ivil Appeal No 4521 of 1986
From the Judgment and Order dated 20121985 of the Patna High Court in CWJC No 1133 of 1984R
Ashok Desai Solicitor General Kuldip Singh Kapil Sibal Additional Solicitor Generals KK Venugopal RK Jain Gobind Das RN Sachthey Shanti Bhushan Dr LM Singhvi LN Sinha ML Verma Ranjit Kumar KK Lahiri RF Nariman section Sukumaran PK Jain P Saswidia P Parmeshwaran CV Subba Rao PP Singh D Goburdan SB Upadhyay PC Kapoor MM Kashyap A Sharan RD Upadh yay SK Sinha Apurb Lal Anip Sachthey C Badri Nath Babu BB Singh AK Mitra OC Mathur AN Dittia Arun Madan Ms A Subhashini CV Subba Rao Mrs Sushma Suri and AM Ditta for the Appearing Parties
The Judgment of the Court was delivered by SINGH J
In these appeals a common question of law is involved whether the State of Bihar had legal authority to execute leases in favour of the respondents for collection of slurry on payment of royalty to it
Since the question involved in these appeals are common the same are being disposed of by a common judgment
Civil Appeal No 4521 of 1986 and Civil Appeal Nos
61 62 of 1987 are directed against the judgment of the Patna High Court while Civil Appeal Nos 230 231 of 1987 are directed against the judg ment of the Division Bench of the Calcutta High Court
In order to appreciate the controversy in question it is necessary to recapitulate the facts
Ms Bharat Coking Coal Ltd appellant in of 1986 is a Government Company which carries coal mining operations in village Sudamdih in the State of Bihar
There is a coal washery adjacent to the appellant s coal mine in village Sudamdih
After the coal is extracted from the mines it is crushed into pieces of different sizes for purposes of grading
Since the coal is mixed up with mud and other impurities same is brought to the washery for washing and cleaning the same for reducing the ash percentage and for use by metallurgical consumers
In the process of wash ing small coal particles escape from the washery in the form of slurry along with water and the same are deposited in the slurry ponds constructed for their storage by the appellant company
But when the ponds are full the slurry overflows the pond and flows down into the river Damodar
After the water is soaked by the soil the small particles of coal get deposited in the river bed
These coal particles are col lected and formed into briquettes which are sold in market for energy and fuel purposes
The slurry coal has acquired high commercial value as it is of exceptional quality and high grade it is used by steel plants and thermal power stations
The State of Bihar granted lease in favour of Ram Nath Singh respondent No 4 for collecting the coal parti cles settled in the Damodar fiber bed and other land includ ing plot No 370 of Mauza Sudamdih
The appellant claimed that plot No 370 which formed part of river bed of Damodar belonged to it having been acquired under the Coal Bearing Areas Acquisition  Development Act 1957 for the purpose of mining of coal
Pursuant to the lease respondent No 4 has been collecting the coal particles from plot No 370
The appellant company raised objection before the Revenue Authorities of the State of Bihar claiming property rights to collect and obtain slurry deposited in the river bed in plot No 370 but its objections were over ruled and re spondent No 4 was permitted to collect the coal particles from the aforesaid plot
The appellant thereupon filed a writ petition in the High Court of Patna challenging the State Government s action in granting lease to respondent No 4 for lifting slurry from the fiber bed on the ground that the property belonged to the appellant company and the State Government had no authority in law to grant a mining lease without the prior approval of the Central Government under Section 5 of the Mines and Mineral Regulation and Development Act 1957
Tata Iron  Steel Company Ltd the appellant in Civil Appeal Nos
61 62 of 1987 is a company incorporated under the Companies Act
It owns steel plant at Jamshedpur and it also owns captive coal mines in the District of Hazari Bagh and Dhanbad
These coal mines are commonly known as West Bokaro Collieties
There is no dispute 753 that large area of land in the District of Hazari Bagh and Dhanbad have been settled with the appellant company for purposes of mining operations and the company enjoys mineral rights in respect of the surface and sub soil
It is not necessary to refer to the historical facts relating to the acquisition of mining rights by the appellant as there is no dispute that under Section 10 of the Bihar Land Reforms Act the appellant s existing mining leases became statutory leases in the State of Bihar
The appellant has established washery plant in the District of Hazari Bagh as well as in Jama Dhoba and Zora Pokhar in District Dhanbad for purposes of washing the coal after extraction from the coal mines and crushed into different sizes
In the process of washing the coal small particles of coal escape from the washery
and over flow from the plant and the same are deposited in the storage pond constructed by the appellant
But sometime they overflow from the storage pond and settle down in the Raiyati land and in the Bokaro river bed
The appellant has been claiming right that the slurry which escaped from the washery belonged to it and no other person had right to collect the same
The State Government did not accept the appellant s claim instead it settled the fights of collec tion of slurry with the respondents under the indentures granted in their favour
Under the settlement the respond ents have been authorised by the State Government to collect sludge and slurry which settles down in the Bokaro river bed or in the Raiyati land on payment of royalty to the State
The appellant filed two writ petitions before the Patna High Court challenging the authority of the State Government s action on the ground that slurry was a mineral being coal and as such its collection or mining was regulated by the provisions of the Mines and Mineral Regulation and Develop ment Act 1957 hereinafter referred to as the Act  and the State Government had no authority to grant any lease for collection of sludgeslurry without the previous sanction of the Central Government
The aforesaid petitions were heard and disposed of by a Full Bench of the Patna High Court AIR 1986 Patna 242
The Full Bench dismissed the writ petitions on the findings that the slurry was neither coal nor mineral instead it was an industrial waste of coal mine which was not regulated by the provisions of the Act
The collection of slurry did not involve any mining operations and the settlement made by the State Government in favour of the respondents for collecting the same was not a mining lease therefore the State Gov ernment was not under any legal obligation to obtain previ ous sanction of the Central Government under the Act
The High Court further held that after the slurry escaped into the river bed or to some other land the same 754 ceased to belong to the appellants and the State Government was entitlement to execute lease for collection of the same
