Kali Pada Chowdhury vs Union of India

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Writ Petition No. 15 of 1962

Decision Date: 3 May 1962

Coram: P.B. Gajendragadkar, Bhuvneshwar P. Sinha, K.N. Wanchoo, J.C. Shah, Subba Rao

In this matter, the Supreme Court of India recorded that the petition was filed by Kali Pada Chowdhury against the Union of India and that the judgment was delivered on 3 May 1962. The opinion was authored by Justice P B Gajendragadkar and was pronounced by a bench comprising Justice P B Gajendragadkar, Justice Bhuvneshwar P Sinha, Justice K N Wanchoo and Justice J C Shah. The case is reported in the 1963 volume of the All India Reporter at page 134 and also appears in the 1963 third volume of the Supreme Court Reports at page 904, with a later citator reference R 1982 SC1413 (19). The statutory framework involved the Mining Regulation provisions of the Mines Act, 1952, particularly sections 12 and 59, and the Coal Mines Regulations 1957 issued under regulation 127(3) of that Act.

Section 12 of the Mines Act, 1952, authorises the Central Government to constitute a Mining Board for any part of the territory to which the Act extends or for any particular group or class of mines, using the term “may.” By the year 1957 only the Bihar Mining Board had been constituted; no other Mining Boards existed at that time. Section 57 empowers the Central Government to make regulations, while section 59(3), as it then stood, required that before any draft regulation was published it be referred to every Mining Board that was concerned and that publication could not occur until each such Board had been given a reasonable opportunity to report on the draft.

The Central Government, adhering to this procedure, referred the draft of the Coal Mines Regulations to the Bihar Mining Board. The Board circulated the draft to all its members, each of whom communicated their opinions individually back to the Government. After receiving these individual opinions, the Government proceeded to publish the Regulations, which subsequently came into force. The petitioners, who were being prosecuted in Bengal for alleged violations of those Regulations, argued that the Regulations were invalid on two grounds. First, they contended that section 12 imposed a duty on the Central Government to constitute all possible Mining Boards and to refer the draft Regulations to every Board before publication under section 59. Second, they maintained that the individual communications of the Bihar Board members did not satisfy the requirement of “consultation with the Board” envisioned in section 59(3).

The majority of the Court, expressed by Justice Subba Rao, held that the Coal Mines Regulations 1957 had been validly framed and published. The Court explained that section 59(3) merely mandated consultation with a Mining Board if such a Board existed at the relevant time; it did not oblige the Government to create a Board where none existed. Consequently, the term “may” in section 12 was correctly interpreted as permissive rather than mandatory, and the Government was under no obligation to constitute additional Boards. The Board that was constituted under section 12 was required to perform two functions: to submit a report on any regulations or rules referred to it, and to decide any cases that might be referred to it. Because a Mining Board did exist—the Bihar Mining Board—the requirement of section 59(3) was satisfied by giving that Board a reasonable opportunity to make its report, regardless of the manner in which its members chose to communicate their views. Therefore, the Court concluded that the procedural requisites of the Act had been met and that the Coal Mines Regulations were valid.

The Court observed that the requirement to refer matters to a Mining Board was prescribed in section 81, yet the operation of the Act did not rely on the existence of such Boards. Consequently, the interpretation of section 12 did not render the provisions of section 59(3) ineffective. In addition to consulting the Boards, the legislation allowed every party affected by a draft regulation to submit suggestions or objections, and these inputs had to be considered before the draft was finalized and the regulations were formally enacted. The Court cited Banwarilal Agarwalla v. State of Bihar, [1961] 1 S.C.R. 33, to illustrate that the requirement of section 59(3) had been satisfied when the draft regulations were referred to the Bihar Mining Board. According to that decision, section 59(3) merely required that a reasonable opportunity be given to the Board to prepare its report, and the manner in which the Board chose to do so was not subject to control by the Central Government.

In a separate opinion, Justice Subba Rao held that the Coal Mines Regulations had not been validly made. He referred to the Supreme Court’s decision in Banwarilal v. State of Bihar, which declared the regulations void because no consultation with a Mining Board under section 59(3) had occurred, the Boards not having been constituted. Justice Subba Rao argued that a proper construction of sections 12 and 59(3) indicated that, before exercising the power to make regulations under section 57, the Central Government must first create Mining Boards and refer the draft regulations to them. The power to make regulations was therefore inseparable from the duty to consult the Boards, obligating the Government to appoint the Boards before exercising its regulatory authority. He further noted that the regulations concerning mines in West Bengal were invalid, as no West Bengal Mining Board had been consulted, and the Act did not permit the Government to rely on a Board constituted for a different region. The Court then followed Banwarilal Agarwalla v. State of Bihar [1962] 1 S.C.R. R. 33 and referred to Alcock Ashdown & Co. v. The Chief Revenue Authority, Bombay, A.I.R. 1923 P.C. 138. The judgment proceeded under original jurisdiction as a criminal appeal and writ petition No. 15 of 1962 filed under Article 32 of the Constitution for enforcement of fundamental rights. Counsel for the petitioner included B. Sen and K. L. Hathi, while the respondents were represented by C. K. Daphtary, Solicitor‑General of India, B. B. L. Iyengar and B. H. Dhebar. Intervenors were represented by S. Choudhury, S. C. Banerjee and P. K. Chatterjee. The judgment dated 3 May 1962 was delivered by Justice Gajendragadkar, with separate opinions by Justices Sinha, Wanchoo, Shah and Subba Rao. Justice Gajendragadkar began his opinion by noting that the four petitioners were in charge of the operations of the Salanpur A Seam Colliery.

The four petitioners, who are responsible for operating the Salanpur Seam Colliery located in the District of Dhanbad, faced prosecution for an alleged breach of Regulation 127(3) of the Coal Mines Regulations, 1957, which were issued under the Mines Act, 1952 (35 of 1952) (hereinafter referred to as “the Act”). By filing a petition under Article 32 of the Constitution, the petitioners sought a writ of prohibition that would set aside the criminal proceedings on the ground that such proceedings violated Article 20(1) of the Constitution and were therefore void.

