IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.268 OF 1996 Ferromet Concentrates, a division of M/s.Sociedade de Fomento Industries Limited, Erasmo Carvalho Street, P.Box No.31, Margao, Goa. .... Petitioner. Vs. 1. State of Goa represented by Chief Secretary, with office at Panaji. 2. Directorate of Industries and Mines, Mines Wing, Udyog Bhawan, Panaji, Goa. 3. Gomantak Investment Pvt. Ltd., with office at Damodar Bhavan, Opposite High Court, Panaji, Goa. 4. Union of India, through the Secretary, Ministry of Mines and Minerals, New Delhi. ..... Respondents. Mr. M.S. Usgaonkar, Sr. Advocate with Mrs. Sudin M.S. Usgaonkar and Mr. Sanjay Sardesai, Advocates for the petitioners. Mr. N.K. Sawaikar, Addl. Government Advocate for respondents No.1 and 2. Mr. S.K. Kakodkar, Sr. Advocate with Mr. Joel D’Souza, Advocate for respondent No.3. Mr. J.S. Vaz, Addl. Central Government Standing Counsel for respondent No.4. CORAM: F.I. REBELLO & P.V. HARDAS, JJ. DATE : JULY 29, 2003. ORAL JUDGMENT: (Per REBELLO, J.) The petitioner by the present petition has prayed for the following reliefs: (a) that this Court be pleased to direct the respondents to notify area in respect of Sukerkar’s mine for regrant and dispose of the application dated 9.8.1988, marked Exhibit "A", which is still pending; (aa) The action of the State Government and Central Government in granting prospecting licence and mining lease vide orders dated 24.8.1992 and 6.8.1996 respectively be declared void and in any event quashed and set aside; (b) restrain respondents No.1 and 2 from granting the Prospecting Licence or Mining Lease in respect of the said area to any other person until application of the petitioner Exhibit "A" is disposed of. . This petition came to be dismissed by an order dated February 12, 2001 by a Division Bench of this Court, on the ground of laches. Being aggrieved, the petitioner preferred S.L.P. before the Apex Court. Leave was granted.The appeal was allowed and the matter was remanded to this Court for fresh decision. That is how, the matter has come up for rehearing before this Court. . Along with this petition, there was another petition, earlier filed before the Delhi High Court by one Dr. Nishikant Sukerkar which was transferred to this Bench of this High Court by the Apex Court. By a separate order, that writ petition has also been disposed off. 2. It is the case of the petitioner that they had applied for a Prospecting Licence for an area admeasuring 11.30 hectares by application dated August 9th 1988. The area applied for formed part of the original mining concession granted to late Narcinva P. Sukerkar in an area of 22.0807 hectares. The petitioner has averred that Sukerkar Concession was bounded on the southern side by concession/ lease granted to Shri Manohar Hiru Naik Parulekar and now to his widow Smt. Geetabala M.N. Parulekar. The petitioners contend that they were interested to have the renewal of the Mining Lease in the name of Sukerkar, with whom the petitioner’s were having a contract and consequently renewal application was made by them on 18.5.93. An Agreement of Sale had been entered into dated 6.11.1972 between the petitioner and Sukerkar whereby petitioner had agreed to buy the entire quantity of iron ore, lumpy and/or fines etc. raised from the late Sukerkar’s mines situated in Concession No.7, which was to remain in force for a period of 20 years i.e. upto 5th November, 1992. The renewal application of the mining lease in the name of Sukerkar was made by the petitioner. The petitioners were informed in connection with their letter dated 18.5.93 by letter dated 20.7.1993 that the area is not free for grant or is an existing lease for renewal. As the petitioner received letter dated 20.7.1993, the petitioner did not pursue their application for the Prospecting Licence as that area was not declared free for grant. It is pleaded by the petitioner that in terms of Rule 59 of the Mineral Concession Rules, 1960 in respect of land already held on lease or concession, no prospecting licence is to be granted unless land is declared free for grant. It is then averred that after the letter dated 20.7.1993, the respondents have not issued any declaration, declaring that the said land is free for grant. It is then stated that had the application of the petitioner for prospecting licence been granted, the petitioner could have extended the mining operations in adjoining area without any restrictions. For economic reasons, it is set out that the operations of the petitioner in part of the mining lease of Smt. Geetabala had been closed with effect from 17.11.94 with the permission of the Central Government. It is contended that the petitioner was considering whether by some technical means it is possible to