judgement:
minal Appeal No. 131 of 1959.
Appeal by special leave from the judgment and order dated November 21, 1958, of the Patna High Court in M. J. C. No. 805 of 1958.
G. section Pathak, section C. Banerjee and P. K. Chatterjee, for the appellant.
R. Ganapathy Iyer and B. H. Dhebar, for the respondents.
February 10.
The Judgment of the Court was delivered by DAs GUPTA, J.
On February 20, 1958, there occurred in the Central Bhowra Colliery, in Dhanbad in Bihar an accident as a result of which 23 persons lost their lives.
After an inquiry under.
a. 24 of the , into the causes of and the circumstances attending the accident, and the publication of the report of the inquiry, a complains was prepared by the Regional Inspector of Mines, (Dhanbad, under the direction of the Chief Inspector of Mines, Dhanbad, before the Sub Divisional Officer, Dhanbad, against the appellant for an offence under section 74 of the , for contravention of regulations 107 and 127 of the Coal Mines Regulations, 1957.
The Central 35 Bhowra Colliery belongs, and belonged at the relevant date to a private company, viz., M/s. Central Bhowra Colliery Co., Private Limited.
The appellant is and was a shareholder and a director of this company.
After the Sub Divisional Officer took cognizance of the complaint and issued processes against him, the appellant made an application to the Patna High Court under article 226 of the Constitution, for the issue of an appropriate writ for quashing the criminal proceedings.
This application was summarily dismissed.
It if; against that order of dismissal that this appeal has been filed by special leave obtained from this Court.
The two main grounds on which the prayer for quashing the proceedings was based were: (1) that section 76 of the , in pursuance of which the appellant, who was not himself the owner of the colliery company, but only one of the directors and shareholders has been prosecuted, is void as it violates article 14 of the Constitution; (2) the Coal Mines Regulations, 1957, are invalid having been framed in contravention of a. 59(3) of the .
These two contentions were also urged before us in appeal.
The first contention is based on an assumption that the word "any one" in section 76 means only "one of the directors, and only one of the shareholders".
This question as regards the interpretation of the word "any one" in section 76 was raised in Criminal Appeals Nos. 98 to 106 of 1959 (Chief Inspector of Mines etc.) (1) and it has been decided there that the word "any one" should be interpreted there as "every one".
Thus under section 76 every one of the shareholders of a private company owning the mine, and every one of the directors of a public company owning the mine is liable to prosecution.
No question of violation of article 14 therefore arises.
As regards the other contention that the regulations are invalid the appellant 's argument is that the provisions of section 12 and section 59 of the , are mandatory.
Section 12 provides: "(1) The Central Government may constitute for any part of the territories to which this.
Act extends, (1) ; 36 or for any group or class of mines, a Mining Board consisting of (a) a person in the service of the Government, not being the Chief Inspector or an Inspector, appointed by the Central Government to act as Chairman; (b) the Chief Inspector or an Inspector appointed by the Central Government; (c) a person, not being the Chief Inspector or an Inspector, appointed by the Central Government; (d) two persons nominated by owners of mines or their representatives in such manner as may be prescribed; (e) two persons to represent the interest of miners, who shall be nominated in accordance with provisions laid down in the section.
" Section 59 empowers the Central Government to 'make regulations consistent with the Act for all or any of the purposes mentioned therein, while section 58 empowers the Central Government to make rules consistent with the Act for all or any of the purposes mentioned therein.
Section 59 after providing in its first sub section that the power to make regulations and rules conferred by sections 57 and 58 is subject to the condition of the regulations and rules being made after previous publication provides in its third sub.
section further conditions as regards the making of regulations.
This sub section runs thus: "Before the draft of any regulation if; published under this section it shall be referred to every Mining Board which is, in the opinion of the Central Government concerned with the subject dealt with by the regulation, and the regulation shall not be so published until each such Board has had a reasonable opportunity, of reporting as to the expediency of making the same and as to the suitability of its provisions.
" A similar provision was made in the fourth sub section as regards the making of rules.
By an amendment made in 1959 these two subsections have been combined into one.
It was not disputed before us that when the Regulations were framed, no Board as required under section 12 37 had been constituted, and so, necessarily there had been no reference to any Board as required under section 59.
The question raised is whether the omission to make such a reference make the rules invalid.
As has been recognised again and again by the courts, no general rule can be laid down for deciding whether any particular provision in a statute is mandatory, meaning thereby that non observance thereof involves the consequence of invalidity or only directory, i.e., a direction the non observance of which does not entail the consequence of invalidity, whatever other consequences may occur.
But in each case the court has to decide the legislative intent.
Did the legislature intend in making the statutory provisions that nonobservance of this would entail invalidity or did it not? To decide this we have to consider not only the actual words used but the scheme of the statute, the intended benefit to public of what is enjoined by the visions and the material danger to the public by pro the contravention of the same.
In the present case we have to determine therefore on a consideration of all these matters whether the legislature intended that the provisions as regards the reference to the Mines Board could be contravened only on pain of invalidity of the regulation.
Looking at the language of the section, we find, the legislature, after saying in the first part of sub section
(3), that before any regulation is published, it "shall be" referred to every Mining Board which is, in the opinion of the Central Government concerned with the subject, and goes on to say in the latter part, that the regulation "shall not" be published until each Board has had a reasonable opportunity of reporting as to the expediency and suitability of the provisions.
While it is true that language is only one of the many considerations which have to be taken into account in deciding whether a requirement is directory or mandatory, it is legitimate to note that the language used in this case is emphatic and appears to be designed to express an anxiety of the legislature that the publication of the regulation, which is condition precedent to the making of the regulations, should 38 itself be subject to two conditions precedent first, a reference to the Mining Boards concerned, and secondly, that sufficient opportunity to the Board to make a report as regards the expediency and suitability of the proposed regulations.
The cause of this anxiety becomes patent, when one examines the matters on which regulations can be made, Even a cursory examination of the purposes set out in the 27 clauses of section 57 shows that most Of them impinge heavily on the actual working of the mines.
To mention only a few of these, viz., cl.
(c) under which regulations may be made for prescribing the duties of owners, agents and managers of mines and of persons acting under them; (g) for determining the circumstances 'in which and the conditions subject to which it shall be lawful for more mines than one to be under a single manager; (j) for prohibiting, restricting or regulating the employment of adolescents and women in mines; (k) for providing for the safety of the persons employed in a mine; (m) for providing for the safety of the roads and working places in mines; (n) for the inspection of workings and sealed off fire areas in a mine; (o) far providing for the ventilation of mines; (r) for providing for proper lighting of mines and regulating the use of safety amps therein; are sufficient to show that the very purpose of the Act may well be defeated unless suitable and practical regulations are framed to help the achievement of this purpose, Arbitrary and haphazard regulations without full consideration of their practicability and ultimate effect on the efficient working of the mines, would, apart from, often defeating the purpose of the Act, affect injuriously the general economy of the country.
That we are entitled to presume, is the reason behind the legislature 's anxiety that Mining Boards should have an opportunity of examining regulations, and expressing their opinion before they are finalised.
As has been already mentioned section 12 which deals with the formation of boards provides for representation thereupon of two persons nominated by owners of mines or their representatives and two persons to re.
present the interests of persons employed in mines, in 39 addition to three persons representing the Government.
The constitution is calculated to ensure that all aspects including on the one hand the need for securing the safety and welfare of labour and on the other hand the practicability of the provisions proposed from the point of, view of the likely expense and other considerations can be thoroughly examined.
It is certainly to the public benefit that Boards thus constituted should have an opportunity of examining regulations proposed in the first place, by an administrative department of the government and of express ing their opinion.
It is true that the law does not require concurrence of the Board with the regulations proposed.
It is reasonable to expect however that when a Board has expressed an opinion in favour of the rejection or modification of a proposed regulation, the department would not treat it lightly.
But, even where the opinion expressed by the Board is not accepted the very fact that there has been such an examination by the Board, and a consequent re.
examination by the department is likely to minimise the risks to public welfare.
There can be little doubt therefore that generally speaking strict obedience of the command in sub section
3 of section 59 regarding consultation with the Mining Board is likely to promote public welfare.
Let us now examine the matter from another aspect and ask ourselves the question: what risk there is to the public welfare of an insistence in all cases that the omission of consultation as enjoined in section 59 would invalidate a regulation.
