Vassudeva Madeva Salgaocar vs Union Of India (Uoi) And Ors.

on 29 September, 1983

Bombay High Court

Vassudeva Madeva Salgaocar vs Union Of India (Uoi) And Ors. on 29 September, 1983
Equivalent citations: 1985 (1) BomCR 36
Author: R Jahagirdar
Bench: R Jahagirdar, G Couto
JUDGMENT R.A. Jahagirdar, J.

1. Before us several petitions have been posted for hearing. They involve common questions of law
and facts and it would have been possible for us to dispose of all of them by a common judgment
and order. However, there may be some differences in some details about the facts involved in
different petitions. Therefore, we prefer to narrate the facts involved in Special Civil Application No.
151 of 1975 which has been given the leading place by the advocates appearing for the petitioners in
various petitions. After considering the facts in this petition and after deciding the questions of law
arising in this petition, we will decide what relief, if any can be given to the petitioner in this petition
as well as to petitioners in other petitions.

2. We must now proceed to narrate the facts. The petitioner in Special Civil Application No. 151 of
1975, hereinafter referred to as the petitioner, holds as grantee or 'Concessionario' (concessionaire)
various iron ore mines in the territory of Goa. The details of these grants or concessions have been
mentioned in paragraph 3 of the petition. According to the petitioner, these concessions are held by
him by virtue of various titles of concessions which were granted to him by the erstwhile Portuguese
Government, under a decree dated 20th September, 1906 hereinafter referred to as the 1906 decree
and it forms part of what can be broadly called the Portuguese Colonial Mining Laws which also deal
with mining rights. It has been mentioned that the said titles of concessions have been given not
only under the 1906 decree but also under the enabling legislations such as the Portuguese Colonical
Mining Laws.

3. At this stage we may mention that an affidavit-in-reply was filed by one R.K. Nayak, who was the
Deputy Secretary to Government of India, Department of Mines. That affidavit is dated 6th
December, 1976. Subsequently, some other affidavits also have been filled. It would be unnecessary
for us to refer to them except the one sworn in by one A.K. Venkatasubramanian, Director in the
Department of Mines Ministry of Steel and Mines. This later affidavit is dated 2nd April, 1983 and
has to be, for all purposes, regarded as one on which that respondents are placing reliance.
However, for the snake of record we will refer to the earlier affidavit dated 6th December, 1976 filled
by R.K. Nayak.

4. On the averments of the petitioner that he is holding concessions under the 1906 decree as
mentioned in paragraph 2 of the petition. R.K. Nayak has mentioned that the contents of the said
paragraph are substantially correct with the reservation, however, that the Government is not aware
and do not admit the correctness of the details of the mines furnished therein. If we turn to ....
paragraph No. 2 of the petition, it is noticed that according to the petitioner various grants have
been made in his favour between the year 1953 and 1963. That there was a grant made in the year
1963 has not been denied by R.K. Nayak in his affidavit and has not been even questioned as to
whether there was a grant in the year 1963. What has been mentioned in the affidavit of Nayak is

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that the Government is not aware of the details of the mines furnished in paragraph 2 of the
petition.

5. It is common knowledge that on 19th December, 1961 the erstwhile Portuguese territory of Goa,
Daman and Diu was liberated by the State of India which act, as some of the judgments of the
Supreme Court have pointed out, is nothing but conquest in international law. The Union Territory
of Goa, Daman and Diu has subsequently been incorporated in the Republic of India by a
Constitutional amendment and today it forms part of the Republic of India of which the petitioners
are the citizens. For the sake of convenience, we will refer to it as the Union Territory of Goa or the
Union territory.

6. The petitioner has thereafter mentioned the details of the concessions and the detailed working of
the mines and also the relevant legal provisions which govern the grants given under the 1906
decree. These facts have been mentioned in paragraphs 4 to 7 of the petition and the affidavit of
Nayak as well as of Venkatasubramanian shows that these facts are admitted on behalf of the
respondents. What, according to the petitioner, is the legal position in respect of the mines has been
narrated in paragraphs 8 to 13 of the petition.

