9911796707
TMI Blog1982 (12) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... isation) Act, 1973 were respectively enacted in that order. First came the Coking Coal Mines (Emergency) Provision. Act 1971 which provided for the taking over of the management of coking coal mines and coke oven plants pending nationalisation of such mines and plants. Sec. 3(1) of the Act declared that on and from the appointed day, the management of all coking coal mines shall vest in the Central Government. All coking coal mines which were known to exist were specified in the First Schedule to the Act and Sec. 3(2) declared that those were the coking coal mines whose management vested in the Central Government under subsec. (1). It was further provided that if any coal mine was found, after investigation made by the Coal Board, to contain coking coal, a declaration to the effect shall be made by the Board and thereupon the management of such mine shall vest in the Central Government and the mine shall be deemed to be included in the First Schedule. The idea clearly was not to leave out of the management of the Central Government any coking coal mine. The words mine , coking coal mine and coke oven plant were separately defined in the Act. Mine was defined widely enough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtaining minerals has been or is being carried on , and to include, among other things. (vi) all lands, buildings, works, adits, levels, planes, machinery and equipment, vehicles, railways, tramways and sidings belonging to, or about, a mine; and (x) all lands, buildings and equipment belonging to, or in, a mine where the washing of coal or manufacture of coke is carried on; We may also notice here the definition of Coke Oven Plants as in s. 3(b) which is as follows : coke oven plant means the plant and equipment with which the manufacture of hard coke has been, or is being, carried on, and includes- (i) ... ... ... (ii) ... ... ... (iii) ... ... ... (iv) ... ... ... (v) all lands, buildings and equipment belonging to the coke oven plant where the washing of coal is carried on, (vi) ... ... ... If the definition of coke oven plant in s. 3(b) is read alongside clause (vi) and (x) of s. 3(j) which defines mine, it becomes plain that coke oven plant belonging to or in a mine is treated as comprised in mine as defined. Therefore, all coke oven plants belong to or in the mines mentioned in the First Schedule, by the very force of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the one hand and the words coke oven plant on the other and that was why separate provision was made in the same Act for the nationalisation of mines and coke oven plants. The learned Judges observed : It must be said in fairness to counsel that there was some bafflement when confronted by these provisions although on a broader consideration, we are clear in our mind that a dichotomy was made by the statute between mines on the one hand as defined in Section 3(j) and coke oven plants as defined in s. 3(b) on the other. To give meaning to this dichotomy one has to read coke oven plants as clearly out from the mines, which in turn means that mere equipment where washing of coal or manufacture of coal is done as a simple subsidiary or an equipment or machinery which is a small part of a mine cannot be exalted to the position of a coke oven plant which, as Section 3(b) bears out, is an important but separate equipment with which the manufacture of hard coke is carried on. This is a processing of considerable significance, for coal that is extracted from a colliery has an independent existence. It cannot be confused with a minor item such as is covered by s. 3(j)(xi) or (x) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Quite obviously coke oven plants situated in for about coking coal mines had to be nationalised along with the mines in the interests of convenience and efficiency of the coal industry and to minimise the opportunities for clandestine operations for which the coal industry has become notorious. Coke oven plants away from the mines were not touched either by the Coking Coal (Emergency Provisions Act) or the Coking Coal Mines (Nationalisation) Act. The Coking Coal Mines (Nationalisation) Act, 1972 was followed soon thereafter by the Coal Mines (Taking Over of Management) Act, 1973. Coal Mine is defined by sec. 2(b) of the Act to mean a mine in which there exists one or more seams of coal. It is seen that the definition of coal mines takes in coking coal mines also. Mine is defined by Section 2(g) in practically the same terms as in Section 3(j) of the Coking Coal Mines (Nationalisation) Act with some differences which are not material for the purposes of this case. Sec. 3(1) provides that on and from the appointed day, the managements of all coal mines shall vest in the Central Government. The provision is peremptory; all coal mines whether they are coking coal mines or non-coki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nationalised along with the mine. But, there are no provisions in the Coal Mines (Nationalisation) Act 1973 corresponding to Section 5 of and the Second Schedule to the Coking Coal Mines Nationalisation Act 1972 to cover coke oven plants which are situated near the coal mines but which do not belong to the owners of the mines. Therefore, coke oven plants not belonging to or in coal mines (not already nationalised under the Coking Coal Mines (Nationalisation) Act are left out of the Coal Mines (Taking over of Management) Act and the Coal Mines (Nationalisation) Act, 1973. Of course, coke oven plants situated away from the mines are not touched by either the Coal Mines (Nationalisation) Act, 1973 or the Coking Coal Mines (Nationalisation) Act, 1972. The final result of these statutes is that all coal mines known to exist in the country are nationalised, whether they are coking coal mines or non-coking coal mines. Along with them coke oven plants in or belonging to the mines also stand nationalised. In addition twelve specified coke oven plants not belonging to the owners of the mines but known to exist near about the mines are also nationalised. All other coke oven plants are left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Twenty-fifth Amendment Act, 1971, as it stood before the Forty-second Amendment, provided, Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in cl (b) or cl.