http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 19  

PETITIONER: KALI PADA CHOWDHURY

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 03/05/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. WANCHOO, K.N. SHAH, J.C.

CITATION:  1963 AIR  134            1963 SCR  (3) 904  CITATOR INFO :  R          1982 SC1413  (19)

ACT: Mining   Regulation--Mining  Boards,   consultation   with-- Constitution  of  boards,  if  obligatory--Regulations  made without constituting Mining Boards--Validity of-- Coal Mines Regulations,  1957  reg.  127 (3)--Mines Act,  1952  (35  of 1952), SS. 12, 59.

HEADNOTE: Section 12 of the Mines Act, 1952, provides that the Central Government may constitute a Mining Board for any part of the territories  to which the Act extended or for any  group  or class  of  mine-.  In 1957 only one mining  board  i.e.  the Bihar Mining Board was in existence and other mining  boards were  not  constituted.   Section 57  empowers  the  Central Government  to make Regulations.  Section 59(3), as it  then stood, provided that before the draft of any regulation  was published  it  should  be referred  to  every  Mining  Board concerned and that it shall not be published until each such Mining  Board had had a reasonable opportunity of  reporting on  it.   The Central Government referred the draft  of  the Coal  Mines  Regulations  to the Bihar  Mining  Board  which circulated the draft to all the members of the Board and the members  communicated  their opinions  individually  to  the Central  Government.  Thereafter, the Regulations were  duly published  and came into force.  The petitioner’s, who  were being prosecuted in Bengal for violation of the Regulations, contended that the Regulations were invalid as : (i) it  was incumbent  upon the Central Government under ’s. 12  of  the Act  to  constitute all the Mining Boards and to  refer  the draft  Regulations to all the Boards before they.  could  be published  under  s.  59.  and  (ii)  the  communication  of opinions  by individual members ’of the Bihar  Mining  Board did  not  amount to consultation with the Board  within  the meaning of s. 59(3). Held  (Per  majority, Subba Rao, J., dissenting),  that  the ’Coal  Mines  Regulations, 1957, had been  duly  framed  and published.   Section 59(3) merely provided that if a  Mining

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 19  

Board  was  in  existence  at  the  relevant  time  it   was obligatory on the Central Government to consult it before 905 the  draft  Regulation  was published.  But s.  12  was  not mandatory   and  it  was  not  obligatory  on  the   Central Government  to constitute any or all of the  Mining  Boards. There  was  nothing  in the Act or.  in  the  context  which justified  reading the word "may" in s. 12 as "shall".   The Mining  Board  constituted under s. 12 had  to  perform  two functions, viz., to make a report in respect of  regulations or  rules  referred to it and to decide cases which  may  be referred  to it under s. 81. The working of the Act was  not dependent  on  the  constituting  of  Mining  Boards.   This construction  of s. 12 did not render the provisions  of  s. 59(3)  nugatory.   Apart  from consulting  the  Boards,  all parties  affected  by the draft had an opportunity  to  make their  suggestions  or  objections  and  these  had  to   be considered before the draft was settled and the  regulations were finally made. Banwarilal Agarwalla v. state of Bihar, [1961] 1 S.C.R.  33, explained. Held,  further,  that the requirement of s. 59(3)  had  been complied  with  in referring the draft  Regulations  to  the Bihar  Mining Board.  All that s. 59(3) required was that  a reasonable opportunity should be given to the Board to  make its report.  How the Board chose to make its report, was not a matter which the Central Government could control. Per  Subba  Rao,  J.-,The Coal Mines  Regulations  were  not validly  made.   The Supreme Court had directly  decided  in Banwarilal  v. State of Bihar that the Regulations were  bad as there was no consultation with any Mining Board under  s. 59  (3)  as  the  Boards were  not  in  existence.   A  fair construction  of ss. 12 and 59 (3) of the Act’  also  showed that  if the Central Government wanted to’ make  regulations under s. 57 it had to appoint Mining Boards and to refer the regulations  to  them before publication.   If  the  Central Government  wanted to exercise the power under s. 59 it  had first to exercise the power under s. 12.  The power to  make regulations  was coupled with a duty to consult  the  Mining Boards, and to discharge its duty it was incumbent upon  the Central Government to appoint the Mining Boards.  Apart from this,  the  Regulations  is  so far  as  they  purported  to regulate  mines in West Bengal had not been validly made  as no Mining Board for the West Bengal area had been  consulted before making the Regulations.  The Act did not empower  the Central Government to make regulations in regard to mines in one  part of the country by consulting a  Board  constituted for another part of the Country. 906 Banwarilal Agarwalla v. State of Bihar. [1962] 1 S.C.R. R33, followed. Alcock  Ashdown  &  Co. v..  The  Chief  Revenue  Authority, Bombay, A. I. R. 1923 P. C. 138, referred to.

JUDGMENT: ORIGINAL JURISDICTION: Criminal Appeal Writ Petition No.  15 of 1962 Petition under Art. 32 of the Constitution of India for  the enforcement of Fundamental Rights. B.   Sen and K. L. Hathi for the petitioner. C.   K.. Daphtary, Solicitor-General of India, B. B.   L. Iyengar and B. H. Dhebar, for the respondents. S.Choudhury, S. C. Banerjee and P. K. Chatterjee for  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 19  

