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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, 34 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 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 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.               36               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 37 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 38 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 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  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:- 40               "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.               42               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. 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

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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. 44