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Gangadhar N. Agrawal Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal Nos. 712, 712A, 712B and 712C of 1968
Judge
Reported inILR1970Delhi452
ActsGoa, Daman and Diu (Laws) Regulation, 1962 - Regulation 4; Mineral Concession Rules, 1949 - Rule 28(1A); Portuguese Colonial Mining Laws - Schedule - Article 73
AppellantGangadhar N. Agrawal
RespondentUnion of India and ors.
Advocates: A.S. Bobde,; G.L. Sanghvi,; B.R. Aggarwal,;
Cases ReferredMoon Mills Ltd. v. M.R. Mehar
Excerpt:
goa, daman and diu (laws) regulation (no. 12 of 1962), s, 4 (i) - 'legal proceedings'--meaning of.; held, that 'legal proceedings' in sub-section (2) of section 4 of the regulation need not necessarily be a proceeding in a court of law.; that the applications for the grant of mining concession were legal proceedings within the meaning of the regulation which subsisted even after the mines and minerals (regulation & development), act, 1957 and the the mineral concession rules, 1960 were made applicable to goa, daman and diu,; (ii) mineral concession rules (1949), rule 28 (1-a) & 57(2)--lapse of nine months after date of application--effect of.; that lapse of nine months after the date of receipt of application does not mean that the application ceases to exist. the government.....t.v.r. tatachari, j.(1) this writ petition has been filed by gangadhar n. agarwal, mine owner and exporter of mineral ore and importer, margaon, goa. the respondents are : (1) the union of india through the secretary to the government of india, ministry of steel, mines and metals; (2) the directorate of industries and mines, government of goa, daman and diu; and (3) vinod kumar shantilal cosalia, mine owner and exporter, margaon, goa.(2) according to the petitioner, he has been carrying on the business of mining for several years at margaon, goa, under the laws applicable thereto both before and after goa, daman and diu were liberated from foreign rule. prior to the liberation of goa, daman and diu on the 19th of december, 1961, the said territories were governed by the portguese.....
Judgment:

T.V.R. Tatachari, J.

(1) This writ petition has been filed by Gangadhar N. Agarwal, mine owner and exporter of mineral ore and importer, Margaon, Goa. The respondents are : (1) the Union of India through the Secretary to the Government of India, Ministry of Steel, Mines and Metals; (2) the Directorate of Industries and Mines, Government of Goa, Daman and Diu; and (3) Vinod Kumar Shantilal Cosalia, mine owner and exporter, Margaon, Goa.

(2) According to the petitioner, he has been carrying on the business of mining for several years at Margaon, Goa, under the laws applicable thereto both before and after Goa, Daman and Diu were liberated from foreign rule. Prior to the liberation of Goa, Daman and Diu on the 19th of December, 1961, the said territories were governed by the Portguese Constitution. Under that Consitution, as pointed out in Xec Ayub v. Government of Goa, Daman & Diu, A. I. R. 1967 Goa, Dam & Diu 106, the Government formed by the Prime Minister was empowered to promulgate decrees and laws for Portugal and overseas territories. One of the Laws so promulgated was the Portuguese Colonial Mining Laws (hereinafter referred to as the 'Portuguese Mining Laws') approved by the Decree, dated 20th September, 1906. The said Portuguese Mining Laws were in force before the aforesaid liberation. A printed book containing a translation of the said Laws into English has been furnished to us by Shri A. S. Bobde, learned counsel for the petitioner. Section I of the said Portuguese Mining Laws contains preliminary definitions. Clause (a) of the said section defines a 'Prospector' as-

'Any person who, furnished with a mining license or without such being the proprietor of the ground, engages in works of prospection, and who being a foreigner has relinquished any such privileges.'

(3) Clause (b) defines a 'discoverer' as-

'Aprospector who having discovered a new mineral deposit that is to say, where no work has formerly been done, .....................................'

(4) Clause (c) defines a 'Claim' i.e. a mining or mineral claim as meaning-

'THATarea of land of dimensions fixed by law, and included in a manifested area which is thereforee preserved for prospective works, and which can be conceded for actual mining works.