7. It has been mentioned that after the liberation of Goa, an ordinance came to be passed and this
ordinance was later replaced by the Goa, Daman and Diu Administration Act I of 1961. By virtue of
section 5(1) of this Act, all the laws which were in force in the Union territory on 20th December,
1961, including the said 1906 decree are said to have been continued. Subsequently, a regulation
called the Goa, Daman and Diu (Laws) Regulation, 1962, being Regulation 12 of 1962, was
promulgated by the President. Under this Regulation, several Acts which are mentioned in the
schedule to the Regulation, were extended to the Union Territory of Goa. That extension was,
however, subject to the notification to be issued by the Lieutenant-Governor making the laws
applicable to the Union Territory. In other words, it was only after the Lieutenant-Governor issued
the notification bringing into force one or the other Act mentioned in the schedule to Regulation 12
of 1962 or any part of the said Act, that Act or part of the Act would come into force in the Union
Territory.

8. One of the Acts mentioned in the schedule to Regulation 12 of 1962 is Mines and Minerals
(Regulation and Development) Act, 1957, hereinafter referred to as the 1957 Act. According to the
petitioner the mining concessions which he had obtained from the erstwhile Portuguese
Government were not affected by the 1957 Act or by the Rules made under the said Act. The
Controller of Mining Leases, Government of India, proposed to modify what he regarded as mining
leases into leases, in terms of the 1957 Act, in purported pursuance of the 1957 Act, says the
petitioner. The Controller of Mining Leases, Government of India, started issuing notices to various
persons including the petitioner for modification of concessions which concessions they held under
the 1906 decree. All the concessionaries including the petitioner, raised objects into the modification
by filing objection before the Controller of Mining Leases. The latter, however, overruling the
objections, passed orders modifying the concessions as if they were leases.

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9. Against the order of the Controller of Mining Leases the petitioner as well as other
concessionaries filed revision application before the Central Government under section 30 of the
1957 Act. Before the Central Government, two questions were urged on behalf of the petitioner. One
was that the mining concession granted under the decree of 1906 could not be considered as a lease
under the 1957 Act and secondly, even if the concession is construed as a lease there was no
justification for the Controller to modify the said leases because the Controller had no authority to
modify only leases which had been entered into prior to 1949.

10. The Central Government by its decision dated 15th May, 1975 rejected the contention of the
petitioner that the mining concession could not be regarded as a lease under the 1957 Act but upheld
the latter contention of the petitioner viz; that the Controller had no power to modify these leases
because these leases were granted before 1949. The petitioner contends that since the modification
order itself, passed by the Controller of Mining Leases, was set aside, he did not have any occasion to
challenge the applicability of the 1957 Act, especially to agitate on the first question which they took
before the Central Government. The history of the litigation which has thus been mentioned in
paragraphs 14 to 18 has been admitted to be correct by respondents though respondents have been
careful enough not to admit the correctness of the contention on behalf of the petitioner made
before the Central Government.

11. Now the stage is set for the present round of litigation and that is by the issuance of notification
which has been annexed as Exhibit I to this petition. This notification is dated 10th March, 1975 and
has been issued by the Controller of Mining Leases. In this notification it has been mentioned that in
pursuance of Rule 5 of the Mining Leases (Modification of Terms) Rules, 1956, as amended from
time to time, the Controller of Mining Leases calls upon every lessee and sub-lessee to submit to him
a return in the from specified on the Schedule to the said Rules, with a true copy of the "existing
mining lease" to which the said return relates, within sixty days fixed for submitting the return. If
such notification had been generally issued and had been merely published, in all probability, the
petitioner would not have made any grievance because the petitioner's case is always that his
concessions obtained from the erstwhile Government are not mining leases under the 1957 Act.
Since, however, the Controller proceeded to send a copy of this notification to petitioner as also to
other concessionaries the petitioner apprehended that the provisions of the 1957 Act would be made
applicable to the concessions obtained by the petitioner under the 1906 decree. Hence he proceeded
to address a letter dated 20th October, 1975 to the Secretary of the Ministry of Steel and Mines at
Delhi. In this letter, the previous history which we have also recorded in the earlier part in this
judgment was set out and thereafter it was mentioned on behalf of the petitioner that no
modification could be made of their mining concessions under the powers of the 1957 Act. It was
also contended that the provisions of section 16 of the 1957 Act were also not applicable to the
mining concessions held by the petitioner because the Act itself was not applicable to the petitioner's
mining concessions. Hence the petitioner requested the Government to issue instructions to the
Controller of Mining Leases for withdrawing action against the petitioner pursuant to the
notification of 10th July, 1975. If no favourable reply was received by him on or before November 1,
1975, the petitioner informed the Government that he would take it as denial of justice and would
consider himself free to take legal action to protect his rights. Since no reply from the Government
was received, the petitioner has filed this petition under Article 226 of the Constitution.

