IN THE HIGH COURT OF BOMBAY AT GOA **** WRIT PETITION NO. 101 OF 2003 1. Dr. Nishikant Sukerkar, legal heir of Narsinva P. Sukerkar, Margao, Goa, and 2. Mrs. Anandibai Sukerkar, widow of N.P. Sukerkar, Margao, Goa. (since deceased) ... Petitioners. Versus 1. Government of India, through Secretary, Ministry of Mines, Shashtri Bhawan, New Delhi, 2. State of Goa, through Chief Secretary, with office at Panaji, and 3. Gomantak Investment Pvt. Ltd., with office at Damodar Bhavan, Opp. High Court, Panaji, Goa. ... Respondents. Shri Anil Diwan, Senior Advocate with Shri Dhruv Mehta and Shri M. S. Joshi, advocate for the petitioners. Shri J. S. Vaz, Addl. Central Govt. Standing Counsel, for respondent no.1. Shri N. K. Sawaikar, Addl. Government Advocate for respondent no.2. Shri S. K. Kakodkar, Senior Advocate with Shri J.J. D’Souza, advocate for respondent no.3. CORAM : F. I. REBELLO & P. V. HARDAS, JJ. DATE : 29th July, 2003. JUDGMENT (Per Rebello, J.) This petition was originally filed in the High Court of Delhi and was numbered as Civil Writ Petition - 2 - no.5648/98. A transfer petition came to be filed before the Apex Court. By Order dated January 20, 2003, the Apex Court directed this petition to be transferred to this Bench of the High Court, to be heard alongwith Writ Petition No.268 of 1996, which was pending here. That petition has also been heard. 2. A few facts as they emerge from the pleadings of the petitioners and the documents annexed, may now be set out, for the purpose of disposing of the issues which arise in the present petition. The late Narcinva P. Sukerkar, in the year 1955 was granted mining concession being title No.7 of 1955 for an area admeasuring 22.0807 hectares of village Pissurlem, Sattari Taluka, North Goa, by the then Portuguese Administration under the Portuguese Mining Laws of 1906. Goa came to be annexed by conquest and became a part of the Union of India on 19th December, 1961. By Section 5 of the Goa, Daman and Diu Administration Act, 1961, all laws in force prior to liberation were continued. The Mines and Minerals (Regulation and Development) Act 1957, (hereinafter referred to as "the MMRD Act") became enforceable with effect from lst October, 1963, except Section 16 which came into force with effect from 15th June, 1966. The MMRD Act repealed corresponding Portuguese laws. The Controller of Mining Leases purporting to exercise powers under Section 16 sought to and converted several mining concessions - 3 - granted under the erstwhile Portuguese regime, into leases. Against those Orders, revision applications came to be filed, which were allowed. One such revision was in respect of the lease granted to Vassudev Mahadev Salgaokar. By order of 5th August, 1975, the Central Government held that the Rule speaks of the power to modify a lease executed prior to 25th October, 1949 and therefore, in respect of leases granted after 25th October, 1949, there could be no such power. Section 16 then came to be amended by an Act of Parliament and came into force with effect from 12th September, 1972. Fresh notices were issued in the year 1975 proposing modification based on the 1972 amendment to Section 16. Pursuant to notice issued to late Sukerkar, the Government of Goa terminated the mining concession granted to the late N. P. Sukerkar by Order dated 6th April, 1976. A revision came to be filed before the Central Government. Some of the grounds raised were, as to why mining operations could not be undertaken and as reflected from the order passed in revision, were as under:- (i) The concession is surrounded by several concessions, village hutments and agricultural land; - 4 - (ii) He had tried several times to acquire access roads to the concession through the village, but the villagers refused fearing that the agricultural land would be damaged; and (iii) The other concessions refused him permission to access through their concessions. In revision a finding was recorded that the revision petitioner had not utilized the opportunity given to him to bring his difficulties to the notice of the Government and instead, chose to claim that he was working in the area when he was not. To avoid repetition, another ground raised and as set out in the petition was that the MMRD Act was inapplicable to mining concessions. On 5th January, 1977, consequent to the termination, the Government of Goa issued a Notification under Rule 59 declaring the said area covered by Sukerkar’s concession as free for grant, by publishing the same in the Government Gazette 43, II series, dated 20th October, 1977. On 4th March, 1977, an order came to be passed stating that during the pendency of the revision application the State Government should not take any action in respect of the area which is the subject-matter of the revision petition - 5 - as the matter was sub judice. The revision itself came to be dismissed on 10th May, 1978. The order passed in revision was not challenged. 