The respondents impleaded in the petition were, respectively, the Union of India, the Chief Inspector of Mines, Dhanbad (West Bengal), the Regional Inspector of Mines, Sitarampur, and the Sub‑Divisional Magistrate, Asansol. The prosecution against the petitioners was initiated by the Chief Inspector of Mines and the Regional Inspector of Mines, while the trial was being conducted by the Sub‑Divisional Magistrate. The petitioners argued that Regulation 127(3), the provision on which the present proceedings are based, is ultra violet, invalid, and inoperative; consequently, invoking it to prosecute them would be contrary to Article 20(1) of the Constitution. Accordingly, they requested that the criminal proceedings be quashed and that the Chief Inspector and the Regional Inspector be restrained from further action, and that the Sub‑Divisional Magistrate be barred from trying the case. The specific case involved is identified as C. 783 of 1961, pending before the Sub‑Divisional Magistrate.

Regulation 127(3) forms part of the Coal Mines Regulations framed by the Union of India in exercise of the authority conferred by section 57 of the Act and was published in accordance with the requirements of sub‑section (1) of section 59 of the same Act. The regulation stipulates that no working that approaches within a distance of sixty metres of any disused or abandoned workings—except those that have been examined and found free from accumulation of water or other liquid matter—whether situated in the same mine or in an adjoining mine, may be extended further unless prior written permission is obtained from the Chief Inspector, who may also impose conditions. Although the provision contains a proviso and an explanatory clause, reference to those is unnecessary for the present discussion.

The prosecution alleges that the petitioners extended the working of the mine beyond the prescribed limits without first obtaining the required written permission from the Chief Inspector. The petitioners maintain that because Regulation 127(3) is invalid and inoperative, any alleged breach of it cannot constitute a valid basis for prosecution under Article 20(1) of the Constitution. While acknowledging that the Union of India unquestionably possesses the power to make regulations under section 57 of the Act, the petitioners contend that, at the relevant time, the Act imposed an additional requirement that the draft regulations could not be published unless the Mining Boards then in existence were afforded a reasonable opportunity to report on the desirability of making the regulations and on the suitability of their provisions.

The petitioners argued that the Regulations made in 1957 were invalid because the statutory requirement that the Mining Boards specified in the regulation be given a reasonable opportunity to report on the advisability and suitability of the regulation had not been fulfilled. They contended that at the time the Regulations were issued no Mining Boards had been established under section 12 of the Act. Although three Boards had been created earlier under section 10 of the Indian Mines Act of 1923, subsequent amendments altered the composition of two of those Boards, rendering them invalid. The two invalid Boards were identified as the Madhya Pradesh Mining Board and the West Bengal Mining Board. The only Board that remained valid was the Bihar Mining Board, which had been constituted on 22 February 1946 under the earlier version of section 10. The petitioners maintained that the authority responsible for making the Regulations was required to consult all three Boards. Because two of the Boards were not validly constituted, the petitioners claimed that referring to the individual members of those Boards did not satisfy the requirement of section 59(3). They further asserted that although the Bihar Mining Board was mentioned, the Board itself did not submit a collective report; instead, its individual members communicated their views to the authority. Consequently, the petitioners argued that section 59(3) had not been complied with, making the entire body of 1957 Regulations void and inoperative, and they sought the dismissal of the criminal proceedings against them on that basis.

The respondents rejected the petitioners’ contention and asserted that section 59(3) had been duly complied with, rendering the Regulations valid. While acknowledging that two of the three Boards were invalid, the respondents argued that only the valid Board needed to be consulted, and that the Bihar Mining Board, being the sole valid Board at the relevant time, had indeed been consulted. They further contended that the fact that individual members of the Bihar Mining Board relayed their opinions did not create any defect in the Regulations, which were subsequently published in the Gazette and, under section 59(5), acquired the effect of being enacted as part of the Act. Counsel for the petitioners maintained that section 59(3) imposed an obligatory duty on the Central Government to consult the Boards specified therein and that, read in conjunction with section 12, the Central Government was required to constitute Mining Boards for the areas or mines for which the Regulations were intended. Since two of the Boards had not been validly constituted, the petitioners argued that section 12 had not been complied with and that section 59(3) had therefore been violated. Counsel further referenced a recent decision of this Court to support the view that the provisions of sections 12 and 59(3) are mandatory.

In the present dispute, counsel for the petitioner, Mr. Sen, argued that because two of the three mining Boards had not been validly constituted, the requirements of section 12 of the Act had not been fulfilled and consequently section 59(3) had been violated. He maintained that both provisions were mandatory and supported his view by citing a recent decision of this Court. Conversely, the learned Solicitor‑General for the respondents submitted that the cited decision did not directly address the construction of section 12. He acknowledged, however, that the decision affirmed the mandatory nature of the requirement under section 59(3). The Court therefore first needed to examine the effect of that precedent.

In the earlier case of Banwari Lal Agarwalla v. State of Bihar, reported in 1962 S.C.R. 33, this Court examined the validity of a prosecution founded on the alleged breach of a Regulation made in 1957. The respondents before that Court claimed that the mining Boards created under section 10 of the 1923 Act were still operating when the relevant Regulations were framed, and that full consultation with those Boards had been undertaken. They argued that section 59(3) was directory rather than mandatory, contending that the Central Government was under no obligation to consult the Boards even if they existed. The respondents further suggested that the Boards established under the earlier Act continued to exist under the present Act by virtue of section 24 of the General Clauses Act, and that they had therefore been duly consulted.