(5) Clause (i) defines 'Prospecting Notice' as-

'Anotice placed on a tree, post, or any other support which makes it plainly visible, and which displays during the terms of the respective license the sole right to prospect in an area determined by law and of which this notice is the centre.'

(6) Clause (j) defines 'Notice of Discovery' as-

'Anotice put up by a prospector in the same manner as a prospecting notice which is intended to indicate the discovery he supposes he has made, and which should be fixed as near as possible to the starting point which should be clearly indicated.'

(7) Clause (k) defines 'Mining Manifest' as-

'Adeclaration in writing in which the party states that he has discovered a mineral deposit, and which must relate all the facts necessary to fix the exact position of the same.'

(8) Clause (1) defines 'Mgnifestor' as-

'Any person making a mining manifest'. Clause (m) defires 'Notice of Manifest' as- 'The record in a special bock of the prospector's declaration which in a fixed term will insure the exclusive right to concession of a manifested mining property when such contains minerals and the manifested land is free.'

(9) Clause (n) defires 'Title of Manifest' as-

'Acertificate of the note of manifest which is the document appertaining to legal right to concession when in accordance with all the terms of the law.'

(10) Clause (u) defines 'Mining Concession' as-

'THATwhich is granted to the manifestor and permits him to explore a mining property and to enjoy thereon all mining rights. It is unlimited in duration as long as the concessionaire complies with the conditions which the law and the title of concession impose on him.'

(11) Clause (v) defines 'Title cf Concession' as-

'Adocument legally establishing a concession'.

(12) Article 2 of the Portuguese Mining Laws provides that the proprietorship of deposits of metals and metalliferous minerals, including bismuth, etc. belongs to the State, and that such beds cannot be prospected or worked without license and concession by Government according to the said Portuguese Mining Laws. A resume of the process or the course for obtaining a license for prospecting and for acquiring a concession for mining 'claims', as well as the conditions to be observed has been given in Article 4 cf the aforesaid Portuguese Mining Laws. It runs as under :-

'(A)A license for prospecting is indispensable, except to the proprietor of the Land, for the establishment of the rights of a prospector, and must be obtained from the proper authorities designated in Article 38 and 161. (b) After prospecting and thereby revealing the existance of any useful mineral, or even independently of prospecting when a simple inspection of the land suffices and when no prospector is already legally established, or on the other hand when such land has once been the subject of a concession which has been declared to have lapsed concessionary rights may be obtained by means of fixing a notice of discovery and the respective 'manifest' which can be executed before such authorities as grant a license for prospecting. (c) After executing a 'manifest' and on the elapse of three months without a counter claim having been lodged, the proper authority shall order a 'survey' of the ore bed. (d) Only after such 'survey' or at the close of the period during which it should have been performed it is permitted to commence mining and, to apply for a concession, which shall be granted for time unlimited, so long as the concessionaire complies with all legal conditions and especially those required by the diploma or 'title of concession'.

(13) On 5th September, 1958, four titles of manifest, Nos. 31, 33,34, and 35 were granted to one Mr. V. 3. Keny of Goa in respect of four areas. Under Article 10 of the Portuguese Mining Laws, the proprietorship of minerals as well as the rights derived from a title of manifest were transferable according to the terms of Chapter Vii of the said Mining Laws. Article 60 provides that the title of manifest shall be transferred by a simple endorsement legally registered, and that-

'THEacknowledgement can be made in the District Government Office, should the manifestor be known there or by producing two witnesses worthy of credit who may prove his identity.'

Article 120 also provides that-

'Atitle of manifest is transferable by simple endorsement on the original title, properly executed in the terms of Art. 60.'

