ivil Appeal No 4380 of 1990
From the Judgment and Order dated 4th October 1985 of the Patna High Court in CWJC No 4065 of 1985
RK Garg and A Sharan for the Appellant
KK Venugopal P Chidambaram section Sukumaran KK Lahiri D Partha Sarthy and SN Jha NP for the Re spondents
The following Order of the Court was delivered Special leave granted
We have heard Mr Garg for the appellant Mr Chidamba ram for the Principal Employer and Mr Venugopal for the respondent Union
A reference was made by the State Government of Bihar under section 10 of the to the Industrial Tribunal Ranchi on 9781 referring to the following disputes for adjudication 1 Whether the contract workers engaged by the management of the Tata Iron and Steel Company Ltd Jamshedpur in the following permanent and regular nature of work before 112
198 1 are entitled for permanent employment 2 Transportation of materials within the plant which is not dependent on outside supply 3 All processes connected with the manufacturing process 979 4 Removal and handling of waste product and 5 Sweeping and cleaning the machines conveyors shops and offices
The Tribunal by its Award dated 18121984  came to hold that the workmen constituted the contract labour and there fore the reference was not maintainable
If further held that action if any had to be taken only under section 10 of the and the power to take steps under that statutory provision vested in the State Government and not in the Tribunal
It may be pointed out that prior to the reference being made to the Tribunal the matter had been taken before the Patna High Court and by judgment dated 491981 the writ petition was disposed of holding that a reference had al ready been made to the Industrial Tribunal and the Award was awaited and it was open to the State Government to take steps under section 101 of the 
The High Court in its ultimate conclusion indicated When the Award was finally made by the Industrial Tribunal to the State Government as the learned Advocate General assures us shall determine the matter in accordance with law
If after such an Award is made and no decision is taken by the State Government within a reasonable time the peti tioners shall be at liberty to move this Court again   The subsequent events have exposed the fallacy of the con clusion of the High Court
In fact if the provisions of the had been properly kept in view no reliance could have been placed on the fact that the Award was awaited
When the Award was made challenge was raised before the High Court but it refused to entertain the writ petition
The appeal by special leave is against the in limine dis missal of the writ petition
We have heard learned counsel for the parties at some length and it has been brought to our notice by Mr Chidam baram that in regard to Items 1 2 and 4 of the heads of dispute as indicated in the reference the contract labour system is no more vogue and contract labour is now 980 confined to Item 3 only
In view of the changed situation and taking into consideration the background of the dispute as also the fact that the litigation has been pending for almost a decade now we do not think it would be appropriate to take a technical view of the situation and endorse the decision of the Tribunal
We are therefore inclined to substitute the terms of the reference to the Tribunal by indicating that the reference shall now read thus Whether the contract workers engaged by the Management of the Tata Iron and Steel Company Ltd Jamshedpur in the permanent and regular nature of work before 112
198 1 are entitled to permanent employment in regard to Items 1 2 and 4 under the Principal Employer
 In regard to Item No 3 it shall be for the State Gov ernment to take its own decision under the provisions of the as to whether the contract labour employment should be terminated and since the State Government had already been considering this matter for some time we direct the State Government to take its decision in terms of the assurances held out by its learned Advocate General to the Patna High Court several years back within three months from now
To regulate the matter in a more effective way before the Tribunal and keeping in view the submissions made by Mr Venugopal we direct that the Tribunal shall initially devote attention to identify the workmen who are desirous of being permanently absorbed under the Principal Employer and after such identification is made the matter should be proceeded with in accordance with law
All parties should be given full opportunity to raise their contentions and sub stantiate the same with such evidence as they like to lead but the Tribunal shall ensure that the dispute is disposed of within six months from today
If necessary full atten tion should be given to this case so as to comply with the direction regarding disposal within the time limit set by us
There would be no order for costs
PSS Appeal disposed of


Summary:
The three appellant companies claimed their respective right to the slurry that escaped from their washery plantpond and got deposited in the Bokaro and Damodar River beds as also in certain Raiyati land
The State Government did not accept their plea and leased out the right to remove the said slurry to the respondent on payment of royalty
The first two appellants filed Writ Petitions before the Patna High Court challenging the State Government s action in leasing out the right to the Respondent s for removing the slurry