The appellant, on the other hand, asserted that the Boards relied upon by the respondents had not been validly constituted under the current Act and therefore had not been properly consulted. He submitted that both section 12 and section 59(3) imposed mandatory duties on the Central Government. In his judgment, Justice Das Gupta outlined the appellant’s contention that both provisions were mandatory, but limited the Court’s analysis to the question of whether section 59(3) was mandatory. The Court concluded that section 59(3) was indeed mandatory, but it did not address the mandatory character of section 12, nor did it refer to the construction or effect of that provision. After holding section 59(3) to be mandatory, the Court remanded the matter to the learned Magistrate handling the proceedings, directing him to determine whether the Boards constituted under the earlier Act were validly functioning under the present Act and whether they had been duly consulted.

In this case, the Court observed that it had not examined whether the provisions of section 12 were mandatory because doing so would have required a construction of those provisions and would have forced the Court to consider whether the Central Government’s failure to constitute valid Boards, as the appellant had suggested, would render the impugned Regulation invalid. The Court explained that this line of inquiry was not pursued because the respondents contended that the required Boards already existed and had been consulted, thereby limiting the dispute to the question of whether section 59(3) obliges the Central Government to consult existing Boards. The respondents further argued that even where Boards have been constituted under section 12, the Central Government is not bound to consult them under section 59(3); they claimed that the consultation requirement was merely directory and not mandatory. The Court rejected this contention, holding that section 59(3) is mandatory and that any existing Board must be consulted before a Regulation is framed. Consequently, the factual issue of whether the Board had indeed been consulted was remitted to the trial Magistrate for determination. The Court therefore concluded that the decision in Banwari Lal Agarwalla’s case establishes that, whenever a Board exists at the relevant time, the Central Government is obligated to consult it before publishing a draft Regulation, making section 59(3) a mandatory provision. The Court further noted that it would be incorrect to assume that the appellant’s argument that section 12, like section 59(3), is mandatory was decided without a discussion of its construction and effect. Because the respondents’ factual pleadings rendered it unnecessary to resolve the appellant’s claim regarding the mandatory nature of section 12, the Court found no basis to accept Mr Sen’s assertion that the present appeal’s issue concerning section 12 had already been settled by the Banwari Lal Agarwalla decision. Accordingly, the Court proceeded to examine Mr Sen’s contentions on their merits. At this stage, it was necessary to read both sections 12 and 59 together. Section 12 deals with the constitution of Mining Boards; subsection 12(1) authorises the Central Government to 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 question before the Court was whether the first part of subsection 12(1) imposes an obligation on the Central Government to constitute a Board whenever it proposes to make Regulations to which section 59(3) applies. Section 59, as it stood before its amendment in 1959, provided: “59 (1) The power to make regulations and rules conferred by …”.

Section 59 of the Act prescribes the procedure for making regulations and rules under sections 57 and 58. Sub‑section (1) states that any regulation or rule may be made only after it has been previously published. Sub‑section (2) requires that the date fixed in accordance with clause (3) of section 23 of the General Clauses Act, 1897 (the date after which a draft of the proposed regulation or rule will be considered) shall be at least three months from the date on which the draft is published for general information. Sub‑section (3) provides that before any draft regulation is published under this section, it must be referred to every Mining Board that, in the opinion of the Central Government, is concerned with the subject matter of the regulation. The regulation may not be published until each such Board has been given a reasonable opportunity to report on the expediency of making the regulation and on the suitability of its provisions. Sub‑section (4) imposes a similar requirement on rules: no rule may be made unless its draft has been referred to every Mining Board constituted in the part of the territories to which the Act extends that is affected by the rule, and unless each such Board has had a reasonable opportunity to report on the expediency and suitability of the rule. Sub‑section (5) declares that regulations and rules shall be published in the Official Gazette and, upon such publication, shall have effect as if enacted by the Act. Sub‑section (6) exempts the first occasion on which rules referred to in clause (d) or clause (e) of section 58 are made from the applicability of sub‑sections (1), (2) and (4). Finally, sub‑section (7) mandates that the regulations and rules made under sections 57 and 58 shall be laid before Parliament as soon as practicable after they are made.

The petitioners argued that, in interpreting section 12, the Court must take into account the provisions of section 59(3). They pointed out that an amendment introduced by Act 62 of 1959 deleted sub‑section (3) of section 59 and merged its effect into sub‑section (4), thereby creating a single provision that governs both regulations and rules. The amended sub‑section (4) now reads: “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.”

The Court noted that, before construing section 12, it is helpful to examine the other relevant provisions of the Act that allocate powers and duties to the Mining Boards. In this regard, section 14(1) expressly provides, inter alia, that a Board constituted under section 12 may exercise such of the powers of an inspector under the Act as it deems necessary or expedient for deciding or reporting upon any matter that is referred to it.

The Act empowers an inspector, acting according to his own judgment of necessity or expediency, to decide upon or to report on any matter that is referred to him under the provisions of the Act. Section 14(2) further grants the Mining Board the powers of a civil court for the specific purposes specified in that section. Consequently, Boards that are created under section 12 may be called upon either to prepare a report concerning regulations or rules that are referred to them under section 59, or to adjudicate cases that are sent to them under section 81. The requirement in section 59 that rules and regulations be referred to the Boards has already been discussed. Section 81(1) states that when a court is trying a case that has been instituted on the recommendation of the Chief Inspector or other prescribed officers, and the court is of the opinion that the matter would be more suitably dealt with by a Mining Board rather than by prosecution, the court may suspend the criminal proceedings and forward the matter to the Central Government for possible referral to the Board. Section 81(2) authorises the Central Government either to refer the pending case to the Mining Board or to direct the court to continue with the trial. Therefore, when the Central Government elects to refer a pending criminal case to a Board, the Board is required to determine the case, giving the Board a two‑fold function under the Act. Counsel for the petitioner, Mr Sen, argues that if section 59(3) is mandatory, the legislature must have intended that consultation with the appropriate Board be an essential step before the Central Government finalises any regulation, and that such a mandatory consultation can be satisfied only if the Central Government is compelled to constitute the relevant Boards under section 12. In other words, the argument is that section 59(3) presupposes the existence of the Boards and makes it obligatory for the Central Government to consult them, which would only be possible if the Boards were created pursuant to section 12. This line of reasoning has an apparent persuasive force. However, the alternative interpretation is that section 59(3) merely imposes an obligation on the Central Government to consult a Board if such a Board already exists, and does not create any further requirement that the Board must exist. Prior to the 1959 amendment, section 59(3) provided that every Mining Board which, in the opinion of the Central Government, is concerned with the subject matter of the regulation shall be consulted. This wording indicates that a Board must be in existence before it can be consulted, and that the Board must, according to the Central Government’s view, be concerned with the regulation’s subject. The provision does not, however, compel the creation of a Mining Board; the power and duty to constitute Boards are set out separately in section 12. If

