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PETITIONER: BHARAT COKING COAL LTD. AND ANR.

       Vs.

RESPONDENT: STATE OF BIHAR AND ORS.

DATE OF JUDGMENT17/08/1990

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) KANIA, M.H.

CITATION:  1990 SCR  (3) 744        1990 SCC  (4) 557  JT 1990 (3)   533        1990 SCALE  (2)256

ACT:     Mines  and  Minerals (Regulation and  Development)  Act, 1957:  Sections 2, 3, 5, 13, 18--Coal slurry  escaping  from coal  mine  washery--Deposited  on  river-bed  and   Raiyati land--Lease  for disposal thereof--Competence of State  Gov- ernment--Non-framing of Rules by Central Government--Whether confers  legislative competence on State  Legislature-Extent of   executive  power  in  the  execution   of   lease--Coal slurry--Whether constitutes mineral. executive   power--Whether  co-extensive  with   legislative power--State denuded of its legislative  competence--Whether State’s executive power extends.     Articles  245 and 246 and Schedule VII List I  Entry  54 and  List  II Entry 23--Subject matter falling  under  Union list--Absence of Parliamentary legislation--Whether  confers power on State Legislature.     Practice & Procedure: Pleading--Party taking a  particu- lar  stand throughout--Before the  Courts--Deviation  there- from--Whether open to it--Operation of estoppel. Words & Phrases: "Conservation"--"Mine"--Meaning of.

HEADNOTE:     The  three appellant companies claimed their  respective right  to  the  slurry  that  escaped  from  their   washery plant/pond and got deposited in the Bokaro and Damodar River beds, as also in certain Raiyati land. The State  Government did not accept their plea and leased out the right to remove the said slurry to the respondent on payment of royalty. The first  two appellants filed Writ Petitions before the  Patna High  Court  challenging the State  Government’s  action  in leasing  out the right to the Respondent’s for removing  the slurry.  The third company instituted  criminal  proceedings against  the contractors, who in turn filed  Writ  Petitions before  the  Calcutta High Court for quashing  the  criminal proceedings  and for a direction permitting them to  collect slurry under the lease granted by the State Government. 745     The  Full  Bench of the Patna High Court  dismissed  the Writ  Petitions  and held that slurry was neither  coal  nor mineral;  it was an industrial waste of coal mine which  was not  regulated  by the provisions of the Act. It  also  held that collection of slurry did not involve any mining  opera-

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tions  and  the settlement made by the State  Government  in favour of the respondents was not a mining lease and so  the State  Government  was  not under any  legal  obligation  to obtain previous sanction of the Central Government under the Mines  and Minerals (Regulation and Development) Act,  1957. It further held that after the slurry escaped into the river bed or to some other land, it ceased to belong to the appel- lants  and the State Government was entitled to execute  the lease for collection of the slurry.     The  Writ Petitions filed by the Contractors before  the Calcutta  High  Court were dismissed by a Single  Judge  who held  that the third appellnat-company was the owner of  the slurry  and the State Government had no authority  to  grant any  lease to the respondent-contractorS for removal of  the same. On appeal by the contractors the Division’ Bench  held that  the lease granted by the State of Bihar in  favour  of the contractors was not a mining lease and the provisions of the  Mines and’ Minerals (Regulation and  Development)  Act, were  not applicable to the grant of lease. On the  question of  appellants’ claim to the property rights for  collecting slurry,  the  Bench held that the slurry  deposited  on  the appellants’  land, belonged to them and the respondents  had nO right. to collect the same but if the slurry settled down on  other’s  land the respondents have right to  remove  the same.     Against the above decisions of the two High Courts,  the appellant companies have preferred the present appeals.     On behalf of the appellants, it was inter alia contended that  the  slurry/sludge was in substance  coal,  a  mineral specified  in the First schedule to the Act; that the  State Government had no authority in law to grant any lease to the respondents  for the collection, removal Or’ lifting of  the slurry  coal  deposited in the river bed or on  any  Raiyati land  without obtaining the sanction of the Central  Govern- ment  under  Section 5 of the Act; that the deposit  of  the slurry in the river bed and the land was by natural  process of  flow of water discharged from the washeries; that  there was  no  law made by the State Legislature  authorising  the State Government to interfere with the appellants’  property right  by  way of executive orders; that  slurry  discharged from the washeries of the appellants’ coal mines constituted waste  and effluent of coal mines, its disposal  was  exclu- sively within the legislative compe- 746 tence  of  the Parliament; and that in view of  the  Parlia- ment’s declaration under Section 2 read with Sections 13 and 18  of the Act, the State Government was denuded of all  its legislative  competence to make any law with regard to  dis- posal  of  waste or effluent discharge of  coal  mines.  and hence  the State Government had no executive power  to  deal with the same.     The  main contentions on behalf of the respondents  were that once the slurry escaped from the washery plants of  the appellant it ceased to belong to them and as it polluted the river  water and affected the fertility of Raiyati land  the State Government was justified in providing for its  collec- tion  and removal to prevent pollution; that the  appellants could not have any right in the goods which they  abandoned; that  the washeries do not form integral part of the  mining operations, and therefore the slurry could not be treated as a  waste of coal mine. Alternatively it was  contended  that even if slurry was a waste of coal mine the State Government was  competent to provide for its collection and removal  as the  Central  Government had failed to make any  rule  under Section 18 of the Act regulating the disposal of the slurry.

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Allowing the appeal, this Court,     HELD:  1. Slurry is a descriptive expression, it may  be cement  slurry or coal slurry, depending upon the  character or  quality  of the mixture of mineral in the  liquid  form. There is no doubt that in the instant cases, slurry is  coal slurry,  as admittedly small particles of coal  escape  from the  washery plant alongwith water. After it  overflows  the storage pond the slurry flows into the river and is deposit- ed on the river bed, which is later on collected and used as fuel  after it is formed into briquettes. The deposit  which is collected from the river bed continues to be carbonaceous in  character  having all the elements of  coal.  Thus,  the slurry is coal in liquid form, and slurry coal deposited  in the river bed or lands in substance as well as in its  char- acter continues to be coal. [757F; 758C-D] Kesari  MaI Jain v. State of Bihar, AIR 1985 Patna 114,  ap- proved.     Websters  New  20th  Century  Dictionary;  Encyclopaedia Britannica, referred to.     2.  The definition of "mining operation" and "mine"  are very wide. The expression "mining of mineral" in the defini- tion  of "mining operation" under Section 3(d) of the  Mines and Minerals (Regulation & 747 Development)  Act,  1957 is spacious  enough  to  comprehend every  activity by which a mineral is extracted or  obtained from  the  earth irrespective of whether  such  activity  is carried out on the surface or in the bowels of the earth. It is   not  a  requirement  of  the  definition   of   "mining operation",  that the activity for winning the mineral  must necessarily  be  an  underground activity.  The  essence  of ’mining  operation’ is that it must be an activity for  win- ning  a  mineral whether under the surface  or  winning  the surface of earth. The slurry which is deposited on the river bed  is  not dumped there artificially by any  human  agency instead  coal particles are carried to the river bed by  the flow  of water through natural process. Therefore  the  view taken  by the High Court that the slurry which is  deposited in  the river bed is dumped by the appellants by  artificial process  is incorrect. Once the coal particles  are  carried away  by the water which is discharged from the washery  and the same are settled in the river bed, any operation for the extraction  of lifting of the coal particles from the  river bed  would involve winning operations within the meaning  of Section  3(d) of the Act. However. in the instant cases,  it is not necessary to express any final opinion on this  ques- tion. [759D-G]     Tarkeshwar Sio Thakur Jiu v. B.D. Dey & Co. & Ors.,  AIR 1979 SC 1669. relied on. Bhagwan  Das  v. State of U. P. & Ors., [1976]  3  SCR  869, referred     3.  The State Legislature is competent to enact law  for the regulation of mines and mineral development under  Entry 23  of State List but this power is subject to the  declara- tion which may be made by Parliament by law as envisaged  by Entry  54 of Union List. Thus the legislative competence  of the State Legislature to make law on the topic of mines  and minerals  is subject to Parliamentary Legislation. The  Par- liament  has enacted the Mines and Minerals (Regulation  and Development) Act. 1957. By Section 2 of the Act the  Parlia- ment  has declared that it is expedient in  public  interest that the Union should take under its control the  regulation of  mines  and  the development of minerals  to  the  extent provided in the Act. In view of Parliamentary declaration as made  in  section  2 of the Act, the  State  Legislature  is