Emergencies may arise, when in order that the public may not suffer.
regulations must be framed with the least possible de lay; and much valuable time may be lost if a reference must be made to all the Mining Boards concerned and opportunity given to them to express their opinion before regulations are made.
In such cases, public interest may well be endangered if regulations, in order to be valid have to conform,to the requirements of previous consultation with, the Mining Boards.
We find however that such cases of emergency have been specially dealt with in a. 60 of the Act, the operative portion of which runs thus: 40 "Notwithstanding anything contained in subsec tions (1), (2) and (3) of section 59, regulations under clause (1) and clauses (k) to (a) excluding clause (1) of section 57 may be made without previous publication and without previous reference to Mining Boards, if the Central Government is satisfied that for the prevention of apprehended danger or the speedy remedy of conditions likely to cause danger it is necessary in making such regulations to dispense with the delay that would result from such publication and reference".
Thus, the apprehended danger to public interest from requiring as a condition of the validity of regulations previous consultation with the Mining Board is averted.
An examination of all the relevant circumstances, viz., the language used, the scheme of the legislation, the benefit to the public on insisting on strict compliance as well as the risks to public interest on insistence on such compliance leads us to the conclusion that the legislative intent was to insist on these provisions for consultation with the Mining Board as a prerequisite for the validity of the regulations.
This conclusion is strengthened by the fact that in section 60 when providing for the framing of regulations in certain cases without following the procedure enjoined in section 59, the legislature took care to add by a proviso that any regulation so made "shall not remain in force for more than two years from the making thereof".
By an amendment made in 1959 the period has been changed to one year.
It is not unreasonable to read this proviso as ex.
pressing by implication the legislature 's intention that when the special circumstances mentioned in section 60 do not exist and there is no scope for the application of that section no regulation made in contravention of s.59 will be valid for a single day.
Strew was laid on behalf of the respondent on the fact that section 59 does not require that regulations must have the concurrence of the Mining Boards; and it was pointed out that this Court in State of U. P. vs Manbodhan Lal Srivastava (2) in holding that article 320(3) (2) ; 41 of the Constitution was not mandatory, relied, inter alia, on the fact that "the requirement of the consultation with the Commission does not extend to making the advice of the Commission, on these matters, binding on the government".
While it is true that this Court did attach weight to this circumstance, we have to remember that this was the only one of the several circumstances, on the total consideration of which, the court decided that the provision for consultation in article 320(3) was not mandatory.
One of these circumstances was that article 320(3) contained a proviso, which gave a clear indication "of the intention of the Constitution makers that they did envisage certain cases or class of cases in Which the Commission need not be consulted".
"If the provisions of article 320(3) were of a mandatory character", observed Sinha, J., (as he then was), while delivering the judgment of the Court, "the Constitution would not have left it to the discretion of the head of the executive government to undo these provisions by making regulations to the contrary".
It has to be noticed, as pointed out above, that section 60 of the , also lays down clear provisions where the consultation as required in section 59 need not take place.
Here, however, the legislature has not left it to the discretion of the executive government "to undo these provisions by making regulations to the contrary".
The legislature itself has given clear guidance as to the cases where such consultation need not be made by the Government.
What is more, the legislature has laid down that regulations made without such consultation would have a limited life.
In Srivastava 's Case (1) this Court quoted with approval the following observations of the Privy Council in Montreal Sirgeet Railway Company vs Nor.
mandin ("): "When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, (1) ; (2) ; , 175.
42 or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done." and applied the principle thus laid down to the case before it.
There is however no scope in the present case of applying this principle in support of the directory nature of section 59(3).
As we have pointed out above, the inconvenience that might be caused by holding regulations made in contravention of section 59(3) invalid is removed by the provisions of section 60; and on the other hand to hold that regulations may be validly made without following the procedure laid down in section 59even in cases not falling within section 60 is likely to be harmful to public interest, and to cause general incon venience.
It is really a converse case of what the Privy Council had to consider in Montreal Street Railway Company 's Case (1) and this Court considered in Srivastava 's Case (2).
For all the reasons given above, we are of opinion that the provisions in section 59(3) of the , are mandatory.
There remains for consideration the question whether these provisions were complied with before the Coal Mines Regulations, 1957, were I framed.
As has been pointed out above, it was not disputed before us that at the time when the regulations were framed no new Mining Board had been constituted under the , and consequently no consultation with any Mining Board constituted under the 1952 Act took place.
It has been stated before us however on behalf of the respondents that the Mining Boards constituted under section 10 of the Mines Act, 1923, were continuing to operate at the time these regulations were framed and that there was full consultation with these Mining Boards before these regulations were framed.
(1) ; , 175.
(2) ; 43 If in fact there was such consultation the further question would arise whether consultation with the Mining Boards constituted under the provisions of the Mining Act, 1923, would be sufficient compliance with the provisions of section 59(3) of the present Act.
Before these questions are decided it is not possible to come to a definite conclusion whether the Coal Mines Regulations, 1957, are valid or not.
As there is not sufficient material before us to decide the question, whether in fact the Mining Boards constituted under section 10 of the 1923 Act were functioning at the date when these regulations were made and whether these Boards were consulted before the regulations were framed, we have not thought fit to consider here the further question whether if such consultation had taken place that would be sufficient compliance with section 59(3) of the 1952 Act.
In the circumstances, the proper course, in our opinion, is to direct that the criminal proceedings pending in the court of the sub divisional magistrate be disposed of by him or any other magistrate to whom the case may be transferred in accordance with law, after deciding the question whether there was consultation with Mining Boards constituted under section 10 of the Mines Act, 1923, before the regulations were framed and, if so, whether such consultation amounted to sufficient compliance with section 59.
If his conclusion is that there has not been compliance with the provisions of section 59 the regulations must be held to be invalid and the accused would be entitled to an acquittal; if, on the other hand, he holds that there has been sufficient compliance with the provisions of section 59 he should dispose of the case after coming to a conclusion on the evidence as regards the allegations made against the appellant in the petition of complaint.
The appeal is disposed of accordingly.
Appeal allowed.
Case remanded.

summary:
Section 76 of the , provides that where the owner of a mine is a private company any one of the shareholders thereof may be prosecuted and punished under this Act for any offence for which the owner of the mine is punishable.
The appellant who was a shareholder and a director of a private company owning a colliery, was prosecuted for an offence under section 74 Of the Act for contravention of Regulations 107 and 127 Of the Coal Mines Regulations, 1957.
He challenged the validity of the prosecution on the grounds (1) that section 76 of the Act in pur suance of which he who was not himself the owner of the colliery but only one of the directors and shareholders had been prosecuted, was void as it violated article 14 of 'the Constitution of India, and (2) that the Coal Mines Regulations, 1957, were invalid as they had been framed in contravention of section 59 (3) of the Act, inasmuch as there was no consultation with a Mining Board before they were published as required by that sub section.
It was not disputed that when the Regulations were framed, no Mining Board as required under section 12 Of the Act had been con stituted.
and so there had been no reference to any such Board, 34 but it was alleged that there was consultation with the Mining Board constituted under section 10 of the Mines Act, 1923.
Held: (1) that the words "any one" in section 76 of the , should be interpreted as "every one" and that under that section every one of the shareholders of a private company owning the mine was liable to prosecution.
Accordingly, section 76 did not contravene article 14 Of the Con stitution.
Chief Inspector of Mines vs Lala Karam Chand Thapar, , followed.
(2) that compliance with the provisions in section 59 (3) Of the Act was mandatory.
State of U. P. vs Manbodhan Lai Srivastava, [1958] section C. R. 533, distinguished.
Quaere, whether consultation with the Mining Boards con stituted under the provisions of the Mines Act, 1923, would be sufficient compliance with section 59 (3) Of the .


judgement:
241 and 242 of 1960.
Petitions under article 32 of the Constitution of India for enforcement of Fundamental Rights.
P. B. DaS, K. Choudhoury, Balbhadra Prasad Singh and I. N. Shroff, for the petitioners.
M. C. Setalvad, Attorney General of India, B. Sen and R. H. Dhebar, for the respondents.
February 10.
The Judgment of the Court was delivered by MUDHOLKAR, J.
The petitioner in W. P. 241 of 1960, Messrs. Burrakur Coal Co., Ltd., and the petitioner in W. P. 242 of 1960, Messrs. East India Coal Co., Ltd., claim to have acquired mining rights in two blocks in Mouza Sudamdih and Mouza Sutikdih respectively situated in Dhanbad district in the State of Bihar.