In its analysis, the Court explained that because section 12(1) was not compulsory, section 59(3) had to be understood as allowing the Central Government either to create a Mining Board or to refrain from doing so. Consequently, the effect of section 59(3) was limited to the requirement that, if a Board already existed and the Board was concerned with the matter addressed by a regulation, the Government must consult that Board. In the same way, after the 1959 amendment, section 59(4) required that the draft of any rule or regulation be sent to every Mining Board that had been constituted in the part of the territory affected by that rule or regulation. This provision likewise meant only that, when a Board was constituted in the relevant area, it had to be consulted. The Court noted that this interpretation did not add any new words to sections 59(3) or 59(4); it simply rested on the premise that section 12(1) was not mandatory. Therefore, the Court held that it would be unreasonable to read sections 59(3) or 59(4) as imposing on the Central Government an obligation to create a Board, because the creation of Boards was not the subject of those sections. Rather, the decision to constitute a Board fell within the scope of section 12, and accordingly had to be interpreted in light of that provision. Turning to the language of section 12 itself, the Court found that the wording did not support the construction advocated by Mr Sen. Although it was acknowledged that the context might allow the word “may” to be read as “shall,” substituting “shall” for “may” in section 12(1) would destroy the argument that the provision was mandatory. To assert that the Central Government “shall” constitute a Mining Board for every part of the territory covered by the Act, or for every group or class of mines, would create a contradiction between the supposed duty created by “shall” and the clear discretion left to the Government to decide where and when to constitute a Board. The Court observed that the discretionary power granted to the Central Government in the operative part of section 12 indicated that “may” could not be interpreted as “shall.” Accordingly, section 12(1) entrusted the Central Government with the discretion to constitute a Board for any portion of the territory, which also meant that it could choose not to constitute a Board for certain areas. The same discretion applied to the decision to constitute a Board for a particular group or class of mines.

In this case, the Court observed that section 12(1) of the Act uses the word “may,” which means that the Central Government may choose to constitute a Mining Board for any part of the territories or for any class of mines, but it is not required to do so for every part or class. Consequently, for certain groups or classes of mines, no Board need be constituted. The decision of whether to constitute Boards for particular territories or groups is left to the Central Government, who must act according to the requirements of the territories or the exigencies of the groups or classes of mines. Because of this discretionary language, the Court could not accept the argument that section 12(1) imposes a mandatory duty on the Central Government to create Boards so that, when regulations are framed, appropriate Boards will be available for consultation under section 59(3). The Court further explained that the directory nature of section 12(1) actually reinforces the interpretation given to section 59(3) in the Banwari Lal Agarwalla case, namely that if Boards exist, they must be consulted before draft regulations are published, but that requirement does not extend to a universal obligation to create Boards in every area or for every class of mines that the regulations might cover. Counsel for the petitioner relied on section 5, contending that the word “may” there must be read as “shall” because the appointment of the Chief Inspector of Mines is essential to the operation of the Act. The Court noted, however, that even section 5 shows that the meaning of “may” depends on the context; it can signify a mandatory instruction in one context and a discretionary power in another. The context of section 12(1) therefore does not support the reading proposed by counsel, and the Court rejected the notion that the Constitution of Boards is indispensable for the Act’s functioning, unlike the appointment of the Chief Inspector.

The Court then turned to the practical role of Mining Boards under the Act. It pointed out that only two functions are assigned to Boards. First, section 81(2) gives the Central Government a discretionary power to refer a pending criminal case to a Board, but it does not oblige the Government to do so. Second, section 59(3) requires consultation with a Board only when a Board actually exists. Because the Act can proceed smoothly without any Board, the existence of Boards is not a condition precedent for the administration of the statute. This distinction separates the context of section 12 from that of section 5, where the appointment of the Chief Inspector is indeed essential. Accordingly, the Court concluded that the Act’s operation does not depend on the creation of Boards, and the discretionary nature of section 12(1) remains intact.

Section 61 of the Act dealt with the preparation of the mine bye‑laws. Under subsection (1) the owner, agent or manager of a mine was required to prepare a draft of a bye‑law and to submit that draft to the Chief Inspector or the Inspector if either of them asked for it, and the draft had to be prepared in the manner prescribed in that subsection. Subsection (2) gave the Chief Inspector or the Inspector the authority to suggest amendments to the draft that had been prepared. Subsection (3) provided that, if within two months after the Chief Inspector or the Inspector sent any draft bye‑law or any draft amendment to the owner, agent or manager under subsection (2) the parties were unable to reach agreement on the terms of the bye‑law, the Chief Inspector or the Inspector must refer the draft to the Mining Board for settlement. Where no Mining Board existed, the draft was to be referred to such officer or authority that the Central Government might appoint by a general or special order. The provision therefore assumed that a Mining Board might not be present in every mining area or for every group or class of mines.