(14) According to the petitioner, he purchased the four titles of manifest from Mr. Keny for a consideration of Rs. 33,000.00 after performing all the necessary formalities required by the Portuguese Mining Laws, and the transfer of the said manifest was attested by the Notary Public in Goa. Shri Brijbans Kishore, learned counsel for respondents Nos. 1 and 2, produced the file which contained the original titles of manifest, and we noticed that the four titles of manifest were endorsed by Mr. Keny in favor of the petitioner and the endorsement was attested by the Notary Public in Goa as alleged by the Petitioner. The definition of 'title of manifest' in section l(m) shows that it is a document appertaining to-legal right to 'concession'. Article 49 of the Portuguese Mining Laws provides that a manifest secures the right to 'concession'' when no previous, right exists. Thus, the petitioner, on the transfer of the fout litles of manifest to him by Mr. Keny, acquired a right to obtained oncessions in respect of the four areas in question. He, thereforee, presented four applications (Annexures A, A-1, A-2 and A-3), dated 4th September, 1959, to 'the Governor General' in which he stated that he desired to obtain concessions of iron and manganese ore on the lands relating to titles of manifest Nos. 31, 33, 34 and 35 of 5th September, 1958, issued by the Governor General and endorsed in his favor, and requested that the Governor General may grant him the concessions. He attached to the applications the titles of manifest and certain challans as required by the Portuguese Mining Laws. He added that he would produce the remaining documents required by the said Mining Laws within 30 days.

(15) On 17th September, 1959, the petitioner presented four applications (Annexures A-4 to A-7) attaching to them certain documents and praying that the same may be permitted to be attached to his earlier applications, dated 4th September, 1959. He paid the necessary fees for the concessions on 24th September, 1959.

(16) The territories comprised in Goa, Daman and Diu were acquired with effect from 20th December, 1961, and have, by virtue of sub-clause (c) of clause (3) of Artilee 1 of the Constitution of India, been comprised within the territory of India. In order to make provision for the administration of the said territories, the President of India, in exercise of the powers conferred by clause (1) of Article 123 of the Constitution, promulgated on 5th March, 1962, the Goa, Daman and Diu (Administration) Ordinance No. 2 of 1962. Section 4 of the Ordinance provided that all the laws in force immediately before the appointed day i.e. 20th December, 1961, in Goa, Daman and Diu shall continue to be in force therein, until amended or repealed by a competent Legislature or other competent Authority. Section 5 of the Ordinance conferred power on the Central Government to extend enactments in force in a State to Goa, Daman and Diu. On 27th March, 1962, Parliament enacted the Goa, Daman and Diu (Administration) Act (No. I of 1962), replacing the aforsaid Ordinance No. 2 of 1962. Section 1 of the Act provided that the Act shall be deemed to have come into force on 5th March, 1962. Section 5 of the Act provided for the continuance of all laws in force immediately before 20th December, 1961, in Goa, Daman and Diu, and for their adaptation. Section 6 conferred power on the Central Government to extend the enactments in force in a State to Goa, Daman and Diu, as was provided by sections 4 and 5 of the Ordinance. On the same date. Parliament enactted the Constitution (Twelfth Amendment) Act, 1962, with effec from 20th December, 1961. whereby Goa, Daman and Diu were added as Entry 8 in the First Schedule to the Constitution, and as Entry (d) in Article 240 of the Constitution.

(17) On 28th November, 1962, the President, in exercise of the powers conferred by Article 240 of the Constitution, promulgated the Goa, Daman and Diu (Laws) Regulation No. 12 of 1962. Section 3(1) of the Regulation extended various Acts specified in the Schedule to the Regulation to Goa, Daman, and Diu. The Mines and Minerals (Regulation and Development) Act, 1957, was one such Act which was extended to Goa, Daman and Diu. However, sub-section (2) of section 3 provided that notwithstanding anything contained in sub-section (1), the provisions of each such Act shall come into force in. Goa, Daman and Diu as the Lt. Governor may by notification in the Goa, Daman and Diu Gazette, appoint. Section 4 of the Regulation provided for repeal and saving, and a was as follows :-

'4.(1) Any law in force in Goa, Daman and Diu or any area thereof corresponding to any Act referred to in section 3 or any part thereof shall stand repealed as from the coming into force of such Act or part in Goa, Daman and Diu or such area, as the case may be. (2) Nothing in sub-section (1) shall effect- (a) the previous operation of any law so repealed or anything duly done or suffered there under; or (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed; or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability penalty, forfeiture or punishment as aforesaid, any such investigation, legal proceeding or remedy may be instituted, continued or enforced, any such penalty, forfeiture or punishment may be imposed as if this Regulation had not been made : Provided that anything done or any action taken (including any appointment or delegation made, notification, instruction or direction issued, form, bye-law or scheme framed, certificate obtained, patent permit or license granted, or registeration effected) under any such law, shall be deemed to have been done or taken under the corresponding provision of the Act extended to Goa, Daman and Diu and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the said Act.'