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12. After narrating the facts which have led the petitioner to this Court we may now make a brief
reference to the relevant legislation and other laws in this regard. We have already referred to the
Goa, Daman and Diu Administration Act, 1962. This Act replaced an ordinance which had been
promulgated earlier on 5th March, 1962. By this Act which was deemed to have come into force on
5th March, 1962, several provisions for the administration of the Union Territory of Goa were made.
We need only refer to section 5 which says that all laws in force immediately before the appointed
day in Goa, Daman and Diu or any part thereof shall continue to be in force therein until amended
or repealed by a competent legislature or other competent authority. By sub-section (2) of section 5,
the Central Government was empowered, within two years from the appointed day, to make such
adaptations and modifications as may be necessary or expedient in every such law and thereupon
such law shall have effect subject to the adaptations and modifications. Appointed day has been
defined in section 2(b) to mean 20th day of December 1961. What is to be noted as far as this Act is
concerned is the provisions contained in section 5(1) that all laws in force immediately before the
appointed day viz., December 1961 would continue to be in force in the Indian territory of Goa until
amended or repealed by appropriate legislation or other action.

13. Later, the President of India, in exercise of powers conferred on him by Article 240 of the
Constitution, promulgated a regulation called the Goa, Daman and Diu (Laws) Regulation, 1962,
No. 12 of 1962. Section 3 or Clause 3 of this regulation mentions that the Acts specified in the
Schedule as they were generally in force in the territories to which they extended, shall extend to
Goa, Daman and Diu, subject to modification, if any, specified in the schedule. The schedule
mentions several Acts one of which is the 1957 Act. One modification which was proposed by
Regulation 12 as mentioned in section 3 of the said regulation was in respect of section 16 of the
1957 Act. Section 16 of the 1957 Act, as it stood, provided that all mining leases granted before the
25th day of October, 1949, shall as soon as may be after the commencement of the Act, be brought
into conformity with the provisions of the Act and the Rules made under sections 13 and 18. The
modification which was proposed in section 16 by Regulation 12 of 1962, was that for the words
"granted before the 25th day of October, 1949" the words granted in the Union Territory of Goa,
Daman and Diu before the commencement of this Act therein and elsewhere before the 25th day of
October, 1949 were substituted. As a result of this modification, section 16(1), in so far as it is
relevant for our purposes, should read as follows:

"All mining leases granted in the Union Territory of Goa, Daman and Diu before the commencement
of this Act, therein and else where, before the 26th day of October, 1949 be brought into conformity
with the provisions of this Act and the Rules made under sections 13 and 18."

14. We must now find out what is the date of commencement of this Act mentioned in section 16 of
the 1957 Act as modified for the Union Territory of Goa. Section 3 of Regulation 12 of 1962 provided
that provisions of the Acts mentioned in the schedule to that regulation should come into force in
the Union Territory of Goa on such day as the Lieutenant-Governor may by notification appoint.
The Lieutenant Governor was also empowered to appoint different dates for the different Acts and
different provisions of any Act and for different areas. As a result of this provision in section 3 of
Regulation 12 of 1962, any reference to the date of commencement of the Act in any of the laws
finding their place in the schedule to Regulation 12 of 1962 would necessarily mean the date on