The third company instituted criminal proceedings against the contractors who in turn filed Writ Petitions before the Calcutta High Court for quashing the criminal proceedings and for a direction permitting them to collect slurry under the lease granted by the State Government
745 The Full Bench of the Patna High Court dismissed the Writ Petitions and held that slurry was neither coal nor mineral it was an industrial waste of coal mine which was not regulated by the provisions of the Act
It also held that collection of slurry did not involve any mining opera tions and the settlement made by the State Government in favour of the respondents was not a mining lease and so the State Government was not under any legal obligation to obtain previous sanction of the Central Government under the 
It further held that after the slurry escaped into the river bed or to some other land it ceased to belong to the appel lants and the State Government was entitled to execute the lease for collection of the slurry
The Writ Petitions filed by the Contractors before the Calcutta High Court were dismissed by a Single Judge who held that the third appellnat company was the owner of the slurry and the State Government had no authority to grant any lease to the respondent contractorS for removal of the same
On appeal by the contractors the Division  Bench held that the lease granted by the State of Bihar in favour of the contractors was not a mining lease and the provisions of the Mines and  Minerals Regulation and Development Act were not applicable to the grant of lease
On the question of appellants  claim to the property rights for collecting slurry the Bench held that the slurry deposited on the appellants  land belonged to them and the respondents had nO right
to collect the same but if the slurry settled down on other s land the respondents have right to remove the same
Against the above decisions of the two High Courts the appellant companies have preferred the present appeals
On behalf of the appellants it was inter alia contended that the slurrysludge was in substance coal a mineral specified in the First schedule to the Act that the State Government had no authority in law to grant any lease to the respondents for the collection removal Or  lifting of the slurry coal deposited in the river bed or on any Raiyati land without obtaining the sanction of the Central Govern ment under Section 5 of the Act that the deposit of the slurry in the river bed and the land was by natural process of flow of water discharged from the washeries that there was no law made by the State Legislature authorising the State Government to interfere with the appellants  property right by way of executive orders that slurry discharged from the washeries of the appellants  coal mines constituted waste and effluent of coal mines its disposal was exclu sively within the legislative compe 746 tence of the Parliament and that in view of the Parlia ment s declaration under Section 2 read with Sections 13 and 18 of the Act the State Government was denuded of all its legislative competence to make any law with regard to dis posal of waste or effluent discharge of coal mines
and hence the State Government had no executive power to deal with the same
The main contentions on behalf of the respondents were that once the slurry escaped from the washery plants of the appellant it ceased to belong to them and as it polluted the river water and affected the fertility of Raiyati land the State Government was justified in providing for its collec tion and removal to prevent pollution that the appellants could not have any right in the goods which they abandoned that the washeries do not form integral part of the mining operations and therefore the slurry could not be treated as a waste of coal mine
Alternatively it was contended that even if slurry was a waste of coal mine the State Government was competent to provide for its collection and removal as the Central Government had failed to make any rule under Section 18 of the Act regulating the disposal of the slurry
Allowing the appeal this Court HELD 1
Slurry is a descriptive expression it may be cement slurry or coal slurry depending upon the character or quality of the mixture of mineral in the liquid form
There is no doubt that in the instant cases slurry is coal slurry as admittedly small particles of coal escape from the washery plant alongwith water
After it overflows the storage pond the slurry flows into the river and is deposit ed on the river bed which is later on collected and used as fuel after it is formed into briquettes
The deposit which is collected from the river bed continues to be carbonaceous in character having all the elements of coal
Thus the slurry is coal in liquid form and slurry coal deposited in the river bed or lands in substance as well as in its char acter continues to be coal
757F 758C D Kesari MaI Jain vs State of Bihar AIR 1985 Patna 114 ap proved
Websters New 20th Century Dictionary Encyclopaedia Britannica referred to
The definition of mining operation and mine are very wide
The expression mining of mineral in the defini tion of mining operation under Section 3d of the Mines and Minerals Regulation  747 Development Act 1957 is spacious enough to comprehend every activity by which a mineral is extracted or obtained from the earth irrespective of whether such activity is carried out on the surface or in the bowels of the earth