(18) Section 5(1) of the Regulation provided that-

'ALLrules, notifications, orders, regulations and bye- laws made or issued by the Central Government under the provisions of any Act generally for the territories to which such Act extends shall, as from the commencement of the provisions of such Act in Goa, Daman and Diu, extend to, and come into force in Goa, Daman and Diu,'

(19) By a notification of the Lt. Governor of Goa, Daman and Diu, under section 3 of the Regulation, the Mines and Minerals (Regulation & Development) Act, 1957, and the Mineral Concession Rules, 1960, were made applicable to Goa, Daman and Diu with effect from 1st October, 1963.

(20) On 16th September, 1964, the Mining Engineer, Department of Mines, Directorate of Industries & Mines, Goa, informed the petitioner by a communication (Annexure R-5) that his applications, dated 4th September, 1959, and 17th September, 1959, for the grant of mining concessions had not been granted prior to 1st October, 1963, when the Mineral Concession Rules came into force, and, thereforee, the said applications were deemed to have lapsed. It was also stated in the said communication that the petitioner might, if he so desired, submit fresh applications for grant of mineral concessions in accordance with the provisions of the Mines & Minerals (Regulation & Development) Act, 1957, and the Mineral Concession Rules, 1960, which would be considered on merits. It was added that the said letter or communication was no assurance that the concessions would be granted.

(21) On 5th October, 1964, the Secretary of the Goa Mineral Ore Exporters Association made representation (Annexure 'B') to the Secretary, Industries & Labour Department, Government of Goa, Daman and Diu, to the effect that in all cases in which applications were made and concession fees were paid prior to 1st October, 1963, the Government may treat the cases sympathetically and grant the concessions. On 17th October, 1964, Vinod Kumar Shantilal Gosalia, mine owner and exporter, Margaon, Goa, respondent No. 3, applied for a prospecting license in respect of the areas in question. It appears that on 17th September, 1965, the Government of Goa, Daman & Diu sought the approval of the Central Government for the grant of the prospecting license to respondent No. 3. By a letter (Annexure R-6), dated 10th February, 1966, the Government of India, Ministry of Steel & Mines (Department of Mines & Metals) conveyed to the Secretary to the Government of Goa, Daman & Diu, Industries and Labour Department, the approval of the Central Government under section 5(2) of the Mines & -Minerals (Regulation & Development) Act, 1957, to the grant of a prospecting license for iron ore in favor of Vinod Kumar Shantilal Gosalia. It was stated in the said letter that the Central Government in exercise of the powers conferred by section 30 of the Mines & Minerals (Regulation and Development) Act, 1957, directed the State Government to take into consideration the application of Vinod Kumar Shantilal Gosalia, dated 17th October, 1964, and pass orders thereon at an early date. It was further stated that the applicant may be informed about this communication, so that he may not go in review to the Central Government till the State Government passes the necessary order. Accordingly, the State Government of Goa, Daman & Diu considered the application of respondent No. 3 and passed an order (Annexure R-7) on 26th February, 1966, granting him a prospecting license for iron ore for an area of 2,425.2920 hectares approximately. It is common ground that the said area covers the four areas in respect of which the petitioner had titles of manifest and had applied for the grant of mining concessions.

