judgement:
al Writ Petition No. 15 of 1962 Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights.
B. Sen and K. L. Hathi for the petitioner.
C. K. Daphtary, Solicitor General of India, B. B. L. Iyengar and B. H. Dhebar, for the respondents.
S.Choudhury, section C. Banerjee and P. K. Chatterjee for the Intervener.
May 3.
The judgment of Sinha, C. J., Gajendradagkar, Wanchoo and Shah, JJ., was delivered by Gajendragadkar, J., Subba Rao, J. delivered a separate Judgment.
GAJENDRAGADKAR, J.
The four petitioners who are in charge of the working of the mine owned by the colliery known as Salanpur ,A" Seam Colliery in the District of Buidwan, are being prosecuted for the alleged contravention of the provisions of Regulation 127(3) of the Coal Mines Regulations, 1957, framed under the (35 of 1952) (hereinafter called the Act).
By their petition filed under article 32 of the Constitution, the petitioners pray that an order or writ in the mature of prohibition should be issued quashing the said criminal proceedings on the ground that the said proceedings contravene article 20(1) of the Constitution and as such, are void.
To this petition have been impleaded as opponents 1 to 4, the Union of India, the Chief Inspector of mines, Dhanbad (W.B.), the Regional Inspector of Mines, Sitarampur and the Sub Divisional Magis trate, Asansol, respectively.
The prosecution of 907 the petitioners has commenced at the instance of opponents 2 and 3 and the case against them is being tried by opponent No. 4.
The petitioners ' contention is that Regulation No. 127(3)whose alleged contravention has given rise to thepresent proceedings against them is invalid, ultra vires and inoperative and so, the prosecution of the petitioners contravenes article 20(1) of the Constitution.
It is on this basis that they want the said proceedings to be quashed and ask for an order restraining opponents 2 and 3 from proceeding with the case and opponent No. 4 from trying it.
The case in question is C. 783 of 1961 pending in the court of opponent No. 4.
Regulation 127(3) is a part of the Coal Mines Regulations framed by opponent No. 1 in exercise of the powers conferred upon it by section 57 of the Act, the same having been previously published as required by sub section (1) of B. 59 of the said Act.
Regulation 127(3) provides that no working which has approached within a distance of 60 metres of any disused or abandoned workings (not being workings which have been examined and found to be free from accumulation of water or other liquid matter), whether in the same mine or in an adjoining mine, shall be extended further except with the prior permission in writing of the Chief Inspector and subject to such conditions as he may specify therein.
There is a proviso and explanation attached to this provision, but it is unnecessary to refer to them.
The case against the petitioners is that they have contravened the provisions of Regulation 127(3) in that they extended the working of the mine further than the permitted limits without the prior permission in writing of opponent No. 2.
The petitioners ' case is that this Regulation is invalid and inoperative and so, its contravention cannot validly be made 908 the basis of their prosecution having regard to the provisions of article 20(1) of the Constitution.
According to the petitioners opponent No, 1 is no doubt conferred with the power of making Regulations under section 57 of the Act,but O. as it stood at the relevant time, has imposed an obligation on opponent No. 1 that the draft of the said Regulations shall not be published unless the Mining Boards therein specified have had a reason.
able opportunity of reporting to it as to the expediency of making the Regulations in question and as to the suitability of its provisions.
The petitioners allege that at the relevant time, 'when the Regulations were made in 1957, no Mining Boards bad been established under section 12 of the Act.
Three Boards had been established under section 10 of the Indian of 1923, but as a result of the subsequent amendments made in the provisions of section 10, the composition of two of the 'said Boards became invalid with the result that two of them could not be treated as Boards validly constituted.
These invalid Boards were the Madhya Pradesh Mining Board and the West Bengal Mining Board.
A third Board existed at the relevant time and that is the Bihar Mining Board.
This Board had been constituted on the 22nd February, 1946 under section 10 of the earlier Act as it then stood.
The petitioner ' case is that it was obligatory for opponent No. 1 to consult all the three Boards and since to out of the three Boards were not properly constituted, the fact that reference was made to the individual members of the said two invalid Boards did not satisfy the requirement of section 59(3).
According to the petition, a reference was made to the Bihar Mining Board, but the Board did not, make a report to opponent No. 1 as a Board but its individual members communicated their opinions to opponent No. 1.
Therefore, on the whole, section 59(3) had not been complied with and that makes the whole body 909 of Regulations issued in 1957 invalid and inoperative.
That, in brief, is the basis on which the petitioners want the criminal proceedings pending against them to be quashed.
The respondents dispute the main contention of the petitioners that section 59(3) has not been complied with.
According to them, section 59(3) has been duly complied with and the Regulations made ire valid.
The respondents concede that two of the three existing Boards were invalid; but their case is that it is only the validly existing Board that had to be consulted and the Bihar Mining Board, which was the validly existing Board at the relevant time, had been duly consulted.
The respondents allege that the fact that individual members of the Bihar Mining Board communicated their opinions to opponent No. 1 does not introduce any infirmity in the Regulations which were subsequently published in the Gazette and which, under section 59(5) have, in consequence, the effect as if enacted in the Act.
On behalf of the petitioners, Mr. Sen contends that section 59(3) 'imposes 'an obligation on the Central Government to consult the Boards therein specified and he argues that reading section 12 of the Act in the light of section 59(3), it follows that the Central Government has to constitute Mining Boards for the areas or mines in respect of which the Regulations are intended to be made and since two of the Boards had not been validly constituted, section 12 had not been complied with and section 59(3) had been contravened.
Mr. Sen suggested that his contention about the mandatory character of the provisions contained in sections 12 and 59(3) is concluded by a recent decision of this Court.
On the other hand, the learned Solicitor General for the respondents contends that the said decision has no material or direct bearing on the question about the construction of section 12.
He concedes that 910 the said decision has concluded the point that the requirement of a. 59(3) is mandatory.
It is, therefore, necessary, in the first instance, to examine the effect of the said decision.
In "Banwari Lal Agarwalla vs State of Bihar" (1), this Court had occasion to consider the validity of the prosecution launched against the appellant on the ground of the contravention of one of the Regulations made in 1957.
It appears that in that case, the respondents stated before the Court that the Mining Boards constituted under s.10 of the Act of 1923 were continuing to operate at the time the relevant Regulations were framed and that there was full consultation with the said Mining Boards before the said Regulations were framed.
The respondents, no doubt, contended that s.59(3) was directory and not mandatory and according to them, no obligation had been imposed upon the Central Government to consult Mining Boards even if they were in existence.
Alternatively, it was suggested that the Mining Boards which had been constituted under the earlier Act were continued under the Act by virtue of s.24 of the General Clauses Act and that the said Boards bad been duly consulted.
On the other hand, the appellant urged that the Boards to which the respondents referred were not validly constituted under the Act and had not been properly consulted.
It was also argued on his behalf that both sections 12 and 59(3) were mandatory.
It is in the light of these facts that the effect of the decision of this Court in Banwari Lal 's case (1) has to be appreciated.
Das Gupta, J., who spoke for the Court set out in his judgment the argument of the appellant that both sections 12 and 59 were mandatory, but, as the judgment shows, the Court considered the question as to whether s.59 (3) was mandatory and came to (1) ; 911 the conclusion that it was.
The Court did not consider whether s.12 was mandatory and in the course of the judgment, there is no reference at all either to the question of construing s.12 or to its effect.
Having held that s.59 (3) was mandatory, the Court remanded the case to the learned Magistrate before whom the proceeding were pending with a direction that he should try the issue as to whether the Boards constituted under the earlier Act validly functioned under the Act and whether they had been duly consulted.
It would be noticed that if the Court had considered the question about the mandatory character of the provisions of s.12, it would have construed the said provisions and would have addressed itself to the question as to whether the failure of the Central Government to constitute valid Boards as suggested by the appellant in that case itself made the impugned Regulation invalid.
This course was not adopted obviously for the reason that the respondents pleaded that the requisite Boards were in existence and had been consulted and so, the controversy between the parties was narrowed down to the question as to whether section 59 (3) requires that the Central Governments must consult existing Boards or not.
Apparently, the respondents contended that even if Boards have been constituted under section 1 2, it is not obligatory on the Central Government to consult them under s.59(3).
The requirement about the said consultation is directory and not mandatory.
It is this contention which has been rejected by the Court and having held that s.59 (3) was mandatory and that existing Board must be consulted before Regulations are framed, the question of fact which then fell to be considered was remitted to the trial Magistrate for his decision.
Therefore, we are satisfied that the effect of the decision of this Court in Banwari Lal Agarwalla 's case is that if a Board is in existence at the relevant time, it is obligatory, on the Central Government to consult it before a draft 912 Regulation is published and in that sense s.59(3) is mandatory.
It would, we think, not be right to assume that the contention of appellant that s.12 like a.59(3) is mandatory was decided without discussing the question about its construction and its effect.
