1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 341/2008 Shri Pravinkumar Gosalia aged 54 years, businessman, residing at H.No.145-B, Shantiniketan, Isidoro Baptista Road, Pajifond, Margao, Goa. ......... Petitioner. V/s. 1. State of Goa, through the Chief Secretary with Office at Secretariat, Porvorim, Goa. 2. The Special Land Acquisition Officer, with Office at Goa IDC-P13, EDC Complex, Patto Plaza, Panaji, Goa. 3. Shri Chandrakant Kavlekar, Chairman, Goa Industrial Development Corporation, r/o. H.No.167, Gawli Waddo, Betul, Quepem, Goa 4. Goa Industrial Development Corporation, through its Secretary with Office at GIDC Plot No.13/A/2/EDC Complex, Patto Plaza, Panaji, Goa. .......... Respondents. Mr. M. S. Usgaonkar, Senior Advocate with Mr. Sudesh Usgaonkar and Mr. Prasad Naik, Advocates for the petitioner. Mr. S.S. Kantak, Advocate General with Ms. Sapna Mordekar, Addl. Govt. Advocate for respondent Nos. 1 and 2. Mr. A. D. Bhobe, Advocate for respondent No.3. 2 Mr. M. S. Sonak, Advocate for respondent No.4. CORAM : P.B. MAJMUDAR & N.A. BRITTO, JJ. DATE : 29th JANUARY, 2009. ORAL JUDGMENT : (Per MAJMUDAR, J.) The petitioner who has been granted a Mining Lease on 13.12.1968 under the Mines and Minerals (Development and Regulation) Act, 1957, is challenging in this writ petition the land acquisition proceedings taken out by the State Government for acquiring the land, in question, for the Goa Industrial Development Corporation, respondent No.4. A proposal in this connection was sent by respondent No.4 acquiring body to the State Government for establishing an Industrial Estate/Food Park at Quitol Village of Quepem Taluka. For the purpose of acquiring the said land, the Notification under Section 4 was issued on 14.06.2006 by the Revenue Department, Government of Goa. Initially, urgency clause was applied by resorting to the provisions of Section 17 of the Land Acquisition Act. The petitioner has annexed the Mining Lease which is at page 144 of the paper book. 2. The petitioner before filing of the present petition, had 3 earlier approached this Court by way of a writ petition, challenging the application of urgency clause by the State Government. Ultimately, the urgency clause was withdrawn and the Petitioner was permitted to lodge his objections as per Section 5A of the Land Acquisition Act. The petitioner, thereafter, submitted his objections to the proposed acquisition by submitting a detailed representation in this behalf. Subsequent to that, Notification under Section 6 of the Land Acquisition Act came to be issued on 15.5.2008 and thereafter, an award was also declared and possession has also been obtained by the Special Land Acquisition Officer (SLAO) from the petitioner. Before the SLAO the petitioner claimed that his claim before the SLAO was subject to his rights and contentions in this petition. By filing the present petition, the petitioner has challenged the said acquisition proceedings on various grounds 3. Mr. Usgaonkar, learned Senior Counsel appearing for the petitioner, pointed out to the Court that there is a dispute between the owner of the land and the petitioner and in this regard, reference has been made to the District Court by the SLAO under Section 30 of the Land Acquisition. He submitted that the petitioner, however, 4 participated in the said proceedings, subject to his rights and contentions and without prejudice to his contentions in this writ petition to the effect that since the application for renewal was pending, the land in question could not have been acquired under the provisions of the Land Acquisition Act. The learned Senior Counsel submitted that initially the mining lease was granted to the petitioner, after obtaining consent of the Central Government and the lease was initially granted for a period of 30 years by an Order dated 13.12.1968. After expiry of the said period, the petitioner had applied for renewal of the said lease before the expiry of the lease period and well within time, but, it seems that no decision has been taken on the said application and, therefore, it is contended on behalf of the Petitioner that in terms of the Mineral Concession Rules, 1960 and more particularly Rule 24A, the period of lease is deemed to have been extended for a further period as the application for renewal was already submitted before the expiry of the lease period. It is next submitted that the lease, in question, can be said to have been extended by the deeming provision under the said Rules. He next submitted that the SLAO has not considered the objections of the petitioner properly as there are other lands available for the said purpose, other than the land in question. 5 The acquisition of the land, in question, is challenged on the following grounds : (i) That the petitioner has been granted the mining lease for the purpose of excavating mines and minerals and originally, the lease was granted with the sanction of the Central Government and, therefore, it is not open to the State to acquire the land in question without consulting the Central Government in this behalf. (ii) The acquisition, in question, cannot be said to be for the public purpose as the public purpose is to be determined as per the provisions of the Land Acquisition Act and not as per the provisions of the Goa, Daman and Diu Industrial Development Act, 1965. (iii)The area under acquisition is leased out to the petitioner for excavation of mines and minerals and as long as the lease of the Petitioner is subsisting, the land, in question, could not have been acquired under the Land Acquisition Act. (iv) The petitioner by undertaking the work of excavation of mines and minerals is earning substantial amount of foreign exchange, which is a public purpose and in that view of the matter, the 6 acquisition of land in question, would be against the public purpose. (v)After hearing the petitioner under Section 5A of the Land Acquisition Act, the SLAO, behind the back of the petitioner, conducted spot inspection and gave report that the land which is sought to be acquired is not actually in use for mining purpose and no excavation of mines and minerals is going on. (vi)That the SLAO has not properly dealt with the objections raised by the petitioner under Section 5A of the Act. (vii) That the acquisition, in question, is not bonafide as it is at the instance and at the behest of respondent No.3 and, therefore, there is a colourable and malafide exercise of power in acquisition of the land in question. 