(22) Then, on 16th August, 1966, the petitioner made an application for the grant of mining leases for the said four areas. According to the averments in paragraph 12 of the writ petition, it was stated in the said application that since the titles of manifest possessed by the petitioner were equivalent to prospecting licenses within the meaning of the Mines & Minerals (Regulation & Development) Act, 1957, and the Mineral Concession Rules, 1960, he had a vested right to obtain the mining leases for the aforesaid four areas. On 26th September, 1966 , the petitioner applied to the Lt. Governor, Goa, Daman & Diu, stating that since his applications, dated 4th September, 1959, for the grant of mining concessions on the basis of the titles of manifest, dated 5th September, 1958, were refused, and since he was required to submit fresh applications in accordance with the Mines & Minerals (Regulation & Development) Act, 1957, and the Mineral Concession Rules, 1960, the concession tax and mileage deposits of Rs. 2,257.25 Paise and Rs. 2,142,87.00 Paise made by him in connection with his aforesaid applications may be directed to be refunded to him. Accordingly, on 17th October, 1966, the said amounts were directed to be refunded and the petitioner is stated to have received the amounts some time thereafter. Copies of the said application of the petitioner and the order directing the refund have been furnished to us by the learned counsel for respondent No. 3 during the hearing of the writ petition.

(23) In the meantime, on 29th September, 1966, the Mining Engineer, Directorate of Industries & Mines, Department of Mines, Government of Goa, Daman and Diu informed the petitioner (Annexure 'E' collectively) that his application for the grant of mining leases was rejected by the Government as prospecting licenses were already granted for the same areas to some other parties. Apparently, the reference was to respondent No. 3. Thereupon, the petitioner filed Revision Applications, dated 9th January, 1967 (Annexure 'F' collectively), before the Central Government. It was stated in the said applications that he had already filed a Revision application on 10th November, 1966, that the applications, dated 9th January, 1967, were also applications for the same areas, and that the said Revision .applications were, thereforee, to be treated as filed within two months of the date of communication of the impugned order of the State Government. The said Revision applications were rejected by the Central Government by orders (Annexure 'G' collectively), dated 18th September, 1967. The petitioners thereupon filed the present writ petition on 5th August, 1968, praying-

(1)that the orders (Annexure 'E' collectively), dated 29th September, 1966, and the orders (Annexure 'G' collectively), dated 18th September, 1967, passed by respondents 1 and 2 respectively may be quashed; (2) that the respondents may be directed to grant to the petitioner concessions in accordance with the Portuguese Mining Laws as saved by section 4 of the Regulation No. 12 of 1962; (3) that the respondents may be directed not to interfere with the petitioner's rights to obtain concessions; or alternatively; (4) that the respondents I and 2 may be directed to grant to the petitioner mining leases under the Mines & Minerals (Regulation & Development) Act, 1957, and the Mineral Concession Rules, 1960 'on the petitioner's applications for the grant of the concessions or on the petitioner's applications for mining leases, dated 16th August, 1966;' (5) that the orders of respondents Nos. 1 and 2 granting prospecting licenses to respondent No. 3 may be quashed; and (6) that respondents Nos. 1 and 2 may be directed to refrain from granting any further prospecting licenses or mining leases to respondent No. 3 in respect of the areas in question covered by the four titles of manifest possessed by the petitioner.

(24) In opposition to the writ petition, an affidavit of Shri A. Sethumadhavan, Under Secretary, Ministry of Steel, Mines and Metals, was filed on behalf of respondents Nos. 1 and 2, and an affidavit of Narsidas Datani, who is stated to be the attorney of respondent No. 3 was filed on behalf of respondent No. 3. By way of reply to the affidavit of Narsidas Datani, an affidavit of Satyanarayan Joshi, who is stated to be an authorised agent of the petitioner, was filed.

(25) Shri Bobde, learned counsel for the petitioner, contended that by virtue of the four titles of manifest duly transferred in favor of the petitioner, he had acquired a right to obtain concessions in respect of the four areas in question even prior to the acquisition of Goa, Daman and Diu, that the petitioner had presented applications within the prescribed time to the concerned authorities for the issue of the said concessions and paid the necessary fees prior to the said acquisition, that the said applications and much less the right acquired by the petitioner, cannot be deemed to have lapsed as alleged by the respondents, that the petitioner is entitled to mining concessions under the Portuguese Mining Laws, or alternatively to mining leases under the Indian Laws which were made applicable to Goa, Daman and Diu, and that the respondents had no power or jurisdiction to grant a prospecting license to respondent No. 3 in respect of the same areas.