The Court observed that if the petitioners’ interpretation of section 12 read together with section 59(3) were to be accepted, the result would be that a Mining Board would have to exist for every mine in the country—whether by territory, group or class—in order to make the regulations binding on all mines. Such a requirement conflicted with the assumption built into section 61(3) that a Mining Board might be absent in certain areas or for certain groups of mines. In this indirect manner, section 61(3) supported the construction of section 12(1) that the Court was inclined to adopt. The respondents argued that upholding their construction of section 12 would render sections 59(3) and 59(4) ineffective and would defeat the purpose of consulting the Boards. The Court was not persuaded by that argument. To assess it, the Court recalled the scheme of section 59. Section 57 gave the Central Government the power to make regulations, and section 58 gave it the power to make rules as specified therein. Section 59(1) required that regulations be made only after prior publication. Section 59(2) set out the period that had to elapse before a draft could be considered. Section 59(3) dealt with the requirement of consultation with the Boards. Logically, therefore, consultation with the Boards was the first step in the process of making regulations, followed by publication of the draft, the prescribed waiting period, and finally the publication of the regulations after they had been considered.

In this case the Court explained that the procedure laid down in section 59 requires, first, consultation with the Boards mentioned in subsection (3); second, publication of the draft regulations; third, allowing the prescribed period to elapse before the draft is considered; and finally, publishing the regulations after they have been examined and incorporating them as if they were enacted by the Act. The Court noted that the initial publication of the draft is governed by section 23(3) of the General Clauses Act, whose purpose is to invite objections or suggestions from persons or bodies that may be affected by the proposed regulations. Section 23(4) of the same Act further mandates that the authority empowered to make the rules or regulations must consider any objection or suggestion received before the date specified, thereby ensuring that the draft is brought to the notice of all interested parties. The requirement that the draft not be considered until the prescribed period has passed is intended to give those parties sufficient time to file their objections. Consequently, the Court held that the scheme of section 59 shows that, aside from consulting the Boards contemplated in subsection (3), every party affected by the draft will have an opportunity to make suggestions or objections, and those inputs will be taken into account before the draft is finalized and the regulations are formally made. Accordingly, it would be incorrect to interpret subsection (3) as permitting the Central Government to enact regulations without seeking the views of persons who will be affected. The Court further concluded that section 12(1) is directory rather than mandatory, whereas section 59(3), or, after the 1959 amendment, subsection (4), imposes a mandatory duty on the Central Government to consult the Board constituted under section 12 before the draft regulation is published. If no Board exists, consultation cannot occur. On this basis the Court examined the petitioners’ grievance concerning the validity of their prosecution. The parties accepted that the Madhya Pradesh Mining Board and the West Bengal Mining Board, originally created under section 10 of the 1923 Act, became invalid after the amendment of section 10 by the Amending Act 5 of 1935. The original provision required the Provincial Government to constitute a five‑member Board, whereas the amendment mandated a seven‑member Board constituted by the Central Government; therefore, the respondents conceded that the Madhya Pradesh and West Bengal Boards could not be regarded as validly constituted for the purposes of section 12.

The Court observed that, under the application of section 24 of the General Clauses Act, only the Bihar Mining Board was properly constituted at the time the regulations were framed in 1947. The Bihar Mining Board had been established in 1946, and by virtue of section 24 it continued to exist as a valid board under section 12. The Court noted that the Central Government had consulted this board before issuing the regulations, and that there was no dispute that the draft regulations had been transmitted by the Central Government to the Bihar Mining Board through the State Government. After receiving the draft, the Chairman of the Board circulated it to all board members, and each member communicated his or her opinion individually. It was contended by respondents that such individual communications did not constitute a proper consultation with the board, thereby alleging non‑compliance with section 59(3). The Court rejected this argument, stating that section 59(3) merely required a reasonable opportunity to be given to the board to report on the expediency or suitability of the proposed regulations. How the board chose to formulate its report was beyond the control of the Central Government. The Court held that the Central Government had fulfilled its duty as soon as it showed that a copy of the draft regulations had been sent to the board, and that the board’s decision to submit individual opinions rather than a collective report did not violate section 59(3). Moreover, section 59(3) did not impose any duty on the board to make a report at all. Although section 14 empowered the board to make a report, the Court acknowledged that a refusal by the board to do so would not render the regulations infirm. Consequently, the Court concluded that the regulations framed in 1957 were duly framed and published under section 59(5) and therefore had the force of law as if enacted by the Act. As a result, the petition was dismissed.

Justice Subba Rao expressed a dissenting view, stating regret at his inability to agree with the majority. He explained that the material facts relevant to the question were limited in scope. The petitioners were in charge of the Salanpur “A” Seam Colliery located in the Burdwan District of West Bengal. A criminal complaint had been filed against them in the Sub‑divisional Magistrate’s Court at Asansol on the allegation that they had violated Regulation 127(3) of the Coal Mines Regulations, 1957. The magistrate had taken cognizance of the complaint. The petitioners challenged the validity of the said regulations on the ground that they had been made in contravention of section 59(3) of the Act, which required that a mining board be given a reasonable opportunity to consider the draft regulations before they were finalized. The dissent highlighted that the procedural steps followed—sending the draft to the Bihar Mining Board, circulating it among the board members, and receiving individual opinions—required careful examination in light of the statutory requirement.

The criminal complaint had been taken on the basis of section 190(1)(c) of the Code of Criminal Procedure read together with section 73 of the Mines Act, 1952, which is referred to as the Act. The petitioners challenged the legality of the Regulations on the ground that they had been made in violation of the requirements of section 59(3) of the Act. Section 59(3) obliges the Central Government, before issuing regulations under the power conferred by the Act, to give a reasonable opportunity to a Mining Board to consider the draft. Under section 10 of the Indian Mines Act, 1923, the Central Government had, in 1946, constituted the Bihar Mining Board with jurisdiction over the area of the Province of Bihar. The draft Regulations were sent by the Central Government to that Board. The Chairman of the Board circulated the draft to all members, and each member sent his individual opinion back to the Central Government. After receiving those opinions, the Central Government proceeded to make the Regulations that applied to the whole of India except Jammu and Kashmir, and that applied to every coal mine within that territory, in compliance with the remaining provisions of section 59 of the Act. The question presented by the petition was whether Regulations that had been prepared after consulting only the Bihar Board could be valid and operative in the West Bengal area so as to support a criminal prosecution for alleged violation of those Regulations by a mine situated in West Bengal. This issue could be split into two sub‑questions: first, whether the Central Government could disregard the condition imposed by section 59(3) when no Mining Board had been constituted; and second, assuming that granting a reasonable opportunity to a Mining Board is a necessary condition for the Regulations’ validity, whether the Central Government could lawfully make a Regulation affecting West Bengal after providing such an opportunity to a Board that had been constituted solely for Bihar.

