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
SChoudhury 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 1273 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 201 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 WB 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 1273whose 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 201 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 1273 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 1273 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 1273 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 201 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 Actbut 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 593
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 593 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 593 has not been complied with
According to them section 593 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 595 have in consequence the effect as if enacted in the Act
On behalf of the petitioners Mr Sen contends that section 593 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 593 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 593 had been contravened
Mr Sen suggested that his contention about the mandatory character of the provisions contained in sections 12 and 593 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 593 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 s10 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 s593 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 s24 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 593 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 s59 3 was mandatory and came to 1  911 the conclusion that it was
The Court did not consider whether s12 was mandatory and in the course of the judgment there is no reference at all either to the question of construing s12 or to its effect
Having held that s59 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 s12 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 s593
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 s59 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 s593 is mandatory
It would we think not be right to assume that the contention of appellant that s12 like a593 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 s12
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 121 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 toe
The point which calls for our decision is whether the first part of section 121 imposes an obligation on the Central Government to constitute Board when it is proposed to make Regulations to which s593 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 s593
By an amendment made in 1959 by Act 62 of 1959 sub
s3 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 594
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 s12 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 141 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 142 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 811 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 812 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 593 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 593 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 593 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 593 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 593 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 593 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 593 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 594 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 593 or section 594 it merely proceeds on the basis that s121 is not mandatory
Therefore
in our opinion in construing section 12 1 it would not be logical to assume that section 593 or s594 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 s59 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 121 it would be apparent that the argument about the mandatory character of the provisions of section 121 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 121 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 121 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 593
The directory nat ner of the provisions of section 1211 rather strengthen the construction placed upon section 593 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 121 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 812 it is discretionary for the Central Government to refer a pending criminal case to the Board or not and under a 593 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 611 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 612 inter alia authorises the Chief Inspector or the Inspector to propose amendments in the said draft
Section 613 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 593 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 613 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 s613 supports the construction which we are disposed to place on section 121
It is then urged that if the respondents  construction of s12 is upheld section 593 or section 594 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 591 requires that the power
to make regulations is subject to the condition that the said regulations would be made after previous publication
Section 592 then provides for the period which has to pass before the said draft can be taken into consideration
Section 593 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 595
The 921 first publication is the publication of the draft under section 233 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 234 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 593 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 593 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 121 is directory and not mandatory and section 593 or a 594 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 s12
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 s593 has not been complied with
We do not think there is any substance in this argument
All that s593 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 s593
Indeed s593 does not impose an obligation on the Board to make any report at all It is true that since under s14 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 s595
We must accordingly hold that the regulations framed in 1957 have been duly framed and published under s595 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 1273 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 1901 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 593 of the Act
Section 593 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 s10 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 593 of the Act and 2 if giving a reasonable opportunity within the meaning of section 593 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  ie 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 593 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 593 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 593 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 593 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 593 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 593 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 593 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 593 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 593 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 sectionit 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 s59 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 s59 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 Bombay1 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 s57
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 58a
No such difficulty could arise under the Act before its amendment in 1959
Under a 693 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 s57 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 58a 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 593 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 101 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 ie the Bihar Mining Board was in existence and other mining boards were not constituted
Section 57 empowers the Central Government to make Regulations
Section 593 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 593
Held Per majority Subba Rao J dissenting that the Coal Mines Regulations 1957 had been duly framed and published
Section 593 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 593 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 593 had been complied with in referring the draft Regulations to the Bihar Mining Board
All that section 593 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