4. The learned Advocate General appearing for the State has resisted the arguments advanced by the learned Counsel for the petitioner. It is submitted by him that the acquisition is entirely for the public purpose. The learned Advocate General submitted that the petitioner is having leasehold rights and the portion of it wherein no mining operations are going on, is sought to be acquired for the public 7 purpose. He submitted that the owner of the land has not challenged the acquisition proceedings and, therefore, the petitioner who is having leasehold rights cannot challenge the same. It is submitted by the learned Advocate General that there is no allegation of malfide against the Government. The learned Advocate General submitted that the petition suffers from delay and laches, as the same is filed after a period of about 2 months from the date of Notification under Section 6 of the Act and even the possession of the land was now taken away from the petitioner. The learned Advocate General submitted that the land, in question, is found to be more suitable for the public purpose regarding setting up of industrial estate/food park. It is submitted that this Court cannot substitute the subjective satisfaction of the SLAO. and the provisions of the Land Acquisition Act clearly prescribe that any land which is required for the industrial purpose shall be deemed to be needed for a public purpose. The learned Advocate General further submitted that it is not necessary to take any consent or approval of the Central Government while acquiring the land. The learned Advocate General submitted that under Section 36 of the Land Revenue Code, 1968 the land in question vests with the State Government. The learned Advocate General further submitted that 8 the allegation of malafides raised in the petition is without any basis and substance and no allegations as such have been levelled against the SLAO. He submitted that there is no irregularity committed by the SLAO while dealing with Section 5A objections as the objections have been dealt with properly and after hearing the petitioner reasoned order has been passed by the SLAO in that regard. 5. Mr. Sonak, the learned Counsel appearing for respondent No.4-Goa Industrial Development Corporation, supported the arguments advanced by the learned Advocate General. Shri Sonak submitted that the expenditure for the proposed acquisition is to be entirely borne by the acquiring body, i.e. the Goa Industrial Development Corporation from their own coffers and the State is not required to contribute any amount towards the acquisition of land in question. Mr. Sonak further submitted that on the basis of the demand received from the concerned Village Panchayat and after considering the need to acquire the land for the industrial estate/food park, which is also part of industrial development, a request was made by the acquiring Authority to acquire the land in question. The said land was found suitable for the said purpose and accordingly, the decision was taken 9 to acquire the land in question. So far as the argument of the petitioner that other lands can be acquired at some other places and some land is already acquired for the Industrial estates, is concerned, Mr. Sonak submitted that the said contention is not correct as the other lands are situated at a greater distance and not in the vicinity of the acquired land and the acquired land is more suitable land for the purpose of setting up of an industrial estate/food park. He, therefore, submitted that no fault can be found with the acquisition proceedings in any manner. 6. Mr. Bhobe, the learned Counsel appearing for respondent No.3 submitted that the allegations made against respondent No.3 are absolutely baseless. He submitted that the acquisition proceedings are not undertaken at the instance of respondent No.3 nor the respondent No.3 has got any rivalry with the petitioner 7. We have heard the learned Counsel for the parties at a greater length. We have also gone through the petition, affidavit-in- reply and all necessary documents forming part of the petition and the affidavit in reply. We have also gone through the relevant provisions of 10 the Mines and Minerals (Development and Regulation) Act, 1957, the Mineral Concession Rules, 1960, as well as the provisions of the Land Acquisition Act, and the the provisions of the Land Revenue Code, 1968. We have also gone through the various Judgments relied upon by both sides in order to substantiate their respective contentions. 