The facts pleaded by the respondents in that case made it unnecessary to decide the appellant 's contention based on the mandatory character of s.12.
Therefore we do not think Mr. Sen is justified in contending that the point which he seeks to raise in the present appeal about the effect of section 12 is concluded by the decision in Banwari Lal Agarwalla 's case.
That being so, we must proceed to examine Mr. Sens contention on the merits.
At this stage, it is necessary to read both sections 12 and 59.
Section 12 deals with the constitution of Mining Boards.
Section 12(1) provides that the Central Government may constitute for any part of the territories to which the Act extends, or for any group or class of mines, a Mining Board consisting of seven persons as specified in clauses (a) to(e).
The point which calls for our decision is whether the first part of section 12(.1) imposes an obligation on the Central Government to constitute Board when it is proposed to make Regulations to which s.59(3) applies.
Section 59 as it stood in the Act prior to its amendment in 1959 read thus: "59 (1) The power to make regulations and rules conferred by sections 57 and 58 is subject to the condition of the regulations and rules being made after previous publication.
(2) The date to be specified in accordance, with clause (3) of section 23 of the (10 of 1897), as that after which a draft of regulations or rules proposed to be 913 made will be taken under consideration, shall not be less than, three months from the date on which the draft of the proposed regulations or rules is published for general information.
(3) Before the draft of any regulation is published under this section, it shall be referred to every Mining Board which is, in the opinion of the Central Government, concerned with the subject dealt with by the regulation and the regulation shall not be so published until each such Board has had a , reasonable opportunity of reporting as to the expediency of making the same and as to the suitability of its provisions.
(4) No rule shall be made unless the draft thereof has been referred to every Mining Boar( constituted in that part of the territories to which this Act extends which is affected by the rule, and unless each such , Board has had a reasonable opportunity of reporting as to the expediency of making the same and as to the suitability of its provisions.
(5) Regulations and rules shall be published in the Official Gazette and, on such publication, shall have effect as if enacted in this Act.
(6) The provisions of sub sections (1), (2) and( 4) shall not apply to the first occasion on which rules referred to in clause (d) or clause (e) of section 58 are made.
914 (7) The regulations and rules made under sections 57 and 58 shall be laid down before Parliament, as soon as may be, after they are made.
" The petitioners ' contention is that in construing section 12, we must have regard to the provisions of s.59(3).
By an amendment made in 1959 by Act 62 of 1959, sub.
s(3) of section 59 has been deleted and combined provision is made both for regulations and rules by subsection (4) by making a suitable amendment in the said sub section so as to include both regulations and rules within its scope.
Sub section (4) thus amended reads thus: "59(4).
No regulation or rule shall be made unless the draft thereof has been referred to every Mining Board constituted in that part of the territories to which this Act extends which is affected by the regulation or rule and unless each such Board has had a reasonable opportunity of reporting as to the expediency of making the same and as to the suitability of its provisions.
" Before construing s.12, it may be useful to refer to the relevant provisions of the Act which confer power on or assign some duties or functions to the said Boards.
Section 14(1) provides inter alia that a Board constituted under section 12 may exercise such of the powers of an Inspector under this Act as it thinks necessary or expedient to exercise for the purpose of deciding or reporting upon any matter referred to it.
Section 14(2) confers upon the Board the powers of a Civil Court for the purposes therein specified.
It would thus be seen that the Boards constituted under section 12 may have occasion 915 either to make a report in respect of regulations or rules referred to them tinder section 59, or ' they may have to decide cases sent to them under section 81.
Section 59 which speaks of reference of the rules and regulations to the Boards has already been cited.
Section 81(1) provides that if the court trying any case instituted at the instance of the Chief Inspector or other officers therein specified is of opinion that the case is one which should, in lieu of a prosecution, be referred to a Mining Board, it may stay the criminal proceedings, and report the matter to the Central Government with a view to such reference being made.
Section 81(2) authorises the Central Government either to refer the case to the Mining Board or to direct the court to proceed with the trial.
Thus, if the Central Government decides to refer a pending criminal case to the Board, the Board has to decide it.
That is the two fold function which may be assigned to the Board under provisions of the Act.
Mr. Sen contends that if section 59(3) is mandatory, it follows that consultation with the relevant Board was treated as essential by the legislature before the Central Government finalised the regulations ; and from this obligation imposed by section 59(3), it must follow as a corollary that the relevant Boards must be constituted by the Central Government ' under section 12.
In other words, the argument is that a. 59(3) postulates the existence of the relevant Boards and makes it obligatory on the Central Government to consult them and this can be satisfied only if the Central Government is compelled to constitute Boards under section 12.
Prima facie.
, there is some force in this contention.
But, on the other hand, if section 59(3) is read as imposing an obligation on the Central Government to consult the Board if it is in existence, then no corollary would follow from the mandatory character of the said provision as 916 is suggested by Mr. Sen. Section 59(3) as it stood before the amendment of 1959, provides that every Mining Board which, in the opinion of the Central Government, is concerned with the subject dealt with by the regulation, shall be consulted ; and this means that there should be a Mining Board before it is consulted and that the said Mining Board should, in the opinion of the Central Government, be concerned with the subject dealt with by the regulation.
This provision does not mean that a Mining Board must be constituted, for that is the subject matter of the provisions contained in section 12.
If section 12 is not mandatory, then section 59(3) must be read in the light of the position that it is open to the Central Government to constitute the Board or not to constitute it, and that being so, section 59(3) would then mean only this and no more that if the Board is in existence and it is concerned with the subject, it must be consulted.
Similarly, a. 59(4) as it stands after the amendment of 1959, requires that the draft of the rule or regulation shall be referred to every.
Mining Board constituted in 'that part of the territories to which the Act extends which is affected by.
the regulation or rule.
That again means no more than this that if a Board is constituted in the part of the territories which is affected by the regulation, it shall be consulted.
It is not as if this construction adds any words in section 59(3) or section 59(4); it merely proceeds on the basis that s.12(1) is not mandatory.
Therefore.
in our opinion, in construing section 12 (1) it would not be logical to assume that section 59(3) or s.59(4) imposes an obligation on the Central Government to constitute a Board, because as we have just indicated the constitution of the Boards is not the subject matter of s.59 (3) or section 59 (4) ; that is the subject matter ' of 917 the Central Government to constitute a Board must be determined in the light of the construction of section 12.
Reverting then to the material words used in section 12 itself, if, it seems clear that the said words do not permit the construction for which Mr. Sen contends.
It is not disputed that the context may justify the view that the use of the word "may" means " 'shall"; but if we substitute the word "shall" for "may" in section 12(1), it would be apparent that the argument about the mandatory character of the provisions of section 12(1) would just not work.
To say that the Central Government shall constitute for any part of the territories to which the Act extends, or for any group or class of mines a Mining Board, would emphatically being out the contradiction between the obligation sought to be introduced by the use of the word "shall" and the obvious discretion left to the Central Government to constitute the Board for any part of the territories or any group or class of mines ' The discretion left to the Central Government in the matter of constitution of Boards which is so clearly writ large in the operative part of the said provision indicates that in the context, "may" cannot mean "shall".
Section 12(1) really leaves it to the discretion of the Central Government to constitute a Board for any part of the territories and that means, it may not constitute a Board for some parts of the territories.
Likewise, discretion is left to the Central Government to constitute.
a Board for a group or class of mines and that means that for some groups or classes of mines, no Board need be constituted.
Whether or not Boards should be constituted for parts of territories or for groups or classes of mines, has been left to be determined by the Central Government according, to the requirements of the territories or the exigencies of the groups or classes of mines.
Therefore, we are 918 unable to accept the argument that a. 12(1) imposes an obligation on the Central Government to constitute Boards in order that in making regulations, there should be appropriate Boards who have to be consulted under section 59(3).
The directory nat ner of the provisions of section 121(1) rather strengthen the construction placed upon section 59(3) by this Court in the case of Banwari Lal Agarwalla that if there are Boards in existence, they must be consulted before draft regulations are published under section 59.
But that is very different from saving that Boards must be constituted in all areas or in respect of all groups or classes of mines which are intended to be covered by the regulations ,proposed to be made by the Central Government.
Mr. Sen relied on section 5 for showing that the use of the word "may" in that section really means "shall".
The said section provides that the Central Government may appoint such a person as possesses the prescribed qualifications to be the Chief Inspector of Mines for all territories to which the Act extends; and it may be conceded that the implementation of the material provisions of the Act depends upon the appointment of the Chief Inspector of Mines and so, in the context, " 'may" in a. 5 would really mean , 'shall" so far as the appointment of the Chief Inspector is concerned.
But this section itself shows that "may" may not necessarily mean , 'shall" in regard to the appointment of Inspectors contemplated by the latter part "may" means "may" or it means ""shall".
would inevitably depend upon the context in which the said word occurs and as we have just indicated, the context of section 12(1) is not in favour of the construction for which Mr. Sen contends.