3. Inspite of the termination and the notification declaring the area free for grant, the Controller of Mines, Central Government on 8th May, 1979, issued a show cause notice to the late N.P. Sukerkar as to why the mining concession granted to him should not be modified into a mining lease. This show cause notice was issued by resorting to Section 16 of MMRD Act, 1957 and the Mining - Leases (Modification of Terms) Rules, 1956. On 25th October, 1981, the mining concession granted to the late Sukerkar was purported to be modified into a mining lease by the Controller of Mining Leases. The order sets out that the period of mining lease would be 30 years starting from lst October, 1963. That period would expire on 30th September 1993. N. P. Sukerkar expired on 29th September, 1982, without leaving any issue. The petitioner claims right as a testamentary heir under the will of the late N.P. Sukerkar. At the time of Sukerkar’s death, his widow was alive and was also a party to this petition. She has subsequently expired during the pendency of the petition. The Controller of Mines purported to modify also other mining concessions granted under the Portuguese - 6 - regime. Those orders came to be challenged by those concession holders before this Court. On 29th September,1983 vide judgment in Special Civil Application No. 151/B/75, in the case of Vassudev M. Salgaonkar vs. Vassudev M. Salgaonkar vs. Vassudev M. Salgaonkar vs. Union of India Union of India Union of India, the order of the Controller of Mines was set aside for reasons set out in the judgment. Petitions filed by other petitioners, challenging the order of modification also came to be allowed. As already stated the present petitioner nor late Sukerkar had challenged the said order of modification. On 27th May, 1987, the law enacted by Parliament and known as the Goa, Daman and Diu Mining Concessions (Abolition and Declaration as Mining Leases) Act, 1987 came into force, which hereinafter shall be referred to as "the Act of 1987". By the said Act, mining concessions granted under the Portuguese regime by legal fiction were deemed to be leases under the MMRD Act. By virtue of a Constitutional Amendment Act, on 30th May, 1987, the Union Territory of Goa, Daman and Diu ceased to exist and Goa became a State as on and from 30th May, 1987. Daman and Diu continued to exist as a Union Territory. 4. Respondent no.3 had applied for grant of a mining lease for the area notified vide Notification dated 5th January, 1977, by his application dated 20th December, 1984. As it was not granted within twelve months, - 7 - respondent no.3 against the deemed rejection preferred a revision application before the Central Government. On llth January, 1989, though revision was pending, respondent no.3 after the Act of 1987 came into force applied for a prospecting licence in respect of the entire area of Sukerkar’s concession and also some more area on the western side. Respondent no.3 also filed a writ petition which was numbered as W.P.No. 327 of 1999. On 3rd August, 1989, the State Government issued a letter agreeing to convert the application for mining lease into an application for prospecting licence in view of the letter of the Central Government dated 3rd March, 1988. In view of this letter dated 3rd August, 1989, this Court permitted Writ Petition no.327 of 1989 to be withdrawn by Order of 11th October, 1989. On 24th August, 1992, the State Government granted prospecting licence to respondent no.3 for the area in question. On 18.5.93 Sociedade de Fomento, purporting to act on behalf of Sukerkar, applied for renewal of mining lease. Sociedade de Fomento was informed by letter dated 20.7.93 that the area was not available for re-grant or renewal. The Central Government has thereafter granted approval for the grant of mining lease to the respondent no.3, subject to other requirements. On 8th April, 1997, the petitioners claiming to be the legal heirs of N. P. Sukerkar, applied to the Central Government under Section 4(3) of the Abolition Act - 8 - for inclusion of mining concession bearing title no.7 of 1995 in the Schedule to the 1987 Act. That application was dismissed by Order of 9th September, 1998, against which the present petition has been preferred. Respondent no.3 as Intervener has filed his reply on lst January, 1998. On 2nd September, 1998 reply was filed by the Government of Goa. The petition thereafter, as noted earlier, had been transferred to this Bench of the Bombay High Court and has been renumbered as Writ Petition No.101 of 2003. 