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denuded  of its legislative power to make any law  with  re- spect to the regulation of mines and mineral development  to the extent as provided by the Act. [760G-H; 761A] 4.1  An  analysis  of the provisions of the  Act  makes  the extent of 748 Parliamentary  declaration clear that the disposal and  dis- charge  of  sludge or slurry emanating or  coming  from  the washery of a coal mine is exclusively within the legislative power  of  Parliament.  The Act further  provides  that  the Central  Government  has exclusive power to frame  any  rule either  under Section 13(2)(0) or under the amended  Section 18(2)(k)  of  the  Act regulating disposal  of  slurry.  The effect of the Parliamentary declaration as contained in  the Act  is  that the matters referred to  in  the  declaration, stand  abstracted from List II and these become  matters  of legislation  in List I of the Seventh Schedule. As a  result of  the declaration made by the Parliament, under Section  2 of the Act. the State Legislature is denuded of its legisla- tive  power  with  respect to the regulation  of  mines  and minerals  development and the entire legislative  field  has been taken over by Parliament. [763C-E]     4.2  The  Central  Government has not  framed  any  rule either  under  Section 13 or under Section 18  of  the  Act. Prior  to the Amending Act 37 of 1986 Section 13(2)(0)  con- ferred  power on the Central Government to frame  rules  for the  purpose  of granting prospecting  licences  and  mining leases including the disposal of discharge of any  tailings, slime  or  other waste products. Sub-clause (0)  of  Section 13(2) was transposed into Section 18(2) as sub-clause (k) by the Amending Act 37 of 1986. Section 18 (1) confers  general power  on the Central Government to frame rules and to  take all such steps as may be necessary for the conservation  and development  of  minerals in India. Section 18(2)  does  not affect  or restrict the generality or width  of  legislative power  under Section 18(I) as the matters specified in  var- ious  sub-clauses of Section 18(2) are illustrative  in  na- ture. Even in the absence of sub-section (2) or its  various sub-clauses,  the Central Government was invested  with  the power  of subordinate legislation in respect of  any  matter which  could  reasonably be connected with  the  purpose  of "conservation and development of minerals" by Section  18(1) of  the Act. Power to frame rules, regulating the  discharge or  disposal of slime or slurry emanating from a  coal  mine including its collection from the river bed or from  Raiyati land  after its escape from the washery of the  coal  mines. would  clearly fall within the expression  "conservation  of mineral".  Slurry  admittedly contain  coal  particles,  its collection  from land or river is reasonably connected  with the  ’conservation of mineral’. Section 18(2)(k)  which  ex- pressly confers power on the Central Government to  regulate disposal  or discharge of waste of a mine makes the  Parlia- mentary  declaration apparent that the State Legislature  is not  competent to regulate waste discharge of a  coal  mine. Mere  absence of any rule framed by the  Central  Government under  Sections 13 or 18 of the Act with regard to the  dis- posal of slime or waste of a coal mine does not 749 confer  legislative competence on the State  Legislature  to make any law or rule. Once a particular topic of legislation is  covered  by  the Parliamentary  declaration,  the  State Legislature is denuded of its power to make any law or  rule in  respect of that topic or subject matter and the  absence of  Rules  would not confer legislative  competence  on  the State. [764A-G]

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   4.3  Since Section 18 of the Act covers the  field  with respect  to disposal of waste of a mine. there is  no  scope for  the  contention that until rules are framed  the  State Legislature  has power to make law or rules on the  subject. Once  the  competent legislature with  a  superior  efficacy expressly  or  impliedly evinces its legislative  intent  to cover  the  entire field on a topic. the enactments  of  the other  legislature whether passed before or after  would  be overborne.  Mere  absence  of rules framed  by  the  Central Government.  does not confer power on the State  Legislature to make law on the subject. Since the legislative field with regard  to the framing of rules relating to the disposal  of slime and waste of coal mine is fully covered by Section 18. the State Legislature is denuded of its power of making  any law with regard to those mailers. [765B-C]     Baijnath  Kedia  v. State of Bihar & Ors. [1970]  2  SCR 100: Hingir-Rampur Coal Co. Ltd. & Ors. v. State of Orissa & Ors.,  [1961] 2 SCR 537; State of Orissa v. M.A.  Tulloch  & Co., [1964] 4 SCR 461 and State of Tamil Nadu v. Hind Stone, [1981] 2 SCR 742. relied on.     5.  The executive power of the State Government  is  co- extensive  with the legislative power of the State  Legisla- ture. If the State Legislature has power to enact laws on  a matter  enumerated  in the State List or in  the  concurrent list  the State has executive power to deal with those  mat- ters  subject to other provisions of the Constitution. If  a subject  matter fails within the legislative  competence  of State  Legislature. the exercise of executive power  by  the State Government is not confined, as even in the absence  of a law being made, the State Government is competent to  deal with the subject matter in exercise of its executive  power. In  the  absence  of any law, the State  Government  or  its officers in exercise of executive authority cannot  infringe citizens  rights  merely because the State  Legislature  has power  to  make laws with regard to subject, in  respect  of which the executive power is exercised. No doubt under Entry 23  of List 1I, the State Legislature has power to make  law but that power is subject to Entry 54 of List 1 with respect to  the  regulation and development of mines  and  minerals. Since State Legislature’s power to make law with respect  to the matter enumerated in Entry 23 of List II has been  taken away by the Parliamentary declaration, the State  Government ceased to have any executive power in the matter relating 750 to  regulation of mines and mineral  development.  Moreover, the proviso to Article 162 itself contains limitation on the exercise of the executive power of the State. If  Parliament and  the State Legislature both have power to make law in  a matter, the executive power of the State shall be subject to the  law made by the Parliament or restricted by the  execu- tive  power  of the Union expressly conferred on it  by  the Constitution or any law made by Parliament. Since Parliament has  made the law as contemplated by Entry 54 of List I  and the  law  so  made confers exclusive power  on  the  Central Government  to frame rules regulating the disposal of  waste or industrial effluent of a mine, the State Legislature has, therefore no power either to make law under Entry 23 of List II  or to exercise executive power to regulate the  disposal of  slurry,  a  waste effluent discharge  of  a  coal  mine. [765F-H; 766A-F] Rai Sahib Ram Jawaya Kapur & Ors. v. State of Punjab, [1955] 2  SCR 225 and State of M.P. & Anr. v. Thakur Bharat  Singh, [1967] 2 SCR 454, referred to.     6.  It  is apparent that the State of Bihar  itself  has been  treating the ’slurry deposits’ as mineral and on  that