Civil Appeal Nos
230 231 of 1987 are directed against the judgment of a Division Bench of the Calcutta High Court AIR 1985 Calcutta 143
The Central Coal fields Ltd and the Coal India Ltd the appellants are Government Companies which own coal mines in the District of Giridih in the State of Bihar
The appellants have set up coal washeries at Kathara Kargali and Sawang in the District of Giridih for washing the coal extracted from its mines
In the process of washing particles of coal escape from the washery along with water which ultimately flows into the river Damodar
The Mining Department of the State of Bihar granted lease to Industrial Fuel Marketing Company and Ors respondents for removing the slurry from the river bed on payment of royalty but the appellants resisted the collection of slurry from their land and they instituted criminal proceedings against the contractors
Thereupon the respondents contractors filed writ petitions before the Calcutta High Court for quashing the criminal case registered against them and also for the issue of a direction permitting them to collect slurry under the lease granted to them by the State of Bihar
Before the High Court the appellants herein contended that the slurry belonged to them and the State of Bihar had no authority in law to grant any lease in respect of the same
A learned single Judge of the High Court dismissed the writ petitions on the findings that the appellants herein are 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 a Division Bench of the Calcutta High Court vide its judgment AIR 1985 Calcutta 143 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 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 appellant s 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 respond ents have right to remove the same from the river bed
Aggrieved the Central Coal fields Ltd and Coal India Ltd have challenged the correctness of the High Court s view by these appeals
The main question which falls for consideration is whether the State of Bihar has authority to grant leasesettlement to the respondents for collectionlifting of coal slurry deposited in the river bed or on any other land after its escape from the appellants  washeries
755 Before the High Court the appellants contended that in view of the provisions of the Act the State of Bihar had no authority to grant any lease regarding collection of slurry without the prior approval of the Central Government
The State of Bihar and other respondents contended before the High Court that the slurry was not a mineral and its col lection or lifting from the river bed involved no mining operations therefore the Act did not apply and the State Government was free to grant leases for collection of the same
The appellants further pleaded before the High Court that since slurry after its escape from their washeries settled down in their own land it continued to be their property and the State of Bihar had no authority to grant lease for collection of the same from their land
The Full Bench of the Patna High Court held that the slurry was neither coal nor a mineral instead it was a reject residue or waste of an industrial process consisting of mud ash and oily substances having carbonaceous ingredients
Since collection of slurry did not involve any mining operations the provisions of the Act did not apply and the State Gov ernment had authority to settle the removal of slurry with private parties
With regard to the appellants  claim of ownership of the slurry deposited on the appellants  land the Full Bench did not decide the question on the ground that these issues involved disputed questions of fact which could properly be adjudicated in a civil suit
The Division Bench of the Calcutta High Court held that the lease granted by the State of Bihar was not a mining lease as the river bed or the land from where the slurry was collected was not a mine as no winning or mining operations were involved in collecting the same
The Bench further held that the lease granted by the State Government in favour of the respondents for collecting the slurry did not confer any right in them for carrying out coal mining operation nor such right relates to winning or mining of coal
However the Bench held that the slurry deposited on the appellants  land belonged to them and the respondents lessee had no right to collect slurry from the appellants  land
But if the slurry was deposited on the land not owned by the appellants the lessee was entitled to remove the same under the settlement made by the State of Bihar
Thus both the High Courts held that the slurry which escaped from the washeries and depos ited in the river bed or on other land did not constitute a mineral and it was not regulated by the Central Act conse quently the State of Bihar had authority to settle the collection of slurry
Learned counsel for the parties made elaborate submis sions before us in support of their case
On behalf of the appellants it was  756 urged that slurrysludge the subject matter of dispute in the instant cases in substance is coal a mineral specified in the First Schedule to the Act
The State Government had no authority in law to grant any lease to the respondents for the collection or removal or lifting of the slurry coal deposited in the river bed or on any Raiyati land without obtaining the sanction of the Central Government under Section 5 of the Act
The counsel for the appellants further emphasised that slurry which escaped from washery of the coal mines contains small particles of coal having carbona ceous character and it is used for energy and fuel pur poses
Assailing the findings of the Full Bench of the Patna High Court and the Division Bench of the Calcutta High Court the appellants  counsel submitted that slurry coal was not deposited in the river bed or other land by any artificial mode instead the same were deposited in the river bed and the land by natural process of flow of water dis charged from the washeries
The process of collection or removal of the same from the river bed or Raiyati land by the respondentlessees involved winning operations
Winning or mining operation according to the learned counsel did not always require excavation or extraction of a mineral from the bowels of the earth instead a mineral like sand or gravel may be deposited on the earth and removal of the same would also involve winning or mining operation
The appel lants further urged that if the slurry which is the subject matter of the lease or settlement is not a mineral the State Government had no authority in law to authorise any other person to remove the same from the appellants  land
There is no law made by the State Legislature authorising the State Government to interfere with the appellants  property rights
In the absence of any law the State of Bihar had no authority to interfere with the appellants  property rights by executive orders