5. On behalf of respondent no.1, a reply has been filed by S. R. Sharma, Under Secretary to the Government of India, Department of Mines. It is pointed out that a perusal of the preamble of the Abolition Act 1987 would indicate that only those mining concessions in existence in 1987 were abolished under the Abolition Act 1987 and the mining concessions which had ceased to exist after merger of Goa, Daman and Diu into the Union of India with effect from lst October, 1963, were not acquired under the said Act of 1987, as a result of which the name of late N. P Sukerkar was not mentioned in the First and Second Schedules to the Abolition Act, 1987. It is set out that the Order dated 9th September, 1978, passed by the Central Government is a reasoned, valid and speaking order. The mining concession of Sukerkar was terminated and the - 9 - revision preferred was dismissed and, consequently the area was available for grant. Dealing with the Order date 20th October, 1981, it is pointed out that the modification of the terms and conditions of the mining concession made by the Controller of Mining Leases has no relevance due to the non-existence of the mining concession terminated on 6th April, 1976. Referring to the judgment of this Court it is set out that the High Court has nowhere indicated that the act of determination of a mining concession was a nullity. The petitioners’ mining concession was not in operation and, therefore, is not specified in either of the Schedules to the Abolition Act. The Act has only abolished mining concessions which were in operation and specified in Schedules I and II. Petitioner’s concession was not in operation. The Act does not provide this privilege to all the mining concessions granted under the Portuguese regime. Section 5 would only be applicable to mining concessions which are now deemed to be mining leases under Section 4 of the Act. Under Section 4(3) what can be corrected is omission, error or misdescription in relation to the particulars of any mining concession or the name and residence of any concession holder included in the Schedule and not of a concession not included, in Schedules I and II of the Abolition Act. An affidavit has also been filed on behalf of respondent no.2. It is contended that the petitioners have - 10 - no locus standing to file the present petition as they are bound by all acts and omissions of their predecessors whose mining concession was cancelled during his lifetime by the State Government as well as by the Central Government. It is also pointed out that the petition is not maintainable due to delay and laces on the part of the petitioner. The facts already set out pertaining to termination of the concession have then been pleaded. It is pointed that the petitioner and their predecessor in interest had/have duly acquiesced in the rights created by the State Government in favour of respondent no.3 in respect of mining area of the mining concession which stood in the name of N. P. Sukerkar, after cancellation of his mining concession/lease. The Order dated 24th August, 1992, was duly published in the Official Gazette on 10th September 1992. The decision of the State Government to grant prospecting licence has been approved by the Central Government vide letter dated 6th August, 1996. It is pointed out that the understanding of law at the time of the extension of the Act of 1957 was that the mining concessions granted under the Portuguese mining laws were to be construed as mining leases under the MMRD Act 1957. In pursuance of the communication from the Ministry of Mines, Government of Goa, proceedings were initiated in the matter of enforcement of the provisions of the MMRD Act and a number of mining concessions were determined by the Government on account of various violations of conditions. - 11 - Pursuant to the Notifications by the Government declaring these areas free for re-grant, some of these areas were applied for prospecting licences/mining leases by various applicants and thus fresh rights were created in favour of such applicants wherever the application for grant of prospecting licence/mining lease were considered. Pursuant to the Notification dated 4th January, 1966, the Controller of Mining Leases proceeded to modify the erstwhile mining concession into leases under Section 16 of the Act of 1957 and various orders were issued. Aggrieved, parties filed revisions and by a common order dated 15th May, 1975, the revision applications were disposed of. Two ground considered were:- (a) Whether the concessions were to be treated as leases for the purpose of provisions of the Act of 1957; (b) And