8. So far as the first grievance of the Petitioner that without obtaining sanction of the Central Government the land, in question, could not have been acquired by the State is concerned, the learned Counsel for the petitioner has relied upon various provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and the Mineral Concession Rules, 1960. Relying upon the said provisions, the learned Counsel for the petitioner submitted that the mineral in question, is a major mineral and, therefore, the royalty is required to be paid to the Central Government as per the provisions of Section 9 of the Mines and Minerals Act. It is submitted that the provisions of the said Act and more particularly Section 13 of the Act empower the Central Government to make rules in respect of minerals for regulating the grant of reconnaissance permits, prospecting licences and mining leases in respect of minerals and for purposes connected therewith. It is 11 submitted that as per the said provision, it is the Central Government which is empowered to make rules. It is submitted that the State Government is competent in the matter of making rules in respect of minor minerals. It is submitted that since the petitioner is already having leasehold rights which are in force for excavating the mines, the State Government could not have acquired the land in question. The learned Counsel has relied upon the provisions of Section 17A in respect of reservation of area for purposes of conversation. He submitted that even for grant of prospecting licence, the Central Government is the only competent authority. So far as this contention is concerned, it is required to be noted that the power to regulate the mining leases vests with the Central Government. Seventh schedule of the Constitution in Union List entry 54 provides for regulation of mines and minerals development to the extent to which such regulation and development under the control of the Union is declared by law to be expedient in the public interest. In view of the same, in order to provide for regulation of mines and minerals development, the Mines and Minerals (Regulation and Development) Bill was introduced in the Parliament and on the basis of which, ultimately the Act was enacted. The Act has been enacted for the purpose of protecting and 12 development of Mines and Minerals under the control of the Union. Section 2 of the Act provides for control and regulation of mines and the development of minerals to the extent provided in the Act and such a power vests with the Union. The Act also provides for various aspects regarding royalties in respect of mining leases for excavating the minerals, regulatory measures to adopted, the maximum period for which the mining lease may be granted and adopting other regulatory measures. 9. Considering the provisions of the said Act and the Rules, it is not possible to accept the argument of the learned Counsel appearing for the petitioner that even for the purpose of acquiring the land for any public purpose under the Land Acquisition Act, which operates in altogether different field, the permission under the Mines and Minerals (Development and Regulation) Act, 1957 is necessary. So far as the land in question is concerned, the same is sought to be acquired for setting up of an industrial estate/food park in the Village. The power of acquiring the said land has to be exercised as per the provisions of the Land Acquisition Act. The Land Acquisition Act and the Mines and Minerals (Development and Regulation) Act, both 13 operate in a different field altogether. Mr. Usgaonkar is not in a position to point out any provision of law on the point that even for acquisition of land any permission under the aforesaid statutes is required. So far as the provisions of the Mines and Minerals (Development and Regulation) Act and the Rules are concerned, the Central Government is having regulatory function and at the time of granting the lease, the permission is required to be obtained from the Central Government by the State Government. However, the same is only for the purpose of regulating the area wherein the mining operation is being carried out. By no stretch of imagination it can be said that even for acquiring the land under the Land Acquisition Act, permission of the concerned Department of Central Government is required under the Mines and Minerals (Development and Regulation) Act. Mr. Usgaonkar in order to substantiate his say, has relied upon a decision of the Supreme Court in the case of P. Kannadasan etc. etc., vs. State of Tamil Nadu and others, AIR 1996 SC 2560. In the aforesaid decision, the question which arose for consideration of the Honourable Supreme Court was in connection with levying cess/tax on minerals. It has been held therein that the power to levy such cess/tax exclusively vests in the Parliament and, therefore, the 14 Parliament was competent to enact law on this aspect. The Supreme Court has observed in para 13 as under : “013. The first submission of the learned Counsel for appellants-petitioners is that by enacting the impugned Act, the Parliament has sought to annul and invalidate the decisions of this Court in India Cement (AIR 1990 SC 85) and Orissa Cement (AIR 1991 SC 1676) which it is not competent to do. It is submitted that this Court had issued a mandamus directing certain State Governments to refund the taxes and cesses collected by them under the invalid laws. Son of the States had also given undertakings to this Court to refund the taxes/cesses collected in the event of the success of appellants-petitioners. The mandamus so issued cannot be invalidated by making a law. The undertaking given by the State is binding upon it. Strong reliance is placed upon the decisions of this Court in Madan Mohan Pathak v. Union of India (1978) 3 SCR 334 : (AIR 1978 SC 803) and A. V. Nachane v. Union of India (1982) 2 SCR 246 : (AIR 1982 SC 1126). It is not possible to agree. It must be remembered that our Constitution recognizes and incorporates the doctrine of separation of powers between the three organs of the State, viz., Legislature, Executive and the Judiciary. Even though the Constitution has adopted the 15 Parliamentary form of government where the dividing line between the Legislature and the Executive becomes thin, the theory of separation of powers is still valid. Ours is also a federal form of government. The subjects in respect of which the Union and the States can make laws are separately set out in List I and List II of the Seventh Schedule to the Constitution respectively. (List III is, of course, a concurrent list.) The Constitution has invested the Supreme Court and High Courts with the power to invalidate laws made by Parliament and the State Legislatures transgressing the constitutional limitations. Where an Act