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assumption it has been executing leases conferring rights on the  respondents to collect the same on payment of  royalty. Hence  it is not open to the State of Bihar and the  lessees to  contend  that slurry is not coal or mineral  within  the meaning of the Act. [767F]     7.  The inclusive definition of ’mine’ as  contained  in Section 2 of the Act is wide enough to include any  premises belonging  to a mine where any ancillary process is  carried on for preparing the minerals or coke for sale. The washery, wherein  the process of washing coal is carried on, for  the purpose of preparing the coal for. sale is an integral  part of  a  mine  as it involves ancillary  process.  Washery  is included  within the definition of mine under the Mines  Act 1952.  Any waste discharge from the washery  carrying  small particles  of coal in the form of slurry is the waste  slime arising from operations carried out in a mine. Moreover,  it is not open to the respondents to contend that slurry is not a  waste discharged from the washeries of coal mines,  since they  have  all along pleaded that slurry is  a  waste  dis- charged  from  the washery of the  appellants’  coal  mines. [768C; D-E]      8. The slurry which escapes from the appellants’  wash- eries is mineral and its regulation is within the  exclusive jurisdiction  of  the  Central Government. In  view  of  the Parliamentary  declaration made by Section 2 of the Act  and having regard to Section 18 of the Act, the State 751 Government has no authority in law to make any settlement or grant  any lease to any person for the collection of  slurry deposits  either from the river bed or other land.  The  im- pugned settlements made in favour of the respondents by  the State Government are illegal and the respondent-lessees have no  right nor title to collect the slurry deposits and  they are restrained from lifting or collecting the same from  the land in dispute. [771H; 772A]     [This  Court directed that the money deposited  pursuant to  the  interim orders passed by the High  Court  and  this Court will be paid to the successful party. [771C]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4521  of 1986. etc. etc.     From  the  Judgment and Order dated  20.12.1985  of  the Patna High Court in C.W.J.C. No 1133 of 1984(R).     Ashok  Desai,  Solicitor General,  Kuldip  Singh,  Kapil Sibal,  Additional Solicitor Generals, K.K. Venugopal,  R.K. Jain,  Gobind  Das, R.N Sachthey, Shanti Bhushan,  Dr.  L.M. Singhvi, L.N. Sinha, M.L. Verma, Ranjit Kumar, K.K.  Lahiri, R.F.  Nariman,  S.  Sukumaran, P.K. Jain,  P.  Saswidia,  P. Parmeshwaran,  C.V. Subba Rao, P.P. Singh, D Goburdan,  S.B. Upadhyay,  P.C. Kapoor, M.M Kashyap, A. Sharan, R.D.  Upadh- yay,  S.K.  Sinha, Apurb Lal, Anip Sachthey, C.  Badri  Nath Babu, B.B. Singh, A.K. Mitra, O.C. Mathur, A.N. Dittia, Arun Madan,  Ms. A Subhashini, C.V. Subba Rao, Mrs.  Sushma  Suri and A.M. Ditta for the Appearing Parties. The Judgment of the Court was delivered by     SINGH,  J. In these appeals a common question of law  is involved  whether the State of Bihar had legal authority  to execute  leases in favour of the respondents for  collection of  slurry on payment of royalty to it. Since  the  question involved  in  these appeals are common the  same  are  being disposed  of by a common judgment. Civil Appeal No. 4521  of 1986  and  Civil  Appeal Nos. 61-62  of  1987  are  directed

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against  the  judgment of the Patna High Court  while  Civil Appeal  Nos. 230-231 of 1987 are directed against the  judg- ment of the Division Bench of the Calcutta High Court.     In order to appreciate the controversy in question it is necessary to recapitulate the facts. M/s. Bharat Coking Coal Ltd.--appellant in 752 C.A. 4521 of 1986 is a Government Company which carries coal mining operations in village Sudamdih in the State of Bihar. There  is  a coal washery adjacent to the  appellant’s  coal mine  in village Sudamdih. After the coal is extracted  from the mines, it is crushed into pieces of different sizes  for purposes of grading. Since the coal is mixed up with mud and other impurities, same is brought to the washery for washing and  cleaning the same for reducing the ash  percentage  and for use by metallurgical consumers. In the process of  wash- ing small coal particles escape from the washery in the form of slurry along with water and the same are deposited in the slurry ponds constructed for their storage by the  appellant company.  But when the ponds are full, the slurry  overflows the  pond and flows down into the river Damodar.  After  the water is soaked by the soil the small particles of coal  get deposited  in the river bed. These coal particles  are  col- lected  and formed into briquettes which are sold in  market for  energy and fuel purposes. The slurry coal has  acquired high  commercial value as it is of exceptional  quality  and high  grade,  it is used by steel plants and  thermal  power stations. The State of Bihar granted lease in favour of  Ram Nath Singh--respondent No. 4 for collecting the coal  parti- cles settled in the Damodar fiber bed and other land includ- ing  plot No. 370 of Mauza Sudamdih. The  appellant  claimed that plot No. 370 which formed part of river bed of  Damodar belonged  to it having been acquired under the Coal  Bearing Areas (Acquisition & Development) Act, 1957 for the  purpose of  mining of coal. Pursuant to the lease, respondent No.  4 has  been collecting the coal particles from plot  No.  370. The  appellant company raised objection before  the  Revenue Authorities  of the State of Bihar claiming property  rights to  collect and obtain slurry deposited in the river bed  in plot  No.  370, but its objections were over-ruled  and  re- spondent  No. 4 was permitted to collect the coal  particles from  the  aforesaid plot. The appellant thereupon  filed  a writ  petition  in the High Court of Patna  challenging  the State  Government’s action in granting lease  to  respondent No.  4 for lifting slurry from the fiber bed, on the  ground that the property belonged to the appellant company and  the State  Government had no authority in law to grant a  mining lease  without the prior approval of the Central  Government under  Section  5 of the Mines and Mineral  (Regulation  and Development) Act 1957.     Tata  Iron & Steel Company Ltd.--the appellant in  Civil Appeal  Nos. 61-62 of 1987, is a company incorporated  under the Companies Act. It owns steel plant at Jamshedpur and  it also owns captive coal mines in the District of Hazari  Bagh and  Dhanbad.  These coal mines are commonly known  as  West Bokaro Collieties. There is no dispute 753 that  large area of land in the District of Hazari Bagh  and Dhanbad  have  been settled with the appellant  company  for purposes of mining operations and the company enjoys mineral rights  in  respect of the surface and sub-soil. It  is  not necessary  to refer to the historical facts relating to  the acquisition  of mining rights by the appellant, as there  is no  dispute that under Section 10 of the Bihar Land  Reforms Act the appellant’s existing mining leases became  statutory

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leases in the State of Bihar. The appellant has  established washery  plant in the District of Hazari Bagh as well as  in Jama Dhoba and Zora Pokhar in District Dhanbad for  purposes of washing the coal after extraction from the coal mines and crushed into different sizes. In the process of washing  the coal  small particles of coal escape from the  washery.  and over-flow  from the plant and the same are deposited in  the storage pond constructed by the appellant. But sometime they overflow  from  the  storage pond and  settle  down  in  the Raiyati land and in the Bokaro river bed. The appellant  has been  claiming right that the slurry which escaped from  the washery  belonged  to it and no other person  had  right  to collect  the same. The State Government did not  accept  the appellant’s  claim instead it settled the fights of  collec- tion  of  slurry with the respondents under  the  indentures granted  in their favour. Under the settlement the  respond- ents have been authorised by the State Government to collect sludge and slurry which settles down in the Bokaro river bed or  in the Raiyati land on payment of royalty to the  State. The appellant filed two writ petitions before the Patna High Court  challenging the authority of the  State  Government’s action  on the ground that slurry was a mineral  being  coal and  as such its collection or mining was regulated  by  the provisions of the Mines and Mineral (Regulation and Develop- ment)  Act, 1957 (hereinafter referred to as ’the Act’)  and the State Government had no authority to grant any lease for collection of sludge/slurry without the previous sanction of the Central Government.     The aforesaid petitions were heard and disposed of by  a Full Bench of the Patna High Court (AIR 1986 Patna 242). The Full Bench dismissed the writ petitions on the findings that the  slurry was neither coal nor mineral instead it  was  an industrial waste of coal mine which was not regulated by the provisions  of  the Act. The collection of  slurry  did  not involve any mining operations and the settlement made by the State Government in favour of the respondents for collecting the  same was not a mining lease, therefore, the State  Gov- ernment was not under any legal obligation to obtain  previ- ous  sanction of the Central Government under the  Act.  The High  Court further held that after the slurry escaped  into the river bed or to some other land, the same 754 ceased to belong to the appellants and the State  Government was entitlement to execute lease for collection of the same.     Civil  Appeal Nos. 230-231 of 1987 are directed  against the judgment of a Division Bench of the Calcutta High  Court (AIR  1985 Calcutta 143). The Central Coal fields  Ltd.  and the Coal India Ltd. the appellants are Government  Companies which own coal mines in the District of Giridih in the State of  Bihar.  The  appellants have set up  coal  washeries  at Kathara,  Kargali and Sawang in the District of Giridih  for washing the coal extracted from its mines. In the process of washing,  particles  of coal escape from the  washery  along with  water which ultimately flows into the  river  Damodar. The Mining Department of the State of Bihar granted lease to Industrial Fuel Marketing Company and Ors.--respondents  for removing the slurry from the river bed on payment of royalty but  the appellants resisted the collection of  slurry  from their land and they instituted criminal proceedings  against the  contractors.  Thereupon,  the   respondents-contractors filed  writ  petitions before the Calcutta  High  Court  for quashing the criminal case registered against them, and also for  the  issue of a direction permitting  them  to  collect slurry  under  the  lease granted to them by  the  State  of Bihar. Before the High Court the appellants herein contended