extract the ore from the mine of Parulekar upto the boundary line. But this could not be done unless the adjoining area of Sukerkar is available for operation. It is then set out that it could not be done without knowing what was the status in respect of area earlier granted to Sukerkar. Accordingly, the petitioner addressed a letter to the heirs of Sukerkar dated 4.12.1995 wherein it was set out that they had received a letter from the Government dated 20.7.1993, setting out that the subject mine, is not free for grant and they would be grateful if they are informed of the present status of the mines. A letter was received from Dr. Nishikant Sukerkar dated 8.12.95 setting out that the mine was cancelled by the Government by Order dated 6.4.76 and the revision application was dismissed on 10.5.1978 and, therefore, the said area was free for grant. The petitioner’s have therefore, prayed for directing the respondent to notify the area in respect of Sukerkar Mines for regrant and dispose of the application dated 9.8.1988, which is still pending. 3. The petition came to be subsequently amended. By the amendment it is pleaded that respondent No.1, by Notification dated 5.1.77 had notified the area applied by the petitioner as free for grant of mining lease. This was after the Government Notification dated 5.4.76. determining the mining lease under T.C. No.7 dated 12.3.55 granted to Shri Narcinv P. Sukerkar. By that Notification, it was declared that the mining concession is open for regrant. It is also set out that on 8.5.1979, notice under Mining Leases Modification of Term Rules 1956, was issued to show cause as to why mining concession granted to Sukerkar should not be modified into lease. By Order dated 20.10.1981, the concession granted to Sukerkar, was modified into mining lease by the Controller of Mining Leases. It is also set out that the mining lease applied for by respondent No.3 in the year 1984 was converted by the respondent No.1 into prospecting licence as per the order of Central Government dated 3.8.1989. It is set out that the order of the Central Government dated 3.8.1989 permitting the application of respondent No.3 for Mining Lease to be converted into application for prospecting licence is bad in law, as also the grant of mining lease by the State Government in favour of respondent No.3 and its approval by the Central Government is bad in law. There was no Notification issued for regrant after the Goa, Daman & Diu Mining Concession (Abolition and Declaration as Mining Lease, 1987) hereinafter regard to as the 1987 Act, which came into force from 22.5.1987. The regrant was in respect of mining concession, which was granted under the Portuguese Decree, which was abolished and converted into leases only in the year 1987 by the Act of 1987 Earlier the Controller of Mines had attempted to convert the concession into leases under the provisions of Section 16 of the Mines and Mineral Regulation and Development Act, 1957 (hereinafter, referred to as "MMRD Act"). That was challenged and the Notification was quashed. Subsequently, Section 16 of the MMRD Act was amended in the year 1972 and a fresh show cause notice was issued by the Controller seeking conversion of concessions into leases, which was also challenged before this Court. By Judgment dated 29.9.1983, the respondent-Government and the Controller of Mines were prohibited from enforcing the Notification dated 10.3.1975. The application of the petitioner, it is pointed out, is of 1988 and subsequent to the Abolition Act, and has been validly made,and as such the application of mining lease of Respondent no.3 dated 20.12.1984 could not have been considered at all. It is, therefore, submitted that the application dated 20.12.1984 for prospecting licence is not valid in the eyes of law. It is set out that no power has been given for converting mining lease application into prospecting licence and if there is such a power, at the highest, the application can be considered from 3.3.1989 and not from 20.12.1984. It is also set out that as respondent No.3 has not obtained surface rights, and surface rights are held by the petitioner’s concern, no conversion could have been granted in terms of paragraph 3 of letter dated 3.8.1988 even assuming that such a power is in the Government. It is set out that, the order dated 3.8.1989 granting the conversion is bad on its face and consequently, all actions further to letter dated 3.8.1989 are also bad and equally the approval granted for the grant of mining lease by letter dated 6.8.1996 is also bad. It is then set out that at the time of filing the Special Leave Petition, the petitioner had made inquiries about the status of the application for environmental clearance and the petitioner had received a reply dated 3.5.2001 that the papers were forwarded to Ministry of Environment and Forest and its clearance is awaited. 