It is not a requirement of the definition of mining operation that the activity for winning the mineral must necessarily be an underground activity
The essence of mining operation  is that it must be an activity for win ning a mineral whether under the surface or winning the surface of earth
The slurry which is deposited on the river bed is not dumped there artificially by any human agency instead coal particles are carried to the river bed by the flow of water through natural process
Therefore the view taken by the High Court that the slurry which is deposited in the river bed is dumped by the appellants by artificial process is incorrect
Once the coal particles are carried away by the water which is discharged from the washery and the same are settled in the river bed any operation for the extraction of lifting of the coal particles from the river bed would involve winning operations within the meaning of Section 3d of the Act
However
in the instant cases it is not necessary to express any final opinion on this ques tion
759D G Tarkeshwar Sio Thakur Jiu vs BD Dey  Co  Ors  relied on
Bhagwan Das vs State of U P  Ors
   referred 3
The State Legislature is competent to enact law for the regulation of mines and mineral development under Entry 23 of State List but this power is subject to the declara tion which may be made by Parliament by law as envisaged by Entry 54 of Union List
Thus the legislative competence of the State Legislature to make law on the topic of mines and minerals is subject to Parliamentary Legislation
The Par liament has enacted the 
By Section 2 of the Act the Parlia ment has declared that it is expedient in public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent provided in the Act
In view of Parliamentary declaration as made in section 2 of the Act the State Legislature is denuded of its legislative power to make any law with re spect to the regulation of mines and mineral development to the extent as provided by the Act
760G H 761A 41 An analysis of the provisions of the Act makes the extent of 748 Parliamentary declaration clear that the disposal and dis charge of sludge or slurry emanating or coming from the washery of a coal mine is exclusively within the legislative power of Parliament
The Act further provides that the Central Government has exclusive power to frame any rule either under Section 1320 or under the amended Section 182k of the Act regulating disposal of slurry
The effect of the Parliamentary declaration as contained in the Act is that the matters referred to in the declaration stand abstracted from List II and these become matters of legislation in List I of the Seventh Schedule
As a result of the declaration made by the Parliament under Section 2 of the Act
the State Legislature is denuded of its legisla tive power with respect to the regulation of mines and minerals development and the entire legislative field has been taken over by Parliament
763C E 42 The Central Government has not framed any rule either under Section 13 or under Section 18 of the Act
Prior to the Amending Act 37 of 1986 Section 1320 con ferred power on the Central Government to frame rules for the purpose of granting prospecting licences and mining leases including the disposal of discharge of any tailings slime or other waste products
Sub clause 0 of Section 132 was transposed into Section 182 as sub clause k by the Amending Act 37 of 1986
Section 18 1 confers general power on the Central Government to frame rules and to take all such steps as may be necessary for the conservation and development of minerals in India
Section 182 does not affect or restrict the generality or width of legislative power under Section 18I as the matters specified in var ious sub clauses of Section 182 are illustrative in na ture
Even in the absence of sub section 2 or its various sub clauses the Central Government was invested with the power of subordinate legislation in respect of any matter which could reasonably be connected with the purpose of conservation and development of minerals by Section 181 of the Act
Power to frame rules regulating the discharge or disposal of slime or slurry emanating from a coal mine including its collection from the river bed or from Raiyati land after its escape from the washery of the coal mines
would clearly fall within the expression conservation of mineral
Slurry admittedly contain coal particles its collection from land or river is reasonably connected with the conservation of mineral 
Section 182k which ex pressly confers power on the Central Government to regulate disposal or discharge of waste of a mine makes the Parlia mentary declaration apparent that the State Legislature is not competent to regulate waste discharge of a coal mine
Mere absence of any rule framed by the Central Government under Sections 13 or 18 of the Act with regard to the dis posal of slime or waste of a coal mine does not 749 confer legislative competence on the State Legislature to make any law or rule
Once a particular topic of legislation is covered by the Parliamentary declaration the State Legislature is denuded of its power to make any law or rule in respect of that topic or subject matter and the absence of Rules would not confer legislative competence on the State