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that the slurry belonged to them and the State of Bihar  had no  authority  in law to grant any lease in respect  of  the same. A learned single Judge of the High Court dismissed the writ  petitions on the findings that the  appellants  herein are the owner of the slurry and the State Government had  no authority  to grant any lease to the respondent  contractors for  removal  of the same. On appeal by  the  contractors  a Division Bench of the Calcutta High Court vide its  judgment (AIR  1985 Calcutta 143) held that the lease granted by  the State of Bihar in favour of the contractors was not a mining lease  and the provisions of the Act were not applicable  to the grant of lease. On the question of appellants’ claim  to the  property rights for collecting slurry, the  Bench  held that the slurry deposited on the appellant’s land,  belonged to them and the respondents had no right to collect the same but if the slurry settled down on other’s land the  respond- ents  have  right  to remove the same from  the  river  bed. Aggrieved, the Central Coal fields Ltd. and Coal India  Ltd. have challenged the correctness of the High Court’s view  by these appeals.     The  main  question  which falls  for  consideration  is whether   the  State  of  Bihar  has  authority   to   grant lease/settlement  to the respondents for  collection/lifting of  coal slurry deposited in the river bed or on  any  other land after its escape from the appellants’ washeries. 755 Before the High Court the appellants contended that in  view of  the  provisions  of the Act the State of  Bihar  had  no authority to grant any lease regarding collection of  slurry without  the prior approval of the Central  Government.  The State  of Bihar and other respondents contended  before  the High  Court that the slurry was not a mineral, and its  col- lection  or  lifting from the river bed involved  no  mining operations,  therefore, the Act did not apply and the  State Government  was-free to grant leases for collection  of  the same.  The appellants further pleaded before the High  Court that  since  slurry after its escape  from  their  washeries settled  down  in their own land, it continued to  be  their property  and the State of Bihar had no authority  to  grant lease  for collection of the same from their land. The  Full Bench  of  the  Patna High Court held that  the  slurry  was neither  coal nor a mineral instead it was a reject  residue or waste of an industrial process consisting of mud, ash and oily  substances  having  carbonaceous  ingredients.   Since collection  of slurry did not involve any mining  operations the  provisions of the Act did not apply and the State  Gov- ernment  had authority to settle the removal of slurry  with private  parties.  With regard to the appellants’  claim  of ownership  of the slurry deposited on the appellants’  land, the  Full Bench did not decide the question, on  the  ground that these issues involved disputed questions of fact  which could properly be adjudicated in a civil suit.     The Division Bench of the Calcutta High Court held  that the  lease  granted by the State of Bihar was not  a  mining lease as the river bed or the land from where the slurry was collected was not a mine as no winning or mining  operations were involved in collecting the same. The Bench further held that the lease granted by the State Government in favour  of the respondents for collecting the slurry did not confer any right  in  them for carrying out coal mining  operation  nor such right relates to winning or mining of coal. However the Bench held that the slurry deposited on the appellants’ land belonged to them and the respondents-lessee had no right  to collect slurry from the appellants’ land. But if the  slurry was  deposited on the land not owned by the appellants,  the

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lessee was entitled to remove the same under the  settlement made by the State of Bihar. Thus, both the High Courts  held that the slurry which escaped from the washeries and  depos- ited in the river bed or on other land did not constitute  a mineral and it was not regulated by the Central Act,  conse- quently,  the  State of Bihar had authority  to  settle  the collection of slurry.     Learned  counsel for the parties made elaborate  submis- sions, before us in support of their case. On behalf of  the appellants it was ’ 756 urged  that slurry/sludge the subject matter of  dispute  in the instant cases, in substance is coal, a mineral specified in  the First Schedule to the Act. The State Government  had no  authority in law to grant any lease to  the  respondents for the collection or removal or lifting of the slurry  coal deposited  in the river bed or on any Raiyati  land  without obtaining  the  sanction  of the  Central  Government  under Section 5 of the Act. The counsel for the appellants further emphasised  that  slurry which escaped from washery  of  the coal mines, contains small particles of coal having carbona- ceous  character,  and it is used for energy and  fuel  pur- poses. Assailing the findings of the Full Bench of the Patna High  Court  and  the Division Bench of  the  Calcutta  High Court,  the appellants’ counsel submitted that  slurry  coal was  not  deposited in the river bed or other  land  by  any artificial mode instead the same were deposited in the river bed  and the land by natural process of flow of  water  dis- charged  from  the washeries. The process of  collection  or removal  of the same from the river bed or Raiyati  land  by the respondent/lessees involved winning operations.  Winning or mining operation according to the learned counsel did not always  require excavation or extraction of a  mineral  from the  bowels  of  the earth instead a mineral  like  sand  or gravel may be deposited on the earth and removal of the same would  also involve winning or mining operation. The  appel- lants further urged that if the slurry which is the  subject matter  of  the lease or settlement, is not a  mineral,  the State  Government had no authority in law to  authorise  any other  person to remove the same from the appellants’  land. There  is no law made by the State  Legislature  authorising the  State  Government  to interfere  with  the  appellants’ property  rights.  In the absence of any law  the  State  of Bihar  had  no authority to interfere with  the  appellants’ property  rights  by executive orders.  In  the  alternative learned counsel for the appellants urged that on the  admit- ted  pleadings  of the parties slurry  discharged  from  the washeries  of the appellants’ coal mines  constituted  waste and  effluent  of coal mines, its disposal  was  exclusively within the legislative competence of the Parliament. In view of  the Parliament’s declaration under Section 2  read  with Sections  13  and 18 of the Act, the  State  Government  was denuded  of  all its powers in the matter  relating  to  the disposal  of slurry which would include its removal or  col- lection.  Since  the  State Legislature is  denuded  of  its legislative  competence to make any law with regard to  dis- posal  of  waste or effluent discharge of  coal  mines,  the State  Government  has no executive power to deal  with  the same.  Learned  counsel  for the State of  Bihar  and  other respondents  reiterated their stand as taken by them  before the  High  Court that the slurry was not a mineral  and  its removal did not involve any mining operations,  consequently the settlement deed was not a mining 757 lease  under the Act. On behalf of the State  Government  it

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was further contended that once the slurry escaped from  the washcry plants of the appellants it ceased to belong to them and as it polluted the river water and affected the fertili- ty  of  Raiyati land the State Government was  justified  in providing  for its collection and removal to prevent  pollu- tion.  The appellants could not have any right in the  goods which they abandoned. It was further urged that the  washer- ies  do  not form integral part of  the  mining  operations, therefore the slurry could not be treated as a waste of coal mine. In the alternative learned counsel contended that even if  slurry was a waste of a coal mine the  State  Government was  competent to provide for its collection and removal  as the  Central  Government had failed to make any  rule  under Section 18 of the Act regulating disposal of the slurry.     Before,  we consider the contentions of the parties,  we think it necessary to briefly discuss the nature and charac- teristic  of  the slurry. There is no dispute that  coal  is found  in seams mixed with mud and other  impurities.  After its extraction from the mines, it is crushed into  different sizes, thereafter it is washed in the washeries of the  coal mines for removing its impurities for purposes of making  it fit  for  use  for metallurgical purposes.  In  the  washery plants,  coal is washed with the medium of water mixed  with pine oil and sand through mechanical process. In the process of  washing, large quantity of water is  discharged  through pipes  which  carry the discharged water  to  storage  ponds constructed for the purpose of retaining the slurry.  Along- with  the  discharged  water, small particles  of  coal  are carried  away  to the pond where the coal  particles  settle down  on the surface of the pond, and the same is  collected after the pond is de-watered. The coal particles so collect- ed  are  of fine quality, ash free and the same is  used  as fuel.  The  slurry is a descriptive expression,  it  may  be cement sluny or coal slurry, depending upon the character or quality  of  the mixture of mineral in the liquid  form.  In Websters New 20th Century Dictionary, ’slurry’ is defined as follows: "A thin mixture of water and any of several fine,  insoluble materials as clay, cement, soil etc." In  common parlance slurry is a liquid form mixed with  some other  material.  In  Encyclopedia  Britannica  ’slurry’  is defined as under: "Slurry--watery  mixture or suspension of insoluble  matter. In the manufacture of portland cement, a mixture of the  raw materials with water is called a slurry. Cement may be 758 piped  as  a slurry in building construction.  Coal  may  be transported  over long distances as a slurry  via  pipeline; this  method  of transmission is  economical  between  large producing areas and markets where large tonnages are used at a  fairly uniform rate. The shipment of iron ore as  slurry, either  by pipeline or by tanker, also has  increased.  When slurry  reaches its destination, the material  is  separated from the water before use or further processing."     Viewed  in  the light of the above  meaning  of  slurry, there  is no doubt that in the instant cases slurry is  coal slurry,  as admittedly small particles of coal  escape  from the  washery plant alongwith water. After it  overflows  the storage pond the slurry flows into the river and is deposit- ed on the river bed, which is later on collected and used as fuel  after it is formed into briquettes. The deposit  which is collected from the river bed continues to be carbonaceous in  character  having all the elements of  coal.  Thus,  the slurry is coal in liquid form. A Division Bench of the Patna High  Court in Kesari Mal Jain v. State of Bihar,  AIR  1985