In the alternative learned counsel for the appellants urged that on the admit ted pleadings of the parties slurry discharged from the washeries of the appellants  coal mines constituted waste and effluent of coal mines its disposal was exclusively within the legislative competence of the Parliament
In view of the Parliament s declaration under Section 2 read with Sections 13 and 18 of the Act the State Government was denuded of all its powers in the matter relating to the disposal of slurry which would include its removal or col lection
Since the State Legislature is denuded of its legislative competence to make any law with regard to dis posal of waste or effluent discharge of coal mines the State Government has no executive power to deal with the same
Learned counsel for the State of Bihar and other respondents reiterated their stand as taken by them before the High Court that the slurry was not a mineral and its removal did not involve any mining operations consequently the settlement deed was not a mining 757 lease under the Act
On behalf of the State Government it was further contended that once the slurry escaped from the washcry plants of the appellants it ceased to belong to them and as it polluted the river water and affected the fertili ty of Raiyati land the State Government was justified in providing for its collection and removal to prevent pollu tion
The appellants could not have any right in the goods which they abandoned
It was further urged that the washer ies do not form integral part of the mining operations therefore the slurry could not be treated as a waste of coal mine
In the alternative learned counsel contended that even if slurry was a waste of a 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 disposal of the slurry
Before we consider the contentions of the parties we think it necessary to briefly discuss the nature and charac teristic of the slurry
There is no dispute that coal is found in seams mixed with mud and other impurities
After its extraction from the mines it is crushed into different sizes thereafter it is washed in the washeries of the coal mines for removing its impurities for purposes of making it fit for use for metallurgical purposes
In the washery plants coal is washed with the medium of water mixed with pine oil and sand through mechanical process
In the process of washing large quantity of water is discharged through pipes which carry the discharged water to storage ponds constructed for the purpose of retaining the slurry
Along with the discharged water small particles of coal are carried away to the pond where the coal particles settle down on the surface of the pond and the same is collected after the pond is de watered
The coal particles so collect ed are of fine quality ash free and the same is used as fuel
The slurry is a descriptive expression it may be cement sluny or coal slurry depending upon the character or quality of the mixture of mineral in the liquid form
In Websters New 20th Century Dictionary slurry  is defined as follows A thin mixture of water and any of several fine insoluble materials as clay cement soil etc
 In common parlance slurry is a liquid form mixed with some other material
In Encyclopedia Britannica slurry  is defined as under Slurry watery mixture or suspension of insoluble matter
In the manufacture of portland cement a mixture of the raw materials with water is called a slurry
Cement may be 758 piped as a slurry in building construction
Coal may be transported over long distances as a slurry via pipeline this method of transmission is economical between large producing areas and markets where large tonnages are used at a fairly uniform rate
The shipment of iron ore as slurry either by pipeline or by tanker also has increased
When slurry reaches its destination the material is separated from the water before use or further processing Viewed in the light of the above meaning of slurry 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
A Division Bench of the Patna High Court in Kesari Mal Jain vs State of Bihar AIR 1985 Patna 114 placing reliance on Nelson s Dictionary of Mining which defined slurry  as slurry inter alia means fine carbonaceous discharge from a colliery washery held that the carbonaceous particles so discharged from the coal washery is used for producing energy or heat therefore it was coal
The Bench further held that coal particles which flow out with the water from the coal washeries are formed into balls or briquettes for sale in the market for purposes of producing energy or heat therefore slurry was coal
The Division Bench s view was not accepted by the Full Bench of the Patna High Court as it held that the slurry deposit did not constitute a mineral
We agree with the view taken by the Division Bench in Kesari Mal s case supra as in our opinion the slurry coal deposited in the river bed or land in substance as well as in its character continues to be coal
If slurry is coal the question is whether the leases in dispute granted by the State of Bihar constitute mine leases as contemplated by Section 52a of the Act
Mining lease as defined by Section 3c means a lease granted for the purpose of undertaking mining operations and include a sub lease granted for such purpose
Mining operations as defined by Section 3d means any operations for the pur pose of winning any mineral
 Section 51 places restric tion on the grant of mining leases by a State Government
Section 5 2a lays down that except with the previous approval of the Central Government no prospecting licence or mining lease shall be granted in respect of any material specified in the First Schedule
The First Schedule to 759 the Act specifies minerals as contemplated by Section 52a and coal is specified therein at Item No 4
The Patna and Calcutta High Courts have held that the collection of slurry did not involve any mining operations therefore the lease in question was not a mining lease
Consequently the State Government was not under any legal obligation to obtain approval of the Central Government before granting leasses for collection of slurry
These findings are assailed and the appellants contend that mining operations need not always involve extraction of mineral from the bowels of the earth a mineral like sand gravel may be deposited on the surface of the earth and still its collection involves mining operations
It was strenuously urged that it is wrong to assume that mines and minerals must always be embedded under the sub soil and There can be no mineral on the surface of the earth
See Bhagwan Das State of UP  Ors
  The definition of mining operation and mine are very wide
The expression mining of mineral in the definition of mining operation under section 3d of the Act is spacious enough to comprehend every activity by which a minerals 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 miner al must necessarily be an underground activity