764A G 43 Since Section 18 of the Act covers the field with respect to disposal of waste of a mine
there is no scope for the contention that until rules are framed the State Legislature has power to make law or rules on the subject
Once the competent legislature with a superior efficacy expressly or impliedly evinces its legislative intent to cover the entire field on a topic
the enactments of the other legislature whether passed before or after would be overborne
Mere absence of rules framed by the Central Government
does not confer power on the State Legislature to make law on the subject
Since the legislative field with regard to the framing of rules relating to the disposal of slime and waste of coal mine is fully covered by Section 18
the State Legislature is denuded of its power of making any law with regard to those mailers
765B C Baijnath Kedia vs State of Bihar  Ors  Hingir Rampur Coal Co Ltd  Ors
vs State of Orissa  Ors
   State of Orissa vs MA Tulloch  Co  and State of Tamil Nadu vs Hind Stone  relied on
The executive power of the State Government is co extensive with the legislative power of the State Legisla ture
If the State Legislature has power to enact laws on a matter enumerated in the State List or in the concurrent list the State has executive power to deal with those mat ters subject to other provisions of the Constitution
If a subject matter fails within the legislative competence of State Legislature
the exercise of executive power by the State Government is not confined as even in the absence of a law being made the State Government is competent to deal with the subject matter in exercise of its executive power
In the absence of any law the State Government or its officers in exercise of executive authority cannot infringe citizens rights merely because the State Legislature has power to make laws with regard to subject in respect of which the executive power is exercised
No doubt under Entry 23 of List 1I the State Legislature has power to make law but that power is subject to Entry 54 of List 1 with respect to the regulation and development of mines and minerals
Since State Legislature s power to make law with respect to the matter enumerated in Entry 23 of List II has been taken away by the Parliamentary declaration the State Government ceased to have any executive power in the matter relating 750 to regulation of mines and mineral development
Moreover the proviso to Article 162 itself contains limitation on the exercise of the executive power of the State
If Parliament and the State Legislature both have power to make law in a matter the executive power of the State shall be subject to the law made by the Parliament or restricted by the execu tive power of the Union expressly conferred on it by the Constitution or any law made by Parliament
Since Parliament has made the law as contemplated by Entry 54 of List I and the law so made confers exclusive power on the Central Government to frame rules regulating the disposal of waste or industrial effluent of a mine the State Legislature has therefore no power either to make law under Entry 23 of List II or to exercise executive power to regulate the disposal of slurry a waste effluent discharge of a coal mine
765F H 766A F Rai Sahib Ram Jawaya Kapur  Ors
vs State of Punjab and State of MP  Anr
vs Thakur Bharat Singh   referred to
It is apparent that the State of Bihar itself has been treating the slurry deposits  as mineral and on that assumption it has been executing leases conferring rights on the respondents to collect the same on payment of royalty
Hence it is not open to the State of Bihar and the lessees to contend that slurry is not coal or mineral within the meaning of the Act
767F 7
The inclusive definition of mine  as contained in Section 2 of the Act is wide enough to include any premises belonging to a mine where any ancillary process is carried on for preparing the minerals or coke for sale
The washery wherein the process of washing coal is carried on for the purpose of preparing the coal for
sale is an integral part of a mine as it involves ancillary process
Washery is included within the definition of mine under the 
Any waste discharge from the washery carrying small particles of coal in the form of slurry is the waste slime arising from operations carried out in a mine
Moreover it is not open to the respondents to contend that slurry is not a waste discharged from the washeries of coal mines since they have all along pleaded that slurry is a waste dis charged from the washery of the appellants  coal mines
768C D E 8
The slurry which escapes from the appellants  wash eries is mineral and its regulation is within the exclusive jurisdiction of the Central Government
In view of the Parliamentary declaration made by Section 2 of the Act and having regard to Section 18 of the Act the State 751 Government has no authority in law to make any settlement or grant any lease to any person for the collection of slurry deposits either from the river bed or other land
The im pugned settlements made in favour of the respondents by the State Government are illegal and the respondent lessees have no right nor title to collect the slurry deposits and they are restrained from lifting or collecting the same from the land in dispute
771H 772A This Court directed that the money deposited pursuant to the interim orders passed by the High Court and this Court will be paid to the successful party
771C