The judge considered that the first sub‑question was directly addressed by the Court’s earlier decision in Banwari Lal v. State of Bihar. In that case, Justice Das Gupta had delivered the judgment of the Court. It had been argued that the precedent should be limited only to situations where a Mining Board had been validly created under the Act and therefore should not apply where no Board existed. Consequently, the Court needed to examine the earlier judgment carefully in order to determine its precise scope. The facts of the earlier case involved an accident at the Central Bhowra Colliery in Dhanbad, Bihar, which resulted in the death of twenty‑three persons. The Regional Inspector of Mines, Dhanbad, filed a complaint against the appellant alleging an offence under section 74 of the Mines Act, 1952, on the basis that the appellant had contravened regulations 107 and 127 of the Coal Mines Regulations, 1957. After the Sub‑Divisional Officer had taken cognizance of that complaint, the appellant sought relief from the Patna High Court under Article 226 of the Constitution, challenging the validity of the proceedings on the ground that no Mining Board had been constituted under section 12 of the Act and therefore the Central Government had failed to consult a Board as required by section 59(3). The second ground of the appellant’s prayer, which the present judgment was addressing, was that the Coal Mines Regulations, 1957, were invalid because they had been framed in contravention of section 59(3) of the Mines Act, 1952. The counsel for the appellant argued that the provisions of sections 12 and 59 of the Mines Act were mandatory, and quoted section 59(3) in full to support that contention.

After taking cognizance of the complaint, the appellant filed an application before the Patna High Court under Article 226 of the Constitution. The application sought to set aside the proceedings on the ground that no Mining Board had been constituted pursuant to Section 12 of the Mines Act. Because of that alleged deficiency, the appellant argued that the Central Government could not have issued the Coal Mines Regulations without first consulting a Mining Board as required by Section 59(3) of the Act. The appellant relied on a second ground, which is the only ground presently under consideration, namely that the Coal Mines Regulations of 1957 were void because they were framed in violation of Section 59(3) of the Mines Act, 1952. Counsel for the appellant further contended that the provisions of Sections 12 and 59 of the Mines Act were mandatory, and therefore any regulation made without compliance was invalid. The learned Judge quoted Section 59(3) of the Act verbatim and also referenced the earlier decision reported in (1) (1962) 1 S.C.R. 33 to support his interpretation, and then set out the material facts of the case. He then formulated the precise issue for determination as follows: it was not disputed that when the 1957 Regulations were drafted, no Mining Board required by Section 12 had been constituted, and consequently no reference to any Board was made as mandated by Section 59. The question therefore presented was whether the failure to make such a reference rendered the regulations invalid.

The Judge examined the wording of Section 59(3) and noted that the language was emphatic, reflecting the legislature’s strong intention that the publication of any regulation be conditioned on two antecedent requirements. He observed that the first antecedent required an explicit reference to the Mining Board concerned. He added that the second antecedent demanded that the Board be afforded a reasonable opportunity to examine the draft regulation and to submit a report on its expediency and suitability. He then considered why the legislature imposed these conditions, pointing out that a brief review of the twenty‑seven clauses of Section 57 shows that most of them directly affect the practical operation of mines. He explained that without suitably practical regulations, the purpose of the Act—to safeguard safety, welfare, and efficient working of mines—could be frustrated. The Judge further explained that Section 12 empowers the Government to appoint Mining Boards representing various interests, enabling the Central Government to consult these bodies when formulating regulations. He emphasized that the constitution of such Boards is intended to allow a comprehensive examination of regulatory proposals, balancing safety and welfare concerns with considerations of cost and practicability. The Judge concluded that the absence of a constituted Board at the time the 1957 Regulations were made meant that the statutory condition of reference and consultation could not be satisfied, raising a serious question as to the validity of the regulations.

The Judge explained that the purpose of constituting a Board was to enable a thorough examination of every aspect of a proposed regulation. He observed that such an examination had to consider, on the one hand, the necessity of safeguarding the safety and welfare of labour, and, on the other hand, the practicability of the proposed provision in view of likely expense and other relevant considerations. He further stated that it was plainly to the public benefit that Boards created under the Act should be given a chance to review regulations initially drafted by an administrative department of the Government and to express their opinion on those drafts. In his view, the method prescribed for constituting the Board served a genuine purpose, and consequently the Central Government’s creation of a Board was made a condition for the making of the Regulations.

When the contention was raised that insisting on consultation with the Board might jeopardise public welfare in emergency situations, the Judge pointed to section 60 of the Act, which provides for such a contingency. He noted that under that provision the Central Government could make regulations without first referring to the Mining Boards, and that this possibility did not prevent the Court from holding that giving the Board an opportunity to comment was a condition precedent to the power to make regulations. The Judge then summarised his reasoning, stating that an examination of the language used, the legislative scheme, the public benefit of strict compliance and the risks to public interest of insisting on such compliance led to the conclusion that the legislature intended the requirement of consultation with the Mining Board to be a prerequisite for the validity of any regulation. He added that this conclusion was reinforced by the wording of section 60, which allows regulations to be framed in certain cases without following the procedure prescribed in section 59, but which also contains a proviso that any regulation made under section 60 shall not remain in force for more than two years from the date of its making. By an amendment enacted in 1959, that period was reduced to one year. The Judge observed that it was reasonable to read this proviso as implying that, when the special circumstances described in section 60 do not exist and section 60 is therefore inapplicable, a regulation made in contravention of section 59 would be valid for only a single day. Concluding his discussion, he wrote that, for all the reasons set out above, the provisions of section 59(3) of the Mining Act, 1952, are mandatory. He then expressed difficulty in accepting that the Court had held, either expressly or by necessary implication, that section 59(3) was mandatory only if the relevant Board existed, and he noted that the argument advanced, the question posed, the reasons given and the conclusion reached were all part of the Court’s reasoning.

