided for the land which is to be acquired
under the Act. The land includes all that lies beneath the
surface or, as Mr. Das put it, all that is "locked up " in
the land. Parliament has laid down in sub-B. (5) of s. 13
how the value of this land is to be calculated. The
contention that the provisions made by Parliament for
computing the amount of compensation for the land do not
take into account the value of the minerals is in effect a
challenge to the adequacy of the compensation payable under
the Act. The concluding words of Art. 31(2) preclude such a
challenge being made.
But Mr. Das contended that the minerals are separate
tenement and have to be separately compensated for. We have
already dealt with the contention of Mr. Das that the
minerals underlying the surface are a separate tenement and
we need not repeat here all
66
that we have said before. In our opinion the minerals
cannot be regarded as a separate tenement except perhaps in
a case of a trespass and, therefore, there is no question of
the law providing for a separate compensation for them.
Apart from that if minerals have become a separate tenement
then the present Act may not apply to such a tenement at
all. As we have pointed out the coal contained in the two
collieries in question is not held by the respective
petitioners as a tenement separate from the surface. In the
circumstances the challenge to the validity of the Act on
the ground that it offends Art. 31(4) of the Constitution
fails, and we dismiss the petition with costs.
We must say a few words about W. P. 242 of 1960. Out of 737
bighas of land held by the petitioner in that writ petition,
we are informed that 321 bighas have been worked. The
working,of this mine was closed in the year 1928 on the
ground that the mine was flooded. An application Was made
by the petitioner for reopening the mine on June 5, 1957.
Repeated reminders were sent subsequently but there was no
reply to any of them either. In its application the
petitioner, it may be stated, did not apply for opening new
mines. Since the necessary permission was not received, it
did not commence any operations. We are informed that over
a million tons of coal was extracted by the petitioner from
its colliery in the past. Even so, we do not think that any
different considerations could apply to the petitioner’s
case from those which apply to the case of the Burrakar Coal
Co. The petitioner’s colliery was also dormant for too long
a period and was thus an "unworked mine". The impugned Act
and the notification made thereunder both apply to it in the
same way as they apply to the Sudamdih colliery belonging to
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Burrakur Coal, Co., Ltd. The writ petition thus fails and
is dismissed with costs.
Cost of the hearing be paid half and half by the two
petitioners. There will be only one hearing fee, to be
divided equally between the two petitioners.
Petitions dismissed.
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