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which the Lieutenant-Governor decides to bring that law or any part of that law into force. In other
words, even if the 1957 Act shows that it shall come into force on such day as the Central
Government may by notification in the Official Gazette appoint, by reason of the provisions
contained in section 3 of Regulation 12 of 1962, as far as the Union Territory of Goa is concerned,
the Act of 1957 will be deemed to have come into force only on such day as the Lieutenant-Governor
shall appoint for that purpose. By notification dated 30th September, 1963 the Lieutenant Governor
of Goa, in exercise of the powers conferred on him by section 3(2) of the Regulation 12 of 1962,
appointed the 1st day of October, 1963 as the date on which the provisions of the 1957 Act shall
apply to the Union Territory of Goa. However, it was specifically provided in this notification that
section 16 of the Act of 1957 was not made applicable to the Union Territory of Goa. In other words,
all the provisions of the 1957 Act were made applicable to the Union Territory of Goa with effect
from 1st October, 1963 but section 16 of the 1957 Act was, however, not brought into force on that
day. Therefore as far as section 16 is concerned, the date on which the same shall be deemed to have
come into force is not 1st October, 1963.

15. By a subsequent notification dated 4th January, 1966, the Lieutenant-Governor appointed 15th
January, 1966, as the date on which section 16 of the 1957 Act as modified by Regulation 12 of 1962
shall come into force. Therefore, any leases, which were in existence on 15th January, 1966, would
be leases which will be governed by the provisions contained in section 16 as amended for the Union
Territory of Goa. From this it must necessarily follow that in order to attract the powers conferred
on the Government to modify the mining leases under section 16 of the Act as it is applicable to the
Union Territory of Goa, the leases sought to be modified must have been granted before 15th
January, 1966. Moreover, if a lease has to be modified it must also necessarily mean that the lease
must be in existence on 15th January, 1966. If, therefore, a mining lease is not in existence on 15th
January, 1966 on which day section 16 of the 1957 Act came into force in the Union Territory of Goa,
naturally, the occasion for modifying the said leases would not arise. In other words, in the first
place leases must be of mining leases; secondly they must be leases granted before 15th January,
1966 and more importantly the leases must be in existence on 15th January, 1966. A non-existing
lease could not be modified under the provisions contained in section 16 of the 1957 Act.

16. Bearing in mind this legal position, we now proceed to consider what the contentions of the
petitioner are. In this petition, in the first place, the contention of the petitioner that the concessions
which have been granted to him by the Portuguese Government under the 1906 decree were not
mining leases at all but were something different and, therefore, the 1957 Act could not govern the
said concessions. The question whether it is a lease or whether it is a mining lease within the
meaning of the 1957 Act, therefore, would not arise in the case of the petitioner. If the concessions
which have been granted to petitioner are not mining leases at all, then, the Controller of Mining
Leases exercising powers conferred on him, under section 16 of the Act could not modify the said
concessions. The petitioner is not precluded from taking up this contention despite the fact that in
an earlier order that the Central Government held that the concessions were deemed to be existing
mining leases within the meaning of the 1957 Act.

17. The Government has through the first affidavit of Mr. Nayak contended that under the proviso to
section 4 of the Goa, Daman and Diu (Laws) Regulation of 1962, anything done or any action taken

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under any law shall be deemed to have been done or taken under the corresponding provisions of
the Act extending to Goa and shall be continued to be in force accordingly, unless and until it is
superseded by anything done or any action taken under the extended Act. It was therefore,
contended that the mining leases granted under the Repealed Portuguese Mining Laws should be
deemed to have been granted under the 1957 Act and, therefore, be modified under the provisions of
the said Act. The basis of this contention is to be found in the same affidavit wherein it has been
mentioned that the word lease will have to be given an expanded meaning in order that the intention
of the legislature is given effect to. Therefore, what was a concession under the Portuguese Law is
necessarily synonymous to the world lease and this according to the respondents, is supported by
the provisions of Article 2 of the decree of 1906. We may reproduce the following from the first
affidavit of Mr. Nayak.

" However, it is submitted that on the extension of the Mines and Minerals (Regulation and
Development) Act, 1957 to the Union Territory of Goa, w.e.f. 1-10-1963 the Portuguese law on the
subject stands repealed. All the mining leases (termed 'concessions ' by the petitioner in keeping
with the terminology used during the Portuguese regime) granted under the relevant Portuguese law
on the subject are to be deemed as mining leases granted under the Indian law or continued as such
and are to be regulated in all their aspects under the relevant Indian law".