(c) of Art. 39 shall be deemed to be void on the ground that it was inconsistant with, or takes away or abridges any of the rights conferred by Art. 14, Art. 19 or Art. 31 . By the Constitution Forty-second Amendment Act, the protection of Art. 31C was extended not merely to laws giving effect to the policy of the State towards securing the principles specified in cl.(b) or (c) of Art.39 but to laws giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution. The constitutionality of the original Art. 31C as introduced by the Constitution Twenty-fifth Amendment Act, was upheld by the Court in Keshvananda Bharati v. The State of Kerala(1) Section 4 of the Constitution Forty-second Amendment Act of 1976 which substituted the words all or any of the principles laid down in Part IV for the words the principles specified in Cl.(b) or (c) of Art. 39 was struck down by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 14, article 19 or article 31 . The Sick Textiles (Undertakings) Nationalisation Act 1974 was passed, we may mention here, before the Constitution Forty Second Amendment Act came into force. In order, therefore, to challenge the provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974 on the ground of inconsistency or abridgement or taking away of the Fundamental Rights conferred by Art. 14 or Art. 19, it was necessary for the petitioners to challenge the Constitutional validity of the Constitution Twenty-fifth Amendment Act, 1971 by which Art. 31C was first introduced into the Constitution. That, however, was not open to the petitioners because of the decision of this Court in Keshavananda Bharati s case. It was so conceded too by the Learned counsel who appeared for the petitioner in the Minerva Mills case. The counsel who appeared, however, chose to question the constitutional validity of Section 4 of the Constitution Forty-second Amendment Act. 1976 by which the immunity afforded by Art. 31C was extended by replacing the words the principles specified in cl. (b) or cl. (c) of Art. 39 by the words all or any of the principles laid down in Part IV . No quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he protection was extended to all laws giving effect to all or any of the principles laid down in Part IV. The dialectics, the logic and the rationale involved in upholding the validity of Art.31C when it confined its protection to laws enacted to further Art. 39(b) or Art.39(c) should, uncompromisingly lead to the same resolute conclusion that Art. 31C with its extended protection is also constitutionally valid. No one suggests that the nature of the Directive Principles enunciated in the other Articles of Part IV of the Constitution is so drastic or different from the Directive Principles in cls (b) and (c), of Art 39, that the extension of constitutional immunity to laws made to further those principles would offend the basic structure of the Constitution. In fact, no such argument appears to have been advanced in the Minerva Mills case and we find no discussion and no reference whatsoever, separately to any of the distinct principles enunciated in the individual Articles of Part IV of the Constitution decision in Minerva Mills. The argument advanced and the conclusion arrived at both appear to be general, applicable to every clause of Art. 39, and every Article of Part IV of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formalistic and doctrinaire view of equality before the law, but it would almost always conform to the principle of equality before the law in its total magnitude and dimension, because the equality clause in the Constitution does not speak of more formal equality before The law but embodies the concept of real and substantive equality which strikes at inequalities arising on account of vast social and economic differentials and is consequently an essential ingredient of social and economic justice. The dynamic principle of egalitarianism fertilisers the concept of social and economic justice; it is one of its essential elements and there can be no real social and economic justice where there is a breach of the egalitarian principle. If, therefore, there is a law enacted by the legislature which is really and genuinely for giving effect to a Directive Principle with a view to promoting social and economic justice, it would be difficult to say that such law violates the principle of egalitarianism and is not in accord with the principle of equality before the law as understood not in its strict and formalistic sense, but in its dynamic and activist magnitude. In the circumstances, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore any claim for protection under the amended Article 31C can be allowed. at pp. 339-340: Where, therefore, protection is claimed in respect of a statute under the amended Article 31C, the court would have first to determine whether there is real and substantial connection between the law and a Directive Principle and the predominant object of the law is to give effect to such Directive Principle and if the answer to this question is in the affirmative, the court would then have to consider which are the provisions of the law basically and essentially necessary for giving effect to the Directive Principle and give protection of the amended Article 31 C only to those provisions. The question whether any particular provision of the law is basically and essentially necessary for giving effect to the Directive Principle, would depend, to a large extent, on how closely and integrally such provision is connected with the implementation of the Directive Principle. If the court finds that a particular provision is subsidiary or incidental or not essentially and integrally connected with the implementation of the Directive Principle or is of such a nature that, though seemingly a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntent to use the very words of Art. 31C, While we agree with