It cannot be said that like the appointment of the Chief Inspector of Mines, the constitution of the Boards 919 is essential for the working of the Act, for, without the constitution of the Boards, the working of the Act can smoothly proceed apace.
We have already pointed out that there are only two functions which can be assigned to the Boards; under section 81(2) it is; discretionary for the Central Government to refer a pending criminal case to the Board or not, and under a. 59(3) consultation with the Board is necessary only if the Board is in existence.
Therefore, the working of the Act is not necessarily dependent on the constitution of the Boards, and that distinguishes the context or section 12 from the context of section 5.
There is another provision of the Act to which reference may be made in this connection.
Section 61 deals with the making of the bye laws.
Section 61(1) provides that the owner, agent or manager of a mine may, and shall, if called upon to do so by the Chief Inspector, or Inspector, frame and submit to the Chief Inspector or Inspector a draft of bye law,% in the manner indicated in the said sub section.
Section 61(2), inter alia, authorises the Chief Inspector or the 'Inspector to propose amendments in the said draft.
Section 61(3) then lays down that if within a period of two months from the date on which ' any draft bye laws or draft amendments are sent by the Chief Inspector or Inspector to the owner, agent or manager under sub section (2), and the Chief Inspector or Inspector and the owner, agent or manager are unable to agree as to the terms of the bye laws to be made under sub section (1), the Chief Inspector or Inspector shall refer the draft bye laws for settlement to the Mining Board, or where there is no Mining Board, to such officer or authority as the Central Government may, by general or special order, appoint in this behalf It would be noticed that this sub section assumes that there may not be in exi stence a Mining Board in the area where the mine 920 in question is situated or for the group or class of mines to which the said mine belongs.
Now, if the petitioners ' construction of section 12 read with section 59(3) is accepted, it would follow that in order to make the regulations binding on all the mines situated in the whole of the country, there must be Mining .Board in respect of all the said mines either territory wise or group wise or class wise and that would not be consistent with the assumption made by section 61(3) that in certain areas or in respect of certain groups or classes of mines a Mining Board may not be in existence.
It is in this indirect way that s.61(3) supports the construction which we are disposed to place on section 12(1).
It is then urged that if the respondents ' construction of s.12 is upheld, section 59(3) or section 59(4) would be rendered nugatory and the whole purpose of consuiting the Boards would be defeated.
We are not impressed by this argument.
In testing the validity of this argument, it is necessary to recall the scheme of section 59.
Section 57 confers power on the Central Government to make regulations and section 58 confers power on the said Government to make, rules as therein specified respectively.
Section 59(1) requires that the power.
to make regulations is subject to the condition that the said regulations would be made after previous publication.
Section 59(2) then provides for the period which has to pass before the said draft can be taken into consideration.
Section 59(3) refer to the consultation with the Boards.
Logically, consultation with the Boards is the first step to be taken in making ,regulations; publication of the draft regulations is ' the second step; allowing the prescribed period to pass before the draft is considered is the third step and publishing the regulations after considering them is the last step.
After the regulations are thus published, they shall have effect as if enacted in the Act.
That is section 59,5).
The 921 'first publication is the publication of the draft under section 23(3) of the and it is significant that the object of this publication is to invite objections or, suggestions from persons or bodies affected by the draft regulations.
Section 23(4) of the provides that the authority having power to make the rules or, regulations shall consider any objection or suggestion which may be received with respect to the draft before the date specified therein, so that the whole object ,of publishing the draft is to give notice to the parties concerned with the regulations which are intended to be framed and the object of the requirement that the said draft will not be considered until the prescribed period has passed is to enable parties concerned to file their objections.
Therefore, the scheme of section 59 clearly shows that apart from consulting the Boards to which section 59(3) refers, all parties affected, by the draft would have an opportunity to make their suggestions or objections and they would be considered before the draft is settled and regulations are finally made.
Therefore, in our opinion, it would not be correct to say that the construction of section 59(3) for which the respondents contend would enable the Central Government to make regulations without consulting the opinion of persons affected by them.
The result then is that section 12(1) is directory and not .mandatory and section 59(3), or a. 59(4) after the amendment in 1959 is mandatory in the sense that before the draft regulation is published, it is obligatory for the Central Government to consult the Board which is constituted under section 12.
If no Board is constituted, there can be, and need be, no consultation.
It is in the light of this position that the grievance made by the petitioners against the validity of their prosecution has to be judged.
We have already noticed that it is common ground 922 between the parties that the Madhya Pradesh Minning Board and the West Bengal Mining Board which were constituted under a. 10 of the Act of 1923 have become invalid after the amendment of section 10 by the Amending Act 5 of 1935.
Under section 10 as it originally stood, the Board was constituted by the Provincial Government and it was composed of five members.
After the amendment, a Board had to be constituted by the Central Government and, it was to consist of seven members.
That is why the respondents concede that the Madhya Pradesh and West Bengal Mining Boards could not be said to be validly constituted for the purpose of section 12 even by the application of section 24 of the .
The position then is that at the time when the regulations were framed in 1947, there, was only one Board which properly constituted and that is the Bihar Mining Board.
It was constituted in 1946 and by virtue of a. 24 of the , it continued as a valid Board under s.12.
This Board has been consulted by the Central Government before the regulations were made.
It is not disputed that the draft regulations were sent by the Central Government to the Bihar Mining Board through the State Government.
It_ appears that after the Board received the said draft, it was circulated by the Chairman of the Board to all the members of the Board and the members communicated their opinions individually.
It is argued that the communication by individual members of the Board of their opinions to the Central Government cannot be said to amount to the consulation with the Board and so, it is urged that the requirement of s.59(3) has not been complied with.
We do not think there is any substance in this argument.
All that s.59(3) requires is that a reasonable opportunity should be 'given to the Board to make its report as to the expediency or the suitability of the proposed regulations.
How 923 the Board chooses to make its report is not a matter, which the Central Government can control.
The Central Government has discharged its obligation as ' soon as it is shown that a copy of the draft regulations was sent to the Board, and if the Board thereafter, instead of making a collective report, chose ' to.
sent individual opinions, that cannot be said to constitute the contravention of s.59(3).
Indeed, s.59(3) does not impose an obligation on the Board to make any report at all It is true that since under s.14, the Board is empowered to make a report, it is unlikely that any Board, when consulted, would refuse to make a report.
But, nevertheless, the position still remains that if the Board refused to make a report, that will not introduce any infirmity in the regulations which the Central Government may ultimately frame and publish under s.59(5).
We must accordingly hold that the regulations framed in 1957 have been duly framed and published under s.59(5) and as such, they shall have effect as if enacted in the Act.
The result is, the petition fails and is dismissed.
SUBBA RAO, J.
I regret my, inability to agree.
The facts relevant to the question raised lie in a small compass.
The petitioners are incharge of the working of a mine, known as Salanpur "A" Seam Colliery, in the District of Burdwan, West Bengal.
On the allegation that they contravened the provisions of Regulation 127(3) of the Coal Mines Regulations, 1957 (hereinafter called the Regulations), a criminal complaint was filed against them in the Court of Sub divisional Magistrate, Asansol, and the said Magistrate has taken cognizance of the said complaint under section 190(1) (c) of the Code of Criminal Procedure, read with section 73 of the .(hereinafter called the Act).
The petitioners challenge the validity of the maid Regulations on the ground that they were 924 made in contravention of the provisions of section 59(3) of the Act.
Section 59(3) of the Act imposes a condition on the Central Government to give a reasonable opportunity to a Mining Board before making regulations in exercise of the power conferred on it by the Act.
Under s.10 of the Indian Mines Act, 1923, the Central Government in the year 1946 constituted the Bihar Mining Board with jurisdiction over the area covered by the Province of Bihar.
The Central Government sent the draft Regulations to the said Board.
The Chairman of the Board circulated the said draft Regulations to all the members of the Board and the members communicated their opinions individually to the Central Government.
Thereafter the Central Government made the said Regulations governing the whole of India, except Jammu and Kashmir, and to every coal mine therein, in compliance with the other provisions of section 59 of the Act.
The question in this petition is whether the Regulations so made after consulting the Bihar, Board alone would be valid and in force in the West Bengal area so as to sustain a criminal prosecution on the basis of an infringement of the said Regulation in respect of a mine in that area.
This question may be divided into two parts, namely (1) where the Central Government has ' not constituted a Mining Board, can it ignore the condition laid down under section 59(3) of the Act and (2) if giving a reasonable opportunity within the meaning of section 59(3) of.
the Act is necessary condition for the validity of the Regulations made thereunder, can the Central Government validly make a regulation in respect of West Bengal after giving such a reasonable opportunity to a Mining Board constituted for Bihar ? In my view, the first question is directly 925 covered by the decision of this Court in Banwari Lal V. State of Bihar(,).
There, Das Gupta J., delivered the judgment of the Court.