18. Reading the above mentioned extract correctly, we find that it is the case of the Government that
the Portuguese law viz., the 1906 decree in the instant case, stood repealed with effect from 1st
October, 1963. We have already referred to the provisions contained in the section 16 of the 1957 Act
and we have also pointed out that the said section came into force in the Union Territory of Goa on
15th January, 1966. If the contention of the Government in the first affidavit of Nayak is to be
accepted, then there was no mining leases existing after 1st October, 1963. Provisions of section 16
would, therefore be not attracted. But, however, there is a subsequent affidavit dated 2nd April,
1983 filed by Mr. Venkatasubramanian, Director in Ministry of Steel and Mines, Department of
Mines. He has mentioned in his affidavit that he is an officer of the Government of India and has
been authorised to represent respondents Nos. 1 and 3 in the petition. They are the Union of India
and the Controller of Mining Leases. In most of the paragraphs, what has been mentioned in
Nayak's affidavit has been repeated. However, in his affidavit, reliance has been place on a
judgement of the Supreme Court in Vinodkumar Shantilal Gosalla v. Gangadhar Narsinghdas
Agarwal and others, .

19. Placing reliance upon the said Judgment of the Supreme Court, it has been mentioned that after
the said decision, the petitioner has no valid mining lease and the rights granted to him by the
concessions granted by the erstwhile Portuguese Government came to an end on 20th December,
1961. What has been characterised as the correct legal position has been repeated again in this
affidavit viz., that the petitioner does not hold any valid mining leases or concession after 20th
December, 1961. In paragraph 14 of this affidavit, it has been mentioned as follows :---

"The mining concession granted under the repealed laws were mistakenly deemed by the Controller
of Mining Leases to be the mining leases under the Mines and Minerals (Regulation and
Development) Act, 1957. The actual position in law now is that the petitioner does not hold any valid

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mining leases and that the concessions held by him under the Portuguese law has come to an end on
20th December, 1961."

20. This has been again repeated in paragraph 22 of this affidavit wherein it has been mentioned
that the petitioner was granted the mineral concessions under the erstwhile Portuguese law by the
Portuguese Government before the Goa Territory was annexed by the Government of India. With
the annexation of the said Territory, the rights obtained by him to these concessions came to an end.

21. This affidavit further proceeds to inform what the view of the Government is on the position of
the petitioner. It has been mentioned that the Government of India never recognised either during
the period 20th December, 1961 and 5th March, 1962 or thereafter any rights of the petitioner on
the basis of the old Portuguese law. Thereafter, it is mentioned as follows :

"Even if presuming but not admitting that the petitioner held a valid mining lease/concession
during the period 20th December, 1961 to 1-10-1963, it became invalid with the extension of the
Mines and Minerals (Regulation and Development) Act, 1957 to the Goa Territory. The position,
therefore, as it stands now is that the petitioner holds no valid mining lease under Mines and
Minerals (Regulation and Development) Act, 1957 or mining concessions under the erstwhile
Portuguese laws."

22. We may, at this stage, make a brief mention that paragraph 21 of the petition contains various
grounds in support of the submissions made earlier in this petition. In reply to this paragraph,
Nayak, in paragraph 18 of his affidavit, made several submissions. In particular it has been
mentioned by Nayak that the mining leases granted under the Portuguese Law are deemed to be
mining leases under the 1957 Act. Returning to the affidavit of Venkatasubramanian, we notice that
in paragraph 18 he has mentioned that the reply of Nayak to paragraph 21 of the petition is
withdrawn. In other words, the contention that the concessions granted by the erstwhile Portuguese
Government must be deemed to be mining leases under the 1957 Act was given up. We are not
placing too much emphasis on this withdrawal of a contention which had been earlier taken up.
Even without this withdrawal of the contention, reading both the affidavits of Nayak and
Venkatasubramanian, it is clear to us that it is the case of the respondents that at least on 15th
January, 1966, and if the contention of Venkatasubramanian is to be accepted, on 20th December,
1961 itself, there were no lease of the petitioner which were in existence in law as far the Union
Territory of Goa is concerned.