if so, whether the Controller of Mining Leases had power to modify that. The revisional authority held that though the concessions were synonymous with leases as understood under the Act of 1957, however, in the light of the definition of existing mining leases, held that the Controller had no authority to modify the leases. During the pendency of the revision application, the MMRD Act of 1957 was amended in - 12 - 1972 and in accordance with the amended provisions of law, the Controller of Mining Leases started the process of modification afresh. It is then that various concession holders filed Writ Petitions. When the matters came up for hearing and on the basis of the stand by the Government of India, the petitions were partly allowed restraining the Union of India from enforcing Notification dated 10th March, 1975 and from taking steps or proceedings for the purpose of treating the concessions as existing mining leases under the MMRD Act. Based on the said ruling another Division Bench held on 22nd November, 1983, that Government was not entitled to recover royalty in respect of these concessions. This judgment resulted in a situation where the provisions of the MMRD Act could not be made applicable and in order to overcome this situation the Abolition Act was enacted in 1987. By this enactment 596 concessions which were listed in Schedule I and II appended to the Act were abolished and declared as mining leases under the MMRD Act. Out of 782 concessions granted under the Portuguese mining lease only 596 concessions figured in the Abolition Act. The concession of the petitioners is not reflected in this list. It is then pointed out that after the area was notified for re-grant, three applications were received in 1977 and one in 1984 over the area in which the erstwhile mining concessions were granted to the late Sukerkar. The three applicants were:- - 13 - i) M/s. A. H. Jaffar and Sons, ii) Shri Shantaram Kantak and iii) Shri Vaikunt P. Raikar. The three applications were not disposed of within a period of 12 months and as such were deemed to have been refused by operation of law. Those three applicants did not prefer revision applications against the order of deemed refusal and, as such, they were considered as lapsed. On 20th December, 1984, M/s Gomantak Investment Pvt. Ltd., respondent no.3 had applied for grant of mining lease over the area of 29 hectares of land which inter alia also included the area of the former concession held by Sukerkar. The application could not be disposed of within a period of 12 months and as such, was deemed to have been refused by operation of law. M/s Gomantak Investment Pvt. Ltd. preferred a revision to the Central Government under Rule 54 of the Mineral Concession Rules, 1954. When the revision application was pending respondent no.3 filed Writ Petition no. 327/89 before this Court. The petition was allowed to be withdrawn by Order dated 10th October, 1990 in the light of the communication dated 3rd August, 1989, from the State Government allowing conversion of the application for mining lease filed in 1984, into a prospecting licence as was permissible in view of the - 14 - Government of India instructions communicated to the State Government vide letter dated 3rd March, 1988. During the pendency of the application M/s Ferromet Concentrates, who are the petitioners in Writ Petition No.268 of 1996 had applied by an application dated 9th August, 1988, for a prospecting licence over an area of land admeasuring 11.33 hectares which was found overlapping with that applied for by M/s. Gomantak Investment Pvt. Ltd. As the area was already applied for by M/s Gomantak Investment Pvt. Ltd., the application of M/s Ferromet Concentrates was not processed and, as such, resulted in deemed refusal. M/s Ferromet Concentrates did not pursue the matter further. As respondent no.3 has satisfied the provisions of the MMRD Act and the Rules, a prospecting licence was granted in their favour by order of the State Government dated 24th August 1992. On 23rd November, 1993, they applied for mining lease. On 8th May, 1993, M/s. Sociedade Fomento Industrial Ltd., of which M/s. Ferromet Concentrates is stated to be a division, applied for renewal of mining lease in Form J in respect of the area of the mining concession held by the late Sukerkar. By communication of 20th July, 1993, M/s Sociedade de Fomento Industrial Ltd. were informed that the said area is not free for grant, nor an existing lease for renewal. They were also requested to clarify by evidence in what capacity they had applied for renewal of the area applied for. Ferromet Concentrate, a division of Sociedade de Fomento Industries filed Writ - 15 - Petition