Intervener. 1962.  May 3. The judgment of Sinha, C. J.,  Gajendradagkar, Wanchoo and Shah, JJ., was delivered by Gajendragadkar,  J., Subba Rao, J. delivered a separate Judgment. GAJENDRAGADKAR, J.-The four petitioners who are in charge of the  working  of  the mine owned by the  colliery  known  as Salanpur  ,A" Seam Colliery in the District of Buidwan,  are being  prosecuted  for  the  alleged  contravention  of  the provisions   of   Regulation  127(3)  of  the   Coal   Mines Regulations,  1957, framed under the Mines Act, 1952 (35  of 1952) (hereinafter called the Act).  By their petition filed under  Art..  32 of the Constitution, the  petitioners  pray that an order or writ in the mature of prohibition should be issued quashing the said criminal proceedings on the  ground that  the  said  proceedings contravene Art.  20(1)  of  the Constitution  and as such, are void.  To this petition  have been impleaded as opponents 1 to 4, the Union of India,  the Chief  Inspector  of  mines, Dhanbad  (W.B.),  the  Regional Inspector of Mines, Sitarampur and the Sub-Divisional Magis- trate, Asansol, respectively.  The prosecution of  907 the petitioners has commenced at the instance of opponents 2 and  3 and the case against them is being tried by  opponent No. 4. The petitioners’  contention  is that Regulation  No. 127(3)whose     alleged contravention has given rise  to thepresent   proceedings  against them is  invalid,  ultra vires and inoperative   and  so,  the  prosecution  of   the petitioners  contravenes Art. 20(1) of the Constitution.  It is  on this basis that they want the said proceedings to  be quashed  and ask for an order restraining opponents 2 and  3 from proceeding with the case and opponent No. 4 from trying it.   The case in question is C. 783 of 1961 pending in  the court of opponent No. 4. Regulation  127(3) is a part of the Coal  Mines  Regulations framed by opponent No. 1 in exercise of the powers conferred upon  it  by  section 57 of the Act, the  same  having  been previously published as required by sub-section (1) of B. 59 of the said Act.  Regulation 127(3) provides that no working which  has approached within a distance of 60 metres of  any disused or abandoned workings (not being workings which have been  examined  and found to be free  from  accumulation  of water  or other liquid matter), whether in the same mine  or in an adjoining mine, shall be extended further except  with the  prior permission in writing of the Chief Inspector  and subject to such conditions as he may specify therein.  There is a proviso and explanation attached to this provision, but it  is unnecessary to refer to them.  The case  against  the petitioners is that they have contravened the provisions  of Regulation  127(3) in that they extended the working of  the mine  further  than the permitted limits without  the  prior permission  in writing of opponent No. 2.  The  petitioners’ case is that this Regulation is invalid and inoperative  and so, its contravention cannot validly be made 908 the  basis  of  their  prosecution  having  regard  to   the provisions of Art. 20(1) of the Constitution. According  to  the petitioners opponent No, 1  is  no  doubt conferred  with the power of making Regulations under s.  57 of  the  Act,but O. as it stood at the  relevant  time,  has imposed  an obligation on opponent No. 1 that the  draft  of the  said  Regulations  shall not be  published  unless  the Mining  Boards  therein specified have had  a  reason.  able opportunity  of  reporting  to it as to  the  expediency  of making the Regulations in question and as to the suitability of  its  provisions.   The petitioners allege  that  at  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 19  

relevant  time, ’when the Regulations were made in 1957,  no Mining  Boards bad been established under s. 12 of the  Act. Three Boards had been established under s. 10 of the  Indian Mines  Act  of  1923,  but as a  result  of  the  subsequent amendments made in the provisions of s. 10, the  composition of  two of the ’said Boards became invalid with  the  result that  two  of them could not be treated  as  Boards  validly constituted.   These invalid Boards were the Madhya  Pradesh Mining  Board  and the West Bengal Mining  Board.   A  third Board  existed  at the relevant time and that is  the  Bihar Mining  Board.  This Board had been constituted on the  22nd February,  1946  under s. 10 of the earlier Act as  it  then stood.   The petitioner’ case is that it was obligatory  for opponent No. 1 to consult all the three Boards and since  to out  of the three Boards were not properly constituted,  the fact  that reference was made to the individual  members  of the said two invalid Boards did not satisfy the  requirement of  s.  59(3).  According to the petition, a  reference  was made to the Bihar Mining Board, but the Board did not,  make a  report  to opponent No. 1 as a Board but  its  individual members  communicated  their  opinions to  opponent  No.  1. Therefore, on the whole, s. 59(3) had not been complied with and that makes the whole body 909 of  Regulations  issued  in 1957  invalid  and  inoperative. That,  in brief, is the basis on which the petitioners  want the criminal proceedings pending against them to be quashed. The   respondents  dispute  the  main  contention   of   the petitioners  that  s.  59(3) has  not  been  complied  with. According to them, s. 59(3) has been duly complied with  and the  Regulations  made ire valid.  The  respondents  concede that  two  of the three existing Boards  were  invalid;  but their  case  is that it is only the validly  existing  Board that  had to be consulted and the Bihar Mining Board,  which was  the  validly existing Board at the relevant  time,  had been duly- consulted.  The respondents allege that the  fact that   individual   members  of  the  Bihar   Mining   Board communicated  their  opinions  to opponent No.  1  does  not introduce  any  infirmity  in  the  Regulations  which  were subsequently  published in the Gazette and which,  under  S. 59(5) have, in consequence, the effect as if enacted in  the Act. On behalf of the petitioners, Mr. Sen contends that s. 59(3) ’imposes ’an obligation on the Central Government to consult the  Boards therein specified and he argues that reading  s. 12 of the Act in the light of s. 59(3), it follows that  the Central  Government has to constitute Mining Boards for  the areas  or  mines  in respect of which  the  Regulations  are intended to be made and since two of the Boards had not been validly constituted, s. 12 had not been complied with and s. 59(3)  had  been contravened.  Mr. Sen  suggested  that  his contention  about the mandatory character of the  provisions contained in sections 12 and 59(3) is concluded by a  recent decision  of  this Court.  On the other  hand,  the  learned Solicitor-General for the respondents contends that the said decision  has no material or direct bearing on the  question about the construction of s. 12.  He concedes that 910 the   said  decision  has  concluded  the  point  that   the requirement  of  a. 59(3) is mandatory.  It  is,  therefore, necessary,  in the first instance, to examine the effect  of the said decision.  In  "Banwari  Lal Agarwalla v. State of  Bihar"  (1),  this Court-  had  occasion  to  consider  the  validity  of   the prosecution launched against the appellant on the ground  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 19  

the  contravention of one of the Regulations made  in  1957. It appears that in that case, the respondents stated  before the  Court that the Mining Boards constituted under s.10  of the  Act of 1923 were continuing to operate at the time  the relevant  Regulations  were framed and that there  was  full consultation  with  the said Mining Boards before  the  said Regulations   were  framed.   The  respondents,  no   doubt, contended  that s.59(3) was directory and not mandatory  and according  to them, no obligation had been imposed upon  the Central  Government  to consult Mining Boards even  if  they were in existence.  Alternatively, it was suggested that the Mining  Boards which had been constituted under the  earlier Act  were continued under the Act by virtue of s.24  of  the General  Clauses Act and that the said Boards bad been  duly consulted.  On the other hand, the appellant urged that  the Boards  to which the respondents referred were  not  validly constituted  under  the  Act  and  had  not  been   properly consulted.   It  was  also argued on his  behalf  that  both sections 12 and 59(3) were mandatory.  It is in the light of these facts that the effect of the decision of this Court in Banwari Lal’s case (1) has to be appreciated. Das  Gupta,  J.,  who spoke for the Court  set  out  in  his judgment the argument of the appellant that both sections 12 and 59 were mandatory, but, as the judgment shows, the Court considered the question as to whether s.59 (3) was mandatory and came to (1)  (1962) 1 S.C.R. 33.  911 the  conclusion  that it was.  The Court  did  not  consider whether  s.12  was  mandatory  and  in  the  course  of  the judgment,  there  is  no  reference at  all  either  to  the question  of construing s.12 or to its effect.  Having  held that s.59 (3) was mandatory, the Court remanded the case  to the  learned  Magistrate  before whom  the  proceeding  were pending with a direction that he should try the issue as  to whether the Boards constituted under the earlier Act validly functioned  under  the Act and whether they  had  been  duly consulted.   It  would  be noticed that  if  the  Court  had considered the question about the mandatory character of the provisions  of  s.12,  it  would  have  construed  the  said provisions  and would have addressed itself to the  question as  to  whether  the failure of the  Central  Government  to constitute  valid  Boards as suggested by the  appellant  in that case itself made the impugned Regulation invalid.  This course  was  not adopted obviously for the reason  that  the respondents  pleaded  that  the  requisite  Boards  were  in existence  and  had been consulted and so,  the  controversy between the parties was narrowed down to the question as  to whether s. 59 (3) requires that the Central Governments must consult existing Boards or not.  Apparently, the respondents contended that even if Boards have been constituted under s. 1  2,  it  is not obligatory on the  Central  Government  to consult  them under s.59(3). The requirement about the  said consultation  is  directory and not mandatory.  It  is  this contention  which has been rejected by the Court and  having held  that  s.59 (3) was mandatory and that  existing  Board must  be  consulted  before  Regulations  are  framed,   the question  of  fact  which then fell  to  be  considered  was remitted   to  the  trial  Magistrate  for   his   decision. Therefore, we are satisfied that the effect of the  decision of  this Court in Banwari Lal Agarwalla’s case is that if  a Board   is  in  existence  at  the  relevant  time,  it   is obligatory, on the Central Government to consult it before a draft 912