As it is contended that the said decision should be confined only a case where a Mining Board has been validly constituted under the Act and should not be applied to a case where such a Board has not been constitu ted, it would be necessary to scrutinize the decision carefully to ascertain ' the exact scope of the said decision.
The facts of that case where there was an accident in the Central Bhowra Colliery in Dhanbad in Bihar, as a result of which 23 persons lost their lives the Regional Inspector of Mines, Dhanbad filed a complaint against the appellant for allegedly committing an offence under section 74 of the , i.e., for contravening regulations 107 and 127 of the Coal Mines Regulations, 1957 ; after the Sub Divisional Officer took Cognizance of the complaint, the appellant made an application to the Patna High Court under article 226 of the Constitution contesting the validity of the said proceedings on the ground, inter alia, that there was no Mining Board constituted under section 12 of the Act and therefore the Central Government had made the Regulations without, consulting Mining Board as it, should do under section 59(3) of the Act.
The second ground on which a prayer for quashing the proceedings was based, with which alone we are now concerned, was stated in the judgment thus : "the Coal Mines Regulations, 1957, are invalid having been framed in contravention of section 59(3) of the ." The contention of learned counsel, who elaborated this ground, was stated thus : " 'As regards the other contention that the regulations are invalid the appellant 's argument is that the provisions of section 12 and section 59 of the , are mandatory.
" Then the, learned Judge quoted in extenso section 59(3) of the Act and (1) ; 926 proceeded to state the relevant basic facts and posed the question raised in the case thus: "It was not disputed before us that when the Regulations were framed, No. Board , as required under section 12 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.
" It is manifest from the question so posed that the question considered by the Court was whether the making of the Regulation without reference to a Mining Board, as it was not in existence, would be invalid.
Then the learned Judge considered the language of a. 59(3) of the Act and observed at P. 851 : ". . . it is legitimate to note that the language used in.
this case is emphatic and appears to be designed to express, an anxiety of the legislature that the publication of the, regulation, which it; condition precedent to the making of the regulations, should itself be subject to two conditions precedent first, a reference to the Mining Board concerned, and secondly, that sufficient opportunity to the Board to make & report as regards.
the expediency and suitability of the proposed regulations.
" The learned Judge then proceeded to considered the reasons for imposing such a condition and observed.
"Even a cursory examination of the purposes set in the 27 clauses of section 57 shows that that most of them impinge heavily on the actual working of the mines.
To mention only a few of these are sufficient to 927 show that the very purpose of the Act may will be defeated unless suitable and practical regulations are ' framed to help the achieve ment of this purpose.
" Then he pointed out that section 12 of the Act unabled the Government to appoint Boards providing representations for different interests which would be in a position to help the Central Government to make suitable and practical regulations.
In the words of the learned Judge, "The constitution is calculated to ensure that all aspects including on the one hand the need for securing the safety and welfare of labour and on the other hand the practicability of the provision proposed from the point of view of the likely expense and other considerations can be throughly examined.
It is certainly to the public benefit that Boards thus constituted should have an opportunity of examining regulations proposed in the first place,% by an administrative department of the government and of expressing their opinion.
" According to him, the constitution of the Board in the manner prescribed served a real purpose and, therefore the constitution by the Central Government with such 'a Board was made a condition of the making of the Regulations.
When it was contended that the insistence upon consultation might effect the public welfare under emergent circumstances he.
pointed out that under section 60 of the Act, which provided for such a contingency, the Central Government might make regulations without previous reference to Mining Boards and therefore no such 'consideration could prevent the Court from holding that ' the giving of an opportunity to the Board was a condition precedent to the exercise of the power of making regulations.
The learned Judge summarised his reasoning thus: 928 " 'An examination of all the relevant circumstances viz., the language used, the scheme of the legislation, the benefit to the public on insisting on strict compliance as well as the risks to public interest on insistence on such compliance leads us to the conclusion that the legislative intent was to insist on these provisions for consultation with the Mining Board as a prerequisite for the validity of the regulations.
This conclusion is strengthened by the fact that in section 60 which 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 expressing 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 a. 59 will be valid for a single day.
" The learned Judge concluded his discussion thus, a ' p. 853 : "For all the reasons giving above, we are of opinion that the provisions of section 59(3( of the Mining Act, 1952, are mandatory.
" Pausing here for a moment, I find it very difficult to bold that this Court held, expressly or by necessary implication, that section 59(3) of the Act was mandatory only if the concerned Board was in existence.
The argument advanced, the question 929 posed, the reasons given and the conclusion arrived at were all against giving such a limited scope to the said judgment, It was contended that both section 12 and section 59 were mandatory.
III Posing the question to be decided, the learned Judge clearly referred to "the omission to make such a reference".
The word "such" clearly refers to the omission to make a reference, as no Board was constituted under section 12 of the Act.
So, as regards the posing of the question there was absolutely no ambiguity and the learned Judge had clearly in mind what the Court was asked to decide upon.
The reasons given by the learned Judge for holding that it was obligatory of the Central Government to consult the Board before the making the regulation would equally apply whether the Board existed or not.
The conclusion arrived at by the learned Judge that consultation with such a Board was a condition precedent for the exercise of the power would apply to both the cases.
If it was a condition precedent for the exercise of the power, how could it cease to be one if a Board was not in existence? The condition is not the existence of the Board, but the consultation with a Board.
In one case, the Government would not consult the Board though it existed, and in the other case it would not consult, as the Board did not exist.
In either case, the condition was broken.
But it is said that the last three, paragraphs of the judgment make it clear that the learned Judge was not considering the case where a Board had not been constituted.
There, the learned Judge was considering the question whether the Mining Boards constituted under section 10 of the Mines Act, 1923, were continuing to operate at the time the Regulation were made and there was full consultation with the ,Mining Boards before the, Regulations were framed.
put tile learned Judge was not able to decide that 930 question, as there was not sufficient material on the record.
Therefore, this Court directed the Magistrate to decide that question.
I fail to see how these paragraphs in any way help us to hold that this Court confined its decision only to a case where a Board has been constituted.
On the other hand, the observations in the first of these three paragraphs clearly indicate to the contrary.
The relevant observations are "As has been pointed out above, it was not disputed before us that at time when the regulations were framed to now Mining Board had been constituted under the and consequently no consultation with any Mining Board constituted under the 1952 Act took place.
" This shows that the entire judgment up to that point proceeded on the basis that there was no consultation with the Mining Board, as no such Board was constituted.
Thereafter the learned Judge was only considering the alternative contention advanced by the State, namely, that the pro existing Board was consulted and that that consultation was sufficient compliance with the provisions of section 59(3) of the Act.
If I might analyse the mind of the learned Judge, the process of reasoning may be summarized thus: On behalf of the appellant it was argued that there was no consultation with the Board as it was not constituted under section 12 of the Act and, therefore, the Regulations made under the Act without such consultation were void.
The learned Judge accepted the contention.
Then it was argued for the Government that though there was no consultation with the Board constituted under section 12 of the Act, consultation with a pre existing Board would be enough compliance with the section.
As there was no material on the record, the learned Judge could 931 not decide on that question and therefore directed it to be decided by the Magistrate.
On the other hand, as it was common case that no Board under section 12 of the Act had been constituted, if the contention of the Government, now pressed before us, was correct, no other question would have arisen for, according to the State, a. 59 (3) could not be invoked in a case where no Board had been in existence.
The plea that there was a consultation with the pre existing Board was taken not by the appellant but by the State and such a plea would be unnecessary if section 58 (3) of the Act did not lay down the condition of consultation with the Board when it did not exist.
To my mind, the judgment of the Court is clear and unambiguous on this point and it decided that, as there was no consultation with any Mining Board under section 59(3) of the Act, as the Board was not in existence, the Regulations were bad.
The present argument is an attempt to persuade us to go back on a clear pronouncement on the point by a Constitution Bench of the Court.
That apart, I am satisfied on a true construction of the provisions of section 12 and a. 59(3) of the Act that the Central Government has to exercise the power under section 12 if it intends to exercise the power under a. 59 of the Act.
Under section 12, ,the Central Government may constitute for any part of the territories to which this Act extends or for any group or class of mines, a Mining Board", consisting of persons with specific qualifications representing different interests in the mines.
Under ,R. 59, the power to make regulation conferred by a. 57 is subject to the condition of the regulations being made after previous publication, and under sub section
(3) thereof ""Before the draft of any regulations is published under this section,it shall be referred to every Mining Board which is, the opinion of the Central Government, con 932 cerned with the subject dealt with by the regulation, and the regulation shall not be so published until each such Board has had a reasonable opportunity of reporting as to the expediency of making the same and as to the suitability of its provisions".
As interpreted by this Court, the said condition is a condition precedent for the making of the Regulations under the said section.
If the contention of the learned Solicitor General be accepted, the condition may have to be disannexed from the power by a situation brought about the conscious withholding of the exercise of the connected power by the Central Government under section 12 of the Act.
Central Government by its own default can ignore the condition imposed in public interest.