On July 28, 1960, the Central Government published a notification bearing No. section 0.
1927 under section 4 of the Coal Bearing Areas (Acquisition and Development) Act, 1957 (No. 20 of 1957), stating its intention to prospect for coal in an area approximately five sq.
miles which includes Sudamdih colliery aud Sutikdih colliery.
The petitioners have stated in their respective petitions that in consequence of the issue of the aforesaid notification they are precluded from carrying on any mining operations in the respective collieries and that the Central Government is entitled to acquire mining rights in the area covered by the notification within a period of two years from the date of notification or within such further period not exceeding one year as the Central Government may specify by notification in the Official Gazette.
The petitioners have come up to this Court under article 32 of the Constitution contending that the aforesaid notification is ultra vires and illegal inasmuch as it interfere,% with their fundamental right to own property and to carry on business.
Assuming that an incorporated company is a citizen we may point out that the East India Coal Co., Ltd. is incorporated in the United Kingdom while the Burrakur Coal Co., Ltd. is 47 incorporated in India.
Therefore, in so far as the rights conferred by article 19 are concerned it may only be the latter which is entitled to the protection of the Constitution but not the former company.
Both the petitioners, however, contend that the right conferred by article 31(2) of the Constitution is also infringed by the aforesaid notification and if their contention is correct they will be entitled to protection in respect of that right inasmuch as it is not limited to the citizens of India as is the case with regard to the rights enumerated in article 19.
Both the petitions were argued together though the arguments were addressed mainly with reference to the case of Burrakur Coal Co., Ltd. and, therefore, it is that case with which we will deal fully.
After dealing with the arguments advanced with reference to that case we will deal briefly with the other case.
The challenge to the notification rests on two grounds, firstly that the notification is ultra vire8 the Act and secondly that the Act is itself ultra vires the Constitution.
The petitioner 's learned counsel Mr. P. R. Das contends that the Act applies to "unworked" coal mines which according to him, mean virgin lands and not to those which are being worked at present or which were worked in the past.
In support of this contention he strongly relies upon the preamble to the Act.
The preamble runs thus: "An Act to establish in the economic interest of India greater public control over the coal mining industry and its development by providing for the acquisition by the State of unworked land containing or likely to contain, coal deposits or of rights in or over such land, for the extinguishment, or modification of such rights accruing by virtue of any agreement, lease, licence or otherwise.
and for matters connected therewith.
" His argument proceeds to the length of saying that even abandoned mines are not touched by the Act.
According to him, however, the Sudamdih colliery was not an abandoned mine nor could it be regarded as abandoned because, though it was not actually worked 48 between the year 1932 and the month of May. 1960.
the petitioner had purchased it for a large consideration amounting to over Rs. 1,46,000 and thereafter it paid annually the minimum rent and royalty which totals upto over Rs. 1,23,000 from May 1, 1939, to June 30, 1960.
According to the petitioner the mine was not actually worked during this period because in the petitioner 's opinion it was uneconomical to work it.
The petitioner in fact made ' an application on December 3, 1959, to the Coal Board as required by the provisions of the Coal Mines (Conservation and Safety) Act, 1952 (XII of 1952), for permission to reopen the colliery but it did not receive any reply from the Coal Board.
Even so, the petitioner commenced drilling operations in the beginning of May, 1960 and carried them on till August 12, 1960, during which a depth of 235 ft. was reached at one point.
The petitioner, however, stopped these operations consequent upon the publication of the impugned notification in the Gazette of August 6, 1960.
We are mentioning.
these facts because on their basis a further argument is raised by Mr. Das to the effect that prior to the issue of the notification the mine was being actually worked.
Before, however, we deal with that argument we must consider the main contention of Mr. Das which is to the effect that the Act applies only to virgin land.
Mr. Das contended that the preamble to an Act is a key to understanding the provisions of the Act and referred us in this connection to the advisory opinion of this Court in re the Kerala Education Bill, 1957 In that case Das, C. J., who delivered the opinion of the Court has observed: "The long title of the said Bill (The Kerala Education Bill, 1957) describes it as A Bill to provide for the better organisation and development of educational institutions in the State '.
Its preamble recites thus: 'Whereas it is deemed necessary to provide for the better organisation and development of educational institutions in the State provid ing a varied and comprehensive educational service (1) [1959] S.C.R. 995, 1022.
49 throughout the State '.
We must, therefore, approach the substantive provisions of the said Bill in the light of the policy and purpose deducible from the terms of the aforesaid long title and the preamble and so construe the clauses of the said Bill as will subserve the said policy and purpose".
While.
holding that it is permissible to look at the preamble for understanding the import of the various clauses contained in the Bill this Court has not said that full effect should not be given to the express provisions of the Bill even though they appear to go beyond the terms of the preamble.
It is one of the cardinal principles of construction that where the language of an Act is clear, the preamble must be disregarded.
Though, where the object or meaning of an enactment is not clear, the preamble may be resorted to explain it.
Again, where very general language is used in an enactment which, it is clear must be intended to have a limited application, the preamble may be used to indicate to what particular instances the enactment is intended to apply (1).
We cannot, therefore, start with the preamble for construing the provisions of an Act, though we would be justified in resorting to it, nay, we will be required to do so, if we find that the language used by Parliament is ambiguous or is too general though in point of fact Parliament intended that it should have a limited application.
Mr. Das then contended that the various provisions of the Act clearly show that Parliament intended the Act to apply only to virgin land.
In support of this contention he referred to the provisions of as.
4,5,6, 7 and 8 of the Act.
He pointed out that whenever it appears to the Central Government that coal is likely to be obtained from land in any locality it is empowered by sub a.
(1) of section 4 to give notice of its intention to prospect for coal therein.
According to him, where a mine has been worked at some time in the past all the necessary information would be available in the working plan of the mine, and, by way of illustration pointed out that the fullest information (1) Craies Interprotation of Statutes, 5th Edn., pp. 188, 189.
50 was available in the working plan, Annexure B1 of the Sudamdih colliery.
He further pointed out that this information was in fact in the possession of the Government as would appear from Annexure B which was appended to the notification of July 20, 1960.
We may point out that this annexure sets out that this is a statement of percentage of worked and unworked areas in different coal mines and.
after setting out the various seams which have been proved, the percentages of worked and unworked areas have been specified therein.
Prospecting, according to Mr. Das, would be necessary only if nothing is known about an area and therefore there can possibly be no need for prospecting when a mine has been worked.
Admittedly, sub section
(1) of a. 4 does not specifically say that it applies to unworked land.
All the same, according to Mr. Das, it must be so construed as to apply to unworked land only; for, there would be no need for the Government to undertake prospecting for coal in worked land on which there is a colliery.
We cannot accept the argument of Mr. Das.
The bulk of the coal in a mine is underground and even though the existence of some seems may have been proved in particular areas it is impossible to say that the information obtained when it was prospected once or when it was being worked, as to the quality and quantity of coal or the dimensions of the seams is complete.
The seams are not necessarily horizontal and more often are inclined and sometimes even folded.
Then again there may be faulting in the strata of coal as a result of which an impression may be created that a seam has disappeared at a particular place though further borings or drilling may show that even.
beyond that point but at greater depths the same seam reappears.
So where a mine was worked in the past but mining operations therein were stopped either because the coal therein was thought to have been exhausted or because it was not thought to be of a sufficiently good quality such as to make the working of the mine economic, further prospecting may well reveal the existence of additional coal bearing strata or of a better type of coal than that found 51 earlier.
On the plain language of sub a.
(1) of section 4 the Central Government has been empowered to issue a notification with reference to its intention of prospecting any land in a locality and not only such land as is virgin in the sense in which Mr. Das uses that expression.
Then Mr. Das referred sub section
(3) of a. 4 and said that the whole of the country has been subjected to a geological survey of a very detailed kind and all known coal fields are mentioned in one report or the other of the department of Geological Survey of India.
Collieries which have been worked at some time in the past must have been mentioned in one of these reports and.
, therefore, it would be wholly unnecessary for the legislature to confer upon the Government the power as is done by cl.
(a) of sub section
(3) of section 4 to enter upon and survey any land in the locality in which such colliery is situate.