In the matter before the Court, the parties argued against giving the judgment a limited scope. Both sections 12 and 59 of the Act were asserted to be mandatory provisions. The learned Judge framed the question to be decided by referring to “the omission to make such a reference.” The term “such” was explained to refer to the failure to make a reference because no Board had been constituted under section 12 of the Act. Accordingly, there was no ambiguity in the question presented, and the learned Judge understood precisely what the Court was being asked to determine. The reasons offered by the learned Judge for holding that the Central Government was obligated to consult the Board before making a regulation were said to apply irrespective of whether the Board actually existed. The learned Judge concluded that consultation with the Board constituted a condition precedent to the exercise of the regulatory power, and that this condition would operate in both situations. If the condition was indeed a prerequisite, it could not cease to apply merely because a Board was not in existence; the condition depended on the act of consultation, not on the Board’s existence. In one scenario the Government might fail to consult a Board that existed, and in the other scenario it might fail to consult because the Board did not exist; in either case the prerequisite was breached. Nevertheless, the last three paragraphs of the judgment were interpreted by some as indicating that the learned Judge had not considered the case where no Board had been constituted. In those paragraphs the learned Judge examined whether Mining Boards created under section 10 of the Mines Act, 1923, were still functioning at the time the regulations were made and whether full consultation with such Mining Boards had occurred before the regulations were framed. The learned Judge was unable to reach a decision on that issue because the record did not contain sufficient material, and consequently the Court directed the Magistrate to decide that question. The observation that these paragraphs limited the decision to cases where a Board had been constituted was therefore not convincing. On the contrary, the first of the three paragraphs contained a clear statement to the opposite effect. The Court noted, “As has been pointed out above, it was not disputed before us that at the time when the regulations were framed no 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 remark demonstrated that the entire judgment up to that point proceeded on the basis that there had been no consultation because no Board existed. After that, the learned Judge considered only the alternative contention raised by the State, namely, that a pre‑existing Board had been consulted and that such consultation satisfied the requirements of section 59(3).

In this case the Court explained that the Government’s contention was that a consultation with a pre‑existing Mining Board satisfied the requirement of section 59(3) of the Act. The Court then reconstructed the reasoning of the learned Judge as follows: The appellant argued that no consultation had taken place because no Board had been constituted under section 12 of the Act, and consequently the regulations made without such consultation were void. The learned Judge accepted that argument. The Government then submitted that, although there was no Board constituted under section 12, a consultation with an earlier Board could nevertheless fulfil the condition imposed by section 59(3). Because no material on the record established the existence of such a consultation, the learned Judge declined to decide the issue and directed that the question be referred to the Magistrate for determination. The Court noted that it was a common fact that no Board under section 12 had ever been constituted. If the Government’s present submission were correct, then, according to the State, section 59(3) could not be invoked in a situation where no Board existed. The plea that a pre‑existing Board had been consulted was raised by the State, not by the appellant, and would be unnecessary if section 58(3) of the Act did not impose a consultation requirement when a Board did not exist. The Court held that its earlier judgment was clear and unambiguous: because there had been no consultation with any Mining Board under section 59(3), and because no Board existed, the regulations were invalid. The present argument was characterised as an attempt to overturn a clear pronouncement of a Constitution Bench.

The Court further observed that a proper construction of sections 12 and 59(3) required the Central Government to exercise the power under section 12 before it could rely on the power under section 59. Section 12 authorises the Central Government to constitute, for any part of the territory to which the Act extends or for any group or class of mines, a Mining Board composed of persons with specified qualifications who represent the various interests in the mines. Section 59, read with rule 59, provides that the power to make regulations conferred by section 57 is subject to the condition that the regulations be published only after prior publication and, under sub‑section (3), that “before the draft of any regulations is published under this section, it shall be referred to every Mining Board which, in the opinion of the Central Government, is 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.” The Court emphasized that this condition is a precedent condition for the making of regulations and that the Central Government cannot dispense with it by default, even in the public interest, without a clear legislative amendment.

In this case the Court observed that the requirement that a draft regulation be referred to a Mining Board and that the Board give its opinion on the suitability of the provisions is, as the Court has previously interpreted, a condition precedent to the making of regulations under the specified section. The Court noted that if the argument advanced by the learned Solicitor‑General were accepted, that condition might have to be removed from the power whenever the Central Government deliberately chooses not to exercise the related power under section 12 of the Act. The Court warned that the Central Government, acting on its own, could not simply ignore a condition that is imposed in the public interest, and that such an anomalous construction could not be accepted unless the statutory provisions compelled the Court to do so. The Court then reiterated a well‑settled principle of statutory construction: when possible, the Court must interpret conflicting provisions so that they harmonise, preferring a construction that gives a consistent meaning to the different parts of the enactment. Applying that principle, the Court held that the two sections in question can be harmonised without distorting the language. Section 12 is an enabling provision that gives the Central Government the power to appoint a Mining Board. Section 57, read together with section 59, confers on the Central Government the power to make regulations, subject among other things to the condition that a draft of the regulation be referred to a Mining Board. These two powers are connected; when read together, it is reasonable to conclude that the power under section 12 must be exercised by the Central Government if it intends to make regulations under section 57. This reading gives effect to the full legislative intention behind section 59 as interpreted by the Court, allowing both powers to be exercised without one diminishing the other. The construction favoured by the respondents, according to the Court, would enable the Central Government to defeat the public‑purpose reason for the condition in section 59, whereas the construction advanced by the petitioners permits the exercise of both powers without conflict. On the basis of the principle of harmonious construction, the Court preferred the latter approach. The Court then considered the provisions from another perspective, invoking the established doctrine that when a power is coupled with a duty imposed on the person to whom it is given, the exercise of that power becomes imperative, referring to Maxwell on the Interpretation of Statutes, 11th edition, page 234. The Court also quoted the proposition that “if the object for which the power is conferred contemplates giving of a right, there would then be a duty cast on the 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.”