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 19  

Regulation  is  published  and  in  that  sense  s.59(3)  is mandatory.  It would, we think, not be right to assume  that the  contention  of  appellant that  s.12  like  a.59(3)  is mandatory was decided without discussing the question  about its  construction and its effect.  The facts pleaded by  the respondents  in that case made it unnecessary to decide  the appellant’s  contention based on the mandatory character  of s.12.  Therefore  we do not think Mr. Sen  is  justified  in contending  that  the point which he seeks to raise  in  the present appeal about the effect of s. 12 is concluded by the decision in Banwari Lal Agarwalla’s case.  That being so, we must proceed to examine Mr. Sens contention on the merits. At this stage, it is necessary to read both sections 12  and 59.   Section  12  deals with  the  constitution  of  Mining Boards.  Section 12(1) provides that the Central  Government may constitute for any part of the territories to which  the Act  extends, or for any group or class of mines,  a  Mining Board  consisting of seven persons as specified  in  clauses (a)  to(e).   The  point which calls  for  our  decision  is whether the first part of s. 12(.1) imposes an obligation on the  Central  Government  to constitute  Board  when  it  is proposed to make Regulations to which s.59(3) applies. Section 59 as it stood in the Act prior to its amendment  in 1959 read thus:-               "59  (1)  The power to  make  regulations  and               rules  conferred  by  sections 57  and  58  is               subject  to the condition of  the  regulations               and   rules   being   made   after    previous               publication.               (2)   The-date to be specified in  accordance,               with  clause (3) of section 23 of the  General               Clauses Act, 1897 (10 of 1897), as that  after               which a draft of regulations or rules proposed               to be                913               made will be taken under consideration,  shall               not  be less than, three months from the  date               on which the draft of the proposed regulations               or rules is published for general information.               (3)   Before  the draft of any  regulation  is               published  under  this section,  it  shall  be               referred  to every Mining Board which  is,  in               the   opinion  of  the   Central   Government,               concerned  with the subject dealt with by  the               regulation and the regulation shall not be  so               published  until each such Board has had  a  ,               reasonable opportunity of reporting as to  the               expediency  of making the same and as  to  the               suitability of its provisions.               (4)   No  rule shall be made unless the  draft               thereof  has  been referred  to  every  Mining               Boar(   constituted  in  that  part   of   the               territories to which this Act extends which is               affected  by the rule, and unless 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.               (5)   Regulations and rules shall be published               in   the   Official  Gazette  and,   on   such               publication,  shall have effect as if  enacted               in this Act.               (6)   The provisions of sub-sections (1),  (2)               and( 4) shall not apply to the first  occasion               on  which rules referred to in clause  (d)  or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 19  

             clause (e) of section 58 are made.               914               (7)   The  regulations  and rules  made  under               sections  57 and 58 shall be laid down  before               Parliament, as soon as may be, after they  are               made." The  petitioners’ contention is that in  construing  section 12, we must have regard to the provisions of s.59(3). By an amendment made in 1959 by Act 62 of 1959, sub. s(3) of s.  59 has been deleted and combined provision is made  both for  regulations  and rules by subsection (4)  by  making  a suitable amendment in the said sub-section so as to  include both  regulations and rules within its  scope.   Sub-section (4) thus amended reads thus:               "59(4).   No regulation or rule shall be  made               unless the draft thereof has been referred  to               every Mining Board constituted in that part of               the  territories  to which  this  Act  extends               which  is affected by the regulation  or  rule               and   unless  each  such  Board  has   had   a               reasonable opportunity of reporting as to  the               expediency  of making the same and as  to  the               suitability of its provisions." Before  construing  s.12, it may be useful to refer  to  the relevant  provisions  of the Act which confer  power  on  or assign some duties or functions to the said Boards.  Section 14(1) provides inter alia that a Board constituted under  s. 12  may  exercise such of the powers of an  Inspector  under this-  Act as it thinks necessary or expedient  to  exercise for  the  purpose of deciding or reporting upon  any  matter referred  to it.  Section 14(2) confers upon the  Board  the powers of a Civil Court for the purposes therein  specified. It  would thus be seen that the Boards constituted under  s. 12 may have occasion  915 either  to make a report in respect of regulations or  rules referred  to them tinder s. 59, or’ they may have to  decide cases sent to them under s. 81.  Section 59 which speaks  of reference  of  the rules and regulations to the  Boards  has already  been  cited.  Section 81(1) provides  that  if  the court  trying  any case instituted at the  instance  of  the Chief  Inspector or other officers therein specified  is  of opinion  that  the case is one which should, in  lieu  of  a prosecution, be referred to a Mining Board, it may stay  the criminal  proceedings, and report the matter to the  Central Government  with  a  view  to  such  reference  being  made. Section  81(2) authorises the Central Government  either  to refer the case to the Mining Board or to direct the court to proceed  with  the trial.  Thus, if the  Central  Government decides  to refer a pending criminal case to the Board,  the Board has to decide it.  That is the two-fold function which may be assigned to the Board under provisions of the Act. Mr.  Sen contends that if s. 59(3) is mandatory, it  follows that  consultation  with the relevant Board was  treated  as essential  by the legislature before the Central  Government finalised the regulations ; and from this obligation imposed by s. 59(3), it must follow as a corollary that the relevant Boards must be constituted by the Central Government’  under s.  12.   In  other words, the argument  is  that  a.  59(3) postulates the existence of the relevant Boards and makes it obligatory  on  the Central Government to consult  them  and this  can  be satisfied only if the  Central  Government  is compelled  to  constitute Boards under  section  12.   Prima facie., there is some force in this contention.  But, on the other hand, if s. 59(3) is read as imposing an obligation on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 19  

the  Central  Government to consult the Board if  it  is  in existence, then no corollary would follow from the mandatory character of the said provision as 916 is  suggested by Mr. Sen. Section 59(3) as it  stood  before the  amendment  of 1959, provides that  every  Mining  Board which,  in  the  opinion  of  the  Central  Government,   is concerned  with  the subject dealt with by  the  regulation, shall  be consulted ; and this means that there should be  a Mining Board before it is consulted and that the said Mining Board  should, in the opinion of the Central Government,  be concerned  with  the subject dealt with by  the  regulation. This  provision  does not mean that a Mining Board  must  be constituted,   for  that  is  the  subject-matter   of   the provisions  contained in s. 12. If s. 12 is  not  mandatory, then s. 59(3) must be read in the light of the position that it is open to the Central Government to constitute the Board or  not to constitute it, and that being so, s. 59(3)  would then  mean  only this and no more that if the  Board  is  in existence  and it is concerned with the subject, it must  be consulted. Similarly,  a.  59(4) as it stands after  the  amendment  of 1959,  requires  that the draft of the  rule  or  regulation shall  be  referred to every.  Mining Board  constituted  in ’that part of the territories to which the Act extends which is affected by. the regulation or rule.  That again means no more than this that if a Board is constituted in the part of the  territories  which is affected by  the  regulation,  it shall be consulted.  It is not as if this construction  adds any words in s. 59(3) or s. 59(4); it merely proceeds on the basis  that  s.12(1) is not mandatory.   Therefore.  in  our opinion, in construing s. 12 (1) it would not be logical  to assume that S. 59(3) or s.59(4) imposes an obligation on the Central Government to constitute a Board, because as we have just  indicated  the constitution of the Boards is  not  the subject-matter  of  s.59  (3) or s. 59 (4)  ;  that  is  the subject-matter’ of  917 the  Central  Government  to  constitute  a  Board  must  be determined in the light of the construction of s. 12. Reverting then to  the material words used in s. 12  itself, if,  it  seems clear that the said words do not  permit  the construction for which Mr. Sen contends.  It is not disputed that  the context may justify the view that the use  of  the word  "may"  means "’shall"; but if we substitute  the  word "shall" for "may" in s. 12(1), it would be apparent that the argument about the mandatory character of the provisions  of s.  12(1)  would  just not work.  To say  that  the  Central Government shall constitute for any part of the  territories to which the Act extends, or for any group or class of mines a   Mining   Board,  would  emphatically   being   out   the contradiction between the obligation sought to be introduced by  the use of the word "shall" and the  obvious  discretion left  to the Central Government to constitute the Board  for any part of the territories or any group or class of  mines’ The discretion left to the Central Government in the  matter of constitution of Boards which is so clearly writ large  in the  operative part of the said provision indicates that  in the  context,  "may"  cannot mean  "shall".   Section  12(1) really leaves it to the discretion of the Central Government to  constitute a Board for any part of the  territories  and that means, it may not constitute a Board for some parts  of the  territories.   Likewise,  discretion  is  left  to  the Central  Government  to constitute. a Board for a  group  or class  of  mines  and that means that  for  some  groups  or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 19  

classes of mines, no Board need be constituted.  Whether  or not Boards should be constituted for parts of territories or for  groups  or  classes  of mines,  has  been  left  to  be determined  by  the  Central Government  according,  to  the requirements  of  the territories or the exigencies  of  the groups or classes of mines.  Therefore, we are 918 unable  to  accept  the argument that a.  12(1)  imposes  an obligation on the Central Government to constitute Boards in order   that   in  making  regulations,  there   should   be appropriate Boards who have to be consulted under s.  59(3). The directory nat ner of the provisions of s. 121(1)  rather strengthen  the  construction placed upon s. 59(3)  by  this Court in the case of Banwari Lal Agarwalla that if there are Boards  in  existence, they must be consulted  before  draft regulations  are  published under section 59.  But  that  is very  different from saving that Boards must be  constituted in all areas or in respect of all groups or classes of mines which  are  intended  to  be  covered  by  the   regulations ,proposed to be made by the Central Government. Mr. Sen relied on section 5 for showing that the use of  the word  "may" in that section really means "shall".  The  said section  provides  that the Central Government  may  appoint such a person as possesses the prescribed qualifications  to be the Chief Inspector of Mines for all territories to which the   Act  extends;  and  it  may  be  conceded   that   the implementation of the material provisions of the Act depends upon the appointment of the Chief Inspector of Mines and so, in the context, "’may" in a. 5 would really mean ,’shall" so far as the appointment of the Chief Inspector is  concerned. But this section itself shows that "may" may not necessarily mean  ,’shall"  in regard to the appointment  of  Inspectors contemplated  by  the latter part "may" means  "may"  or  it means ""shall". would inevitably depend upon the context  in which  the said word occurs and as we have  just  indicated, the context of s. 12(1) is not in favour of the construction for which Mr. Sen contends.  It cannot be said that like the appointment   of   the  Chief  Inspector   of   Mines,   the constitution of the Boards 919 is  essential for the working of the Act, for,  without  the constitution  of  the-Boards,  the working of  the  Act  can smoothly  proceed apace.  We have already pointed  out  that there  are only two functions which can be assigned  to  the Boards; under s. 81(2) it is; discretionary for the  Central Government to refer a pending criminal case to the Board  or not,  and  under  a. 59(3) consultation with  the  Board  is necessary only if the Board is in existence.  Therefore, the working  of  the  Act is not necessarily  dependent  on  the constitution  of  the  Boards, and  that  distinguishes  the context or s. 12 from the context of section 5. There is another provision of the Act to which reference may be  made  in  this connection.  Section 61  deals  with  the making  of  the bye-laws.  Section 61(1) provides  that  the owner, agent or manager of a mine may, and shall, if  called upon  to do so by the Chief Inspector, or  Inspector,  frame and  submit to the Chief Inspector or Inspector a  draft  of bye-law,%  in the manner indicated in the said  sub-section. Section 61(2), inter alia, authorises the Chief   Inspector or the’Inspector to propose amendments  in  the said  draft. Section 61(3) then lays down that if within a period of  two months  from the date on which’ any draft bye-laws or  draft amendments  are sent by the Chief Inspector or Inspector  to the  owner, agent or manager under sub-section (2), and  the Chief Inspector or Inspector and the owner, agent or manager