The very fact that power has been given to the Central Government to enter upon and survey land for ' the purpose of ascertaining whether there is any coal in that land shows that the legislature had in mind only that land which has not been mentioned as coal bearing in any of the reports of the Geological Survey of India.
Here again we may point out that the object of survey of land is to enable the Government to satisfy itself not merely about the fact that any coal exists in that land but also about the quality and quantity of coal therein and whether it would be an economical proposition to work the mines already existing on that land.
Indeed a perusal of the provisions of sub a.
(4) of section 4 would show that the Act is not restricted to unworked lands only but applies equally to those lands on which there are existing mines but those mines are not being worked.
That sub.section reads as follows: "In issuing a notification under this section the Central Government shall exclude therefrom that portion of any land in which coal mining operations are actually being carried on in conformity with the provisions of any enactment, rule or order for the time being in force or any premises on which any process ancillary to the getting, dressing or 52 preparation for sale of coal obtained as a result of such operations is being carried on are situate".
Under this provision the Central Government is required to exclude that portion of any land in which coal mining operations are being carried on "in conformity with any enactment, rule or order".
This would indicate that the language of sub section
(1) of section 4 was understood as applying also to that land in which coal mining operations were actually being carried on.
Unless we hold so, the whole of sub section
(4) would be rendered otiose.
Mr. Das, however, says that sub section
(4) enacts a "rule of exclusion" and that it had been enacted by way of abundant caution.
We cannot accede to this argument for the simple reason that if the language of sub section
(1) of section 4 is capable of being interpreted as applying to any land in which coal mining operations are actually being carried on, then there is all the greater reason why that provision should be held also to apply to land in which coal mining operations were carried on in the past, though they are not being carried on at present.
If Parliament was cautious enough to exclude land in which coal mining operations are actually being carried on why did it stop there and not exercise the same caution with respect to land in which coal mining operations were once being carried on but have now ceased? For, on the plain meaning of the word "unworked" such lands would more readily fall within the terms of sub section
(1) of section 4 than land in which coal mining operations were actually being carried on, that is to say, "worked lands".
Then Mr. Das referred to cl. (b) of section 5 which runs thus: "any mining lease in so far as it authorises the lessee or any person claiming through him to undertake any operation in the laid, shall cease to have effect for so long as the notification under that sub.
section is in force".
He contended that what this provision prohibits is the undertaking of any operation in the land and not carrying on of an operation.
Undertaking of an operation, according to himself 'relates to the initial 53 working of the mine and riot to the resumption of work on the mine after work thereon had stopped nor to carrying on work on a mine the working of which had not been stopped.
As a consequence of the issue of a notification under sub section
(1) or section 4 what the lessee of a mining lease is prohibited from doing is undertaking any operation on land on which no operations were being carried on.
But he is not prohibited from continuing to carry on operations which he was carrying on at the date of the notification.
We cannot, however, accede to the contention that the resumption of mining operations on a land is outside the bar created by this pro vision.
The words used in the section are "to undertake any operations in the land" which, according to the Concise Oxford Dictionary mean "to enter upon (work, enterprise, responsibility)".
The meaning of the provision, therefore, is that what the lessee is prohibited from doing is something which he was not doing at the date of the notification though he was authorised to do it under his lease.
Thus if a colliery was not functioning at the date of the notification then by virtue of the provisions of a. 5(b) he would not be permitted to work it.
Undoubtedly the provision has to be interpreted reasonably and it does not mean that if the notification came into force on the Monday and the mine was not worked on Sunday because of a holiday, the lessee was prohibited by the notification from working it.
The resumption of working of a mine after a casual closure or a closure in the ordinary course of working a mine would not fall within the bar created by section 5(b).
In this connection we may refer to r. 7 of the Coal Mines Regulations of 1957, which provides that when it is intended to reopen a mine after abandonment for a period exceeding 60 days not less than 30 days notice before resumption of mining operations must be given to certain authorities.
The Coal Mines Regulations of 1957 have been framed under section 57 of the Mines Act of 1952, section 16 of which provides for the giving of notice before commencement of mining operations.
It is in the light of these provisions that we must interpret the provisions of section 5(b) of the Act.
So what must be said to have 54 been prohibited would be the undertaking of an operation on land not for the first time only but also the resumption of an operation which had been abandoned or discontinued.
Mr. Das then contended that a mining area is always extensive and it is not possible to work on every bit of it simultaneously and, therefore, if work is carried on at one point in a colliery the whole colliery must be deemed to be working, that is to say, coal mining operations must be deemed to have been carried on over the entire area on which the colliery is situate.
In support of his contention he relied upon the decision of the Privy Council in Nageswar Bux Roy vs Bengal Coal Co., Ltd. (1), and upon a passage in Halsbury 's Laws of England(2).
Both the decision of the Privy Council as well as the passage in Halsbury deal with the question of possession and state the law to be that a person can be said to be in possession of minerals contained in a well defined mining area even though his actual physical possession is confined to a small portion, that is, to the mine which is being actually worked.
The decision of the Privy Council as well as the passage in Halsbury are nus not in point.
Further it is difficult to see how an exemption under section 4(4) is admissible in the case of the Sudamdih colliery or Sutkidih colliery unless it is shown that they were actually being worked at the date of the notification in conformity with the provisions of "any enactment, rule or order for the time being in force".
It is an admitted fact that though a notice was given under section 16 of the , by the Sutkidih Colliery, the petitioners in W.P. 242 of 1960, it aid not actually start working the colliery in view of the impugned notification.
As we have al. ready pointed out the Burrakur Coal Co., Ltd. did commence working the Sudamdih Colliery in May, 1960, even though it had not obtained the permission of the appropriate authorities.
We must, therefore, examine here the argument of Mr. Das that every colliery must be held to be exempted under sub section
(4) of section 4.
We have already referred (1) (1930) L.R. 58 I A. 29.
(2). 3rd Edn., Vol. 26, p. 630. 55 to section 16 of the , and regulation 7 of Mining Regulations, 1957.
In addition, there is Regulation 3 of 1957 which requires that the notice contemplated by section 16 should be submitted in Form I. No doubt the petitioner had given notice as required by these provisions.
No doubt also that it was necessary for the authorities concerned to take appropriate action on the notice.
But it is difficult to say that the inaction of the authorities can be availed of by the petitioner.
We must give effect to the plain lan guage of sub section
(4) of section 4.
That provision in clear terms makes an exclusion or exemption only with regard to that portion of the land in which coal mining operations are actually being carried on in conformity with the provisions of any enactment, rule or order.
Therefore, it is clear that Parliament was exempting only such collieries as were being worked in consonance 'with the provisions of law.
Mr. Das 's argument, however, is that the Act prescribes penal ties for the breach of its provisions and of those of the regulations and so the petitioner could well be visited with an appropriate penalty but that its right to run the mine could not be affected.
We are not here concerned with the question whether the failure of the petitioner to comply with the requirements of the Coal or of the Regulations of 1957 precludes the petitioner under that Act or under those regulations from carrying on mining operations.
We are concerned here only with one point, and that is whether the petitioner could be said in point of fact to have been carrying on mining operations in accord ance with law.
That the petitioner was not doing so is not even denied by Mr. Das and in the circumstances it is clear that the petitioner is not entitled to the benefit of sub section
(4) of section 4.
We should have dealt with this part of Mr. Das 's argument elsewhere but in order to avoid repetition we have thought it convenient to deal with it here.
Adverting to section 6(1) of the.
Act which deals with compensation for any necessary damage done under section 4 of the Act, learned counsel contended that Parliament plainly intended the Act to apply to virgin land.
56 If the section was intended to apply to worked mines there would have been provision, according to learned counsel, for payment of compensation to the owner or lessee of the mine, for being deprived of his right to work the mine consequent upon the . issue of the notification.
It is sufficient to point out that section 4 does not contemplate entering upon any land which is actually being worked and there will thus be no deprivation in fact of the owner 's or lessee 's right of working the mine.
The Act applies only to "unworked lands".
This expression would include not only virgin lands but also lands on which mines may have been opened and worked sometime in the past but working on those mines was either discontinued or abandoned.
Of course, it is possible to say that the action of the Government would interfere with the potential right of the owner or the lessee to work the mines and this would interfere with his right to hold property and carry on his business.
When we deal with the other part of Mr. Das 's argument we shall deal with this question.
It was next contended that section 7 which deals with the power of the Central Government to acquire land or rights in or over land notified under section 4 also indicates the limited operation of the Act.