(26) It was also contended by him that the petitioner applied subsequently for mining leases by way of abundant caution, that he was entitled either to a grant of the mining concessions in pursuance of his earlier applications for concessions or to a grant of mining leases in pursuance of the subsequent application for mining leases, and that the order of respondents 1 and 2 that no mining leases could be granted to him on the ground that a prospecting license was already issued in respect of the same areas to respondent No. 3 was based upon a misapprehension of the nature of his subsequent application and the right of the petitioner to obtain mining leases in respect of the areas in question, and that the said order was invalid and liable to be quashed.

(27) The claim of the petitioner in his writ petition is thus based (1) on his applications, dated 4th September, 1959, and 17th September, 1959, and (2) on his applications dated 16th September, 1966. It is convenient to deal with application filed by the petitioner on 4th September, 1959, and 17th September, 1959, in the first instance. There cannot be any dispute about the grant of the four titles of manifest to Mr. V. J. Keny in respect of the four areas in question. They are available in the file produced by Shri Brijbans Kishore. They bear the date 5th September, 1958, and their numbers are 31, 33, 34 and 35. As is clear from the definitions extracted above from the Portuguese Mining Laws, the proprietor of a ground or area, or a person other than the proprietor, who engages in works of prospection is called a 'prospector'. When the prospector discovers a new mineral deposit, he is called a 'discoverer'. On making such discovery, the prospector puts up a notice called 'notice of discovery' on a tree, post or any other support which makes it plainly visible, and it is intended to indicate the discovery which he claims to have made. He then makes the declaration in writing in which he states that he has discovered a mineral deposit and relates all the facts necessary to fix the exact position of the same. This declaration is called 'mining manifest'. When he makes a mining manifest, he is called a 'manifestor.' The mining manifest is recorded in a special book and the said record is called 'notice of manifest'. It ensures the 'exclusive right to concession of a manifested property when such contains minerals and the manifested land is free'. The manifestor is given a 'title of manifest'. It is 'a certificate of the note (notice) of manifest which is the document appertaining to legal right to concession when in accordance with all the terms of the law'. This is clear from the definition of 'title of manifest' in clause (m) of section 1 of the Portuguese Mining Laws and the provision in Article 49 of the said Mining Laws. Thus, under the Portuguese Mining Laws the person to whom a title of manifest is issued acquires a right to obtain a mining concession. When mining concession is granted to him, he is given a document called the 'title of concession', and when a title of concession is granted to the manifestor, it amounts to a permission to him to explore the mining property and to enjoy thereon all mining rights. It is unlimited in duration as long as the concessionaire complies with the conditions which the laws and the title of concession impose on him.

