9911796707
TMI Blog1961 (12) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... l Government is entitled to acquire mining rights in the area covered by the notification within a period of two years from the date of notification or within such further period not exceeding one year as the Central Government may specify by notification in the Official Gazette. The petitioners have come up to this Court under Art. 32 of the Constitution contending that the aforesaid notification is ultra vires and illegal inasmuch as it interferes with their fundamental right to own property and to carry on business. Assuming that an incorporated company is a citizen we may point out that the East India Coal Co., Ltd. is incorporated in the United Kingdom while the Burrakur Coal Co., Ltd. is incorporated in India. Therefore, in so far as the rights conferred by Art. 19 are concerned it may only be the latter which is entitled to the protection of the Constitution but not the former company. Both the petitioners, however, contend that the right conferred by Art. 31(2) of the Constitution is also infringed by the aforesaid notification and if their contention is correct they will be entitled to protection in respect of that right inasmuch as it is not limited to the citizens of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried them on till August 12, 1960, during which a depth of 235 ft. was reached at one point. The petitioner, however, stopped these operations consequent upon the publication of the impugned notification in the Gazette of August 6, 1960. We are mentioning these facts because on their basis a further argument is raised by Mr. Das to the effect that prior to the issue of the notification the mine was being actually worked. Before, however, we deal with that argument we must consider the main contention of Mr. Das which is to the effect that the Act applies only to virgin land. 5. Mr. Das contended that the preamble to an Act is a key to understanding the provisions of the Act and referred us in this connection to the advisory opinion of this Court in re the Kerala Education Bill 1957 [ [1959] S.C.R. 995, 1022.]. In that case Das, C.J., who delivered the opinion of the Court has observed : The long title of the said Bill (The Kerala Education Bill, 1957) describes it as 'A Bill to provide for the better organisation and development of educational institutions in the State'. Its preamble recites thus : 'Whereas it is deemed necessary to provide for the better organ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was in fact in the possession of the Government as would appear from Annexure B which was appended to the notification of July 20, 1960. We may point out that this annexure sets out that this is a statement of percentage of worked and unworked areas in different coal mines and after setting out the various seams which have been proved, the percentages of worked and unworked areas have been specified therein. Prospecting, according to Mr. Das, would be necessary only if nothing is known about an area and therefore there can possibly be no need for prospecting when a mine has been worked. Admittedly, sub-s. (1) of s. 4 does not specifically say that it applies to unworked land. All the same, according to Mr. Das, it must be so construed as to apply to unworked land only; for, there would be no need for the Government to undertake prospecting for coal in worked land on which there is a colliery. 8. We cannot accept the argument of Mr. Das. The bulk of the coal in a mine is underground and even though the existence of some seams may have been proved in particular areas it is impossible to say that the information obtained when it was prospected once or when it was being worked, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a perusal of the provisions of sub-s. (4) s. 4 would show that the Act is not restricted to unworked lands only but applies equally to those lands on which there are existing mines but those mines are not being worked. That sub-section reads as follows : In issuing a notification under this section the Central Government shall exclude therefrom that portion of any land in which coal mining operations are actually being carried on in conformity with the provisions of any enactment, rule or order for the time being in force or any premises on which any process ancillary to the getting, dressing or preparation for sale of coal obtained as a result of such operations is being carried on are situate . 11. Under this provision the Central Government is required to exclude that portion of any land in which coal mining operations are being carried on in conformity with any enactment, rule or order . This would indicate that the language of sub-s. (1) of s. 4 was understood as applying also to that land in which coal mining operations were actually being carried on. Unless we hold so, the whole of sub-s. (4) would be rendered otiose. Mr. Das, however, says that sub-s. (4) enacts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lessee is prohibited from doing is something which he was not doing at the date of the notification though he was authorised to do it under his lease. Thus if a colliery was not functioning at the date of the notification then by virtue of the provisions of s. 5(b) he would not be permitted to work it. Undoubtedly the provision has to be interpreted reasonably and it does not mean that if the notification came into force on a Monday and the mine was not worked on Sunday because of a holiday, the lessee was prohibited by the notification from working it. The resumption of working of a mine after a casual closure or a closure in the ordinary course of working a mine would not fall within the bar created by s. 5(b). In this connection we may refer to r. 7 of the Coal Mines Regulations of 1957, which provides that when it is intended to reopen a mine after abandonment for a period exceeding 60 days not less than 30 days notice before resumption of mining operations must be given to certain authorities. The Coal Mines Regulations of 1957 have been framed under s. 57 of the Mines Act of 1952, s. 16 of which provides for the giving of notice before commencement of mining operations. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich requires that the notice contemplated by s. 16 should be submitted in Form I. No doubt the petitioner had given notice as required by these provisions. No doubt also that it was necessary for the authorities concerned to take appropriate action on the notice. But it is difficult to say that the inaction of the authorities can be availed of by the petitioner. We must give effect to the plain language of sub-s. (4) of s. 4. That provision in clear terms makes an exclusion or exemption only with regard to that portion of the land in which coal mining operations are actually being carried on in conformity with the provisions of any enactment, rule or order. Therefore, it is clear that Parliament was exempting only such collieries as were being worked in consonance with the provisions of law. Mr. Das's argument, however, is that the Act prescribes penalties for the breach of its provisions and of those of the regulations and so the petitioner could well be visited with an appropriate penalty but that is right to run the mine could not be affected. We are not here concerned with the question whether the failure of the petitioner to comply with the requirements of the Coal Mines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within such further period not exceeding one year in the aggregate as the Central Government may specify in this behalf, by notification in the official Gazette, give notice of its intention to acquire the whole or any part of the land or of any rights in or over such land, as the case may be . 