The Court examined section 51 of the Income‑tax Act, 1918, which authorises the Chief Revenue Authority to state a case before the High Court. In referring to the judgment of Lord Phillimore in Alcock Ashdown & Co. v. The Chief Revenue Authority Bombay, the Court quoted the observation that the provision does not obligate the authority to state the case; it merely confers a power, using the word “may” rather than “shall”. The Court agreed that the term “may” signifies a capacity or power granted to the authority, not a mandatory duty. However, the Court noted that when a public authority is vested with a capacity or power, certain circumstances may attach a duty to exercise that power, especially where a serious point of law is at issue. In such situations, a duty arises upon the revenue authority to present the case for the Court’s opinion, and if the authority fails to recognise the seriousness of the point, the Court retains the power to control the authority and to order it to state the case (see A.I.R. 1923 P.C. 138).

The Court then turned to the provisions of the Act relating to mining regulation. It identified two interrelated powers: the power to appoint a Mining Board and the power to make regulations, the latter being subject to a condition. The condition creates a right for the Mining Board to be consulted before any regulation is made. By reading section 12 together with sections 57 and 59, the Court concluded that the powers conferred on the Central Government are coupled with a duty to consult the Board whenever the government intends to exercise the power under section 57. The Court expressed no hesitation in holding that the power is indeed coupled with a duty and must be exercised whenever the duty demands it.

Accordingly, the Central Government, when formulating regulations, has a duty to consult the Mining Board, and the Board possesses the right to be consulted. To fulfil this duty, the Central Government must first exercise the related power by appointing the Board. The Court addressed the argument that section 59 obliges the regulations and rules to be referred to a Mining Board, while section 58 gives the Central Government authority to make a rule for appointing the Chairman and members of the Board. It was submitted that if section 59 were mandatory, the Government could never exercise the power under section 58(a). The Court observed that such a difficulty did not arise before the amendment of the Act in 1959. Under the earlier version of section 69(3), the condition of consultation with a Mining Board applied only to the power to make a regulation, and section 57, which conferred the power to make regulations, contained no clause corresponding to clause (a) of section 58. Consequently, the Court held that section 58(a) may be validly invoked by the Central Government only after a Mining Board has been duly constituted.

In this case the Court noted that the argument concerning future appointments might have some relevance when the question of construction of the provisions of section 59 was earlier raised before the Court, but it is no longer applicable because the proper construction of that section has now been finally settled by the Court. The Court added that a comparative examination of the remaining provisions of the Act leads to the same conclusion. The Act contains many enabling provisions that empower the Central Government to appoint specified authorities for discharging the various duties and functions described in different sections. If it were held that the Central Government need not make any such appointments 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 under section 5 of the Act. Should the Government fail to appoint the Chief Inspector or the Inspectors, the duties and functions assigned to those officers could not be performed. Accordingly, a reasonable construction requires that where those duties and functions must be performed, the Government must appoint the officers. Similarly, when the Central Government wishes to exercise the powers conferred by section 57 read together with section 59, it must first appoint the Mining Board. On this fair construction of sections 12 and 59, the Court held that the Central Government has a duty to appoint a Mining Board whenever it intends to exercise its power under section 57 of the Act.

The Court then considered the argument that the Bihar Board had been consulted in the manner prescribed by section 59(3) of the Act and therefore the regulation made after such consultation was valid. The Court could not accept this contention. It observed that the Board was appointed under section 10(1) of the Indian Mines Act, 1923 and that it must be deemed duly constituted under the present Act. However, the Court pointed out that the Board’s jurisdiction was limited to the area comprising the present State of Bihar and that it possessed no jurisdiction over West Bengal. Section 12 of the Act authorises the Central Government to constitute a Mining Board for any part of the territories to which the Act extends or for any group or class of mines. Section 59 requires the Central Government to refer a draft regulation to every Mining Board that, in its opinion, is concerned with the subject dealt with by the regulation. The Court therefore asked whether a Board constituted for the Bihar territory could be regarded as a Board concerned with regulations affecting the mines situated in West Bengal. The entire object of section 59, the Court explained, 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.

The Court observed that the purpose of section 59 was to consult persons intimately connected with mining in the particular area so that appropriate regulations could be made to govern the working of those mines. The Court held that it could never have been the intention of the Legislature to empower the Government to make regulations concerning mines in one part of the country by consulting a Board that had been constituted for another part of the country. Such an intention could not be ascribed to the Legislature. The Court further noted that when the Central Government constituted the mining Boards, it expressly stated its intention that all Boards, including the Board that would operate in West Bengal, should be consulted. However, because no Board had been lawfully constituted in West Bengal under the Act, the required consultation with that Board could not be effected and therefore became futile. Accordingly, the Court held that the regulations purporting to govern the mines situated in West Bengal had not been validly made under the Act, since the condition precedent imposed by section 59 on the exercise of the Government’s power to make a regulation had not been satisfied. As a consequence, the Court directed the issuance of a writ of prohibition against respondents numbered one to four, restraining them from continuing the criminal proceedings that had been initiated against the petitioners. The petitioners were awarded costs. Finally, the Court stated that, in view of the majority opinion, the writ petition failed and was dismissed.