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Patna 114 placing reliance on Nelson’s Dictionary of  Mining which  defined  ’slurry’ as ’slurry inter  alia  means  fine carbonaceous  discharge from a colliery washery"  held  that the  carbonaceous  particles  so discharged  from  the  coal washery  is used for producing energy or heat  therefore  it was  coal. The Bench further held that coal particles  which flow  out with the water from the coal washeries are  formed into balls or briquettes for sale in the market for purposes of producing energy or heat, therefore, slurry was coal. The Division Bench’s view was not accepted by the Full Bench  of the Patna High Court as it held that the slurry deposit  did not  constitute a mineral. We agree with the view  taken  by the  Division Bench in Kesari Mal’s case (supra) as  in  our opinion the slurry coal deposited in the river bed or  land, in  substance  as well as in its character continues  to  be coal.     If slurry is coal, the question is whether the leases in dispute granted by the State of Bihar constitute mine leases as  contemplated  by  Section 5(2)(a) of  the  Act.  "Mining lease" as defined by Section 3(c) means "a lease granted for the  purpose of undertaking mining operations and include  a sub-lease  granted for such purpose. "Mining operations"  as defined  by Section 3(d) means "any operations for the  pur- pose  of winning any mineral." Section 5(1) places  restric- tion  on the grant of mining leases by a  State  Government. Section  5  (2)(a) lays down that except with  the  previous approval of the Central Government no prospecting licence or mining  lease  shall be granted in respect of  any  material specified in the First Schedule. The First Schedule to 759 the  Act  specifies  minerals  as  contemplated  by  Section 5(2)(a)  and "coal" is specified therein at Item No. 4.  The Patna and Calcutta High Courts have held that the collection of slurry did not involve any mining operations,  therefore, the lease in question was not a mining lease.  Consequently, the  State Government was not under any legal obligation  to obtain  approval of the Central Government  before  granting leasses for collection of slurry.     These  findings are assailed and the appellants  contend that mining operations need not always involve extraction of mineral  from the bowels of the earth, a mineral like  sand, gravel  may  be deposited on the surface of the  earth,  and still  its  collection involves mining  operations.  It  was strenuously urged that it is wrong to assume that mines  and minerals  must  always be embedded under  the  sub-soil  and There  can be no mineral on the surface of the  earth.  See: Bhagwan  Das  State of U.P. & Ors., [1976] 3  SCR  869.  The definition  of "mining operation" and "mine" are very  wide. The  expression  "mining of mineral" in  the  definition  of "mining  operation"  under s. 3(d) of the  Act  is  spacious enough  to  comprehend every activity by  which  a  minerals extracted or obtained from the earth irrespective of whether such activity is carried out on the surface or in the bowels of  the earth. It is not a requirement of the definition  of "mining operation", that the activity for winning the miner- al must necessarily be an underground activity. The  essence of  ’mining  operation’ is that it must be an  activity  for winning  a mineral whether under the surface or winning  the surface  of earth, vide: Tarkeshwar Sio Thakur Jiu  v.  B.D. Dey  &  Co. & Ors., AIR 1979 SC 1669. The  slurry  which  is deposited on the river bed is not dumped there  artificially by  any human agency instead coal particles are  carried  to the river bed by the flow of water through natural  process. Therefore  the view taken by the High Court that the  slurry which is deposited in the river bed is dumped by the  appel-

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lants  by  artificial process is incorrect.  Once  the  coal particles are carried away by the water which is  discharged from the washery and the same are settled in the  river-bed, any  operation  for the extraction or lifting  of  the  coal particles  from the river bed would involve  winning  opera- tions  within the meaning of Section 3(d) of the Act. We  do not think it necessary to express any final opinion on  this question  as the appeals bound to succeed on the  ground  of absence of legislative competence of the State Legislature.     Shri  K.K. Venugopal learned counsel for  the  appellant urged that the recovery of coal from slurry irrespective  of whether  slurry  is a mineral, or  its  collection  involved mining operations or not, the State 760 of  Bihar  has no authority in law to regulate  disposal  of slurry. Under the Constitution ’conservation and development of  mines and minerals’ is exclusively assigned to the  Cen- tral  Government, and the State Legislature has no power  to make  any lease with regard to the disposal of  coal  slurry which is waste of coal mining. He referred to the provisions of the Act and particularly to Sections 2 and 18 in  support of his contention that in view of Parliamentary Legislation, the State Legislature has no legislative competence to enact any  law on the subject, consequently the  State  Government has  no  executive authority to deal with  the  disposal  of slurry. In order to appreciate this submission it is  neces- sary to consider the Constitutional provisions and the Act.     Articles  245  and  246 of the  Constitution  read  with Seventh Schedule and the legislative lists therein prescribe the extent of legislative competence of Parliament and,State Legislature.  Parliament  has exclusive power to  make  laws with  respect to any of the matters enumerated in List I  in the  Seventh  Schedule.  Similarly,  State  Legislature  has exclusive  power  to make laws with respect to  any  of  the matters  enumerated  in List II. Parliament  and  the  State Legislature  both have legislative power to make  laws  with respect to any matter enumerated in List III, the Concurrent List. This is the legislative scheme under the Constitution, but  certain  matters of legislation are  overlapping  which present  difficulty. The subject matter of legislation  with respect  of regulation of Mines and Mineral  development  is enumerated under Entry 23 of List II and Entry 54 of List I. These Entries are as under: "23. Regulation of mines and mineral development subject  to the  provisions  of List I with respect  to  regulation  and development under the control of the Union." "54.  Regulation  of mines and mineral  development  to  the extent  to which such regulation and development  under  the control  of  Union is declared by Parliament by  law  to  be expedient in the public interest."     The State Legislature is competent to enact law for  the regulation  of mines and mineral development under Entry  23 of  State List but this power is subject to the  declaration which may be made by Parliament by law as envisaged by Entry 54  of  Union List. Thus the legislative competence  of  the State  Legislature  to make law on the topic  of  mines  and mineral is subject to Parliamentary Legislation. The Parlia- ment has enacted the Mines and Minerals (Regulation and 761 Development)  Act, 1957. By s. 2 of the Act  the  Parliament has  declared that it is expedient in public  interest  that the  Union should take under its control the  regulation  of mines and the development of minerals to the extent provided in the Act. In view of Parliamentary declaration as made  in s.  2  of the Act, the State Legislature is denuded  of  its

