D N GHOSH Vs. ADDITIONAL SESSIONS JUDGE

JUDGEMENT

(1.) The facts in this case are briefly as follows: The petitioners are the owners of certain Coal Field popularly known as Diguli Colliery within the district of Burdwan. It is said that for some time the coal field was worked by the petitioners but as they were unable to carry on the business profitably they entered into an agreement on or about 12-1-1948 with one Sri A.K. Goswami. That agreement is evidenced by a registered document, a copy of which was handed over to me at the hearing. The nature of this document is relevant for determination of the points raised in this case. The document starts by describing the petitioners as owners of the properties described in the schedule annexed thereto, along with the lease-hold described and delineated in the attached plan. It is then stated that the petitioners were owners of the said properties along with the lease-hold bearing the name "The Diguli Colliery" and it was worked by the First Party, namely, the petitioners, under the name and style of "The Oriental Mining and Trading Syndicate". The document then proceeds to state as follows:

(2.) According to the terms of this agreement, Go-swami had to instal pumping & haulage machinery and other machinery necessary for raising coal. He also advanced a loan of Rs. 6000/- to be utilised for the repayment of debts incurred by the colliery and cost of repair of its boiler etc. Goswami was also to work and develop the colliery, raise and sell its coal, employ staff and labour, accept all payments for any coal despatched out of the mines, open and operate accounts with any bank in the name of the Company. It was then laid down that Goswami would be entitled to purchase ....... machinery and structures", but if it was outside the sphere of legal necessity involving a cost exceeding one thousand rupees, or falling outside the normal day to day necessity, then it would be subject to intimation to, and discussion with, the petitioners, if they so desire. Clause 7 is the most important clause which lays down that accounts of the colliery shall be made up every six months, and 66-2/3 per cent of the share of the net profits would be paid by Goswami to the petitioners. In case the profits per month for any half year exceeds one thousand rupees, Goswami will be entitled to a further 10 per cent of the profit. Clause 12 lays down how consultation was to be made and how the accounts were to be checked. Clause 16 lays down that in the matter of disbursement of costs for works of a permanent nature, the parties would be charged in the ratio of ten per cent to the Second and ninety per cent to the First Party, in respect of the total cost. I have already mentioned that this Agreement was executed on 12-1-1948.

(3.) On 3-9-1948 an Act being Act No. XLVI of 1948 called the "Coal Mines Provident Fund & Bonus Schemes Act, 1948" came into operation. The provisions thereof which are relevant for our present purposes are as follows: Section 2(e) defines the word "employer" and means the owner of a coal mine as defined in Clause (g) of Section 3 of the Indian Mines Act 1923 (IV of 1923). Section 3 of the Act is very important and is set out below: