COAL BOARD Vs. BANWARILAL AGARWALLA

JUDGEMENT

(1.) THE judgment appealed from is reported in 69 CWN 964. On and from the 1st April, 1946 the petitioner's colliery namely, the East lohapati Colliery was placed in the grade of "selected grade B" which appears from a letter of the Deputy coal Commissioner (Production) dated 9th April, 1946. In March 1952 Coal mines (Conservation and Safety) Act was passed. On or about 24th September 1854 the Coal Mines (Conservation and Safety) Rules, 1954 were framed in exercise of powers conferred by section 17 of the said Act and Rules 33 and 39 were introduced. The petitioner has been raising and despatching coal from the said colliery since before 1944, that is to say, before the passing of the said Rules or the said Act. After the passing of the said Rules the petitioner's colliery was graded under the said order as "selected grade B". It was alleged that since the year 1959, the authorities had been trying to alter the grade, on the basis of wagon samples which were taken on 28th December, 1959, 12th May, 1960 and 25th July, 1960. The first objection taken was as to the method of taking samples in order to decide the grade. The colliery was graded in April 1946 under the Colliery control Order as 'selected grade B'. In 1963, three seam samples were taken but thereafter only wagon samples were taken on or about 20th May 1961 the coal Board did two things. The first was that it cancelled the previous grade certificate and reduced the grade to grade II but did so 'provisionally'. The question raised was whether in determining the grade, the Coal Board could do so on the basis of wagon samples which had not been taken contemporaneously but at intervals of a year or nearly two years. Also whether, grading can be provisional and whether an existing certificate can be cancelled for a provisional certificate. Whether the Coal Board had any power to" cancel or regrad a functioning colliery where the original grading certificate was not issued by the Coal Board but some other authority as in the instant case. B. Das for Appellant. Ranadeb Chaudhuri and Bikas chandra Sen for the Respondent. The judgment of the court was as follows : sankar Prasad Mitra, J. : We have heard the arguments of learned Counsel for the appellant. We see no reason to differ from the judgment of Sinha, J. as he then was, delivered on the 28th july, 1965. It is clear that Rule 39 of the Coal Mines (Conservation and safety) Rules, 1954, applied to cases of "opening and re-opening of coal mines' the petitioner-respondent's coal mines is not one of such coal mines. Secondly it appears that the provisional certificate was granted after taking into consideration both the seam-samples and the wagon-samples. The consideration of the wagon-samples is not provided in the Rules. The provisional certificate, therefore, was not validly granted. For the final certificate both the seam-samples and the wagon-samples were considered. But since the provisional certificate is bad, the final certificate must necessarily be bad as well. In other words, even if we had held that sub-rule (3) of Rule 39 was independent of Sub-rules (1) and (2)as urged by learned Counsel for the appellant the appeal would not have succeeded. In the result this appeal is dismissed with costs. Certified for two Counsel.