Sub section (1) of section 7 runs thus: "If the Central Government is satisfied that coal is obtainable in the whole or any part of the land notified under sub section (1) o f section 4, it may, within a period of two years from the date of the said notification or within such further period not exceeding one year in the aggregate as the Central Government may specify in this behalf, by notification in the official Gazette, give notice of its intention to acquire the whole or any part of the land or of any rights in or over such land, as the case may be".
The argument was that in respect of mines which have already been worked at some time in the past all the relevant material would be at the disposal of the Government even previous to the issuing of a notification under sub section
(1) of section 4 and, therefore, there 57 could be no necessity for the Government to enter on and prospect the land for being satisfied that coal is obtainable therefrom.
Therefore, the argument proceeds, the provision could not have been intended to apply to land other than virgin land.
This is really a repetition of the argument which was addressed to us in connection with sub.
(1) of section 4 and what we have said with regard to that sub section would equally apply here.
Sub section (1) of section 7 provides for a period of two years within which a notice of acquisition could be given by the Central Government.
It is argued that this period is too long for keeping out an owner or lessee of land, the mines on which had been worked in the past and that Parliament could not have intended this effect.
Therefore, the argument proceeds, this provision also points to the conclusion that the word "land" wherever it occurs in the Act should be read as virgin land.
Prospecting operations are necessarily prolonged because what lies under the surface of land cannot be easily ascertained except by undertaking drilling or other appropriate operations at a number of places.
Such operations are bound to be prolonged.
Parliament apparently thought that it would be reasonable to allow a period of two years to the Government for carrying on the necessary operations and for, making up its mind.
The mere length of the period so allowed to the Government cannot be regarded as indicative of the intention of Parliament to give to the word 'land ' the meaning 'virgin land '.
Reliance was placed on the explanation to sub a.
(1) of section 8.
That sub section and the explanation are as follows: "Any person interested in any land in respect of which a notification under section 7 has been issued may, within ' thirty days of the issue of the notification, object to the acquisition of the whole or any part of the land or of any rights in or over such land.
Explanation.
It shall not be an objection within the meaning of this section for any person to say 58 that he himself desires to undertake mining operations in the land for the production of coal and that such operations should not be undertaken by the Central Government or by any other person".
It was argued that in the explanation the words used are "to undertake mining operations" and not "to carry on mining operations" and therefore the Act could not be intended to apply to worked mines.
Here again the argument is similar to that advanced on the basis of cl.
(b) of section 5 and what we have said regarding it would equally apply here.
Adverting to section 13 of the Act which deals with compensation for prospecting licences ceasing to have effect and rights under mining leases being acquired, it was contended that as there is no provision for compensation in respect of the minerals lying underground, Parliament could not be deemed to have enacted this law for the purpose of acquiring mines which have been worked in the past.
According to Mr. Das if we have understood him right, when a person has acquired land either as an owner or as a lessee carrying with it the rights to win minerals and has opened in that land mines which he worked for sometime, there takes place a severance between the right to the surface and right to the minerals and that consequently such person will thereafter be holding the minerals as separate tenement, that is, something apart from the land demised and this separate tenement cannot be acquired under the terms of the present Act or, if it can be so acquired, it has to be specifically compensated for.
Reference to the several provisions of the Act and in particular to those of section 13 indicates, according to learned counsel, the limited scope of the Act.
It is difficult to appreciate the contention that merely because the owner or the lessee of a land had opened mines on that land, a severance is effected between the surface and the underground minerals.
It may be that a trespasser by adverse possession for the statutory period can acquire rights to underground minerals.
It may also be that if that happens the surface rights would become severed from the mineral rights as a result of which the 59 minerals underground would form a separate tenement.
It is, however, difficult to see how the owner or the lessee of land who has right to win minerals can effect such a severance between the mineral rights and surface rights by opening and operating the mines of that land.
For, even while he is carrying on mining operations he continues to enjoy the surface rights also.
We cannot, therefore, accept the contention that there was any severance of the mineral rights and surface rights in either of these two cases.
It is no doubt true that section 13 does not make any specific provision for compensation in respect of minerals, but on the other hand it provides in the explanation to el.
(a) of sub section
(5) that the value of minerals lying in the land shall not be taken into consideration in assessing compensation.
Whether the absence of a provision for compensation ' would make the Act ultra vire8 in so far as it contemplates acquisition of land will be considered presently.
We may, however, point out that the Act does not make provision for compensation for minerals in respect of even virgin land and the argument of Mr. Das would equally apply to such land.
Therefore, no point can be made from the absence of a provision for compensation for minerals that the Act was applicable only to virgin lands.
For all these reasons it is clear that the notification is not ultra vires the Act because, in our view the Act applies not only to virgin lands but also to dormant collieries or unworked lands.
To sum up, in our view, the preamble of this Act need not be resolved to for construing its provisions and in particular for understanding the meaning of the word "land" used in the Act; that even if the preamble is taken into consideration the expression "unworked land" occurring in the preamble should be given its ordinary meaning, that is to say, land which was not being worked at the time of the notification issued under the Act, which would include dormant mines; that the provisions of the Act and in particular those of sub section
(4) of section 4 and section 5(b) clearly militate against the contention that the Act was intended to apply only to virgin lands, to the exclusion of land on 60 which there are dormant mines, and that the absence of a provision in section 13 of the Act providing for compensation for mineral rights cannot by itself justify the conclusion that the Act was intended to apply to virgin land only.
Now we come to the second part of the argument.
It is contended that sections 4, 5 and 6 invade the fundamental rights of the petitioner under article 19(1)(g) of the Constitution because under section 5, a mining lease ceases to have effect for two years and possibly for three years.
Mr. Das concedes that reasonable restrictions can be placed by the State upon the rights enumerated in this article in the interests of the general public but he contends that the period of two to three years is too long and, therefore, the restrictions cannot be regarded as reasonable.
We have already indicated that prospecting operations, in their very nature, must take a long time to complete and presumably Parliament had fixed this period after bearing in mind this factor and also on the basis of expert advice.
Of course, there are no pleadings to that effect in the affidavit of the State.
But in our opinion the petitioner cannot be permitted to complain of the absence of pleadings because it has not itself stated in the petition what would be reasonable time for conducting prospecting operations.
We are, therefore, unable to accede to the argument.
The next attack, and that is a more formidable one, is based upon the ground that the Act does not contain any provision for compensation for the deprivation of the petitioners right to carry on its business for two to three years and that consequently one of its fundamental rights is infringed.
It is no doubt true that in a. 13(4) which deals with the question of compensation there is no provision for payment of compensation for the deprivation of the right of a mine owner or a lessee to carry on his business for a period of two or three years, but the petitioner cannot complain about it.
In article 31A, cl.
(1), sub el.
(e), of the Constitution, which was inserted by the Constitution First Amendment Act, 1951, it is provided that "notwithstanding anything contained in article 13, no 61 law providing for. . . the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on :the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or Art 31.
" Then follows a proviso with which we are not concerned.
The effect of a notification under section 4(1) of the Act read with section 5(b) is to prevent an owner or lessee of a mine from working his mine far a certain period of time.
His rights are thus modified by the notification.
According to Mr. Das, however, the effect of the notification is to suspend the rights of a mine owner or lessee of the mine for a certain period and that such suspension is not modification.
In this connection he relied upon the observations of Mahajan, J., (as he then was), in Thakur Raghbir Singh vs Court of Wards, Ajmer (1).
That was a case where, in connection with a notification issued under the Court of Wards Act, the learned Judge observed that the word "modification" used in the aforesaid provision of the Constitution does not include suspension of a right.
The observations made in that case fell for consideration by this Court in Sri Ram Ram Narain Medhi vs The State of Bombay (2) and Atma Ram vs The State of Punjab and Ors.
Explaining them this Court observed in the latter case: "Those observations must be strictly limited to the facts of the case, and cannot possibly be extended to the provisions of Acts wholly dissimilar to those of the Ajmer Tenancy and Land Records Act, XLII of 1950, which was the subject matter of the challenge in the case then before this Court.
This Court held, on a construction of the provision of that Act, that they only suspended the right of management but did not amount to any extinguishment or modification of any proprietary rights (1) ; ,1053.
(2) [1959] Supp.
S.C.R. 489, 519 (3) [1959] SUPP.