Bhagwati, J. that the object of the law must be to give effect to the Directive Principle and that the connection with the Directive Principle must not be some remote or tenuous connection , we deliberately refrain from the use of the words real and substantial , dominant , basically and essentially necessary and closely and integrally connected lest anyone chase after the meaning of these expressions, forgetting for the moment the words of the statute, as happened once when the words substantial and compelling reasons were used in connection with appeals against orders of acquittal and a whole body of literature grew up on what were substantial and compelling reasons . As we have already said, we agree with much that has been said by Bhagwati J. And what we have now said about the qualifying words is only to caution ourselves against adjectives getting the better of the noun. Adjectives are attractive forensic aids but in matters of interpretation they are diverting intruders. These observations have the full concurrence of Bhagwati J. We are firmly of the opinion that where Art. 31C comes in Art. 14 goes ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nationalised coking coal mines were also identified and nationalised by express provision to that effect. At that stage of the rationalisation and nationalisation of the coal mining industry, it was apparently thought necessary and sufficient to nationalise such coke oven plants as were in or belonged to the nationalised coking coal mines or as were identified as located near the nationalised coking coal mines, leaving out all other coke oven plants. The nationalisation of the coking coal mines and the coke oven plants was with a view to reorganising and reconstructing such mines and plants for the purpose of protecting, conserving and promoting scientific development of the resources of coking coal needed to meet the growing requirements of the iron and steel industry and for matters connected therewith or incidental thereto . We do not entertain the slightest doubt that the nationalisation of the coking coal mines and the specified coke oven plants for the above purpose was towards securing that the ownership and control of the material resource of the community are so distributed as best to subserve the common good . The submission of Shri A.K. Sen was that neither a coal m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control and distribution of national productive wealth for the benefit and use of the community and the rejection of a system of misuse of its resources for selfish ends is what socialism is about and the words and thought of Art. 39 (b) but echo the familiar language and philosophy of socialism as expounded generally by all socialist writers. To quote a recent writer, Socialism is, first of all, a protest against the material and cultural poverty inflicted by capitalism on the mass of the people. It expresses a concern for the social welfare of the oppressed, the unfortunate and the disadvantaged. It affirms the values of equality, a classless society, freedom and democracy. It rejects the capitalist system and its competitive ethos as being inefficient in its USE OF RESOURCES--. They (Socialists) want a new system, whether by reform or revolution, in which productive wealth is OWNED and CONTROLLED by the community and USED FOR COMMUNAL ENDS . We may also look at it this way. When we say that the State of Himachal Pradesh possesses immense forest wealth or that the State of Bihar possesses immense mineral wealth, we do not mean that the Governments of the States of Himachal Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capabilities of raising wealth or to supply, necessary wants; available means or capability of any kind . And material resources of the community in the context of reordering the national economy embraces all the national wealth, not merely natural resources, all the private and public sources of meeting material needs, not merely public possessions. Everything of value or use in the material world is material resources and the individual being a member of the community his resources are part of those of the community. To exclude ownership of private resources from the coils of Article 39(b) is to cipherise its very purpose of redistribution the socialist way. A directive to the State with a deliberate design to dismantle feudal and capitalist citadels of property must be interpreted in that spirit and hostility to such a purpose alone can be hospitable to the meaning which excludes private means of production or goods produced from the instruments of production. Shri A.K. Sen agrees that private means of production are included in material resources of the community but by some baffling logic excludes things produced. If a car factory is a material resource, why not cars m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are inherently in appropriate subjects for judicial review. Scales of justice are just not designed to weigh competing social and economic factors. In such matters legislative wisdom must prevail and judicial review must abstain. Another submission of the learned counsel was that the coke produced by the nationalised coke oven plants was always sold in the open market in the past and was never used by the steel industry because steel plants had their own captive coke ovens to meet their requirements. That the coke produced by the nationalised coke oven plants was previously used and is even now being used by consumers other than those of the steel industry is neither here nor there since we are really concerned with the future for which the Act provides. The object of the Coking Coal Mines (Nationalisation) Act is to reorganize and reconstruct coking coal mines and coke oven plants for the purpose of protecting, conserving and promoting scientific development of the resources of coking coal needed to meet the growing requirements of the Iron and Steel Industry and for matters connected therewith and incidental thereto. The requirements of the Iron and Steel Industry are rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was in the same position went