The construction leading to this anomalous result can.
not be accepted unless the provisions compel us to do so.
It is a well settled principle of construction that when it is possible to do so, it is the duty of the Court to construe provisions which appear to conflict so that they harmonies.
To put it differently, of two possible constructions, one which gives a consistent meaning to different parts of an enactment should be preferred.
In the instant case, the two sections can be harmonized without doing violence to the language used.
Section 12 is an enabling provision under it a power it; given to the Central Government to appoint a Mining Board.
Section 57, read with section 59, confers another power on the Central Government to make regulation subject to, among others a condition that the draft of the regulations shall be referred to a Mining Board.
These two powers are connected: if they are read together, as we should do in an attempt to reconcile them, it could be reason '.
ably hold that the power conferred under a. 12 has to be exercised by the Central Government if it intends to make regulations under section 57 of the Act.
This construction carries out the full intention of Legislature in enacting s.59 as interpreted by this 933 Court.
Both the powers can be exercised without the one detracting from the other.
The construction suggested by the respondents enables the Central Government to defeat the public purpose underlying the imposition of the condition under s.59 of the Act and that suggested by the petitioners enables the exercise of the two powers without the one coming into conflict with the other.
I would on the principle of harmonious construction, prefer 'to accept the latter construction to the former.
Let us took at the provisions from a different perspective.
It is a well established doctrine that when the power is coupled with a duty of the person to whom it is given to exercise it, then the exercise of the power is imperative: see Maxwell on interpretation of Statutes, 11th Edn., p. 234.
It has also been bold that "if the object for which the power is conferred contemplates giving of a right, there would then be a duty cast on person to whom the power is given to exercise it for the benefit of the party to whom the right is given when required on his behalf.
" Dealing with section 51, Income tax Act, 1918 which provides that the Chief Revenue Authority may" state the case to High Court Lord Phillimore observed in Alcock Ashdown & Co. vs The Chief Revenue Authority Bombay(1). "No doubt that the section does not say that the authority "shall" state the case, it only says that it may and it is rightly urged that "may" does not mean "shall, only the capacity or power is given to the authority.
But when a capacity or power is given to a public authority there may be circumstances which couple with the power a duty to exercise it, and where there is a serious (1) A. 1.
R. 934 point of law to be considered there does lie a duty upon the Revenue authority to state a case for opinion of the Court and if he does not appreciate that there is such a serious point, it is in the power of the Court to con trol him and to order him to state the case.
" Under the Act, there are two connected powers a power to appoint a Mining Board and a power to make regulations subject to a condition.
The condition imposed on the power confers a right on a Mining Board to be consulted before a regulation is made.
A combined reading of section 12 and sections 57 and 59 shows that the power or powers conferred on the Central Government are coupled with a duty to consult the Board whenever the Central Government seeks to exercise the power under s.57.
I have no hesitation in holding that the power is coupled with a duty and that the power has to be exercised when the 'duty demands it.
The Central Government in making the Regulations has a duty to consult the Mining Board and the Mining Board has a right to be so consulted and to discharge its duty it is incumbent upon the Central Government to exercise the connected power by appointing the Board.
It is said that under section 59 of the Act, the Regulations and the Rules shall be referred to a Mining Board and that under section 58 the Central Government has the power to make a rule providing for the appointment of the Chairman and members of the Mining Board and that if section 59 is mandatory, the Government can never exercise the power under section 58(a).
No such difficulty could arise under the Act before its amendment in 1959.
Under a. 69(3), as it stood then, the condition of consultation with a Mining Board was imposed only on the power of the Government to make a. regulation and that s.57 of the Act which confers a 935 power on the Central Government to make regulations did not contain any.
clause corresponding to cl.
(a) of section 58 of the Act.
That apart, section 58(a) may legitimately be invoked by the Central ' Government only after a Board had been consti tuted in regard to the future appointments.
how this argument may have some bearing when this question of construction of the provisions of section 59 was raised before this Court on the last occasion and none at present, as the true construction of the said section was finally settled by this Court.
That apart, a comparative study of the other provisions of the Act would also lead to the same conclusion.
Under the Act, there are many enabling provisions empowering the Central Government to appoint specified authorities to discharge different duties and functions described in various sections.
Should it be held that the Central Government need not appoint the authorities under any circumstances, the Act would become a dead letter.
Even the appointment of 'the Chief Inspector and Inspectors is left to the discretion of the Central Government: see section 5 of the Act.
If the Government need not appoint the Chief Inspector or the Inspectors, the duties and functions allotted to them could not be discharged or performed.
A resonable construction would, therefore, be that if the said duties and functions have to be per.
formed, the Government hat; to appoint the officers.
So too, if the Central Government seeks to exercise the powers under section 57 of the Act, read with section 59 thereof, it has to appoint the Board.
I therefore , hold on a fair construction of sections 12 and 59 of the Act, that ' the Central Government has a duty to appoint the, Mining Board if it seeks to exercise its power under section 57 of the Act.
The next argument is that the Bihar Board has been consulted in the manner prescribed by 936 section 59(3) of the Act and, therefore.
the regulation made after such consultation are valid.
I cannot agree with this contention either.
The said Board was appointed under section 10(1) of the Indian Mines Act, 1923 and it is not disputed that the Board must be deemed to have been duly constituted under the present Act.
It is also not disputed that the said Board was only constituted to have jurisdiction over the area comprised in the present Bihar State, that is, it has no jurisdiction over West Bengal.
Under section 12 of the Act, the Central Government may constitute for any part of the territories to which this Act extends or for any group or class of a Mines., a Mining Board.
Under section 59, the Central Government shall refer the draft to every Mining Board which, in the opinion of the Central Government, is concerned with the subject dealt with by the regulation '.
Now, can it be said that the Board constituted for a part of the territories to which the Act extends, namely, to the State of Bihar, could be a Board concerned with the subject dealt with by the regulations, namely, the mines in West Bengal area ? The entire object of section 59 is to consult the persons intimately connected with the mining operations of a particular area so that suitable regulations may be made to govern the working of those mines.
It could never have been the intention of the Legislature to empower the Government to make regulations in regard to mines in one part of the country by consulting a Board constituted for another part of the country.
Such an intention could not be attributed to the Legislature.
Indeed, the Central Government, when it is constituted the Boards, expressly indicated its intention that all the Boards, including the Board functioning in West Bengal, should be consulted, but as the Board constituted there was not one constituted legally under the Act, the consultation with.
the said Board 937 had become futile.
I therefore, hold that the Regulations in so far as they purport to regulate the mines situate in West Bengal have not been validly made under the Act inasmuch as a condition precedent imposed by section 59 of the Act on the exercise of the Government 's power to make a regulation was not complied with.
In the result, I direct the issue of a writ of prohibition against respondents 1 to 4 restraining them from proceeding with the criminal case launched against the petitioners.
The petitioners will have their costs.
By COURT : In view of the majority opinion of the Court the Writ Petition fails and is dismissed.

summary:
Section 12 of the , provides that the Central Government may constitute a Mining Board for any part of the territories to which the Act extended or for any group or class of mine .
In 1957 only one mining board i.e. the Bihar Mining Board was in existence and other mining boards were not constituted.
Section 57 empowers the Central Government to make Regulations.
Section 59(3), as it then stood, provided that before the draft of any regulation was published it should be referred to every Mining Board concerned and that it shall not be published until each such Mining Board had had a reasonable opportunity of reporting on it.
The Central Government referred the draft of the Coal Mines Regulations to the Bihar Mining Board which circulated the draft to all the members of the Board and the members communicated their opinions individually to the Central Government.
Thereafter, the Regulations were duly published and came into force.
The petitioner 's, who were being prosecuted in Bengal for violation of the Regulations, contended that the Regulations were invalid as : (i) it was incumbent upon the Central Government under 'section 12 of the Act to constitute all the Mining Boards and to refer the draft Regulations to all the Boards before they.
could be published under section 59.
and (ii) the communication of opinions by individual members 'of the Bihar Mining Board did not amount to consultation with the Board within the meaning of section 59(3).
Held (Per majority, Subba Rao, J., dissenting), that the 'Coal Mines Regulations, 1957, had been duly framed and published.
Section 59(3) merely provided that if a Mining Board was in existence at the relevant time it was obligatory on the Central Government to consult it before 905 the draft Regulation was published.
But section 12 was not mandatory and it was not obligatory on the Central Government to constitute any or all of the Mining Boards.
There was nothing in the Act or.
in the context which justified reading the word "may" in section 12 as "shall".
The Mining Board constituted under section 12 had to perform two functions, viz., to make a report in respect of regulations or rules referred to it and to decide cases which may be referred to it under section 81.
The working of the Act was not dependent on the constituting of Mining Boards.
This construction of section 12 did not render the provisions of section 59(3) nugatory.
Apart from consulting the Boards, all parties affected by the draft had an opportunity to make their suggestions or objections and these had to be considered before the draft was settled and the regulations were finally made.