4. On behalf of respondent no. 2 an affidavit dated 30.8.1996 has been filed. It is pointed out that the Notification under Rule 59 of the Mineral Concession Rules, 1960, was published in the Official Gazette No.43, Series II dated 20th January, 1977, notifying that the area as shown in Column I of the Schedule is available for grant of mining lease and had invited applications from interested persons for the grant of mining lease after the expiry of 30 days from the date of publication of the Notification in the Official Gazette. In response to that, three applications were received in 1977, of (1) M/s. A.H. Jaffar & Sons, (2) Shantaram Kantak and (iii) Vaikunt P. Raikar. The application received in 1984 was of M/s. Gomantak Investment Pvt. Ltd., respondent No. 3 herein. On the expiry of the statutory period of 12 months the first three applications were deemed to have been refused. The three applicants did not prefer any revision petition. M/s. Gomantak Investment Pvt. Ltd., on expiry of the statutory period, preferred a revision petition to the Central Government. During the pendency of the revision petition respondent No.3 filed a Writ Petition No.327/89 before this Court. By order dated 11.10.1989, this Court was pleased to permit respondent No.3 to withdraw the petition, in view of the letter of the Government dated 3.8.1989. By letter of 3.8.1989, the petitioner was allowed to convert the application for mining lease filed in the year 1984 into a Prospecting Licence, as was permissible in view of the Government of India’s instructions conveyed by letter dated 3.3.1988 consequent to the 1987 Amendment to the Act. After complying with the prescribed procedure,and as respondent No.3 satisfied the requirement of MMRD Act and the Rules for grant of prospecting licence, with the approval of the Central Government, prospecting licence was granted vide order dated 24.8.1992, which was published in the Official Gazette on 10.9.1992. Respondent No.3 paid the requisite fees and carried on operations. Respondent No.3 thereafter applied for Mining Lease on 23.11.1993 along with requisite documents including Mining Plan. On receipt of the application, and after obtaining from the Collector & Conservator of Forests the requisite NOCs., the matter was referred to the Central Government for its prior approval under the MMRD Act. By letter of 6.8.1996, the Government of India conveyed its approval for grant of Mining Lease in favour of respondent NO.3. It is pointed out that the petitioner cannot contend that they were not aware of the grant of the prospecting licence to respondent No.3. The case of the petitioners themselves was that they were concerned with extraction of ore from the mine of Parulekar which is adjacent to the suit mining area. The prospecting operations, which includes drilling, were going on for over a year in the area in respect of which the Prospecting Licence had been granted to respondent No.3. At the time of demarcation of Prospecting Licence, Smt. Parulekar was officially informed about the same. It is then pointed out that in so far as the application of the petitioner dated 9.8.88, the same was not disposed of within 12 months from the date of receipt, and as such is deemed to have been refused. The petitioner did not prefer any revision and, therefore, cannot contend that the application dated 9.8.88 is still on the live register. It is then pointed out that the application for prospecting licence dated 9.8.88 was accompanied by an affidavit of Shri Vaikunt Srinivas Poi Raikar, as a Director of the Petitioner Company. Said Vaikunth Raikar had applied for mining lease in his own name in the year 1977 as earlier set out. It is, therefore, contended that the petition is not maintainable considering the prayer clauses, as prayed for. 5. Respondent No.3, who have been added, has have filed an affidavit through one Manoj Dhirajlal Rajani, Director of Respondent No.3. It is set out that the petition is not maintainable in law as the petitioner has no title or interest whatsoever to maintain and file the present petition. It is also set out that the petitioners have no locus standi. It is then set out that the petitioner herein had moved the Central Government by way of a revision for review of the order dated 6.8.1996. That has been rejected and consequently, the petition ought not to be entertained. It is submitted that all the four prayers sought for are infructuous. It is then pointed out that the petition is also liable to be dismissed on the ground of delay and laches. Application of the petitioner was rejected in 1988 and the petitioner has approached this Court only