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 19  

are  unable to agree as to the terms of the bye-laws  to  be made under sub-section (1), the Chief Inspector or Inspector shall refer the draft bye-laws for settlement to the  Mining Board, or where there is no Mining Board, to such officer or authority  as  the  Central Government may,  by  general  or special  order, appoint in this behalf It would  be  noticed that this sub-section assumes that there may not be in  exi- stence a Mining Board in the area where the mine 920 in  question is situated or for the group or class of  mines to  which the said mine belongs.  Now, if  the  petitioners’ construction  of  s. 12 read with s. 59(3) is  accepted,  it would  follow that in order to make the regulations  binding on all the mines situated in the whole of the country, there must  be  Mining  .Board in respect of all  the  said  mines either territory-wise or group-wise or class-wise- and  that would not be consistent with the assumption made by  section 61(3) that in certain areas or in respect of certain  groups or classes of mines a Mining Board may not be in  existence. It  is  in  this  indirect way  that  s.61(3)  supports  the construction  which  we  are disposed to  place  on  section 12(1). It  is then urged that if the respondents’  construction  of s.12  is  upheld,  s. 59(3) or s. 59(4)  would  be  rendered nugatory  and  the whole purpose of  consuiting  the  Boards would  be defeated.  We are not impressed by this  argument. In testing the validity of this argument, it is necessary to recall the scheme of s. 59.  Section 57 confers power on the Central  Government  to make regulations and s.  58  confers power  on  the  said Government to make,  rules  as  therein specified  respectively.   Section 59(1) requires  that  the power. to make regulations is subject to the condition  that the   said   regulations  would  be  made   after   previous publication.   Section  59(2) then provides for  the  period which  has to pass before the said draft can be  taken  into consideration.  Section 59(3) refer to the consultation with the  Boards. Logically, consultation with the Boards is  the first  step to be taken in making ,regulations;  publication of  the draft regulations is’ the second step; allowing  the prescribed period to pass before the draft is considered  is the   third  step  and  publishing  the  regulations   after considering  them is the last step.  After  the  regulations are thus published, they shall have effect as if enacted  in the Act.  That is S. 59,5).  The  921 ’first publication is the publication of the draft under  s. 23(3) of the General Clauses Act and it is significant  that the  object of this publication is to invite objections  or, suggestions  from  persons or bodies affected by  the  draft regulations.   Section  23(4)  of the  General  Clauses  Act provides  that the authority having power to make the  rules or,  regulations shall consider any objection or  suggestion which  may be received with respect to the draft before  the date  specified  therein,  so  that  the  whole  object  ,of publishing  the  draft  is to give  notice  to  the  parties concerned  with  the regulations which are  intended  to  be framed and the object of the requirement that the said draft will  not  be  considered until the  prescribed  period  has passed  is  to  enable  parties  concerned  to  file   their objections.   Therefore, the scheme of s. 59  clearly  shows that  apart  from consulting the Boards to  which  s.  59(3) refers,  all  parties affected, by the draft would  have  an opportunity to make their suggestions or objections and they would  be  considered  before  the  draft  is  settled   and regulations are finally made.  Therefore, in our opinion, it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 19  

would  not  be correct to say that the  construction  of  s. 59(3)  for  which the respondents contend would  enable  the Central  Government to make regulations  without  consulting the opinion of persons affected by them.  The result then is that s. 12(1) is directory and not .mandatory and s.  59(3), or a. 59(4) after the amendment in 1959 is mandatory in  the sense  that before the draft regulation is published, it  is obligatory  for the Central Government to consult the  Board which   is  constituted  under  s.  12.   If  no  Board   is constituted, there can be, and need be, no consultation. It is in the light of this position that the grievance  made by the petitioners against the validity of their prosecution has to be judged.  We have already noticed that it is common ground 922 between  the parties that the Madhya Pradesh  Minning  Board and  the  West Bengal Mining Board  which  were  constituted under a. 10 of the Act of 1923 have become invalid after the amendment of s. 10 by the Amending Act 5 of 1935.  Under  s. 10 as it originally stood, the Board was constituted by  the Provincial  Government and it was composed of five  members. After  the amendment, a Board had to be constituted  by  the Central Government and, it was to consist of seven  members. That is why the respondents concede that the Madhya  Pradesh and  West  Bengal  Mining Boards could not  be  said  to  be validly  constituted  for the purpose of s. 12 even  by  the application  of  s.  24 of the  General  Clauses  Act.   The position then is that at the time when the regulations  were framed  in  1947, there, was only one Board  which  properly constituted  and  that is the Bihar Mining  Board.   It  was constituted  in 1946 and by virtue of a. 24 of  the  General Clauses Act, it continued as a valid Board under s.12.  This Board  has been consulted by the Central  Government  before the  regulations  were made.  It is not  disputed  that  the draft regulations were sent by the Central Government to the Bihar Mining Board through the State Government.It_  appears that  after  the  Board  received the  said  draft,  it  was circulated  by the Chairman of the Board to all the  members of  the  Board and the members communicated  their  opinions individually.   It  is  argued  that  the  communication  by individual  members  of the Board of their opinions  to  the Central   Government  cannot  be  said  to  amount  to   the consulation  with  the Board and so, it is  urged  that  the requirement  of s.59(3) has not been complied with.   We  do not think there is any substance in this argument.  All that s.59(3) requires is that a reasonable opportunity should  be ’given to the Board to make its report as to the  expediency or the suitability of the proposed regulations.  How  923 the Board chooses to make its report is not a matter,  which the Central Government can control.  The Central  Government has discharged its obligation as’ soon as it is shown that a copy of the draft regulations was sent to the Board, and  if the Board thereafter, instead of making a collective report, chose’ to. sent individual opinions, that cannot be said  to constitute  the  contravention of s.59(3).  Indeed,  s.59(3) does  not  impose  an obligation on the Board  to  make  any report at all It is true that since under s.14, the Board is empowered  to make a report, it is unlikely that any  Board, when  consulted,  would  refuse  to  make  a  report.   But, nevertheless,  the position still remains that if the  Board refused  to-  make  a report, that will  not  introduce  any infirmity  in the regulations which the  Central  Government may  ultimately  frame and publish under  s.59(5).  We  must accordingly  hold that the regulations framed in  1957  have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 19  