23. Reliance has been placed by Venkatasubramanian on the judgement of the Supreme Court in
Vinodkumar Gosalla's case because, unless, a right or a law of the erstwhile Portuguese Government
is recognised by the Government of India , that right or that law would be of no avail to the
petitioner. The stand of the Government, therefore, is clear viz., that the mining concessions
obtained by petitioner from the erstwhile Portuguese Government, though may be leases, were not
in existence at all after 20th December, 1961, If this is so, then they were not liable to be modified
under section 16 of the 1957 Act which came into force in Goa on 15th January, 1966. Moreover, it
has also been mentioned that the Controller of Mining Leases wrongly treated the concessions as
mining leases within the meaning of the 1957 Act. If this is so, we do not see how the controller of

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Mining Leases can proceed to modify the concession regarding them as mining lease covered by the
1957 Act. On this ground alone the challenge to the notice at Exhibit I of this petition must succeed
deposit the fact that the petitioner is insisting the concessions are subsisting and also insisting that
the concessions are not mining leases.

24. Considerable argument has been advanced before us on the question of recognition. The
petitioner has contended that the Government of India has, at all times, recognised not only the
mining concessions obtained by the petitioner but also the law under which these mining
concessions were obtained. Several notifications appearing in the Government Gazettes have been
brought to our notice and, according to Mr. Lokur, who appears for the petitioner in one of the
cases, they show that the Government has levied mining tax which could be levied only under the
concessions. These notifications, says Mr. Lokur, also show that the Government has given the
concessions legislative and executive recognition by publishing the transfers of the concessions in
the Official Gazette, by recognising the relinquishment made under the concessions, and publishing
the same in the appropriate Government Gazette and by sanctioning the renewal of leases which
renewals were made pursuant to the powers given to the persons holding the concessions.

25. Mr. Harbans Lal appearing for the respondents sought to point out to us that even if it is held
that there is recognition, it could be seen that recognition was of the concessions which were
nothing more or less than the leases; since these leases were in respect of mining operation, they
must be regarded as mining leases.

26. In view of the fact that the Government has, in the affidavits filed on its behalf, not treated the
concessions granted to the petitioner as existing mining leases before section 16 of the 1957 Act
came into force in this territory and since on this ground alone it can be held that the Controller of
Mining Leases cannot proceed to exercise powers under section 16, we have not thought it either fit
or necessary to go into the question of alleged recognition and the legal effects of the alleged
recognition. Mr. Harbans Lal also pointed out that under the 1957 Act no person is allowed to
undertake any prospecting or mining operation in any area except under and in accordance with the
terms and conditions of a prospecting licence or a mining lease granted under the Act or the rules
made thereunder. This is a question which does not, in our opinion, arise for our decision on the
pleadings of the parties in this case. It is not necessary for us to say anything on the subject except to
mention that if, apart from the question of modification of the concessions treating them as leases,
any other question arises, then the Government may, notwithstanding this judgment, proceed to
take such appropriate action they may think fit.

27. In this petition, the petitioner has asked for an appropriate writ prohibiting the respondents
from enforcing the provisions of the notification at Exhibit I. On the position found by us, there
should be no difficulty in granting this relief. The petitioner has also asked for a direction
restraining the respondents from proceeding or taking any steps to modify the concessions Exhibit
"C". Since we have not given any finding on the question as to whether a concession is a mining
lease or not as such, we will not be justified in granting this relief. However, the third relief for an
order restraining the respondents from taking any steps or proceedings for the purpose of treating a
concession as mining lease under the 1957 Act can be granted.

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28. The petition is, therefore, partly allowed. The respondents, their officers, servants and agents are
prohibited from enforcing the Notification dated 10th March, 1975 (Exhibit "1" to this petition),
issued by the Controller of Mining Leases, against the petitioner and also from taking any steps or
proceedings treating the concession of the petitioner as an existing mining leases, under the Mines
and Minerals (Regulation and Development) Act, 1957. There will be no order as to costs.

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