The essence of mining operation  is that it must be an activity for winning a mineral whether under the surface or winning the surface of earth vide Tarkeshwar Sio Thakur Jiu vs BD Dey  Co  Ors
  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 appel lants 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 or lifting of the coal particles from the river bed would involve winning opera tions within the meaning of Section 3d of the Act
We do not think it necessary to express any final opinion on this question as the appeals bound to succeed on the ground of absence of legislative competence of the State Legislature
Shri KK Venugopal learned counsel for the appellant urged that the recovery of coal from slurry irrespective of whether slurry is a mineral or its collection involved mining operations or not the State 760 of Bihar has no authority in law to regulate disposal of slurry
Under the Constitution conservation and development of mines and minerals  is exclusively assigned to the Cen tral Government and the State Legislature has no power to make any lease with regard to the disposal of coal slurry which is waste of coal mining
He referred to the provisions of the Act and particularly to Sections 2 and 18 in support of his contention that in view of Parliamentary Legislation the State Legislature has no legislative competence to enact any law on the subject consequently the State Government has no executive authority to deal with the disposal of slurry
In order to appreciate this submission it is neces sary to consider the Constitutional provisions and the Act
Articles 245 and 246 of the Constitution read with Seventh Schedule and the legislative lists therein prescribe the extent of legislative competence of Parliament andState Legislature
Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule
Similarly State Legislature has exclusive power to make laws with respect to any of the matters enumerated in List II
Parliament and the State Legislature both have legislative power to make laws with respect to any matter enumerated in List III the Concurrent List
This is the legislative scheme under the Constitution but certain matters of legislation are overlapping which present difficulty
The subject matter of legislation with respect of regulation of Mines and Mineral development is enumerated under Entry 23 of List II and Entry 54 of List I
These Entries are as under 23
Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union 54
Regulation of mines and mineral development to the extent to which such regulation and development under the control of Union is declared by Parliament by law to be expedient in the public interest
 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 declaration 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 mineral is subject to Parliamentary Legislation
The Parlia ment has enacted the Mines and Minerals Regulation and 761 Development Act 1957
By section 2 of the Act the Parliament 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 respect to the regu lation of mines and mineral development to the extent as provided by the Act
In order to ascertain the extent of Parliamentary declaration it is necessary to have a glance at the provision of the Act
Section 3 of the Act defines various expressions occurring in the Act
Sections 4 to 9 prescribe restrictions on undertaking prospecting and mining operations under licence or lease
Section 10 to 12 prescribe procedure for obtaining prospecting licences or mining lease in respect of the land in which minerals vest in Government
Sections 13 to 16 provide for framing of rules for regulating the grant of prospecting licences or mining leases
In particular section 13 empowers the Central Government to make rules for regulating the grant of pros pecting licences and mining leases in respect of minerals and for the purposes connected therewith
Section 132 lays down that rules may provide for all or any of the matters as enumerated under various clauses therein
Clause 0 of section 132 before its amendment by the Amending Act 37 of 1986 conferred power on the Central Government to frame rules for the disposal or discharge of any tailings slime or other waste products arising from any mining or metallurgical operations carried out in a mine
This provision empowered the Central Government to frame rules for the disposal of waste products or effluent discharge from mines including a coal mine
Section 14 makes the provisions of sections 4 to 13 inapplicable to minor minerals
Section 15 empowers the State Government to make rules for regulating the grant of quarry leases mining leases and other mineral concessions in respect of minor minerals and purposes connected there with
Since in the instant cases we are not concerned with the minor minerals it is not necessary to deal with the question in detail
Section 17 confers special powers on Central Government to undertake prospecting or mining opera tions in certain lands
Section 18 and 18A relate to the development of minerals
Sections 19 to 33 deal with miscel laneous matters
Section 181 provides for mineral development this Section prior to its amendment by the Amending Act 37 of 1986 read as under Sec
181 It shall be the duty of the Central Government to take such steps as may be necessary for the conservation and development of minerals in India and for that 762 purpose the Central Government by notification in the Official Gazette make such rules as it thinks fit
 Section 181 as amended by the Amending Act 37 of 1986 reads as under Sec
181 It shall be the duty of the Central Government to take such steps as may be necessary for the conservation and systematic development of minerals in India and for the protection of environment by preventing or controlling any pollution which may be caused by prospecting or mine opera tions and for such purpose the Central Government may by notification in the Official Gazette make such rules as it thinks fit
 The amended and unamended sections both lay down that it shall be the duty of the Central Government to take all such steps as may be necessary for the conservation and develop ment of minerals in India and for that purpose it may make such rules as it thinks fit
The expression for the conser vation of minerals occurring under section 181 confers wide power on the Central Government to frame any rule which may be necessary for protecting the mineral from loss and for its preservation
The expression conservation  means the act of keeping or protecting from loss or injury With reference to the natural resources the expression in the context means preservation of mineral the wide scope of the expression conservation of minerals comprehends any rule reasonably connected with the purpose of protecting the loss of coal through the waste of coal mine such a rule may also regulate the discharge of slurry or collection of coal particles after the water content of slurry is soaked by soil
In addition to the general power to frame rules for the conservation of mineral Sec
182 confers specific power for framing rules regulating disposal of waste of a mine