been  duly framed and published under s.59(5) and  as  such, they shall have effect as if enacted in the Act. The result is, the petition fails and is dismissed. SUBBA  RAO, J.-I regret my, inability to agree.   The  facts relevant to the question raised lie in a small compass.  The petitioners are incharge of the working of a mine, known  as Salanpur "A" Seam Colliery, in the District of Burdwan, West Bengal.   On  the  allegation  that  they  contravened   the provisions   of   Regulation  127(3)  of  the   Coal   Mines Regulations,  1957 (hereinafter called the  Regulations),  a criminal  complaint was filed against them in the  Court  of Sub-divisional Magistrate, Asansol, and the said  Magistrate has  taken cognizance of the said complaint under s.  190(1) (c)  of the Code of Criminal Procedure, read with s.  73  of the Mines Act, 1952 .(hereinafter called the Act). The   petitioners  challenge  the  validity  of   the   maid Regulations on the ground that they were 924 made  in contravention of the provisions of s. 59(3) of  the Act.   Section 59(3) of the Act imposes a condition  on  the Central  Government  to give a reasonable opportunity  to  a Mining  Board before making regulations in exercise  of  the power conferred on it by the Act.  Under s.10 of the  Indian Mines  Act,  1923, the Central Government in the  year  1946 constituted  the Bihar Mining Board with  jurisdiction  over the  area  covered by the Province of  Bihar.   The  Central Government  sent  the draft Regulations to the  said  Board. The  Chairman  of  the  Board  circulated  the  said   draft Regulations to all the members of the Board and the  members communicated  their  opinions individually  to  the  Central Government.  Thereafter the Central Government made the said Regulations  governing the whole of India, except Jammu  and Kashmir, and to every coal mine therein, in compliance  with the other provisions of s. 59 of the Act. The question in this petition is whether the Regulations  so made after consulting the Bihar, Board alone would be  valid and  in  force in the West Bengal area so as  to  sustain  a criminal prosecution on the basis of an infringement of  the said Regulation in respect of a mine in that area. This  question  may be divided into two  parts,  namely  (1) where  the Central Government has’ not constituted a  Mining Board, can it ignore the condition laid down under s.  59(3) of the Act and (2) if giving a reasonable opportunity within the  meaning of s. 59(3) of. the Act is necessary  condition for the validity of the Regulations made thereunder, can the Central  Government validly make a regulation in respect  of West Bengal after giving such a reasonable opportunity to  a Mining Board constituted for Bihar ? In my view, the first question is directly  925 covered  by  the decision of this Court in  Banwari  Lal  V. State  of  Bihar(,).   There, Das Gupta  J.,  delivered  the judgment  of  the Court.  As it is contended that  the  said decision should be confined only a case where a Mining Board has been validly constituted under the Act and should not be applied to a case where such a Board has not been  constitu- ted,  it  would  be necessary  to  scrutinize  the  decision carefully  to  ascertain’  the  exact  scope  of  the   said decision.   The  facts  of  that case  where  there  was  an accident in the Central Bhowra Colliery in Dhanbad in Bihar, as  a  result  of  which 23 persons  lost  their  lives  the Regional  Inspector  of  Mines, Dhanbad  filed  a  complaint against  the appellant for allegedly committing  an  offence under  s. 74 of the Mines Act, 1952, i.e., for  contravening regulations 107 and 127 of the Coal Mines Regulations,  1957

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 19  

;  after the Sub-Divisional Officer took Cognizance  of  the complaint,  the appellant made an application to  the  Patna High Court under Art. 226 of the Constitution contesting the validity of the said proceedings on the ground, inter  alia, that  there was no Mining Board constituted under S.  12  of the  Act and therefore the Central Government had  made  the Regulations  without, consulting Mining Board as it,  should do under s. 59(3) of the Act.  The second ground on which  a prayer  for quashing the proceedings was based,  with  which alone we are now concerned, was stated in the judgment  thus : "the Coal Mines Regulations, 1957, are invalid having been framed in contravention of S. 59(3) of the Mines Act, 1952." The  contention  of  learned counsel,  who  elaborated  this ground, was stated thus : "’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." Then the, learned  Judge  quoted  in extenso s. 59(3) of the Act and (1) (1962) 1 S.C.R. 33. 926 proceeded  to state the relevant basic facts and  posed  the question raised in the case thus:               "It  was not disputed before us that when  the               Regulations  were  framed,  no.   Board  ,  as               required under s. 12 had been constituted  and               so, necessarily there had been no reference to               any  Board  as  required under  s.  59.   ’the               question  raised  is whether the  omission  to               make such a reference make the rules invalid." It is manifest from the question so posed that the  question considered  by  the  Court was whether  the  making  of  the Regulation  without reference to a Mining Board, as  it  was not in existence, would be invalid.  Then the learned  Judge considered the language of a. 59(3) of the Act and  observed at P. 851 :               "............... 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  it;               condition  precedent  to  the  making  of  the               regulations,  should itself be subject to  two               conditions precedent-first, a reference to the               Mining  Board  concerned, and  secondly,  that               sufficient opportunity to the Board to make  &               report   as   regards.  the   expediency   and               suitability of the proposed regulations." The  learned Judge then proceeded to considered the  reasons for imposing such a condition and observed.               "Even  a cursory examination of  the  purposes               set in the 27 clauses of s. 57 shows that that               most  of  them impinge heavily on  the  actual               working  of the mines.  To mention only a  few               of these are sufficient to               927               show that the very purpose of the Act may will               be  defeated  unless  suitable  and  practical               regulations  are’ framed to help the  achieve-               ment of this purpose." Then  he  pointed  out that s. 12 of  the  Act  unabled  the Government  to appoint Boards providing representations  for different interests which would be in a position to help the Central   Government   to  make   suitable   and   practical regulations.  In the words of the learned Judge,               "The constitution is calculated to ensure that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 19  

             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 provision proposed from the point of  view               of the likely expense and other considerations               can be throughly examined.  It is certainly to               the   public   benefit   that   Boards    thus               constituted  should  have  an  opportunity  of               examining  regulations proposed in  the  first               place,% by an administrative department of the               government and of expressing their opinion." According  to  him,  the constitution of the  Board  in  the manner  prescribed served a real purpose and, therefore  the constitution  by the Central Government with such  ’a  Board was made a condition of the making of the Regulations.  When it was contended that the insistence upon consultation might effect  the public welfare under emergent circumstances  he. pointed out that under s. 60 of the Act, which provided  for such  a  contingency,  the  Central  Government  might  make regulations without previous reference to Mining Boards  and therefore  no  such ’consideration could prevent  the  Court from holding that’ the giving of an opportunity to the Board was  a condition precedent to the exercise of the  power  of making  regulations.   The  learned  Judge  summarised   his reasoning thus: 928 "’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 which  providing for the framing of regulations  in  certain cases without following the procedure enjoined in s. 59, the legislature  took  care  to  add  by  a  proviso  that   any regulation so made "shall not remain in force for more  than two years from the making thereof ". By an amendment made in 1959 the period has been changed to one year. It is not unreasonable to read this proviso as expressing by implication  the  legislature’s  intention  that  when   the special  circumstances mentioned in s. 60 do not  exist  and there  is  no scope for the application of that  section  no regulation made in contravention of a. 59 will be valid  for a single day." The learned Judge concluded his discussion thus, a’ p. 853 :               "For  all the reasons giving above, we are  of               opinion that the provisions of S. 59(3( of the               Mining Act, 1952, are mandatory." Pausing here for a moment, I find it very difficult to  bold that this Court held, expressly or by necessary implication, that s. 59(3) of the Act was mandatory only if the concerned Board was in existence.  The argument advanced, the question  929 posed, the reasons given and the conclusion arrived at  were all  against  giving  such  a  limited  scope  to  the  said judgment, It  was contended that both s. 12 and s. 59 were  mandatory. III  Posing  the question to be decided, the  learned  Judge clearly referred to "the omission to make such a reference". The  word  "such" clearly refers to the omission to  make  a reference,  as no Board- was constituted under s. 12 of  the Act.   So, as regards the posing of the question  there  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 19  