Banwarilal Agarwalla vs state of Bihar, , explained.
Held, further, that the requirement of section 59(3) had been complied with in referring the draft Regulations to the Bihar Mining Board.
All that section 59(3) required was that a reasonable opportunity should be given to the Board to make its report.
How the Board chose to make its report, was not a matter which the Central Government could control.
Per Subba Rao, J. ,The Coal Mines Regulations were not validly made.
The Supreme Court had directly decided in Banwarilal vs State of Bihar that the Regulations were bad as there was no consultation with any Mining Board under section 59 (3) as the Boards were not in existence.
A fair construction of sections 12 and 59 (3) of the Act ' also showed that if the Central Government wanted to ' make regulations under section 57 it had to appoint Mining Boards and to refer the regulations to them before publication.
If the Central Government wanted to exercise the power under section 59 it had first to exercise the power under section 12.
The power to make regulations was coupled with a duty to consult the Mining Boards, and to discharge its duty it was incumbent upon the Central Government to appoint the Mining Boards.
Apart from this, the Regulations is so far as they purported to regulate mines in West Bengal had not been validly made as no Mining Board for the West Bengal area had been consulted before making the Regulations.
The Act did not empower the Central Government to make regulations in regard to mines in one part of the country by consulting a Board constituted for another part of the Country.
906 Banwarilal Agarwalla vs State of Bihar. , followed.
Alcock Ashdown & Co. vs The Chief Revenue Authority, Bombay, A. I. R. , referred to.


judgement:
Appeal No. 168 of 1952.
Appeal from a Judgment and Decree dated 23rd July, 1951, of the Court of the Judicial Commissioner, Vindhya Pradesh, in Civil First Appeal No. 26 of 1951 arising out of the Judgment and Decree dated 14th March, 1951, of the Court of the District Judge, Umaria, in Case No. 32 of 1951.
N. section Bindra (section L. Chhibber, with him) for the appellants.
section P. Sinha (K. B. Asthana, with him) for the respondents.
March 12.
The Judgment of the Court was delivered by MAHAJAN J.
The suit out of which this appeal arises was instituted by the plaintiff respondents in the court of the district judge of Umaria, for recovery of Rs. 34,000 principal, and Rs. 2,626 interest, due on foot of mutual dealings.
The suit was dismissed by the district judge but was decreed on appeal by the Judicial Commissioner of Vindhya Pradesh.
A certificate for leave to appeal to this Court was granted as the case fulfilled all the conditions and requirements in force relating to appeals to the Supreme Court.
The defendants did not admit the claim and it was pleaded that no accounts were explained to them when the signatures of Bhaiyalal and Hiralal were obtained in the plaintiffs ' ledger on 3rd September, 1949, acknowledging the suit amount as due from them.
It was further pleaded that no suit could be based merely on an acknowledgment of the debt.
In para graph 4 of the written statement it was alleged that the plaintiff No. 2 Dipchand having threatened to bring a suit against defendants I and 2 whose financial position was bad and having represented that plaintiff No. 1 Badkulal would be angry and abuse plaintiff No. 2, and having assured on oath by placing his hand on a deity in a temple that no suit shall be 760 brought, and that amount of interest would be reduced asked defendants 1 and 2 to sign the khata, who signed the same without going through the accounts, on the faith of these statements made by Dipchand and that the defendants were not bound by these signatures.
In paragraph 9 of the written statement it was alleged that in fact Rs. 15,000 or 16,000 as principal sum were due to plaintiffs from defendants but the suit had been filed for a much larger sum than due.
Issue I framed by the district judge was in these terms : " Did the defendants Hiralal and Bhaiyala I sign on Bhadon Sudi 11 Samvat 2006 in the capacity of manager and head of the family, on the khata of, the plaintiffs after understanding the debit and credit accounts and accepting Rs. 34,000 as the correct balance due to the plaintiffs.
" It would have been more correct had a separate issue been framed on the two points compositely mentioned in this issue.
Be that as it may, the form in which the issue was framed is not material for the decision of the appeal.
Issue 7 was in these terms : " Did the plaintiff Dipchand obtain the signature of defendants 1 and 2, in their bahi under the threat of instituting a suit and giving the assurance of the suit being not filed and leaving the interest which is incorrect and very much exaggerated, by saying that Badkulal shall be very angry with him. ".
The frame of the issue shows that the learned judge at this stage made no effort to ascertain or apprehend the nature of the plea taken in the written statement.
He seems to have acted more as an automaton than as a judge in the discharge of his responsible duties.
Before framing an issue like this it was his duty to examine the parties and to find out the precise nature of the plea involved within these facts ; in other words, whether the defendants wished to plead in defence fraud, coercion, undue influence or a mistake of fact entitling them to reopen the accounts.
Mr. Bindra for the appellants was unable to tell us 761 what real plea was involved in the facts stated under this issue.
The manner in which the learned judge dealt with this issue lends support to our view that he did not at all apprehend what he had to decide.
It was held that the defendants did not sign the entry after understanding, settling, and adjusting of the accounts, but that plaintiff Dipchand obtained their signatures without explaining the accounts to them.
The fact that the entry was signed by both the defendants who represented their family was not denied.
Hiralal, defendant, in the witness box admitted that the defendants deal in gold, silver and kirana and maintain regular books of account.
It was also admitted that two or three muneems are in their employ for maintaining regular books of the business dealings.
Hiralal was questioned " How much money was due from the defendants firm to the plaintiffs" He couldn 't firm?".
The answer was evasive, viz., say how much was due".
When questioned about his accounts, he replied that he had not filed them as he was ill.
He further deposed that he had looked into his accounts and Rs. 10,000 to Rs. 15,000 as principal and interest were due but he could not say what was the correct amount.
When asked whether on the date of signing the acknowledgment he looked into the books to see what amount was due from him, his answer was in the negative.
He further said that even after receiving notice he did not look into his own accounts to check as to what the correct balance was.
A leading question was put to him Whether on Bhadon Sudi 11 Samvat 2006 there Was an entry of Rs. 34,000 in the defendants ' khata as being the balance due from them to the plaintiffs.
The answer was again evasive.
He said " I could not say whether there was any such entry in his books." In these circumstances there was no justification for throwing out the plaintiffs ' suit on the ground that the accounts were not explained to the defendants by the plaintiffs.
The defendants had written the accounts in their own books from which the true balance could 762 be ascertained.
An inference from the statement of Hiralal can easily be raised that the balance entry of Rs. 34,000 also existed in his own books.
Mr. Bindra tried to get out of this situation by urging that it was no part of the defendants ' duty to produce the books unless they were called upon to do so and the onus rested on the plaintiffs to prove their case.
This argument has to be negatived in view of the observations of their Lordships of the Privy Council in Murugesam Pillai vs Manickavasaka Pandara(1), which appositely apply here.
This is what their Lordships observed: "A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the courts the best material for its decision.
With regard to third parties this may be right enough they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships ' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the court the written evidence in their possession which would throw light upon the proposition.
" This rule was again reiterated in Rameshwar Singh vs Rajit Lal Pathak(2).
On the evidence of the parties it is clear that both parties are businessmen and each party has been maintaining accounts of their mutual dealings, and they met on 3rd September and in the plaintiffs ' book the defendants signed an entry on page 58 of the ledger which runs thus: `` Rs. 34,000 balance due to be received up to Bhadon Sudi 11 Samvat 2006 made by check and understanding of accounts with Hiralalji 's books.
" This acknowledgment was made below a number of entries made in this khats, on the credit and debit side and the mutual dealings had continued since (1) (1917) 44 I A. 99.
(2) A.I.R. 1929 P.C. 95, 763 several years.
The acknowledgment is signed by Hiralal and Bhaiyalal, with the following endorsement: "After adjusting the accounts Rs. 34,000 found correct payable.
" In these circumstances we are not able to understand the view of the district judge that it was not proved that the accounts were explained to the defendants by Dipchand.
It was unnecessary to do so because the defendants themselves were keeping accounts and they would not have signed the balance for Rs. 34,000 with the endorsement above cited, without reference to their own books or in the manner suggested in the written statement.
Plaintiff Dipchand in the witness box supported the plaintiffs ' case as laid in the plaint.
He deposed that " This accounting was done by my muneem Puranlal and Ram Prasad, muneem of Hiralal. .
Muneems explained and Hiralal signed after understanding it.
" In cross examination he said that muneems were checking the accounts and when both the muneems said that so much was the balance, Hiralal then signed and that Hiralal and Bhaiyalal themselves did not check any account.
The learned district judge and Mr. Bindra criticized the evidence of this witness and it was urged that he had made false and highly improbable statements with regard to the manner and circumstances in which the entry was signed.
The discrepancies in the statement relate to matters of no consequence.
In our opinion, his evidence along with the entry was sufficient to hold the plaintiffs ' case proved when the best evidence of their own books to disprove the plaintiffs ' case had been withheld by the defendants.