No.268/96 seeking a direction to the State Government to notify the area for re-grant and then to consider the application. During the pendency of the above writ petition, the mining lease application of respondent no.3 was processed and after conducting the necessary enquiries into the matter was referred to the Central Government for their prior approval under Section 5 of the MMRD Act. Vide letter of 6th August, 1996, the Government of India conveyed their approval for the grant of mining lease in favour of respondent no.3. On account of the pendency of the petition filed by M/s Ferromet Concentrates, the grant of mining lease is pending. It is then pointed out that the Directorate of Industries and Mines had prepared a list of concessions which showed the position of the Concessions. That list was not updated from time-to-time and, therefore, the said list could not be taken as authentic and relied upon as evidence in the absence of supporting documents relating to the entries made in the column "observation". To illustrate, it is pointed out that one concession is shown in the chart as "cancelled" bearing no. T.C.137/53/22/57, whereas a revision was preferred and the Order was set aside. That factual position has not been reflected in the chart and the chart cannot be taken as authentic and relied upon. Explanation is also sought to be given about three other concessions indicated in Annexure P-15. - 16 - 6. At the hearing of this petition, on behalf of the petitioners it is contended as under:- Neither the MMRD Act 1957, nor Mineral Concession Rules, 1960, (hereinafter referred to as "the Mineral Rules") are applicable to any concession granted under Decree No.0/9/1906 by the erstwhile Portuguese regime, including concession bearing title no.7 of 706, 1955, granted to the late N. P. Sukerkar. Any Orders passed under the MMRD Act or the Mineral Rules prior to May 22, 1987, are void and without jurisdiction, in view of the judgments of this Court in Vassudeva. M. Salgaonkar Vs. Union of India Vassudeva. M. Salgaonkar Vs. Union of India Vassudeva. M. Salgaonkar Vs. Union of India (supra) on 29th September, 1993 and Special Civil Application No.31/B/78 decided on 22nd November, 1983, in the case of Emco Goa Pvt. Ltd. vs. Union of India & Ors. Emco Goa Pvt. Ltd. vs. Union of India & Ors. Emco Goa Pvt. Ltd. vs. Union of India & Ors. It is only in 1987, under the Act of 1987 that the Portuguese concessions mentioned in the Schedules are abolished and declared as mining leases under Section 4 of the Act of 1967. Consequently, the Notification dated 5th January, 1977, declaring the area free of grant and the Order of the Central Government dated 10th May, 1978, rejecting the revision applications are void, non est, nullities and ineffective. It is submitted that the Central Government, while disposing off the revision application filed by the late Sukerkar, did not take into consideration, ground 12.1 raised in the revision petition, namely that the MMRD Act and the Mineral Rules framed - 17 - thereunder were not applicable to the Portuguese concessions. It is, therefore, submitted that the rights available to the late Sukerkar in respect of the concession remained alive and are not affected. The termination Order dated 6th April, 1976, therefore being a nullity and hence void, is liable to be ignored for all purposes. There can be no waiver of the right to challenge or invalidate nullity. The Apex Court, it is submitted, in several cases has held that where a decree is without jurisdiction, the principles of approbate and reprobate, res judicata, and estoppel, will not be an impediment to set aside a decree which was passed without jurisdiction. Reliance is placed on various judgments including in Sushil Kumar Mehta vs. Sushil Kumar Mehta vs. Sushil Kumar Mehta vs. Gobind Ram Bohra (dead) through his LRs., (1990)1 SCC 193 Gobind Ram Bohra (dead) through his LRs., (1990)1 SCC 193 Gobind Ram Bohra (dead) through his LRs., (1990)1 SCC 193 and Isabella Johnson (Smt.) vs. M. S. Susai (Dead) by Isabella Johnson (Smt.) vs. M. S. Susai (Dead) by Isabella Johnson (Smt.) vs. M. S. Susai (Dead) by L.Rs., (1991) 1 SCC 494. L.Rs., (1991) 1 SCC 494. L.Rs., (1991) 1 SCC 494. It is then submitted that as the concession of Sukerkar was not found in the Schedule, by the application of 8th April, 1996, presented to the Central Government a request was made for inclusion of the said concession in Schedule I. It was set out therein that for want of inclusion of concession no. 7/1955 in Schedule I, the same concession would still be held valid in the eyes of law. It was stated that after inclusion, the petitioner could apply for renewal. It is also submitted that