S.C.R. 748, 767.
62 in an estate.
The provisions of the Act then under consideration of this Court, have absolutely no resemblance to those of the Act now before us, and it is impossible to put a similar interpretation on these provisions.
In the recent decision of this Court (not yet reported) this Court had been invited to apply the observations of this Court referred t o above, to the provisions of the Bombay Act.
It was pointed out in that case that those observations of Mahajan, J., (as he then was), must be read as limited to an Act which only brings about a suspension of the right of management of an estate, and could not be extended to the provisions of an Act which either extinguishes or modifies certain rights of a proprietor in an estate or a portion thereof".
This Court did not intend to lay down as law in Thakur Raghbir Singh vs Court of Wards, Ajmer (1) that article 1A(i)(e) is inapplicable to a case where the property rights of a person are kept in abeyance for a certain period.
The meaning of the word "modify" fell to be considered, in re The As pointed out in the opinion of Kania, C. J., the word "modify" means, according to Oxford Dictionary, to limit, restrain, to assuage, to make less severe, rigorous, or decisive; to tone down".
It also means "to make partial changes in; to alter without radical transformation".
In Rowland Burrows" 'Words and Phrases ', the word "modify" has, however, been defined as meaning "vary, extend or enlarge, limit or restrict".
According to the learned Chief Justice "It has been held that modification implies an alteration.
it may narrow or enlarge the provisions of the former Act".
Bearing in mind the principle that a constitutional enactment must be construed liberally we would be right in according the dictionary meaning to the word " modification" occurring in the aforesaid provision.
Mr. Das, however, contends that for a thing to amount to a modification of a right it must be of a permanent character and not of a temporary duration.
We see no ground whatsoever for holding that for a (1) ; ,1053.
(2) 63 thing to be a modification it must be of a permanent duration.
A right may well be modified for all time or for a limited duration and in either case the right must be regarded as having been modified.
For these reasons we hold that the provisions of article 31A, cl.
(1)(e), debar the petitioners from challenging the validity of sections 4 and 5 of the Act on the ground that they infringe the provisions of article 31(2) of the Constitution.
What remains to be considered is whether the provisions permitting acquisition of land are ultra vires the Constitution because they offend article 31(2) of the Constitution.
According to the learned Attorney General the petitioners have no present grievance on that score because the notification in question empowers the State only to prospect for coal in the petitioner 's land and not to acquire it.
We cannot accept this contention.
The whole object of Parliament in enacting the law was to empower the State to acquire coal bearing lands.
Prospecting on a piece of land for coal is merely a stage preceding the actual acquisition of that land.
If, therefore, those provisions of the law which deal with the question 'of acquisition are unconstitutional the whole Act will be rendered unconstitutional.
Article 31(2) of the Constitution, as amended by the Fourth Amendment Act, 1955, runs thus: "No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate".
Mr. Das pointed out that section 13 of the Act, though it deals with the payment of compensation, does not contain any provision for payment of compensation for mineral rights.
Not only that, but the explanation to cl.
(a) of section 5 clearly lays down that in computing the 64 compensation for the land the value of minerals will not be taken into account.
The acquisition of mineral rights would, therefore, according to him, be impermissible under article 31(2) without payment of compensation.
The learned Attorney General quite rightly pointed out that section 13 deals with the whole subject of payment of compensation to the owner or lessee of the mine for his entire interest in the land including the rights to minerals and even though that section specifically says that the value of the minerals cannot be taken into account in determining the amount of compensation, the concluding words of article 31(2) preclude the petitioners from challenging the law.
Mr. Das pointed out that the only ground on which the Central Government in their affidavit have tried to sustain the validity of the provisions relating to the acquisition of land under the Act is that a challenge to the validity of the law is barred by the provisions of article 3lA(1)(e) and that it is not now open to the Central Government to say that the law can be sustained on another ground.
We cannot accept this contention.
Where the validity of a law made by a competent legislature is challenged in a Court of law that Court is bound to presume in favour of its validity.
Further, while considering the validity of the law the court will not consider itself restricted to the pleadings of the State and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained.
There is no doubt that the entire Act cannot be sustained by resorting only to article 31A(1)(e) or to article 31(2A) of the Constitution because these provisions do not deal with the question of acquisition and the Attorney General fairly admitted that it could not be so sustained.
The opening words of sub section
(2) of section 13 read thus: "Where the rights under a mining lease are acquired under this Act, there shall be paid to the person interested compensation, the amount of which shall be a sum made up of the following items, namely. .
Then follow the items which have to be added up Undoubtedly they are items of expenditure and 65 interest on such expenditure.
Sub section (3) deals with the procedure to be adopted where the rights acquired under section 9 relate only to part of the land covered by the mining lease.
Sub section (4) deals with the compensation to be paid where the mining lease ceases to have effect for any period under cl.
(b) of section 5.
Subsection (5) provides for payment of compensation for any land acquired under section 9 and lays down the principles to be followed in computing the compensation.
Sub section (6) provides for payment of com pensation for damage done to the surface of any land or any works thereon and in respect whereof no provision for compensation is made elsewhere in the Act.
Sub section (7) deals with the question of compensation for maps, charts and other documents.
Section 14 of the Act deals with the method of determining the compensation.
It will be clear from these provisions that the Act specifies the principles on which and the manner in which the compensation should be determined and given.
This is all that is required of a law relating to the acquisition of property by article 31(2) of the Constitution.
Where provisions of this kind exist in a law that Article lays down that such law cannot be called in question in any court on the ground that the compensation provided by that law is not adequate.
Here compensation is specifically provided for the land which is to be acquired under the Act.
The land includes all that lies beneath the surface or, as Mr. Das put it, all that is "locked up " in the land.
Parliament has laid down in sub B. (5) of section 13 how the value of this land is to be calculated.
The contention that the provisions made by Parliament for computing the amount of compensation for the land do not take into account the value of the minerals is in effect a challenge to the adequacy of the compensation payable under the Act.
The concluding words of article 31(2) preclude such a challenge being made.
But Mr. Das contended that the minerals are separate tenement and have to be separately compensated for.
We have already dealt with the contention of Mr. Das that the minerals underlying the surface are a separate tenement and we need not repeat here all 66 that we have said before.
In our opinion the minerals cannot be regarded as a separate tenement except perhaps in a case of a trespass and, therefore, there is no question of the law providing for a separate compensation for them.
Apart from that if minerals have become a separate tenement then the present Act may not apply to such a tenement at all.
As we have pointed out the coal contained in the two collieries in question is not held by the respective petitioners as a tenement separate from the surface.
In the circumstances the challenge to the validity of the Act on the ground that it offends article 31(4) of the Constitution fails, and we dismiss the petition with costs.
We must say a few words about W. P. 242 of 1960.
Out of 737 bighas of land held by the petitioner in that writ petition, we are informed that 321 bighas have been worked.
The working,of this mine was closed in the year 1928 on the ground that the mine was flooded.
An application Was made by the petitioner for reopening the mine on June 5, 1957.
Repeated reminders were sent subsequently but there was no reply to any of them either.
In its application the petitioner, it may be stated, did not apply for opening new mines.
Since the necessary permission was not received, it did not commence any operations.
We are informed that over a million tons of coal was extracted by the petitioner from its colliery in the past.
Even so, we do not think that any different considerations could apply to the petitioner 's case from those which apply to the case of the Burrakar Coal Co. The petitioner 's colliery was also dormant for too long a period and was thus an "unworked mine".
The impugned Act and the notification made thereunder both apply to it in the same way as they apply to the Sudamdih colliery belonging to Burrakur Coal, Co., Ltd. The writ petition thus fails and is dismissed with costs.
Cost of the hearing be paid half and half by the two petitioners.
There will be only one hearing fee, to be divided equally between the two petitioners.
Petitions dismissed.

dataset_name: IN-Abs

summary:
The Coal Bearing Areas (Acquisition and Development) Act, 1957, was enacted, as indicated in the preamble, for providing for the acquisition by the State of unworked land containing or likely to contain coal deposits, and under section 4(1) of the Act, the Central Government was empowered to issue a notification with reference to its intention to prospect for coal from land in any locality.
By section 5(b) any mining lease granted to a person and in respect of which a notification had been issued shall cease to have effect, and under section 7 the Central Government was entitled to acquire the mining rights within a period of two or three years from the date of the notification.