The Amending Act 37 of 1986 deleted clause 0 of section 132 and added the same as clause k to section 182 of the Act
After the amendment Sec
182k reads as under 182 In particular and without prejudice to the general ity of the foregoing power such rules may provide for all or any of the following matters namely k the disposal or discharge of waste slime or tailing 763 arising from any mining or metallurgical operations carried out in a mine Section 182k confers express power on the Central Gov ernment for framing rules for the conservation and the development of mineral including the disposal or discharge of waste arising from any mining operations of a mine
Such a rule may regulate disposal of slurry discharged from a washery which is an integral part of mining operations
The aforesaid analysis of the provisions of the Act makes the extent of Parliamentary declaration clear that the disposal and discharge 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 pro vides that the Central Government has exclusive power to frame any rule either us 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 those become matters of legislation in List I of the Seventh Schedule
As a result of the declaration made by Parliament under section 2 of the Act the State Legislature is denuded of its legislative power with respect to the regulation of mines and mineral development and the entire legislative field has been taken over by Parliament
In Baijnath Kedia vs State of Bihar  Ors  this Court dealing with the extent of Parliament s declaration made under section 2 of the Act ob served as follows To what extent such a declaration can go is for Parliament to determine and this must be commensurate with public interest
Once this declaration is made and the extent laid down the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament
Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is ab stracted from the legislative competence of the State Legis lature
 This Court has consistently taken this view in The Hingir Rampur Coal Co Ltd  Ors
vs The State of Orissa  Ors 1961 2 SCR537 State of Orissa vs MA Tulloch  Co  and State of Tamil Nadu vs Hind Stone  764 The Central Government has not framed any rule either under Section 13 or under Section 18 of the Act
Does it affect the legal position as discussed earlier The answer must be in the negative
Prior to the Amending Act 37 of 1986 Section 132o conferred power on the Central Govern ment to frame rules for the purpose of granting prospecting licences and mining leases including the disposal or dis charge 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
As noted earlier section 181 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 181 as the mat ters specified in various sub clauses of section 182 are illus trative in nature
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
Thus power to frame rules regulating the dis charge 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 fail within the expression conserva tion of mineral
Slurry admittedly contain coal particles
its collection from land or river is reasonably connected with the conservation of mineral 
Section 182k which expressly confers power on the Central Government to regu late disposal or discharge of waste of a mine makes the Parliamentary declaration apparent that the State Legisla ture is not competent to regulate waste discharge of a coal mine
Mere absence of any rule framed by the Central Govern ment under sections 13 or 18 of the Act with regard to the dis posal of slime or waste of a coal mine does not 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 Legisla ture 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
In Hingir Rampur Coal Co Ltd  Ors
vs The State of Orissa  Ors this Court held In order that the declaration should be effective it is not necessary that rules should be made or enforced all that required is a declaration by Parliament that it was expedi ent in the public interest to take the regulation of devel opment of mines under the control of the Union
In 765 such a case the test must be whether the legislative decla ration covers the field or not 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 Legisla ture is denuded of its power of making any law with regard to those matters
It was then urged that in the absence of a law being made by the State Legislature the State Government s action in executing lease settlement in respondent s favour for collection of slurry is relatable to exercise of its execu tive powers
Learned counsel for the appellants contended that since Entry 23 of List II of the Seventh Schedule confers legislative power on the State Legislature for making laws regulating mines and minerals the State Govern ment in the absence of any rule made by the Central Govern ment has power to regulate disposal and collection of slur ry
The State Government was justified in exercising its executive power making arrangements for the collection or removal of slurry which has been polluting the river water and affecting the Raiyati land s fertility
Article 162 prescribes the extent of executive power of the State it lays down that the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws
Thus the executive power of the State Government is co extensive with the legislative power of the State Legislature
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 matters subject to other provisions of the Constitution
If a subject matter falls within the legisla tive competence of State Legislature the exercise of execu tive 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
See Rai Sahib Ram Jawaya Kapur  Ors
vs The State of Punjab In the absence of any law the State Government or its officers in exercise of executive authority cannot infringe citizens fights merely because the 766 State Legislature has power to make laws with regard to subject in respect of which the executive power is exer cised
See State of Madhya Pradesh  Anr
vs Thakur Bharat Singh   No doubt under Entry 23 of List II the State Legislature has power to make law but that power is subject to Entry 54 of List I with respect to the regula tion and development of mines and minerals
As discussed earlier the State Legislature is denuded of its power to make laws on the subject in view of Entry 54 of List I and the Parliamentary declaration made under Section 2 of the Act
Since State Legislature s power to make law with re spect to the matter enumerated in Entry 23 of List has been taken away by the Parliamentary declaration the State Government ceased to have any executive power in the matter relating to regulation of mines and mineral development
Moreover the proviso to Article 162 itself contains limita tion on the exercise of the executive power of the State
It lays down that in any matter with respect to which the Legislature of a State and Parliament have power to make laws the executive power of State shall be subject to limitation of the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authority thereof