made by a State legislature is invalidated by the Courts on the ground that the State legislature was not competent to enact it, the State legislature cannot enact a law declaring that the judgment of the Court shall not operate; it cannot overrule or annul the decision of the Court. But this does not mean that the other legislature which is competent to enact that law cannot enact that law. It can. Similarly, it is open to a legislature to alter the basis of the judgment as pointed out by this Court in Shri Prithvi Cotton Mills v. Broach Borough Municipality (1970) 1 SCR 388: (AIR 1970 SC 192)- all the while adhering to the constitutional limitations; in such a case, the decision of the Court 16 becomes ineffective in the sense that the basis upon which it is rendered, is changed. The new law or the amended law so made can be challenged on other grounds but not on the ground that it seeks to ineffectuate or circumvent the decision of the Court. This is what is meant by “checks and balances” inherent in a system of government incorporating the concept of separation of powers. This aspect has been repeatedly emphasised by this Court in numerous decisions commencing from Shri Prithvi Cotton Mills. Under our Constitution, neither wing is superior to the other. Each wind derives its power and jurisdiction from the Constitution. Each mush operate within the sphere allotted to it. Trying to make one wing superior to other would be to introduce an imbalance in the system and a negation of the basic concept of separation of powers inherent in our system of government. Take this very case. The State legislatures enacted provisions levying cesses/taxes on minerals. They thought that they were entitled to do so by virtue of Entry 50 of List II of the Seventh Schedule and that the enactment of the M.M.R.D. Act by the Parliament and the declaration contained in Section 2 thereof did not deprive them of the legislative power conferred by the said entry. A Constitution Bench of this Court in 17 H.R.S. Murthy upheld their stand and affirmed their belief. Several years later, a larger Bench of this Court overruled H.R.S. Murthy (AIR 1965 SC 177) in India Cement (AIR 1990 SC 85) and ruled that by virtue of the declaration contained in Section 2 of the M.M.R.D. Act and the provisions of the said Act, the State legislatures are denuded of their power to levy any tax on minerals. Entry 50 in List II became practically a dead letter. Provisions in several State enactments levying cess/tax on minerals were accordingly invalidated with effect from different dates. The decisions of this Court clearly meant that the power to levy cess/tax on minerals vested exclusively with the Parliament. Since this Court is the final arbiter on the interpretation of the Constitution, everybody was bound by the said declaration of law. In the circumstances, the Parliament stepped in and enacted the impugned law, avowedly to bail out States of the predicament aforementioned; the impugned enactment makes this objective clear beyond any doubt. At the same time, it should be noted that Parliament does not purport to clothe the State legislatures with the power which they do not possess. The Parliament had already deprived the State legislatures of the power to levy tax on minerals by making the declaration contained 18 in Section 2 of the M.M.R.D. Act as for back as 1957. The said declaration remains intact which means that the States have no power to levy any tax or cess on minerals so long as the said declaration remains in force. The Parliament, therefore, adopted the only legislative course open to it in the circumstances. It created those very levies with retrospective effect by enacting the impugned law. Section 2(1) says that the relevant provisions of the enactments mentioned in the Schedule to the Act shall be deemed to have been enacted by Parliament on the date they were enacted by the respective legislatures and that such provisions shall be deemed to have remained in force upto 4th day of April, 1991. It is not suggested that Parliament is not competent to levy a tax or cess with retrospective effect. It is, however, suggested that the tax so levied must also be operative and effective on the date the enactment is made. There cannot be a levy which is wholly and exclusively retrospective, it is argued. We see no warrant for reading such a restriction upon the power of the Parliament. If the Parliament is empowered to make a law with retrospective effect, it is entitled to make the law effective for such anterior period as it thinks appropriate. It cannot be said that unless the levy created with retrospective effect is also kept 19 alive on the date the law is enacted by Parliament, such a levy would be incompetent. This would amount to evolving a principle unknown to law and would also amount to creating a fetter on Parliament for which there is no basis in principle. We are also unable to see any substance in the submission that by virtue of the impugned enactment, the Parliament has tried to annul the judgments of this Court. On the contrary, the Parliament has accepted the law declared by this Court and has accordingly enacted the law itself, about whose legislative competence there can be no serious question.” The said decision is on the point of uniform rates to be charged for the purpose of fixation of royalty. The aforesaid decision is in connection with the power of the Parliament in fixing the rate of royalty. The said decision is not in connection with the power of the State for the purpose of acquiring land under the Land Acquisition Act. It is not possible for us to accept the argument of Shri Usgaonkar that since the petitioner is having leasehold right over the land, the land in question cannot be acquired. 10. At this stage, the learned Advocate General has relied upon 20 a decision of the Supreme Court in the case of Director of Industries & Mines, Goa v/s. A.H. Jaffar &