No satisfactory explanation had been given for the non production of the defendants ' books, and the evidence given by Hiralal does not do much credit to him.
Mr. Bindra contended that it should have been held that Bhaiyalal did not sign at the same time when the entry was written but he signed later on.
On this point Hiralal deposed that when be signed Bhaiyalal 99 764 was not present, that he signed afterwards, that Kulai muneem came with, the bahi saying that Badkulal and Dipchand had quarrelled among themselves that there should also be the signature of Bhaiyalal, that Bhaiyalal questioned him as to why the witness had signed, that he replied that Dipchand had told him after pointing his hand towards God that he would take no action so long as he lived, so he did not check, nor any one explained him the accounts, that on this he asked Bhaiyalal to sign and on his asking he signed.
It was for Bhaiyalal to explain his signature by going into the witness box but he did not give evidence in the case and there is no explanation why he did not do so.
Mr. Bindra 's contention therefore that it should be held that Bhaiyalal was not present when the acknowledgment was signed cannot be sustained.
The defendants tried to support their case by the statements of Kulai Prasad, muneem, and the other two muneems Ram Prasad and Puranlal.
So far as Kulai Prasad is concerned, he was in the plaintiffs ' service and was dismissed by Badkulal, plaintiff, on 31st March, 1950.
Much reliance cannot be placed on the statement of a dismissed and disgruntled employee.
He stated that Hiralal was not made to understand any accounts and Dipchand assured him on oath that he would raise no trouble during his life and asked Hiralal to sign and that Bhaiyalal signed on a different date.
This evidence is of a partisan character and no reliance can be placed on it.
Rain Prasad stated that he did not check the accounts of the plaintiffs from Bhadon Samvat 2006 and that Hiralal did not sign in his presence.
In cross examination he admitted that there were mutual dealings between the parties and that Hiralal might have signed after accounting was done.
He pretended ignorance of what happened on Bhadon Samvat 2006.
As regards Puranlal, he stated that after looking into the accounts and after mutual talk, Exhibit P 1 765 was written on Dip Chand 's asking, that accounts might have been told by Dipchand on the basis of the statement which he had with him, that no accounts were explained.
He further stated that Hiralal said to Dipchand "Please see me", on which Dipchand replied after raising his hand towards the temple " I shall not do anything unfair in my lifetime.
" In cross examination he admitted that the words " signed Bhurey Naik Raghunandan Prasad Bakalam Hira Lal ", and the words " after adjusting the accounts Rs. 34,000 found correctly payable signed Hiralal " were written by Hiralal himself.
It was further elicited in cross examination that the witness had forged a receipt and for forging that receipt he was sentenced to one year 's imprisonment in a criminal case started by Badkulal, plaintiffs This evidence therefore is not of much consequence in this case.
In these circumstances we are satisfied that the district judge not only approached the decision of the case from an erroneous point of view but he also incorrectly appreciated the material on the record.
The learned Judicial Commissioner was therefore perfectly justified in reversing his decision and.
in holding that on 3rd September, 1949, there was an adjustment of accounts actually done by the muneems and accepted by the principals and the story of coercion and misrepresentation was false.
Mr. Bindra next urged that the plaintiff 's suit should have been dismissed because it could not be maintained merely on the basis of an acknowledgment of liability, that such an acknowledgment could only save limitation but could not furnish a cause of action on which a suit could be maintained.
The Judicial Commissioner took the view that an unqualified acknowledgment like the one in the suit, and the statement of the account under which the entry had been made, were sufficient to furnish a cause of action to the plaintiffs for maintaining the present suit.
We are satisfied that no exception can be taken to this conclusion.
It was held by the Privy Council in 766 Maniram vs Seth Rupchand(1), that an unconditional acknowledgment implies a promise to 'pay because that is the natural inference if nothing is said to the contrary.
It is what every honest man would mean to do.
In Fateh Chand vs Ganga Singh(2) the same view was taken.
It was held that a suit on the basis of a balance was competent.
In Kahanchand Dularam vs Dayaram Amritlal(3) the same view was expressed and it Was observed that the three expressions "balance due ", " account adjusted " and "balance struck" must mean that the parties had been through the account.
The defendant there accepted the statement of account contained in the plaintiff 's account book, and made it his own by signing it and it thus amounted to an " accounts stated between them " in the language of article 64 of the Limitation Act.
The same happened in the present case.
The acknowledgment which forms the basis of the suit was made in the ledger of the plaintiffs in which earlier mutual accounts had been entered and truly speaking, the suit was not based merely on this acknowledgment but was based on the mutual dealings and the accounts stated between them and was thus clearly maintainable.
Mr. Bindra drew our attention to a decision of the Allahabad High Court in Ghulam Murtuza vs Fasihunnissa(4) , wherein it was held that even if an acknowledgment implies a promise to pay it cannot be made the basis of suit and treated as giving rise to a fresh cause of action.
We have examined the decision and we are satisfied that it does not lay down good law.
For the reasons stated above this appeal has no merits and we accordingly dismiss it with costs.
Appeal dismissed '.
CO 2,0.3 (i) (1906) 33 I.A. 165.
(2) (1929) I.L.R.
Io Lab 748.
(3) (1929) I.L.R. to Lah.
(4) All 434.

dataset_name: IN-Abs

summary:
Where the defendants who had dealings with the plaintiffs for several years signed the following entry in the plaintiffs ' account book underneath the earlier entries: "After adjusting the accounts Rs. 34,000 found correct payable Held, that this amounted to an unqualified acknowledgment of liability to pay and implied a promise to pay and could be made the basis of the suit and gave rise to a fresh cause of action.
Maniram vs Seth Rup Chand (33 I.A. 165), Fateh Chand vs Ganga Singh (I.L.R. and Kahan Chand Dularam vs Dayalal Amritlal (I.L.R. relied on.
Ghulam Murtuza vs Fasihunnissa (I.L.R. 57 All. 434) overruled.
It is not a sound practice for those desiring to rely upon a certain state of facts to withhold from the court written evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the mere doctrine of onus of proof.
Murugesam Pillai vs Manickavasaka Pandara (44 I.A. 99) referred to.


judgement:
iminal Appeal No. 50 of 1962.
Appeal by special leave from the judgment and order dated September 12, 1961, of the Allahabad High Court (Lucknow Bench) at Lucknow in Criminal Appeal No. 494 of 1961.
Nuruddin Ahmed, for the appellant.
G.C. Mathur and 0.
P. Lal, for the respondent.
May 3.
The Judgment of the Court was delivered by S.R. DAS, J.
The learned Sessions Judge of Rae Bareli tried the appellant Prabhu on a charge of murdering his own uncle and found him guilty of the offence and sentenced him to death.
There were an appeal to the High Court and the usual reference for confirmation of the sentence of death.
The High Court dealt with the appeal and reference by one judgment.
It accepted the reference,, dismissed the appeal and confirmed the conviction and sentence.
The appellant then asked for and obtained special leave of this Court to appeal from the judgment and order of the High Court.
The present appeal has come to us in pursuance of the leave granted by this Court.
Shortly stated the case against the appellant was this.
Bhagwan Ahir, step brother of the appellants father Budhai, was a resident of 883 village Bandi in the district of Rae Bareli, The appellant and his father Budhai lived in another village called Gulariya at a distance of about two or three miles from Bandi.
Bhagwan had about four bighas of pasture land and seven bighas of cultivated land.
He had no male issue, He had several daughters who were all married and resided at the places of their respective husbands.
Bhagwan was old, near about 80 years of age according to the evidence of Marka, and had no male member in the family to help him with his cultivation.
Budhai, it appears, did not reside in village Gulariya all the year round, but was engaged in some job at Burdwan in Bengal.
Some four years before the date on, which Bhagwan was said to have been murdered the appellant and his mother came to reside with Bhagwan.
The idea was that the appellant would be able to help Bhagwan with his cultivation.
The appellant did not, however, render much assistance to Bhagwan and the prosecution case, was that after about a year of their stay, Bhagwan turned them out of the house.
The appellant and his mother then went back to village Gulariya.
The prosecution case further was that about a month and a half before the murder of Bhagwan the appellant and his father came to Bhagwan and the appellants father asked Bhagwan to transfer some of his land to the appellant.
Bhagwan said that he had already kept the appellant with him for a year and had found that he was of no assistance.
He, therefore, refused to give any land to the appellant.
Bhagwan, it appears, had some granddaughters and one of them called Kumari Sarju aged about five years was staying with him.
Bhagwan said that he would give his lands to his grand daughter Sarju.
On the night between March 19 and 20 , 1961, Bhagwan was sleeping in front of his house on 884 cot with his grand daughter.
One Naiku (P.W. 1) was sleeping at a short distance from Bhagwan 's house.
Naiku was a neighbour of Bhagwan.
At about midnight Naiku 'heard some noise and called out to Bhagwan.
There was no response.