The limitation as contained in the proviso to Article 162 was necessary to avoid conflict in the exercise of executive power of State and the Union Government in respect of matters enumerated in List III of the Seventh Schedule
If Parliament and the State Legisla ture 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 executive power of the Union expressly conferred on it by the Constitution or any law made by Parliament
Parliament has made the law as contem plated 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 execu tive power to regulate the disposal of slurry a waste effluent discharge of a coal mine
Learned counsel for the State of Bihar as well as for the respondent contractors contended that the lease executed by the State Government in their favour was not a mining lease within the provisions of the Act therefore the provisions of the Act are not applicable to it
This submis sion is rounded on the assumption that the slurry is not coal
We have already discussed the characteristic of slurry which shows that the coal can be transported in liquid form of slurry
The slurry which gets deposited on the river bed and on Raiyati land contains fine particles of coal on its resumption it is used for energy and 767 fuel purposes
It is therefore difficult to accept the contention that the coal particles which escape from the washery and get deposited in the river bed or in Raiyati land do not have the character of mineral
It is not howev er open to the State to raise this contention as while making settlement and granting lease in favour of the re spondents for lifting or collecting slurry deposits the State itself proceeded on the assumption that the coal particles as deposited in the river bed and in the Raiyati land on its escape from the coal washeries constituted mineral 
Since under the Bihar Land Reforms Act the miner als vest in the State it claimed right to grant lease in favour of the respondents for collecting the same
In the indenture of settlement dated 941975 granted in favour of the Ms Industrial Fuel Marketing Company and Ors
in Civil Appeal No 230 231 of 1987 the State Government itself stated and whereas these rejectssludge being a mineral emphasis supplied the State Government is the owner of the same by virtue of the entire State including the minerals having vested in the State Government under the provisions of Bihar Land Reforms Act The indenture purported to confer right on the lessee for lifting rejects also known as sludge comprising fine particles of coal which are ejected in the process of coal being washed in the coal washeries and which flow into the nearby river or to the lands held by the Raiyats
The lease was granted by the Mining Department of the State Government dealing with minerals
Similarly the indenture of settlement dated 941981 granted in favour of respondent No 4 in Civil Appeal Nos
61 62 of 1987 permitting him to collect slurry after it is deposited in the river bed or in the land as specified in the lease was also executed by the State of Bihar on the premise that the slurry as deposited in the river bed was a mineral namely coal
Thus 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
In this view it is not open to the State of Bihar and the lessees to contend that slurry is not coal or miner al within the meaning of the Act
Learned counsel for the respondents attempted to justify State s action on the ground that the slurry as settled down in river bed or in Raiyati land was not waste or industrial effluent of coal mines as the washeries are not part of coal mines
We find no merit in the submission
Section 3 of the Act defines mining operations  which means any operation undertaken for the purpose of winning any mineral
The expression mine  is not defined by the Act instead Section 31 says that the expression mine  has the same meaning as assigned to it in the 
Mine as defined by Section 21j of 768 1952 means any excavation where any operation for the pur pose of searching for or obtaining minerals has been or is being carried on and it includes xii any premises in or adjacent to and belonging to a mine on which any process ancillary to the getting dressing or preparation for sale of minerals or of coke is being carried on
 The inclusive definition of mine 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
There is no dispute between the parties that the coal as extracted from the coal mine is crushed into pieces and thereafter it is washed to remove its impurities and ash contents to make the coal fit for sale
After the coal is washed it assumes the form of coke which is sold to consum ers
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
The respondents have all along pleaded before the High Court as well as before this Court that slurry is a waste discharged from the washery of the appellants  coal mines
In Civil Appeal No 4521 of 1986 Ram Nath Singh respondent No 4 has stated in paragraph 2 of his affidavit before this Court that slurrysludge is a waste substance of Sudamdih coal washery and in order to keep the river water clean and pollution free and to earn revenue the State Government settled the collection of slurry from the river bed in his favour
The State of Bihar also in its affidavit filed before the High Court expressly stated that the sludge slurry was rejected property from the coal washery and the State of Bihar made settlement in favour of the respondents for collection of the waste deposits from the river bed and other land
The full Bench of the Patna High Court also observed the sludgeslurry could not be raised to the status of being coal as it was the consequen tial wastes of coal mining process therefore the true nature of slurry was that it was a mere residue reject or waste of an industrial process consisting of mud ash oily substances water and carbonaceous ingredients
 The respond ents have all along proceeded on the assumption that sludge 769 slurry was an industrial waste arising out of the mining operations of coal
The State of Bihar as well as the re spondents in whose favour the right of collection of sludgeslurry has been settled have all along taken the stand that the discharge of slurrysludge by the appellant s washcry into the river has been polluting the river and affecting the fertility of land therefore the State Govern ment permitted the removal of the slurrysludge with a view to prevent pollution of the fiber and the land
On the admitted facts the entire activity relating to disposal of the industrial waste slime or tailing in the shape of sludgeslurry escaping from the washeries of the appellant s coal mines including the prevention of pollution of river water or land is covered by Sec 18 of the Act
The High Courts confined themselves to the question whether sludge slurry was a mineral under the Act and failed to consider the scope and effect of Section 18 of the Act