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legislative power to make any law with respect to the  regu- lation  of  mines and mineral development to the  extent  as provided  by  the Act. In order to ascertain the  extent  of Parliamentary declaration, it is necessary to have a  glance at  the provision of the Act. Section 3 of the  Act  defines various  expressions occurring in the Act. Sections 4  to  9 prescribe  restrictions  on  undertaking,  prospecting   and mining  operations under licence or lease. Section 10 to  12 prescribe  procedure for obtaining prospecting  licences  or mining  lease in respect of the land in which minerals  vest in  Government.  Sections 13 to 16 provide  for  framing  of rules  for regulating the grant of prospecting  licences  or mining  leases.  In particular s. 13  empowers  the  Central Government  to make rules for regulating the grant of  pros- pecting  licences and mining leases in respect  of  minerals and for the purposes connected therewith. Section 13(2) lays down that rules may provide for all or any of the matters as enumerated  under various clauses therein. Clause (0) of  s. 13(2)  before its amendment by the Amending Act 37  of  1986 conferred power on the Central Government to frame rules for the  disposal or discharge of any tailings, slime  or  other waste  products  arising from any  mining  or  metallurgical operations  carried out in a mine. This provision  empowered the  Central Government to frame rules for the  disposal  of waste products or effluent discharge from mines including  a coal  mine. Section 14 makes the provisions of ss. 4  to  13 inapplicable  to  minor minerals. Section  15  empowers  the State  Government to make rules for regulating the grant  of quarry  leases, mining leases and other mineral  concessions in  respect of minor minerals and purposes connected  there- with. Since in the instant cases, we are not concerned  with the  minor  minerals, it is not necessary to deal  with  the question  in  detail. Section 17 confers special  powers  on Central Government to undertake prospecting or mining opera- tions  in  certain lands. Section 18 and 18A relate  to  the development of minerals. Sections 19 to 33 deal with miscel- laneous matters.     Section  18(1)  provides for mineral  development,  this Section  prior  to its amendment by the Amending Act  37  of 1986 read as under: "Sec. 18(1): It shall be the duty of the Central  Government to take such steps as may be necessary for the  conservation and development of minerals in India and for that 762 purpose  the  Central  Government, by  notification  in  the Official Gazette, make such rules as it thinks fit." Section  18(1)  as amended by the Amending Act  37  of  1986 reads as under: "Sec. 18(1): It shall be the duty of the Central  Government to take such steps as may be necessary for the  conservation and systematic development of minerals in India and for  the protection  of environment by preventing or controlling  any pollution which may be caused by prospecting or mine  opera- tions  and for such purpose the Central Government  may,  by notification in the Official Gazette, make such rules as  it thinks fit." The  amended  and unamended sections both lay down  that  it shall be the duty of the Central Government to take all such steps as may be necessary "for the conservation and develop- ment of minerals" in India and for that purpose it may  make such rules as it thinks fit. The expression "for the conser- vation  of minerals" occurring under s. 18(1)  confers  wide power on the Central Government to frame any rule which  may be  necessary for protecting the mineral from loss, and  for its  preservation. The expression ’conservation’ means  "the

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act  of  keeping or protecting from loss  or  injury."  With reference  to the natural resources, the expression  in  the context means preservation of mineral; the wide scope of the expression  "conservation of minerals" comprehends any  rule reasonably connected with the purpose of protecting the loss of coal through the waste of coal mine, such a rule may also regulate  the  discharge  of slurry or  collection  of  coal particles  after  the water content of slurry is  soaked  by soil.  In addition to the general power to frame  rules  for the  conservation  of mineral, Sec. 18(2)  confers  specific power  for framing rules regulating disposal of waste  of  a mine.  The Amending Act 37 of 1986 deleted clause (0) of  s. 13(2)  and added the same as clause (k) to s. 18(2)  of  the Act. After the amendment Sec. 18(2)(k) reads as under: "18(2): In particular, and without prejudice to the general- ity  of the foregoing power, such rules may provide for  all or any of the following matters, namely: (k): "the disposal or discharge of waste slime or tailing 763 arising from any mining or metallurgical operations  carried out in a mine." Section  18(2)(k) confers express power on the Central  Gov- ernment  for  framing  rules for the  conservation  and  the development  of mineral including the disposal or  discharge of waste arising from any mining operations of a mine.  Such a  rule  may regulate disposal of slurry discharged  from  a washery which is an integral part of mining operations.     The  aforesaid  analysis of the provisions  of  the  Act makes the extent of Parliamentary declaration clear that the disposal  and  discharge of sludge or  slurry  emanating  or coming from the washery of a coal mine is exclusively within the  legislative power of Parliament. The Act  further  pro- vides  that  the Central Government has exclusive  power  to frame  any rule either u/s 13(2)(0) or under the amended  s. 18(2)(k)  of  the  Act regulating disposal  of  slurry.  The effect of the Parliamentary declaration as contained in  the Act  is  that the matters referred to  in  the  declaration, stand  abstracted from List II and those become  matters  of legislation  in List I of the Seventh Schedule. As a  result of  the  declaration made by Parliament, under s. 2  of  the Act,  the  State Legislature is denuded of  its  legislative power  with respect to the regulation of mines  and  mineral development and the entire legislative field has been  taken over  by Parliament. In Baijnath Kedia v. State of  Bihar  & Ors., [1970] 2 SCR 100 this Court dealing with the extent of Parliament’s  declaration  made under s. 2 of the  Act,  ob- served as follows: "To what extent such a declaration can go is for  Parliament to  determine  and  this must be  commensurate  with  public interest. Once this declaration is made and the extent  laid down,  the  subject of legislation to the extent  laid  down becomes an exclusive subject for legislation by  Parliament. Any  legislation  by the State after  such  declaration  and trenching  upon the field disclosed in the declaration  must necessarily  be unconstitutional because that field  is  ab- stracted from the legislative competence of the State Legis- lature." This   Court  has  consistently  taken  this  view  in   The Hingir--Rampur Coal Co. Ltd. & Ors. v. The State of Orissa & Ors.,  [1961]  2 SCR537; State of Orissa v. M.A.  Tulloch  & Co., [1964] 4 SCR 461 and State of Tamil Nadu v. Hind Stone, [1981] 2 SCR 742. 764     The  Central Government has not framed any  rule  either under  Section  13 or under Section 18 of the Act.  Does  it

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affect  the legal position as discussed earlier? The  answer must  be  in the negative. Prior to the Amending Act  37  of 1986 Section 13(2)(o) conferred power on the Central Govern- ment to frame rules for the purpose of granting  prospecting licences  and mining leases including the disposal  or  dis- charge of any tailings, slime or other waste products.  Sub- clause (0) of S. 13(2) was transposed into S. 18(2) as  sub- clause (k) by the Amending Act 37 of 1986. As noted earlier, S. 18(1) confers general power on the Central Government  to frame  rules and to take all such steps as may be  necessary for  the conservation and development of minerals in  India. Section 18(2) does not affect or restrict the generality  or width  of legislative power under Section 18(1) as the  mat- ters specified in various sub-clauses of S. 18(2) are illus- trative in nature. Even in the absence of sub-s. (2) or  its various  sub-clauses,  the Central Government  was  invested with the power of subordinate legislation in respect of  any matter which could reasonably be connected with the  purpose of "conservation and development of minerals" by S. 18(1) of the  Act.  Thus, power to frame rules, regulating  the  dis- charge or disposal of slime or slurry emanating from a  coal mine  including  its collection from the river bed  or  from Raiyati  land after its escape from the washery of the  coal mines,  would clearly fail within the expression  "conserva- tion of mineral". Slurry admittedly contain coal  particles. its  collection from land or river is  reasonably  connected with  the ’conservation of mineral’. Section 18(2)(k)  which expressly  confers power on the Central Government to  regu- late  disposal  or discharge of waste of a  mine  makes  the Parliamentary  declaration apparent that the State  Legisla- ture is not competent to regulate waste discharge of a  coal mine. Mere absence of any rule framed by the Central Govern- ment  under ss. 13 or 18 of the Act with regard to the  dis- posal  of  slime  or waste of a coal mine  does  not  confer legislative competence on the State Legislature to make  any law  or  rule.  Once a particular topic  of  legislation  is covered by the Parliamentary declaration, the State Legisla- ture  is  denuded of its power to make any law  or  rule  in respect  of that topic or subject-matter and the absence  of Rules would not confer legislative competence on the  State. In  Hingir--Rampur  Coal  Co. Ltd. & Ors. v.  The  State  of Orissa & Ors., this Court held: "In order that the declaration should be effective it is not necessary  that rules should be made or enforced;  all  that required is a declaration by Parliament that it was  expedi- ent in the public interest to take the regulation of  devel- opment of mines under the control of the Union. In 765 such a case the test must be whether the legislative  decla- ration covers the field or not." Since Section 18 of the Act covers the field with respect to disposal  of  waste  of a mine, there is no  scope  for  the contention that until rules are framed the State Legislature has  power  to make law or rules on the  subject.  Once  the competent legislature with a superior efficacy expressly  or impliedly evinces its legislative intent to cover the entire field  on a topic, the enactments of the  other  legislature whether  passed  before or after would  be  overborne.  Mere absence of rules framed by the Central Government, does  not confer  power  on the State Legislature to make law  on  the subject.  Since  the legislative field with  regard  to  the framing of rules relating to the disposal of slime and waste of’ coal mine is fully covered by s. 18, the State  Legisla- ture  is denuded of its power of making any law with  regard to those matters.