18. The argument was that in respect of mines which have already been worked at some time in the past all the relevant material would be at the disposal of the Government even previous to the issuing of a notification under sub-s. (1) of s. 4 and, therefore, there could be no necessity for the Government to enter on and prospect the land for being satisfied that coal is obtainable therefrom. Therefore, the argument proceeds, the provision could not have been intended to apply to land other than virgin land. This is really a repetition of the argument which was addressed to us in connection with sub-s. (1) of s. 4 and what we have said with regard to that sub-section would equally apply here. 19. Sub-section (1) of s. 7 provides for a period of two years within which a notice of acquisition could be given by the Central Government. It is argued that this period is too long for keeping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstood him right, when a person has acquired land either as an owner or as a lessee carrying with it the rights to win minerals and has opened in that land mines which he worked for sometime, there takes place a severance between the right to the surface and right to the minerals and that consequently such person will thereafter be holding the minerals as separate tenement, that is, something apart from the land demised and this separate tenement cannot be acquired under the terms of the present Act or, if it can be so acquired, it has to be specifically compensated for. Reference to the several provisions of the Act and in particular to those of s. 13 indicates, according to learned counsel, the limited scope of the Act. It is difficult to appreciate the contention that merely because the owner or the lessee of a land had opened mines on that land, a severance is effected between the surface and the underground minerals. It may be that a trespasser by adverse possession for the statutory period can acquire rights to underground minerals. It may also be that if that happens the surface rights would become severed from the mineral rights as a result of which the minerals underground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgin land only. 25. Now we come to the second part of the argument. It is contended that Sections 4, 5, and 6 invade the fundamental rights of the petitioner under Art. 19(1)(g) of the Constitution because under s. 5, a mining lease ceases to have effect for two years and possibly for three years. Mr. Das concedes that reasonable restrictions can be placed by the State upon the rights enumerated in this article in the interests of the general public but he contends that the period of two to three years is too long and, therefore, the restrictions cannot be regarded as reasonable. We have already indicated that prospecting operations, in their very nature, must take a long time to complete and presumably Parliament had fixed this period after bearing in mind this factor and also on the basis of expert advice. Of course, there are no pleadings to that effect in the affidavit of the State. But in our opinion the petitioner cannot be permitted to complain of the absence of pleadings because it has not itself stated in the petition what would be reasonable time for conducting prospecting operations. We are, therefore, unable to accede to the argument. 26. The next attack, and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly limited to the facts of the case, and cannot possibly be extended to the provisions of Acts wholly dissimilar to those of the Ajmer Tenancy and Land Records Act, XLII of 1950, which was the subject-matter of the challenge in the case then before this Court. This Court held, on a construction of the provision of that Act, that they only suspended the right of management but did not amount to any extinguishment or modification or any proprietary rights in an estate. The provisions of the Act then under consideration of this Court, have absolutely no resemblance to those of the Act now before us, and it is impossible to put a similar interpretation on these provisions. In the recent decision of this Court (not yet reported) this Court had been invited to apply the observations of this Court referred to above, to the provisions of the Bombay Act. It was pointed out in that case that those observations of Mahajan, J., (as he then was), must be read as limited to an Act which only brings about a suspension of the right of management of an estate, and could not be extended to the provisions of an Act which either extinguishes or modifies certain rights of a proprietor in an estate or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piece of land for coal is merely a stage preceding the actual acquisition of that land. If, therefore, those provisions of the law which deal with the question of acquisition are unconstitutional the whole Act will be rendered unconstitutional. 30. Article 31(2) of the Constitution, as amended by the Fourth Amendment Act, 1955, runs thus : No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate . 31. Mr. Das pointed out that s. 13 of the Act, though it deals with the payment of compensation, does not contain any provision for a payment of compensation for mineral rights. Not only that, but the explanation to clause (a) of s. 5 clearly lays down that in computing the compensation for the land the value of minerals will not be taken into account. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) provides for payment of compensation for any land acquired under s. 9 and lays down the principles to be followed in computing the compensation. Sub-section (6) provides for payment of compensation for damage done to the surface of any land or any works thereon and in respect whereof no provisions for compensation is made elsewhere in the Act. Sub-section (7) deals with the question of compensation for maps, charts and other documents. Section 14 of the Act deals with the method of determining the compensation. It will be clear from these provisions that the Act specifies the principles on which and the manner in which the compensation should be determined and given. This is all that is required of a law relating to the acquisition of property by Art. 31(2) of the Constitution. Where provisions of this kind exist in a law that Article lays down that such law cannot be called in question in any court on the ground that the compensation provided by that law is not adequate. Here compensation is specifically provided for the land which is to be acquired under the Act. The land includes all that lies beneath the surface or, as Mr. Das put it, all that is locked up in the land. P ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