absolutely no ambiguity and the learned Judge had clearly in mind  what the Court was asked to decide upon.  The  reasons given  by  the  learned  Judge  for  holding  that  it   was obligatory  of the Central Government to consult  the  Board before the making the regulation would equally apply whether the Board existed or not.  The conclusion arrived at by  the learned  Judge  that consultation with such a  Board  was  a condition  precedent  for the exercise of  the  power  would apply  to both the cases.  If it was a  condition  precedent for the exercise of the power, how could it cease to be  one if  a Board was not in existence?  The condition is not  the existence  of the Board, but the consultation with a  Board. In  one  case, the Government would not  consult  the  Board though  it  existed,  and in the other  case  it  would  not consult,  as the Board did not exist.  In either  case,  the condition  was broken.  But it is said that the last  three, paragraphs  of the judgment make it clear that  the  learned Judge  was  not considering the case where a Board  had  not been constituted.  There, the learned Judge was  considering the question whether the Mining Boards constituted under  s. 10 of the Mines Act, 1923, were continuing to operate at the time   the   Regulation  were  made  and  there   was   full consultation with the ,Mining Boards before the, Regulations were  framed. put tile learned Judge was not able to  decide that 930 question,  as  there  was not  sufficient  material  on  the record.   Therefore, this Court directed the  Magistrate  to decide that question.  I fail to see how these paragraphs in any  way  help  us  to hold that  this  Court  confined  its decision only to a case where a Board has been  constituted. On  the other hand, the observations in the first  of  these three  paragraphs  clearly indicate to  the  contrary.   The relevant observations are               "As  has  been pointed out above, it  was  not               disputed  before  us  that at  time  when  the               regulations  were framed to now  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." This  shows  that  the  entire judgment  up  to  that  point proceeded  on the basis that there was no consultation  with the  Mining  Board,  as  no  such  Board  was   constituted. Thereafter  the  learned  Judge  was  only  considering  the alternative  contention advanced by the State, namely,  that the   pro-existing  Board  was  consulted  and   that   that consultation  was sufficient compliance with the  provisions of s. 59(3) of the Act.  If I might analyse the mind of  the learned  Judge, the process of reasoning may  be  summarized thus:  On behalf of the appellant it was argued  that  there was no consultation with the Board as it was not constituted under s. 12 of the Act and, therefore, the Regulations  made under  the  Act without such consultation  were  void.   The learned  Judge accepted the contention.  Then it was  argued for  the  Government that though there was  no  consultation with  the  Board  constituted  under  s.  12  of  the   Act, consultation  with  a  pre-existing Board  would  be  enough compliance  with the section.  As there was no  material  on the record, the learned Judge could 931 not decide on that question and therefore directed it to  be decided  by  the Magistrate.  On the other hand, as  it  was common  case that no Board under s. 12 of the Act  had  been constituted,  if  the  contention  of  the  Government,  now

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 19  

pressed before us, was correct, no other question would have arisen  for, according to the State, a. 59 (3) could not  be invoked in a case where no Board had been in existence.  The plea  that  there was a consultation with  the  pre-existing Board  was taken not by the appellant but by the  State  and such a plea would be unnecessary if s. 58 (3) of the Act did not  lay down the condition of consultation with  the  Board when it did not exist. To  my  mind,  the  judgment  of  the  Court  is  clear  and unambiguous on this point and it decided that, as there  was no consultation with any Mining Board under s. 59(3) of  the Act, as the Board was not in existence, the Regulations were bad.   The present argument is an attempt to persuade us  to go  back  on  a  clear  pronouncement  on  the  point  by  a Constitution Bench- of the Court. That  apart,  I am satisfied on a true construction  of  the provisions of s. 12 and a. 59(3) of the Act that the Central Government  has  to  exercise the power under s.  12  if  it intends to exercise the power under a. 59 of the Act.  Under s.  12, ,the Central Government may constitute for any  part of  the  territories to which this Act extends  or  for  any group  or  class of mines, a Mining  Board",  consisting  of persons with specific qualifications representing  different interests  in  the mines.  Under ,R. 59, the power  to  make regulation conferred by a. 57 is subject to the condition of the  regulations being made after previous publication,  and under   sub-s.  (3)  thereof  ""Before  the  draft  of   any regulations  is  published under this  section,it  shall  be referred to every Mining Board which is, the opinion of  the Central Government, con- 932 cerned  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".  As interpreted by this Court, the  said condition  is  a condition precedent for the making  of  the Regulations  under the said section.  If the  contention  of the learned Solicitor-General be accepted, the condition may have to be disannexed from the power by a situation  brought about  the  conscious  withholding of the  exercise  of  the connected power by the Central Government under s. 12 of the Act.   Central Government by its own default can ignore  the condition  imposed  in public  interest.   The  construction leading to this anomalous result can. not be accepted unless the  provisions  compel us to do so.  It is a  well  settled principle of construction that when it is possible to do so, it  is  the duty of the Court to construe  provisions  which appear  to  conflict  so that they  harmonies.   To  put  it differently, of two possible constructions, one which  gives a  consistent  meaning to different parts  of  an  enactment should be preferred.  In the instant case, the two  sections can  be  harmonized without doing violence to  the  language used.  Section 12 is an enabling provision under it a  power it;  given  to the Central Government to  appoint  a  Mining Board.   Section 57, read with s. 59, confers another  power on  the  Central Government to make regulation  subject  to, among  others a condition that the draft of the  regulations shall  be referred to a Mining Board.  These two powers  are connected: if they are read together, as we should do in  an attempt  to reconcile them, it could be reason’.  ably  hold that the power conferred under a. 12 has to be exercised  by the  Central  Government if it intends to  make  regulations under  s. 57-of the Act.  This construction carries out  the full   intention   of  Legislature  in  enacting   s.59   as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 19  