We are there fore of the opinion that in view of the admitted case of the parties disposal of sludgeslurry coming out from the wash eries of appellants  coal mines is covered by the Act and the State Government had no authority in law to grant any lease or settlement authorising collection of the same from the five bed or from any other land
Consequently the respondents in whose favour settlements have been made by the State Government have no right to authority to collect sludgeslurry either from the five bed or from any other land
In Civil Appeal No 4521 of 1986 the appellants  claim that plot No 370 situated in village Sudamdih belonged to them and the sludge slurry discharged from their washery as settled down on that land also belonged to them therefore the State Government had no authority in law to permit respondents to collect slurry coal from their land
The High Court held that since the appellant s ownership fights in respect of Plot No 370 of village Sudamdih was seriously disputed the question should be decided by the civil court
Mr Kapil Sibal learned counsel for the appellant urged that the High Court committed serious error as there was no scope for any dispute regarding the question of ownership of Plot No 370
We find force in his submission
There is suffi cient material on record to show that Bharat Coking Coal Ltd is the owner of the plot No 370 situated at village Sudamdih and the respondents have failed to place any mate rial before the court that the appellant is not owner of Plot No 370
A Notification was issued by the Central Government on 681960 under sub section 1 of Section 4 of the Coal Beating Areas Acquisition and Development Act 1957 for purpose of prospecting coal in the land specified in the Schedule to the Notification included the entire land of village Sudamdih District Dhanbad
By another Notifica tion dated August 30 1961 issued under 770 Section 7 of the Coal Bearing Areas Acquisition and Devel opment Act 1957 the Central Government declared its inten tion to acquire the lands measuring 77845 acres specified in Schedule A to the Notification Sudamdih village was mentioned in the Schedule
Plot No 370 of Sudamdih was expressly specified therein
By another Notification dated December 16 1961 the Central Government declared under Section 9 of the Coal Beating Areas Acquisition and Devel opment Act 1957 that the land measuring 77845 acres de scribed in Schedule A and the rights to mine quarry bore dig and search for win work and carry away minerals in the lands measuring 62573 acres described in Schedule B are acquired
The Schedule to the Notification clearly stated that all rights in village Sudamdih were acquired and plot No 370 was expressly specified in the Schedule to the Notification
On the issue of the aforesaid Notifications the lands specified therein vested in the Central Govern ment
The Central Government by its order dated 27th January 1962 transferred the aforesaid lands including plot No 370 situated in village Sudamdih to the National Coal Develop ment Corporation a Government Undertaking
In 1975 the Central Government reorganised the management structure of the coal industry in the public sector and a central compa ny ie Coal India Limited was constituted having Bharat Coking Coal Limited as one of its subsidiary
The Bharat Coking Coal Ltd was incorporated for running and managing the Sudamdih and Monidih coal mines of National Development Corporation
Since then the Sudamdih coal mines and the land in dispute have been under the control and management of the Bharat Coking Coal Ltd During the pendency of the appeal before this Court proceedings were initiated against re spondent No 4 for the violation of interim orders of this Court
In the contempt proceedings Respondent No 4 contend ed that plot No 370 of village Sudamdih belonged to the State of Bihar and the appellants had no ownership rights therein
This Court held that since plot No 370 of Sudamdih has been acquired under Section 91 of the Coal Bearing Areas Acquisition and Development Act 1957 the appellant company was its owner and it was idle to contend the con trary
We therefore hold that the appellant is the owner of plot No 370 of village Sudamdih and the State Government had no authority in law to make any arrangement or to settle any right with respondents for collecting slurry deposits from that Plot No 370 of Sudamdih
In view of the above discussion we hold that the slurry which escapes from the appellants  washeries is mineral and its regulation is within the exclusive jurisdiction of the Central Government
We further hold that in view of the Parliamentary declaration made by 771 Section 2 of the Act and having regard to Section 18 of the Act the State Government has no authority in law to make any settlement or grant any lease to any person for the collec tion of slurry deposits either from the river bed or other land
The impugned settlements made in favour of the re spondents by the State Government are illegal and the re spondent lessees have no right or title to collect the slurry deposits therefore they are restrained from lifting or collecting the same from the land in dispute
We accord ingly allow Civil Appeal No 4521 of 1986 and Civil Appeal Nos
61 62 of 1987 and set aside the order of the High Court of Patna and allow the writ petitions filed by the appel lants before the Patna High Court
We further allow Civil Appeal Nos
230 231 of 1987 and set aside the order of the High Court of Calcutta and dismiss the writ petitions filed by Industrial Fuel Marketing Company  Ors
We further direct that the money deposited pursuant to the interim orders passed by the High Court and this Court will be paid to the successful party
There will be no order as to costs
GN Appeal al lowed


Summary:
The appellants and the respondents who were originally appointed as Junior Engineers in the Andhra Pradesh Elec tricity Subordinate Service were subsequently transferred along with other Junior Engineers to the State Electricity Board with effect from October 1 1973 on the basis of options exercised by them to join the Board
in response to GOMs
No 1651 dated 28121972
The terms and conditions of transfer were stipulated in GOMs
No 1166 dated 7111973
On the date of transfer the seniority list of the Junior Engineers had not been finalised
However a seniority list prepared by the State Public Service Commission taking into account the deletion of rule 22iic of the Andhra Pradesh State and Subordinate Rules with retrospective effect from April 1 1964 had been circulated among the concerned Junior Engineers for objections if any and most of them
including the petitioners and respondents had submitted their objections before October 1 1973
After the transfers were effected the State Electricity Board prepared a revised seniority list but the High Court struck down the same on the ground that the Board had no power to alter the seniority of the transferred employees whose seniority was fixed by the Government