in 1996. There is not even a whisper explaining the delay. It is also pointed out with reference to the material on record that various statements have been made which are false. Shri Vaikunth Pai Raikar, the person who filed the application for grant on behalf of the petitioner in 1988, is the Director of the petitioner Company. Shri Raikar was one of the persons who applied for Mining Lease in the year 1977 after it was notified. It is, therefore stated that the petitioners were all along aware that the area was notified for grant in 1977 itself. Letter dated 6.10.92 addressed to Smt. Parulekar clearly shows that the respondent has been granted Prospecting Licence in question. The petitioner therefore, cannot feign ignorance of these developments. . Various other events regarding determination of mining concession of late Mr. Sukerkar, have the been set out and also the fact that applications had been for grant of lease made after the area was notified for grant. Two of the persons, S.Kantak and V.P.Raikar who had made the application were themselves directors of the petitioner in the year 1977 when they had applied for the Prospecting Licence in the year 1977. Their applications on the expiry of one year, were deemed to be rejected. It is then pointed out that in the year 1984, by application dated 20.12.1984, the respondent filed an application for grant of mining lease On expiry of the period of 12 months,as it was not granted they preferred a revision to the Central Government under Section 30 of the MMRD Act read with Rule 54 of the Mineral Concession Rules 1960. It is pointed out that the Union of India had issued a Circular dated 3.3.1988 whereby the State Governments were permitted to convert pending mining lease applications into Prospecting Licence applications. The petitioner had filed a petition bearing No.327/89. During the pendency of the writ petition, as the petitioner had received a letter on 3.8.1989 to the effect that the Government had agreed to convert mining lease application dated 20.12.1984 into a Prospecting Licence application, and calling the respondent to comply with the provisions of Sub-Rule 2(g) of Rule 9 of the Mining Concession Rules, 1960, the respondent had sought permission to withdraw the writ petition which was permitted to be withdrawn by order dated 11.10.1989. It is pointed out that the Act 1987, has no consequence whatsoever in so far as lease to be granted to the respondent No.3. It is then pointed out that subsequent to the Prospecting Licence, respondent No.3 had carried out prospecting operations as required under the Rules and submitted regular reports and after that had applied for mining lease on 23.11.1993 along with the requisite documents including mining plans. It is pointed out that the Company has been granted approval for grant of mining lease. It is set out that the petitioners were fully aware that Respondent no.3 in respect of the mine in question had been granted a prospecting licence as early as 1992. Various steps taken pursuant to the prospecting Licence are set out. Notices issued to Mrs. Geetabala Parulekar for demarcation of the area and the boundaries are adverted to, as by an application dated 8.8.1993, respondent No.3 had requested for issuance of a joint lease hold boundary plan. The letter was signed by the Mines Manager of M/s. Geetabala Parulekar, namely one Mr. Naidu who was for all purposes an employee of the petitioner. It is also set out that the respondent has incurred expenses for carrying out prospecting operations in the area and for securing the mining lease, to the extent of Rs.35,00,000/- after fully complying with all procedures. It is not necessary to advert to the various other averments. . A rejoinder has been filed. It may be mentioned that dealing with the knowledge of Vaikunth Pai Raikar, all that is set is out that it is denied for want of knowledge and it is set out that Vaikunth Pai Raikar is no longer in service of the Company. However, the averments in paragraph 6 of the affidavit-in-reply that Shri Shantaram Kantak and Shri Vaikunth P. Raikar were themselves Directors of the petitioners, have not been denied. At this very stage, it may be pointed out that though several Judgments were cited, only those Judgments are referred to which are necessary for deciding the issues in issue. Some of the Judgments are adverted to in W.P. No.101/2003 6. Before going into the various contentions, at the outset, let us consider whether the reliefs as prayed for are capable of being granted. Part of the relief as prayed for in prayer Clause (a) is no longer available as the petitioners application dated 9.8.88 admittedly, was under the MMRD Act and the Rules framed thereunder and by operation of law, as the application