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   It  was  then urged that in the absence of a  law  being made by the State Legislature, the State Government’s action in  executing lease/ settlement in respondent’s  favour  for collection of slurry is relatable to exercise of its  execu- tive  powers. Learned counsel for the  appellants  contended that  since  Entry  23 of List II of  the  Seventh  Schedule confers  legislative  power  on the  State  Legislature  for making laws regulating mines and minerals, the State Govern- ment in the absence of any rule made by the Central  Govern- ment has power to regulate disposal and collection of  slur- ry.  The  State Government was justified in  exercising  its executive  power making arrangements for the  collection  or removal  of slurry which has been polluting the river  water and  affecting  the Raiyati land’s  fertility.  Article  162 prescribes  the extent of executive power of the  State,  it lays  down that the executive power of a State shall  extend to the matters with respect to which the Legislature of  the State  has power to make laws. Thus, the executive power  of the  State Government is co-extensive with  the  legislative power of the State Legislature. If the State Legislature has power to enact laws on a matter enumerated in the State List or  in the Concurrent List the State has executive power  to deal  with those matters subject to other provisions of  the Constitution. If a subject matter falls within the  legisla- tive competence of State Legislature, the exercise of execu- tive power by the State Government is not confined, as  even in the absence of a law being made, the State Government  is competent to deal with the subject matter in exercise of its executive  power. See: Rai Sahib Ram Jawaya Kapur & Ors.  v. The State of Punjab, [1955] 2 SCR 225. In the absence of any law,  the  State Government or its officers in  exercise  of executive  authority cannot infringe citizens fights  merely because the 766 State  Legislature  has power to make laws  with  regard  to subject,  in respect of which the executive power  is  exer- cised. See: State of Madhya Pradesh & Anr. v. Thakur  Bharat Singh, [1967] 2 SCR 454, No doubt under Entry 23 of List II, the  State Legislature has power to make law but that  power is subject to Entry 54 of List I with respect to the regula- tion  and  development of mines and minerals.  As  discussed earlier  the  State Legislature is denuded of its  power  to make  laws on the subject in view of Entry 54 of List I  and the  Parliamentary declaration made under Section 2  of  the Act.  Since State Legislature’s power to make law  with  re- spect to the matter enumerated in Entry 23 of List has  been taken  away  by  the Parliamentary  declaration,  the  State Government ceased to have any executive power in the  matter relating  to  regulation of mines and  mineral  development. Moreover, the proviso to Article 162 itself contains limita- tion on the exercise of the executive power of the State. It lays  down  that  in any matter with respect  to  which  the Legislature  of  a State and Parliament have power  to  make laws,  the  executive  power of State shall  be  subject  to limitation of the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or  authority  thereof. The limitation as contained  in  the proviso  to Article 162 was necessary to avoid  conflict  in the  exercise  of  executive power of State  and  the  Union Government  in respect of matters enumerated in List III  of the  Seventh Schedule. If Parliament and the State  Legisla- ture both have power to make law in a matter, the  executive power  of the State shall be subject to the law made by  the Parliament or restricted by the executive power of the Union expressly  conferred  on it by the Constitution or  any  law

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made  by Parliament. Parliament has made the law as  contem- plated  by  Entry 54 of List I and the law so  made  confers exclusive  power  on the Central Government to  frame  rules regulating the disposal of waste or industrial effluent of a mine,  the State Legislature has, therefore no power  either to make law under Entry 23 of List II or to exercise  execu- tive  power  to  regulate the disposal of  slurry,  a  waste effluent discharge of a coal mine.     Learned  counsel for the State of Bihar as well  as  for the respondent contractors contended that the lease executed by  the  State Government in their favour was not  a  mining lease  within  the  provisions of the  Act,  therefore,  the provisions of the Act are not applicable to it. This submis- sion  is  rounded on the assumption that the slurry  is  not coal. We have already discussed the characteristic of slurry which shows that the coal can be transported in liquid  form of slurry. The slurry which gets deposited on the river  bed and on Raiyati land contains fine particles of coal, on  its resumption it is used for energy and 767 fuel  purposes.  It is, therefore, difficult to  accept  the contention  that  the coal particles which escape  from  the washery  and  get deposited in the river bed or  in  Raiyati land do not have the character of mineral. It is not, howev- er,  open  to the State to raise this  contention  as  while making  settlement and granting lease in favour of  the  re- spondents  for  lifting or collecting  slurry  deposits  the State  itself  proceeded  on the assumption  that  the  coal particles  as deposited in the river bed and in the  Raiyati land  on  its  escape from the  coal  washeries  constituted ’mineral’. Since under the Bihar Land Reforms Act the miner- als  vest in the State, it claimed right to grant  lease  in favour  of the respondents for collecting the same.  In  the indenture of settlement dated 9.4.1975 granted in favour  of the M/s. Industrial Fuel Marketing Company and Ors. in Civil Appeal  No.  230-231  of 1987 the  State  Government  itself stated:  "and whereas these rejects/sludge being  a  mineral (emphasis supplied) the State Government is the owner of the same  by virtue of the entire State including  the  minerals having  vested in the State Government under the  provisions of  Bihar  Land  Reforms Act." The  indenture  purported  to confer right on the lessee for lifting rejects also known as sludge  comprising fine particles of coal which are  ejected in  the process of coal being washed in the  coal  washeries and which flow into the nearby river or to the lands held by the Raiyats. The lease was granted by the Mining  Department of  the State Government dealing with  minerals.  Similarly, the indenture of settlement dated 9.4.1981 granted in favour of  respondent  No.  4 in Civil Appeal Nos.  61-62  of  1987 permitting  him to collect slurry after it is  deposited  in the river bed or in the land as specified in the lease,  was also executed by the State of Bihar on the premise that  the slurry as deposited in the river bed was a mineral,  namely, coal.  Thus, it is apparent that the State of  Bihar  itself has  been treating the ’slurry deposits’ as mineral  and  on that  assumption  it has been  executing  leases  conferring rights on the respondents to collect the same on payment  of royalty. In this view, it is not open to the State of  Bihar and the lessees to contend that slurry is not coal or miner- al within the meaning of the Act.     Learned counsel for the respondents attempted to justify State’s action on the ground that the slurry as settled down in river bed or in Raiyati land was not waste or  industrial effluent of coal mines as the washeries are not part of coal mines. We find no merit in the submission. Section 3 of  the