However it observed that if the Government had retained any power under the transfer order it would be at liberty to revise the seniority list
In view of the aforesaid observations the Government issued show cause notices once again to all the persons belonging to backward classes the respondents for revising the seniority
913 In a writ petition filed by the respondents for re straining the Government from revising the seniority a Single judge of the High Court upheld the power of the Government to revise the seniority list
During the pendency of appeal before the Division Bench the Government issued a final revised seniority list vide GO No 233 of May 23 1981
Thereafter the Division Bench quashed the revised seniority list on the grounds that there was a declaration in GO of November 7 1973 that the exercise of the option was final and since the Government and the Board had acted upon the option exercised by the employees and transferred them from Government service to the service of the Board they were estopped from revising the seniority and similar ly the employees were estopped from claiming that their seniority should be revised on any grounds whatsoever that since the transfers were on as is basis which included seniority the seniority could not be disturbed on any ground whatsoever that the Government had no power to alter the seniority of the employees after October 1 1973 since they had ceased to be Government employees and the power given under Rule 36A of the Rules to review the seniority could not be exercised to rectify the mistake and that merely because the Board had no jurisdiction to disturb the seniority so fixed it did not follow that the Government continued to have jurisdiction in respect of those employees who were no more its employees
This decision was challenged in the appeals before this Court
Allowing the appeals this Court HELD 11 The Government had reserved the power as it had every right to do so to change the seniority of the employees as on October 1 1973 or prior to that date when they were employees of the Government
It had not reserved the power as it could not to change the seniority of the employees after October 1 1973
Even if it so willed it could not have reserved power to change the seniority of the employees after October 1 1973
Conversely the Government had always the power to revise the seniority list of the employees as on October 1 1973 on account of reasons accru ing prior to the said date
To do it it was not necessary for it to reserve any power for it had inherent power to do so
925B 924H 925A 12 By a mere reading of two Government Orders and particularly GO No 1166 it is clear that seniority of the appellants as on October 1 1973 was liable to be re vised by the Government at any time
Clause 3 of paragraph 6 makes it clear that the names in the Annexure sent along with the order were not arranged in the order of seniority 914 and did not
therefore confer any right for seniority on that basis
This shows that the Government had not finalised the seniority list and the list which was sent to the Board with the said order was a provisional one
The Government had to say so
because admittedly as on that day the seniority of the employees was in a flux on account of various reasons
viz non receipt of options of non gazet ted technical staff and pendency of appeals of the gazetted technical staff like the appellants and non technical staff against the Common Gradation Lists prepared as per the recommendations of various committees with reference to seniority position between November 1 1956 and October 1 1973 sequel to reorganisation of the States and amalgama tion of different regions in the State
Besides
the Govern ment could not have ignored the position that as on October 1 1973 the dispute with regard to the seniority of the appellants and the respondents was pending in the High Court right from November 1966 when 10 Junior Engineers including some of the present appellants had filed Writ Petition giving rise to further proceedings
In these circumstances it cannot be held that whereas the Government reserved power and could reserve power to revise the seniority list on account of the disputes about seniority arising out of the States re organisation andor on account of the non receipt of options of the non gazetted technical staff etcit did not or could not reserve such power to meet the situations arising out of the orders of the courts in the disputes pending between the appellants and the respondents
There fore even if no such powers were specifically reserved in the said Government order the Government would have been obliged to revise the seniority list to comply with such orders
923B H 924A 13 Since the Government had not sent the list of the employees to the Board arranged according to seniority the expression as is in clause 3 of paragraph 6 of the Government Order in the circumstances referred to service conditions other than seniority
Even if the word etc at the end of clause 4 was construed to exclude the dispute with regard to seniority pending in the court that would not have exempted the Government from complying with the orders of the Court
To hold that the Government by its own order such as the present one could prevent operation of the order of any court is to invite conflict in the juris diction of the executive and the judiciary
Similarly the Government could not have forced the employees to accept the term with regard to the seniority as an immutable one
In fact the said Government Order did not lay down any such term
Hence it cannot be said that the appellants had accepted the seniority as was forwarded by the Government to the Board and they were estopped thereafter from agitating against it
The decision of the Court being the law no plea of 915 estoppel could be raised against it
925C F 14 It is well settled that there cannot be a right without a remedy
Law abhors such vacuum
But there are two periods with respect to which the power to alter seniority has to be examined
The first period is upto October 1 1973 and the second commences thereafter
In the first period there was a relationship of employer employee between the Government and the transferred employees
Hence the Govern ment had every right to correct or amend the seniority of the employees upto that date
If therefore the Government had advertently or inadvertently committed any error in preparing the seniority list upto October 1 1973 or be cause of the decisions of the courts it had to amend the said seniority list not only it had power to do so but it was the only authority which could do it
The seniority list which was corrected by the Government was the seniority list as on or before October 1 1973
925H 926A B In the circumstances the decision of the High Court suffers from legal infirmities and has to be set aside
The revised seniority list sent by the Government to the Board with Government Order No 233 of May 23 1981 is restored and the respondent Electricity Board is directed to act on the same
926C