interpreted by this 933 Court.   Both  the powers can be exercised without  the  one detracting  from the other.  The construction  suggested  by the respondents enables the Central Government to defeat the public  purpose underlying the imposition of  the  condition under s.59 of the Act and that suggested by the  petitioners enables  the  exercise  of the two powers  without  the  one coming  into  conflict  with  the other.   I  would  on  the principle of harmonious construction, prefer ’to accept  the latter construction to the former. Let us took at the provisions from a different  perspective. It  is  a well established doctrine that when the  power  is coupled  with  a duty of the person to whom it is  given  to exercise  it, then the exercise of the power is  imperative: see  Maxwell  on interpretation of Statutes, 11th  Edn.,  p. 234.   It has also been bold that "if the object  for  which the power is conferred contemplates giving of a right, there would  then  be a duty cast on person to whom the  power  is given  to exercise it for the benefit of the party  to  whom the  right  is given when required on his  behalf."  Dealing with  s.  51, Income-tax Act, 1918 which provides  that  the Chief  Revenue Authority may" state the case to  High  Court Lord  Phillimore  observed in Alcock Ashdown &  Co.  v.  The Chief Revenue Authority Bombay(1).                "No doubt that the section does not say  that               the authority "shall" state the case, it  only               says that it may and it is rightly urged  that               "may" does not mean "shall, only the  capacity               or power is given to the authority.  But  when               a  capacity  or  power is given  to  a  public               authority  there  may be  circumstances  which               couple  with the power a duty to exercise  it,               and where there is a serious               (1)   A. 1. R. 1923 P. C. 138.               934               point of law to be considered there does lie a               duty  upon  the Revenue authority to  state  a               case  for opinion of the Court and if he  does               not  appreciate that there is such  a  serious               point, it is in the power of the Court to con-               trol him and to order him to state the case." Under  the Act, there are two connected powers  a  power  to appoint  a  Mining  Board and a power  to  make  regulations subject to a condition.  The condition imposed on the  power confers  a right on a Mining Board to be consulted before  a regulation is made.  A combined reading of s. 12 and ss.  57 and  59  shows  that the power or powers  conferred  on  the Central  Government are coupled with a duty to  consult  the Board whenever the Central Government seeks to exercise  the power  under s.57. I have no hesitation in holding that  the power  is coupled with a duty and that the power has  to  be exercised when the ’duty demands it.  The Central Government in  making the Regulations has a duty to consult the  Mining Board  and the Mining Board has a right to be  so  consulted and  to discharge its duty it is incumbent upon the  Central Government to exercise the connected power by appointing the Board. It is said that under s. 59 of the Act, the Regulations  and the Rules shall be referred to a Mining Board and that under s.  58 the Central Government has the power to make  a  rule providing for the appointment of the Chairman and members of the  Mining  Board  and  that if s.  59  is  mandatory,  the Government can never exercise the power under s. 58(a).   No such  difficulty  could  arise  under  the  Act  before  its

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 19  

amendment  in 1959.  Under a. 69(3), as it stood  then,  the condition  of consultation with a Mining Board  was  imposed only  on the power of the Government to make  a.  regulation and that s.57 of  the  Act which  confers a  935 power on the Central Government to make regulations did  not contain any. clause corresponding to cl. (a) of s. 58 of the Act.   That apart, s. 58(a) may legitimately be  invoked  by the Central’ Government only after a Board had been  consti- tuted  in regard to the future appointments.  Any. how  this argument  may  have  some  bearing  when  this  question  of construction  of the provisions of s. 59 was  raised  before this Court on the last occasion and none at present, as  the true construction of the said section was finally settled by this Court. That  apart, a comparative study of the other provisions  of the  Act would also lead to the same conclusion.  Under  the Act,  there  are  many enabling  provisions  empowering  the Central  Government  to  appoint  specified  authorities  to discharge  different  duties  and  functions  described   in various  sections.   Should  it be  held  that  the  Central Government  need  not  appoint  the  authorities  under  any circumstances, the Act would become a dead letter.  Even the appointment  of ’the Chief Inspector and Inspectors is  left to the discretion of the Central Government: see s. 5 of the Act.  If the Government need not appoint the Chief Inspector or the Inspectors, the duties and functions allotted to them could   not  be  discharged  or  performed.    A   resonable construction  would, therefore, be that if the  said  duties and functions have to be per. formed, the Government hat; to appoint  the  officers.  So too, if the  Central  Government seeks  to exercise the powers under s. 57 of the  Act,  read with  s.  59  thereof,  it has  to  appoint  the  Board.   I therefore , hold on a fair construction of ss. 12 and 59  of the Act, that’ the Central Government has a duty to  appoint the, Mining Board if it seeks to exercise its power under s. 57 of the Act. The next argument is that the Bihar Board has been consulted in the manner prescribed by 936 s.   59(3)  of the Act and, therefore. the  regulation  made after such consultation are valid.  I cannot agree with this contention  either.  The said Board was appointed  under  s. 10(1)  of the Indian Mines Act, 1923 and it is not  disputed that the Board must be deemed to have been duly  constituted under  the  present Act.  It is also not disputed  that  the said  Board was only constituted to have  jurisdiction  over the  area comprised in the present Bihar State, that is,  it has  no jurisdiction over West Bengal.  Under s. 12  of  the Act,  the Central Government may constitute for any part  of the  territories to which this Act extends or for any  group or  class  of a Mines., a Mining Board.  Under  s.  59,  the Central  Government  shall refer the draft to  every  Mining Board  which, in the opinion of the Central  Government,  is concerned  with the subject dealt with by  the  regulation’. Now, can it be said that the Board constituted for a part of the  territories  to which the Act extends, namely,  to  the State of Bihar, could be a Board concerned with the  subject dealt  with  by the regulations, namely, the mines  in  West Bengal  area ? The entire object of s. 59 is to consult  the persons intimately connected with the mining operations of a particular area so that suitable regulations may be made  to govern the working of those mines.  It could never have been the  intention of the Legislature to empower the  Government to  make regulations in regard to mines in one part  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 19  

country  by consulting a Board constituted for another  part of  the country.  Such an intention could not be  attributed to the Legislature.  Indeed, the Central Government, when it is constituted the Boards, expressly indicated its intention that all the Boards, including the Board functioning in West Bengal,  should be consulted, but as the  Board  constituted there  was  not one constituted legally under the  Act,  the consultation with. the said Board 937 had  become futile.  I therefore, hold that the  Regulations in  so far as they purport to regulate the mines situate  in West  Bengal  have  not  been validly  made  under  the  Act inasmuch  as a condition precedent imposed by s. 59  of  the Act  on  the exercise of the Government’s power  to  make  a regulation was not complied with. In  the result, I direct the issue of a writ of  prohibition against respondents 1 to 4 restraining them from  proceeding with  the  criminal case launched against  the  petitioners. The petitioners will have their costs. By COURT : In view of the majority opinion of the Court  the Writ Petition fails and is dismissed.