was not allowed, is deemed to have been rejected on the expiry of twelve months. The petitioner did not prefer any revision application and consequently that relief is not available. In so far as the relief of notifying the area for regrant, that had already been done in 1977. Also if the area is not free for grant the application by the Respondent would be pre-mature. If that be the case prayer (b) will also not be available. The only question left to be considered is whether the action of terminating the mining concession of Sukerkar is void and so also all consequential actions and can be interfered by this court at the instance of this petitioner. The reliefs as prayed for in the petition as originally filed in terms of prayer clause (a) & (b) could really not have been granted save for the contention that the order throwing open the area for a mining concession for regrant was invalid or void. The petitioner has basically contended that Sukerkar Mining Concession subsists as the termination was null and void. This Court while disposing of W.P.No.101/2003 filed by Sukerkar has refused to exercise its extra-ordinary jurisdiction in favour of Sukerkar on various counts. It will, therefore, not be possible to entertain such a challenge at the behest of the petitioners who are applicants herein and have filed a petition for that relief nearly after 20 years of termination of Sukerkar concession and thereby opening the area for regrant. If it subsists, in the alternative the relief sought in the present petition is not maintainable. Similarly, the relief by Sukerkar that the mining concession should be included in the schedule under Section 4 of the Amending Act 1987 has also been rejected in W.P.No. 101/2003. It is not necessary, therefore to answer the said issue once again in this petition. It may be further mentioned that the petitioner can have no locus-standi to challenge the order of termination of Sukerkar’s concession or consequent declaration of the area as free from grant . That at the highest could be sought for by Sukerkar if in law such a challenge was available which he had done, but relief was declined by this Court. The remaining part of prayer clause (a) therefore also has to be rejected. 7. We may now consider the preliminary objections raised by respondent No.3. The first objection raised on behalf of respondent No.3 is that the petitioner has no locus standi to file the petition. This is based on the contention that the application made by the petitioner in 1988 under the MMRD Act had lapsed and there was no fresh application from the petitioner. Apart from that, even if the petitioner claims right pursuant to the Agreement of 1972 for purchase of iron ore from Sukerkar Concession that was for a period of 20 years and admittedly had not been renewed. Even otherwise, it is contended that it would be void for contravention of Rule 37 of MCRS 1960 Sukerkar having transferred his interest in the mines entirely to the petitioner with an irrevocable power of Attorney. Act. It will really not be possible to accept that contention and dismiss the petition on this ground. Even though the petitioner’s application has been deemed to be rejected and no revision was preferred, the relief sought for in terms of prayer clause (aa) could still be considered, as to whether the application by respondent No.3 could have been considered and the prospecting licence granted. If the prospecting licence granted is not valid, then the petitioner can maintain the challenge. In our opinion, the contention that there is no locus standi has to be rejected. . Another contention again raised as preliminary objection is that the reliefs as sought for by the petitioner cannot be granted. Even if prayer (a) no longer subsists, it will still be open for this Court to consider prayer Clause (aa). Prayer Clause (b) may be consequential to prayer Clause (a). Prayer clause (aa) however will still have to be considered and contentions disposed of more so considering the observations by the Apex Court. . It is also contended that the petition is hopelessly barred by laches. This contention will be adverted to after disposing of the major contentions urged on behalf of the petitioner. 8. On merits Petitioners contend that the petitioner had made an application for prospecting licence dated 9.8.1988 in respect of southern part of Sukerkar Concession admeasuring 11.30 hectares. Respondent No.3 made an application for prospecting licence dated 11.1.89 which included the whole of Sukerkar Concession and an additional area to the west. In the event, there are two contenders for the prospecting licence, the application prior in point of time ought to get preference. The application by the petitioner, it is contended, is prior in