On July 29, 1960, the Central Government published a notification under s, 4(1) of the Act in respect of an area included in the colliery in which the petitioners had acquired mining rights.
Between the year 1932 and the month of May, 1960, the colliery was not worked because it was uneconomical to work it, but the petitioners made an application on December 3, 1959, to the Coal Board for permission to reopen the Colliery and though no reply was received from the Board, the petitioners commenced drilling operations in May, 1960, but discontinued them from August 12, 1960, in view of the notification.
The petitioners challenged the validity of the notification on the ground that the preamble of the Act and sections 4, 5, 6, 7 and 8 show that the Act was applicable only to unworked mines which must mean virgin lands,, and not to those which were being worked at the time of notification or which were worked in the past, whereas the petitioners ' coal field had been worked and the working had ceased for some time only due to the unremunerative market for the produce.
The petitioners also contended that the Act contravened articles 19(1)(g) and 31(2) of the Constitution of India on the grounds (1) that the effect of a notification under the Act was to prevent an owner or lessee of a mine from working for two or three years, which was too long a period and, therefore, the restrictions could not be regarded as 45 reasonable, (2) that the Act did not contain any provision for compensation for the deprivation of the petitioners ' right to carry on their business for two or three years, and (3) that section 13 of the Act, though it dealt with the payment of compensation, did not provide for compensation for mineral rights.
Held: (1) that the expression "unworked land" occurring in the preamble of the Coal Bearing Areas (Acquisition and Development) Act, 1957, means land which was not being worked at the time of the notification issued under the Act and includes dormant mines.
Where the object or meaning of a enactment is not clear, the preamble may be resorted to to explain it.
In re the Kerala Educatiion Bill, 1957, [1959] S.C.R. 995.
referred.
(2) that the Act is applicable not only to virgin lands but also to dormant collieries or unworked lands, including mines which were worked in the past but mining operations therein are not being carried on at present.
(3) that the expression "to undertake any operation in the land" in section 5(b) of the Act refers to the undertaking of an operation on land not for the first time only but at the resumption of an operation which had been abandoned or discontinued.
The resumption of the working of a mine after a casual closure or a closure in the ordinary course of the working of a mine would not fall within the bar created by section 5(b).
(4) that the restrictions imposed upon an owner or lessee of a mine by which he is prevented from working his mine for a certain period of time under ss.4 and 5 of the Act are not unreasonable and that the Act does not contravene article 19(1)(g) of the Constitution.
(5) that such restrictions amount to a modification of his rights within the meaning of article 31A(1)(e) of the Constitution; and that the validity Of sections 4 and 5 Of the Act cannot be challenged on the ground that they infringe article 31(2) in view of the provisions of article 31A(1)(e).
Thakur Raghbir.
Singh vs Court of Wards, Ajmer, ; , explained.
Sri Ram Ram Narain Medhi vs State of Bombay, [1959] Supp.
1 section C. R. 489, Atma Ram vs The State of Punjab, [1959] Supp.
r S.C.R. 748 and In re , [1951] S.C.R. 793, relied on.
(6) that the Act cannot be challenged on the ground that sections 5(a) and 13 do not provide for payment of compensation for mineral rights, because sections 13 and 14 lay down the principles on which compensation is to be determined, and under Art 31(2) such a law cannot be called in question on the ground of the inadequacy of the compensation provided.


judgement:
Appeal No. 512 of 1957.
Appeal by special leave from the judgment and decree dated August 29 ' 1952, of the Madras High Court in Second Appeal No. 2349 of 1946.
Azizuddin and K. R. Choudhury , for the appellant.
Shaukat Hussain and P.C. Agarwala, for respondents Nos. 1 and 2. 1961.
February 14.
The Judgment of the Court was delivered by SHAH J.
There is in the village of Cavelong, District Chiugleput in the State of Madras an ancient Durgah to which is appurtenant a Masjid.
The Nawab of Carnatic had granted two villages in inam for the maintenance of the Durgah and the Masjid.
Offerings from the devotees who visited the Durgah and the Maajid were also received.
The income of the institution after disbursing the expenses of "Sandal", and "Urs" and of feeding the poor has since long been shared by descendants in four families in equal shares.
By 'Custom females and persons claiming through females were excluded from receiving a share of the income and the income was distributed amongst the males descended 'in the male fine.
In original suit No. 27 of 1940 of the file of the Subordi nate Judge, Chingleput, a scheme was framed for administration of the Durgah and the Masjid and a Board of trustees was appointed for that purpose.
By the scheme, provision was.
made for distribution of the surplus income amongst the members of the four families.
69 Fakruddin, in the following genealogy, belonged to one of the four families which received the income.
Sheik Mohammad Fakir Mohammad Sheik Miran Giasuddin Nismat Ulla Khamruddin Nayeem Uddir Fakir Mohammad Fakruddin=Sulai Niama Ulla Abdul Safi man Bi Wahid Ulla (2nd plaintiff) (1st deft.) Nayeemuddin (died unmarried) Ramat Syed Un Unnissa (2nd nissa (Ist defendant) plaintiff) As a descendant of Sheik Mohammad, Fakruddin received a 1/8th share of.
the income.
He was also by arrangement with others entitled to perform the "Urs" ceremony once in eight years.
Fakruddin died in 1921 leaving him surviving his wife Sulaiman Bi and two daughters Rahmat Unnissa and Syed Unnissa.
Sulaiman Bi is plaintiff No. 2 and Rahmat Unnissa and Syed Unnissa are respectively defendant No. 2 and plaintiff No. 1 in suit No. 156 of 1937 out of which this appeal arises.
In the year 1926, it was the turn of Fakruddin to perform the "Urs" and it is claimed by the plaintiffs that it was performed on behalf of the widow and daughters of Fakruddin by their deputies.
The next turn was in the year 1934, but in the performance of the "Urs", the plaintiffs and defendant No. 2 were obstructed by Abdul Wahid son of Nayeem Uddin belonging to the other branch in Sheik Mohammad 's family.
Plaintiffs 1 and 2 then filed suit No. 156 of 70 1937 in the court of the District Munsif at Chingleput .For a declaration that they were entitled to enjoy the properties described in the schedule annexed to the plaint and to manage the Durgah, perform the "Urs" festival and receive all "incomes, endowments and perquisites thereof once in every eight years" since 1934 according to their turn.
They also claimed an injunction restraining Abdul Wahib from interfering with their rights in that behalf.
Rahmat Unnissa the eldest daughter of Fakruddin was impleaded as defendant No. 2.
Abdul Wahid defendant No. 1 died during the pendency of the suit and defendants 4 to 10 who were brought on record on their own application as heirs and legal representatives to the exclusion of the daughter of Abdul Wahid defended the suit.
They denied the right of the plaintiffs to a share in the income contending that lay custom in the family, females were excluded from inheritance, that the office of "Peshimam", "Khatib" and "Mujavar" could only be held by males and that females were excluded from those offices, that the plaintiffs ' claim was barred by the law of limitation and that in any event the suit for a mere declaration was not maintainable.
The Trial Judge held and the appellate court agreed with him that there was an immemorial custom governing the institutions precluding the plaintiffs from performing services or sharing the income, emoluments and perquisites and therefore the plaintiffs were not entitled to perform those services and enjoy the surplus income, and accordingly they were not entitled to the declaration of an injunction prayed for.
In second appeal, the High Court at Madras held that by virtue of the Shariat Act, 1937, the income received from the institution had to be shared according to the per sonal law of the parties and that the plaintiffs ' claim was not barred by the law of limitation nor was the suit open to the objection that it was as framed not maintainable.
Against the decree passed by the High Court, this appeal with special leave under article 136 of the Constitution is preferred.
In our view, the suit as framed was maintainable.
The management of the institution is vested in the 71 trustees.
The four families, it is true, are by tradition entitled to perform and officiate at certain ceremonies and also to share in the income.
A suit for declaration with a consequential relief for injunction, is not a suit for declaration simpliciter; it is a suit for declaration with further relief.
Whether the further relief claimed in a particular case as consequential upon a,declaration is adequate must always depend upon the facts and circumstances of each case.
In Kunj Behari Prasadji Purshottam Prasadji vs Keshavlal Hiralal (1), it was held that section 42 of the Specific Relief Act does not empower the court to dismiss a suit for a declaration and injunction and that an injunction is a further relief within the meaning of section 42 of the Specific Relief Act.