out of the statutory nationalisation design by reason of the judgment of this Court in Bharat Coking Coal Company v. P.K. Agarwala and another, a judgment from which we have now retracted. We are told that the coke oven plant which was the subject matter of Bharat Coking Coal Company v. P.K. Agarwala has since been acquired by the Central Government by private treaty. Out of the remaining twenty six coke oven plants, twelve were identified as situated near nationalised Coking Coal Mines and so they were expressly specified in the 1972 Nationalisation Act and nationalised. Of the remaining fourteen, eleven were parts or units of non-coking Coal Mines and they too stood nationalised when non-coking coal Mines also were nationalised by the Coal Mines Nationalisation Act, 1973. That leaves out three preexisting coke oven plants unaccounted. After the passing of the Nationalisation Acts, eighty seven new coke oven plants were allowed to come into existence. Thus, finally, we have three pre-existing and eighty seven new coke oven plants outside the nationalisation scheme. From the additional affidavit filed by P.R. Desai on behalf of Bharat Coki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the statements made in the affidavits filed by the respondents to justify and sustain the legislation. The deponents of the affidavits filed into Court may speak for the parties on whose behalf they swear to the statement. They do not speak for the Parliament. No one may speak for the Parliament and Parliament is never before the Court. After Parliament has said what it intends to say, only the Court may say what the Parliament meant to say. None else. Once a statute leaves Parliament House, the Court s is the only authentic voice which may echo (interpret) the Parliament. This the court will do with reference to the language of the statute and other permissible aids. The executive Government may place before the court their understanding of what Parliament has said or intended to say or what they think was Parliament s object and all the facts and circumstances which in their view led to the legislation. When they do so, they do not speak for Parliament. No Act of Parliament may be struck down because of the understanding or misunderstanding of Parliamentary intention by the executive government or because their (the Government s) spokesmen do not bring out relevant circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded separately in the Second Schedule. If it was part of the mine or if it belonged to the owners of the mine, there was no need to include it separately in the Second Schedule. That there has never been any real doubt about the identity of the coke oven plant that was meant to be taken over and in fact taken over is clear from the very statements in the affidavit filed on behalf of the petitioners. In paragraph 19 of the petition, it is stated: Your petitioner s coke oven plant is included in the Second Schedule in Item No. 9 thereof. In paragraph 23, it is stated: Your petitioner states that your petitioner has never been the owner of any coke oven plant by the name of New Sudamdih, the name of the coke oven plant of your petitioner is Sanjeev Coke Manufacturing Company s coke oven plant. Although the said coke oven plant is situated near New Sudamdih Colliery as every coke oven plant has got to be situated near a colliery, the address of the coke oven plant of your petitioner is not New Sudamdih Colliery. Your petitioner states that the name of your petitioner s coke oven plant has been wrongly given in the second schedule to the said Act. We do not think there is any possib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts being set up. I entirely agree with these observations. In these writ petitions, the validity of the inclusion of the coke oven plants belonging to the petitioners in the second schedule has been challenged mainly on the ground that other coke oven plants standing in exactly the same position as the coke oven plants of the petitioners were left out and had not been nationalised. The petitioners complain that there has been a clear violation of Art. 14 of the Constitution. The principal answer of the Central Government to the charge of discrimination is that the provisions of the Act are immune from the challenge based on the ground of discrimination in view of the protection afforded by Art. 31C of the Constitution. The Central Government also contends that the inclusion of the coke oven plants of the petitioners in the second schedule is clearly justified without any infringement of Art. 14 of the Constitution. My learned brother on a consideration of the facts and circumstances of the case and the submissions made on behalf of the respective parties has come to the conclusion that there is no merit in the attack based on Art. 14. He has also held that Art. 31C of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e observations. To my mind, therefore, there was a logical basis for the nationalisation of the coke oven plants of the petitioners, leaving out a few and I am not satisfied that there has been any rank or arbitrary discrimination in violation of Art. 14. I am further of the opinion that even if on the basis of a doctrinaire and formalistic attitude, it could be said that Art. 14 had been infringed, Art. 31C of the Constitution and the appropriate declaration, in the peculiar facts and circumstances of this case, would provide the necessary remedy for such violation, if there be any. Applicability of Art. 31C and the validity of the declaration will, to my mind, depend on the particular facts and circumstances of a case. In the present case as the State has enacted the law in directing its policy towards securing the principles formulated in Art. 39 (b) of the Constitution, Art. 31C is properly attracted and the declaration is valid. The decision of this Court in Minerva Mills case relied on by Mr. Sen, is not of any great assistance and in the view that I have taken it does not become necessary for me to refer to the same. It has been represented to us that the said decision is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
