Judgment

SIKRI, J.: There are two matters before us for disposal. One is an appeal by special leave against the judgment of the Patna High Court, dismissing an application filed by Biswanath Prasad under Art. 226 of the Constitution. The other is a petition filed under Art. 32 of the Constitution. In the petition under Art. 32, some points have been raised with were not debated before the High Court and some documents which were not produced before the High Court have been filed in this Court. In the circumstances it seems convenient to proceed to dispose of the petition first, but we will, where appropriate, indicate the finding and reasoning of the High Court on a particular point. To decide the points raised by Mr. C. B. Agarwala, the learned counsel for the petitioner, it is necessary to state the facts somewhat in detail, for, inter alia, he submits that the action of the Union Government in acquiring the petitioner s mines was mala fide.

2. The petitioner, by deed of sale dated November 29, 1956, purchased a colliery, called Dhobidih Colliery, for Rs. 20,000 from the Bengal Coal Co. Ltd., Calcutta. He held a certificate of approval granted to him under Rule 6 of Mineral Concession Rules, 1949. According to him, he started working the colliery immediately. This is denied by the respondents. This is one of the issues debated before the High Court, which found it against the petitioner. This point is of crucial importance for the Union Government is prohibited by sub-s. (4) of S.4 of the Coal Bearing Areas (Acquisition and Development) Act (XX of 1957) from acquiring "that portion of land in which coal mining operations are actually being carried on in conformity with the provisions of any enactment, rule, or order for the time being in force." The respondents relying on this provision, however, say further that even if it be assumed that the petitioner worked the mines, this was not done in accordance with law. On this point, the High Court also held against the petitioner.

3. After acquiring the colliery, the petitioner, according to him, started working the mine in earnest. He engaged a Mines Manager, who was authorised to act as such by the Chief Inspector of Mines and deposited Rs. 2,000 with the Assistant Electrical Engineer, Giridih, to secure an electric connection. He exploited the Hill Seam and had even two shifts in the Mine. He duly submitted returns. He even paid Sales Tax and excise on coal raised, which in the annual return for the year ending December 31, 1958, he claimed, amounted to 4,200 tons, including colliery consumption and coal used for making coke. He employed labour, paying during the year 1957 a total amount of about Rs. 41,000 for 1,103 mandays work. In this connection we were referred to an Affidavit filed before the Calcutta High Court on behalf of the Coal Board wherein it is stated the petitioner had "commenced mining operations in contravention of Rule 39(1) of the Coal Mines (Conservation and Safety) Rules, 1954, and further coal was being dispatched in contravention of Rule 39(4) of the aforesaid Rules on the basis of an old grade given by the Coal Commissioner prior to the closure of the colliery in the year 1948. The said grade was, however, withdrawn in February 1958."

4. From these facts it emerges that the petitioner did put up a show of raising coal but all these operations do not add up to carrying on coal mining operations within the meaning of sub-S. (4) of S. 4 of the Coal Bearing Areas (Acquisition and Development) Act, 1957. At any rate, argues the respondents counsel, the coal was raised contrary to law, and at the time of the acquisition by the Government no coal mining operations were being carried on. To this the petitioner s counsel replies that Rule 39 of the Coal Mines (Conservation and Safety) Rules 1954, under which the Coal Board refused permission to open the colliery was ultra vires as the Union Government could not make this rule under S. 17 of the Coal Mines (Conser