In that case, the plaintiff had claimed that a certain will was null and void and that being a close relative of the last holder of a gadi, he was entitled to be the Acharya in the place of that last holder and for an injunction restraining the defendants from offering any obstruction to his occupation of the gadi.
It was held that such a suit was maintainable.
The surplus income .of the institution is distributed by the trustees and the plaintiffs are seeking a declaration of the right to receive the income and also an injunction restraining the defendants from interfering with the exercise of their right.
The High Court hold that plaintiff No. 1 was at the date of the suit 19 years of age and was entitled to file a suit for enforcement of her right even if the period of limitation had expired during her minority within three years from the date on which she attained majority by virtue of sections 6 and 8 of the Indian Limitation Act.
Apart from this ground which saves the claim of the first plaintiff alone, a suit for a declaration of a right and an injunction restraining the defendants from interfering with the exercise of that right is governed by article 120.
of the Limitation Act and in such a suit the right to sue arises when the cause of action accrues.
The plaintiffs claiming under Fakruddin sued to obtain a declaration of their rights in the institution which (1) I.L.R. (1904) XXVIII Bom.
72 was and is in the management of the trustees.
The trial judge hold that the plaintiffs were not "in enjoyment of the share" of Fakruddin since 1921 and the suit filed by the plaintiffs more than 12 years from the date of Fakruddin 's death must be held barred, but he did not refer to any specific article in the first schedule of the Limitation Act which barred the suit.
It is not shown that the trustees have ever denied or are interested to deny the right of the plaintiffs and defendant No. 2; and if the trustees do not deny their rights, in our view, the suit for declaration of the rights of the heirs of Fakruddin will not be barred under article 120 of the Limitation Act merely because the contesting defendant did not recognize that right.
The period of six years prescribed by article 120 has to be computed from the date when the right to sue accrues and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right.
If the trustees were willing to give a share and on the record of the case it must be assumed that they being trustees appointed under a scheme would be willing to allow the plaintiffs their legitimate rights including a share in the income if under the law they were entitled thereto, mere denial by the defendants of the rights of the plaintiffs and defendant No '.
2 will not set the period of limitation running against them.
The trial court as well as the first appellate court held on an exhaustive review of the evidence that there was an immemorial custom governing the institutions whereby the plaintiffs were not entitled to perform service or share the income, emoluments and perquisites.
But since the enactment of the Shariat lot 26 of 1937, this custom must be deemed inapplicable to the members of the family.
By section 2 of the Act, it was enacted as follows: "Notwitlwtanding any customs or usage to the contrary in all questions (save questions relating to agricultural lands) regarding intestate succession, ,special property of females, including personal property inherited or obtained under contract or gift or 73 any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarrat, maintenance, dower, guardian.
ship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
" Under the Shariat Act,, 1937, as framed, in questions relating to charities and charitable institutions and charitable and religious endowments, the custom or usage would prevail.
But the Act enacted by the Central Legislature was amended by Madras Act 18 of 1949 and a. 2 as amended provides: "Notwithstanding any custom or usage to the contrary, in all questions regarding intestate succession, special property of females including personal property inherited or obtained under contract, or gift or arty other provision of personal law, marriage, dissolution of marriage, including Tallaq, ila, zihar, lian, Khula and Mubarrat, maintenance, dower, guardianship, gifts, trusts and trust proper.
ties and wakfs the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
" Manifestly by this act ' "the rule of decision" in all questions relating to intestate succession and other specified matters including wakfs where the parties to the dispute are Muslims is the Muslim Personal Law.
The, terms of the Act as amended are explicit.
Normally statute which takes away or impairs vested rights under existing laws is presumed not to have retrospective operation.
Where vested rights are affected and the question is not one of procedure, there is a presumption that it was not the intention of the legislature to alter vested rights.
But the question is always one of intention of the legislature to be gathered from the language used in the statute.
In construing an enactment, the court starts with a presumption against retrospectivity if the enactment seeks to affect vested rights: but such a presumption 74 may be deemed rebutted by the amplitude of the language used by the Legislature.
It is expressly enacted in the Shariat Act as amended that in all questions relating to the matters specified, "the rule of decision" in cases where the parties are Muslims shall be the Muslim Personal Law.
The injunction is one directed against the court: it is enjoined to apply the Muslim Personal Law in all cases relating to the matters specified notwithstanding any custom or usage to the contrary.
The intention of the legislature appears to be clear; the Act applies to all suits and proceedings which were pending on the date when the Act came into operation as well as to suits and proceedings filed after that date.
It is true that suits and proceedings which have been finally decided would not be affected by the enactment of the Shariat Act, but if a suit or proceeding be pending even in appeal on the date when the Act was brought into operation, the law applicable for decision would be the Muslim Personal Law if the other conditions prescribed by the Act are fulfilled.
In our view, the High Court was right in holding that it was bound to apply the provisions of the Shariat Act as amended by Madras Act 18 of 1949 to the suit filed by the plaintiffs.
We are unable to agree with the view of the Lahore High Court in Syed Roshan Ali vs
Mt. Behmat Bibi (1) that a right acquired before 1937 (the date on which the Shariat Act was brought into operation) to bring a suit for a declaration that the alienation by the widow of the last holder who had by custom succeeded to the limited estate left by her husband was not binding upon the reversioner, was not taken away by the enactment of the .
It may be observed that the court proceeded merely upon the general presumption against retrospectivity and their attention, it appears, was not directed to the phraseology used by the legislature to give section 2 a retrospective operation.
The plea raised by counsel for.
the contesting defendants that even under the Muslim Personal Law, females are excluded from performing the duties of (1) A.I.R. 1943 Lah. 219.
75 the offices of "Peshimam", "Khatib" and "Mujavar" and that they cannot carry out the duties of those offices even through deputies is one which was not raised before the High Court.
The trial court has found that the duties of those offices could be performed through deputies.
The first appellate court did not express any opinion on that question and before the High Court, this question was not mooted.
We do not think that we would be justified in allowing the contesting defendants to argue this question in this appeal.
In any event, if the income was being distributed amongst the four families, the plaintiffs and defendant No. 2 claiming under Fakruddin would, by virtue of the provisions of the Shariat Act, be entitled to receive that income.
There is nothing on the record to suggest that the right to receive the income is conditional upon the performance of the duties of the offices of "Peshimam", "Khatib" and "Mujavar".
In that view of the case, this appeal fails and is dismissed with costs.
Appeal dismissed.

summary:
Under a scheme a Board of Trustees was appointed for administration of the Durga and a Masjid for the maintenance of which the Nawab of Carnatic had granted two villages in Inam.
The income of the institution after disbursing the expenses had since long been shared by the descendants in four families in equal shares.
The scheme also provided that the surplus income was to be distributed amongst the members of the said four families.
One of the descendants died leaving him surviving his wife and two daughters who were obstructed in the performance of the "Urs" by the appellant 's father.
The said Muslim female members filed a suit for declaration that they were entitled to enjoy the properties and to manage the Durga, perform the "Urs" festival and receive all incomes, endowments and perquisites thereof once in every eight years according to their turn.
The right to a share in the income was denied by the appellant contending that by custom in the family, females were excluded from inheritance and that the claim was barred by the law of limitation and that, in any event, the suit for mere declaration was not maintainable.
Held, that a suit for declaration of rights with a consequential relief for injunction was not a suit for declaration simpliciter; it was a suit for declaration with further relief and was not barred under article 120 Of the Indian Limitation Act merely because the contesting defendant did not recognise the right.
The period of six years prescribed by article 120 is to be computed from the date when the right to sue accrued and there could be no right to sue until there was an accrual of the right asserted in the suit and its infringement or at least a clear and unequi vocal threat to infringe that right.
If under the law a person was entitled to any legitimate right, the mere denial of the right will not set the period of limitation running against the person entitled to such right.
68 Held, further, that on the enactment of the Shariat Act 26 Of 1937, as amended by the ' Madras Act r8 Of 1949, the Muslim Personal Law applies in all cases relating to the matters specified notwithstanding any customer usage to the contrary even at the stage of appeals, if other conditions prescribed under the Act are fulfilled.
Kunj Behari Prasadji Purshottam Prasadji vs Keshavld Hiralal.
567, discussed.
Syed Roshan Ali vs Mt. Rehmat Bibi and Others, A.I.R. 1943 Lah.
219, disapproved.