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Act  defines ’mining operations’ which means  any  operation undertaken  for  the  purpose of winning  any  mineral.  The expression ’mine’ is not defined by the Act instead  Section 3(1) says that the expression ’mine’ has the same meaning as assigned  to it in the Mines Act 1952. "Mine" as defined  by Section 2(1)(j) of Mines Act 768 1952  means any excavation where any operation for the  pur- pose  of searching for or obtaining minerals has been or  is being carried on and it includes: (xii)  "any  premises in or adjacent to and belonging  to  a mine on which any process ancillary to the getting, dressing or  preparation  for sale of minerals or of  coke  is  being carried on." The  inclusive definition of mine is wide enough to  include any premises belonging to a mine where any ancillary process is  carried on for preparing the minerals or coke for  sale. There  is  no dispute between the parties that the  coal  as extracted  from  the coal mine is crushed  into  pieces  and thereafter  it  is washed to remove its impurities  and  ash contents  to make the coal fit for sale. After the  coal  is washed, it assumes the form of coke which is sold to consum- ers.  The  washery, wherein the process of washing  coal  is carried  on, for the purpose of preparing the coal for  sale is  an  integral  part of a mine as  it  involves  ancillary process.  Washery is included within the definition of  mine under  the  Mines  Act 1952. Any waste  discharge  from  the washery  carrying  small particles of coal in  the  form  of slurry  is the waste slime arising from  operations  carried out in a mine.     Moreover,  it is not open to the respondents to  contend that slurry is not a waste discharged from the washeries  of coal  mines. The respondents have all along  pleaded  before the High Court as well as before this Court that slurry is a waste  discharged from the washery of the  appellants’  coal mines.   In  Civil  Appeal  No.  4521  of  1986   Ram   Nath Singh--respondent  No.  4 has stated in paragraph 2  of  his affidavit  before this Court that slurry/sludge is  a  waste substance of Sudamdih coal washery and in order to keep  the river water clean and pollution free and to earn revenue the State  Government settled the collection of slurry from  the river  bed  in his favour. The State of Bihar  also  in  its affidavit filed before the High Court expressly stated  that the  sludge/  slurry  was rejected property  from  the  coal washery and the State of Bihar made settlement in favour  of the  respondents for collection of the waste  deposits  from the  river bed and other land. The full Bench of  the  Patna High  Court also observed: "the sludge/slurry could  not  be raised to the status of being coal, as it was the consequen- tial  wastes  of  coal mining process,  therefore  the  true nature  of slurry was that it was a mere residue  reject  or waste of an industrial process consisting of mud, ash,  oily substances water and carbonaceous ingredients." The respond- ents have all along proceeded on the assumption that sludge/ 769 slurry  was  an industrial waste arising out of  the  mining operations  of coal. The State of Bihar as well as  the  re- spondents  in  whose  favour  the  right  of  collection  of sludge/slurry  has  been settled have all  along  taken  the stand that the discharge of slurry/sludge by the appellant’s washcry  into  the river has been polluting  the  river  and affecting the fertility of land, therefore the State Govern- ment, permitted the removal of the slurry/sludge with a view to  prevent  pollution  of the fiber and the  land.  On  the admitted  facts the entire activity relating to disposal  of

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the  industrial  waste,  slime or tailing in  the  shape  of sludge/slurry escaping from the washeries of the appellant’s coal  mines including the prevention of pollution  of  river water  or  land is covered by Sec. 18 of the Act.  The  High Courts  confined themselves to the question whether  sludge/ slurry  was a mineral under the Act and failed  to  consider the scope and effect of Section 18 of the Act. We are there- fore of the opinion that in view of the admitted case of the parties disposal of sludge/slurry coming out from the  wash- eries  of appellants’ coal mines is covered by the  Act  and the  State Government had, no authority in law to grant  any lease or settlement authorising collection of the same  from the  five  bed  or from any other  land.  Consequently,  the respondents  in whose favour settlements have been  made  by the  State Government have no right to authority to  collect sludge/slurry  either  from the five bed or from  any  other land.     In  Civil Appeal No. 4521 of 1986 the appellants’  claim that  plot No. 370 situated in village Sudamdih belonged  to them and the sludge/ slurry discharged from their washery as settled  down on that land also belonged to  them  therefore the  State  Government  had no authority in  law  to  permit respondents to collect slurry coal from their land. The High Court  held that since the appellant’s ownership  fights  in respect  of Plot No. 370 of village Sudamdih  was  seriously disputed the question should be decided by the civil  court. Mr. Kapil Sibal learned counsel for the appellant urged that the High Court committed serious error as there was no scope for any dispute regarding the question of ownership of  Plot No.  370. We find force in his submission. There  is  suffi- cient  material  on record to show that Bharat  Coking  Coal Ltd.  is the owner of the plot No. 370 situated  at  village Sudamdih and the respondents have failed to place any  mate- rial  before  the court that the appellant is not  owner  of Plot  No.  370.  A Notification was issued  by  the  Central Government on 6.8.1960 under sub-section (1) of Section 4 of the  Coal Beating Areas (Acquisition and  Development)  Act, 1957, for purpose of prospecting coal in the land  specified in the Schedule to the Notification included the entire land of  village Sudamdih District Dhanbad. By another  Notifica- tion dated August 30, 1961 issued under 770 Section 7 of the Coal Bearing Areas (Acquisition and  Devel- opment) Act, 1957 the Central Government declared its inten- tion  to acquire the lands measuring 778.45 acres  specified in  Schedule  A  to the Notification  Sudamdih  village  was mentioned  in  the Schedule. Plot No. 370  of  Sudamdih  was expressly  specified therein. By another Notification  dated December  16,  1961 the Central  Government  declared  under Section 9 of the Coal Beating Areas (Acquisition and  Devel- opment)  Act 1957 that the land measuring 778.45  acres  de- scribed in Schedule A and the rights to mine, quarry,  bore, dig  and search for win work and carry away minerals in  the lands  measuring  625.73 acres described in Schedule  B  are acquired.  The Schedule to the Notification  clearly  stated that  all rights in village Sudamdih were acquired and  plot No.  370  was  expressly specified in the  Schedule  to  the Notification.  On the issue of the  aforesaid  Notifications the  lands specified therein vested in the  Central  Govern- ment. The Central Government by its order dated 27th January 1962 transferred the aforesaid lands including plot No.  370 situated  in village Sudamdih to the National Coal  Develop- ment  Corporation,  a Government Undertaking.  In  1975  the Central  Government reorganised the management structure  of the coal industry in the public sector and a central  compa-

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ny,  i.e. Coal India Limited, was constituted having  Bharat Coking  Coal  Limited as one of its subsidiary.  The  Bharat Coking  Coal Ltd. was incorporated for running and  managing the Sudamdih and Monidih coal mines of National  Development Corporation. Since then the Sudamdih coal mines and the land in dispute have been under the control and management of the Bharat  Coking Coal Ltd. During the pendency of  the  appeal before  this  Court proceedings were initiated  against  re- spondent  No. 4 for the violation of interim orders of  this Court. In the contempt proceedings Respondent No. 4 contend- ed  that  plot No. 370 of village Sudamdih belonged  to  the State  of Bihar and the appellants had no  ownership  rights therein. This Court held that since plot No. 370 of Sudamdih has  been  acquired under Section 9(1) of the  Coal  Bearing Areas  (Acquisition and Development) Act 1957 the  appellant company  was its owner, and it was idle to contend the  con- trary. We therefore hold that the appellant is the owner  of plot  No. 370 of village Sudamdih and the  State  Government had no authority in law to make any arrangement or to settle any  right with respondents for collecting  slurry  deposits from that Plot No. 370 of Sudamdih.     In view of the above discussion, we hold that the slurry which escapes from the appellants’ washeries is mineral  and its  regulation is within the exclusive jurisdiction of  the Central  Government.  We further hold that in  view  of  the Parliamentary declaration made by 771 Section 2 of the Act and having regard to Section 18 of  the Act the State Government has no authority in law to make any settlement or grant any lease to any person for the  collec- tion  of slurry deposits either from the river bed or  other land.  The  impugned settlements made in favour of  the  re- spondents  by the State Government are illegal and  the  re- spondent-lessees  have  no  right or title  to  collect  the slurry deposits, therefore, they are restrained from lifting or collecting the same from the land in dispute. We, accord- ingly, allow Civil Appeal No. 4521 of 1986 and Civil  Appeal Nos. 61-62 of 1987 and set aside the order of the High Court of  Patna and allow the writ petitions filed by  the  appel- lants  before the Patna High Court. We further  allow  Civil Appeal  Nos. 230-231 of 1987 and set aside the order of  the High Court of Calcutta and dismiss the writ petitions  filed by  Industrial  Fuel  Marketing Company &  Ors.  We  further direct  that  the money deposited pursuant  to  the  interim orders passed by the High Court and this Court will be  paid to the successful party. There will be no order as to costs. G.N.                                            Appeal   al- lowed. 772