Naiku then heard the sound of shoes as though somebody was running away from the place.
Naiku called out certain other persons and went near the place where Bhagwan was lying on his cot.
It was found that Bhagwan bad a large number of injuries on the head and neck, most of the injuries being of 'an incised nature.
Bhagwan was already dead.
The little girl Sarju though stained with blood which flowed from the body of Bhagwan was not herself injured.
She was soundly sleeping on the cot and was not awake when Bhagwan was killed.
Naiku gave an information to the police station of what he had heard and seen, the distance of the police station being about eight miles from village Bandi.
The information which Naiku gave did not disclose the name of any accused person because Naiku had not seen who had killed Bhagwan.
On the information given by Naiku the local police started investigation and when the dead body of Bhagwan was brought back to the village after the postmortem examination for cremation, the appellant, it is stated, came to one Brij lal (P. W. 2) of village Bandi.
This was on the third day after the murder.
The appellant made certain enquiries from Brij lal which roused the latter 's suspicion.
The Sub Inspector of Police was then in the village and he was informed of the presence of the appellant.
The appellant was then interrogated and the case of the prosecution was that the appellant made certain statements and produced from his house a kulhari, a shirt and a dhoti.
These were found to be blood stained and subsequent examination by the Chemical 885 Analyst and the Serologist disclosed that they were stained with human blood, This recovery of the blood stained kulhari (axe) and the blood stained shirt and dhoti was made, according to the prosecution case, on March 22, 1961, in the presence of two witnesses, Lal Bahadur Singh and Wali Mohammad, It would appear from what we have stated above that the case against the appellant rested on the evidence relating to motive furnished by what happened, about a month and half before the occurrence when the appellant and his father asked for some land from the deceased, and the recovery of the.
blood stained.
axe and blood stained shirt and dhoti from the house of 'the appellant.
The appellant denied that he and his father had asked for any lands from the deceased a month and a half prior to the occurrence.
The appellant also denied that he had produced any blood stained axe or blood stained shirt and dhoti from his house, or had handed them over to the Sub Inspector of Police.
He denied that the clothes or the axe belonged to him.
His defence was that be was living with his father in Burdwan and came back to the village on March 21,1961.
He said that the case against him was brought out of enmity.
Learned counsel for the appellant has taken us through the evidence in the case and has submitted that apart from raising some suspicion against the appellant and his father, the evidence given by the prosecution does not establish beyond any reasonable doubt that the appellant was the murderer.
He has further submitted that certain statements alleged to have been made by appellant to the Sub Inspector of Police in connection with the recovery of the blood stained axe and blood stained shirt and dhoti were inadmissible and the courts below were wrong in relying on 886 them.
He has contended that if those statements are excluded from consideration, than the evidence which remains is insufficient to support the conviction of the appellant, We think that these contentions are correct and must be upheld.
There can be no doubt that Bhagwan was murdered on the night in question.
The postmortem examination disclosed that he had sustained as many as thirteen injuries, eleven of which were incised on different parts of the body.
The injuries inflicted on the head and face had out through skull bones and the doctor who held the postmortem examination was of the opinion that Bhagwan had died as a result of fractures of the skull bones and hemorrhage and shock.
There can, therefore, be no doubt that Bhagan was murdered.
It is equally clear that nobody saw who ' killed Bhagwan.
The evidence of Naiku (P.W.1) shows clearly enough that neither he nor other persons whom he called saw the appellant.
The grand child who was sleeping with Bhagwan was also fast asleep and did not even awake when the injuries were inflicted on Bhagwan.
Bhagwan might or might not have raised shouts when the injuries were caused to him.
The evidence of Naiku does not disclose that he heard any other sound excepting the sound of movement of steps of a person wearing shoes.
We are satisfied that the evidence as to motive is satisfactory, Both Naiku (P.W.1) and Brij Lal (P.W.2) have stated about the motive.
The appellant and his mother stayed with Bhagwan about four years ago in order to render assistance to Bhagwan in his cultivation.
The appellant did not, however, do any work and was turned out.
This is proved by the evidence of Naiku and Brij Lal.
The evidence of the aforesaid two witnesses also establishes that the appellant and his father came to Bhagwan about a month and a half before the occurrence and asked for some land.
Bhagwan refused to give any land to the appellant.
We 887 think that this motive has been established even though it would influence both the appellant and his father.
The main difficulty in the case is that the evidence regarding the recovery of blood stained axe and blood stained.
shirt and dhoti is not very satisfactory and the courts below were wrong in admitting certain statements alleged to have been made by the appellant in connection with that recovery.
According to the recovery memo the two witnesses who were present when the aforesaid articles were produced by the appellant were Lal Bahadur Singh and Wali Mohamad.
Lal Bahadur Singh was examined as prosecution witness No. 4.
He did give evidence about the production of blood stained articles from his house by the appellant.
The witness said that the appellant produced the articles from a tub on the eastern side of the house.
The witness did not however, say that the appellant made any statements relating to the recovery.
Wali Mohammad was not examined at all.
One other witness Dodi Baksh Singh was examined as prosecution witness No. 3.
This witness said that a little before the recovery the Sub Inspector of Police took the appellant into custody and interrogated him ; then the a appellant gave out that the axe with which the murder had been committed and his blood stained shirt and dhoti were in the house and the appellant was prepared to produce them.
These statements to which Dobi Baksh (P.W.3) deposed were not admissible in evidence.
They were incriminating statements made to a police officer and were hit by ss.25 and 26 of the Indian Evidence Act.
The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning of s.27 of the Evidence Act.
Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him was 888 a statement which led to any discovery within the meaning of s.27.
Section 27 provides that when any fact is deposed to and discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information,.whether it amounts to a confession or not, as, relates distinctly to the fact thereby discovery may be proved.
In Pulukuri Kotayya vs King Emperor (1) the Privy Council considered the true interpretation of s.27 and said : "It is fallacious to treat the 'fact discove red ' within the section as equivalent to the object produced ; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinc tly to this fact.
Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered.
Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house ' does not lead to the discovery of a knife ; knives were discovered many years ago.
It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant.
But if to the statement the words be added 'with which I stabbed A. ', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." (p.77) We are, therefore, of the opinion that the courts below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood (1) (1947) L.R. 74 I.A 65. 889 stained shirt and dhoti were his.
If these statements are excluded and we think that they must be excluded, then the only evidence which remains is that the appellant produced from the house a blood stained axe and some blood stained clothes.
The prosecution gave no evidence to establish whether the axe belonged to the appellant or the blood stained clothes were his.
Therefore, the question before us is this.
Is the production of the blood stained axe and clothes read in the light of the evidence regarding motive sufficient to lead to the conclusion that the appellant must be the murderer ? It is well settled that circumstantial evidence must be much as to lead to a conclusion which on any reasonable hypothesis in consistent only with the guilt of the accused person and not with his innocence.
The motive alleged in this case would operate not only on the appellant but on his father as well.
From the mere production of the blood stained articles by the appellant one cannot come to the conclusion that the appellant committed the murder.
Even if somebody else had committed the murder and the blood stained articles had been kept in the house, the appellant might produce the blood stained articles when interrogated by the Sub Inspector of Police.
It cannot be said that the fact of production is consistent only with the guilt of the appellant and inconstant with his innocence.
We are of the opinion that the chain of circumstantial evidence is not complete in this case and the prosecution has unfortunately left missing links, probably because the prosecution adopted the shortout of ascribing certain statements to the appellant which were clearly inadmissible.
Learned counsel for the respondent has submitted to us that in State of U. P. vs Deoman Upadhyaya (1) this Court accepted as sufficient evidence (i) ; 890 the production of a blood stained weapon.
We are unable to agree.
The circumstantial chain in that case did not depend merely on the production of the gandasa, but on other circumstance as well.
The Court held in that case that the circumstantial chain was complete and the decision did not proceed merely on the production of a blood stained weapon.
For the reasons given above we would allow the appeal and set aside the conviction and sentence passed against the appellant.
The appellant must now be released forthwith.
Appeal allowed.

summary:
The appellant was tried and convicted for the murder of one B.
The evidence against him was circumstantial and consisted of (1) a motive to kill B which he had in common with his father, (II) the recovery at his instance of an axe, shirt and dhoti stained with human blood and (III) his statements made to a Sub Inspector of Police before the recovery that the axe was one with which he had killed B and that the shirt and Dhoti belonged to him.
No independent evidence was led to prove that the axe, shirt and dhoti belonged to the appellant.
Held, that the statements made by the appellant were inadmissible and the remaining evidence was ' not sufficient to bring home the guilt to the appellant.
The statements were incriminating ones made to a police officer and were bit by sections 25 and 26 of the Evidence Act.
Statements were not admissible under section 27 as they did not lead to any discovery within the meaning of that section.
Pulukuri Kotayya vs King Emperor, (1947) L. R. 74 I. A. 65, relied on.
State of U. P. vs Deoman Upadhya, ; , distinguished.