(28) Under Article 10 of the Portuguese Mining Laws, the rights derived from a title of manifest were transferable, and the transfer could be effected by a simple endorsement legally registered, and the said acknowledgement can be made in the District Government, Office in the manner provided in Article 60 of the said Mining Laws. In the present case, the four titles of manifest, as already stated, were transferred to the petitioner by Mr. V. J. Keny for consideration and the transfer was duly effected in accordance with the provisions in the Mining Laws in that behalf. The petitioner, as a transferee of the titles of manifest, acquired thus a right to obtain mining concessions in respect of the areas in question. He presented four applications (Annexures A, A-1, A-2 and A-3), dated 4th September, 1959, requesting for the grant of mining concessions to him. But, before the concessions were granted to him, the territories of Goa, Daman and Diu were liberated and acquired by the Government of India. By virtue of section 4 of the Goa, Daman and Diu (Administration) Ordinance No. 2 of 1962 and section 5 of the Goa, Daman and Diu (Administration) Act (No. 1 of 1962), the Portuguese Mining Laws continued to be in force. But, when the Mines & Minerals (Regulation & Development) Act, 1957, and the Mineral Concession Rules, 1960, were made applicable to Goa, Daman and and Diu with effect from 1st October, 1963, the Portuguese Mining Laws stood repealed and ceased to be applicable by reason of the provision in section 4(1) of the Goa, Daman and Diu (Laws) Regulation No. 12 of 1962. However, sub-section (2) of section 4 of the said Regulation preserved the previous operation of the Portuguese Mining Laws so repealed and anything duly done or suffered there under, as also the rights, privileges, obligations or liabilities acquired, accrued or incurred under the Portuguese Mining Laws. It also preserved any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation and liability, and it provided that any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the Regulation had not been made. The expression 'legal proceeding' in sub-section (2) of section 4 of the Regulation No. 12 of 1962 need not necessarily be a proceeding in a Court of law. As observed by Tendolkar and S. T. Desai, JJ. in Abdul Aziz Ansari v. The State of Bombay, : AIR1958Bom279 , 'legal proceeding' in its normal connotation can only mean a proceeding in accordance with law ............ ................................... the expression 'legal proceeding' is not synonymous with 'judicial proceedings'. Proceedings may be legal even if they are not judicial procedings, if they are authorised by law..............................'. In the present case, it is clear from the provisions mentioned above that the right of the petitioner to obtain Mining Concessions and the applications filed by the petitioner praying for the grant of mining concessions prior to the appointed day i.e. 20th December, 1961, have been preserved, and they continued to subsist even after the appointed day, and even after 1st October, 1963, when the Mines & Minerals (Regulation & Development, Act, 1957, and the Mineral Concession Rules, 1960, were made applicable to Goa, Daman and Diu. The applications filed by the petitioner for the grant of mining concession were legal proceedings i.e. proceedings instititued in accordance with the Potuguese Mining Laws on the basis of his right to obtain the mining concessions, and he was entitled to continue the said proceedings by virtue of the provision in section 4(2) of the Regulation No. 12 of 1962, as if the Regulation had not been made i.e. as if the Portuguese Mining Laws continued to be in force.

(29) Yet, by a communication (Annexure R-5), dated 16th September, 1964, the Mining Engineer, Director, Department of Mines, Goa, informed the petitioner that the Mineral Concession Rules came into force from 1st October, 1963, and since the Petitioner's applications for the grant of mining concessions had not been granted prior to 1st October, 1963, the said applications were deemed to have lapsed. It was added that if the petitioner so desired, he might submit fresh applications for grant of mineral concessions in accordance with the provisions of the Mines & Minerals (Regulation & Development) Act, 1957, and the Mineral Concession Rules, 1960, which would be considered on merits. The said view taken by the Govern ent was obviously wrong. As already pointed out above, the right of the petitioner to obtain mining concessions on the applications filed by the petitioner for the grant of mining concessions prior to 20th December, 1961, were preserved, and they continued to subsist after the appointed day i.e. 20 the December, 1961, and even after 1st October, 1963, when the Mines and Minerals (Regulation & Development) Act, 1957, and the Mineral Concession Rules, 1960, were made applicable to Goa, Daman and Diu. The view expressed by the Government in the aforesaid communication that the applications of the petitioner filed prior to 1st October, 1963, were to be deemed to have lapsed as the Mineral Concession Rules, 1960, came into force ignores the various provisions referred to above whereby the right of the petitioner to obtain mining oncessions and the applications filed by him were preserved.

(30) The position then is that on 1st October, 1963, the petitioner had a right to obtain mining concessions in respect of the areas in question and his applications for the grant of mining concessions were subsisting, and by reason of the provision in sub-section (2) of section 4 of Regulation No. 12 of 1962, he was entitled to continue the said applications even after 1st October, 1963, as if the Regulation No. 12 of 1962 had not been made i.e. as if the Portuguese Mining Laws continued to be in force. Thus, the view of the Government that the applications filed by the petitioner in 1959 were to be deemed to have lapsed, ignored the provision in section 4(2) of Regulation No. 12 of 1962, and was, thereforee, entirely wrong and contrary to the provisions in the Regulation.

(31) Shri Brijbans Kishore, learned counsel for respondent No. 1, contended that by reason of the provision in sub-section (1) of section 4 of Regulation No. 12 of 1962, the Portuguese Mining Laws stood repealed and ceased to be applicable, and the alleged right and the applications of the petitioner, dated 4th September, 1959, and 17th September, 1959, were thereafter (i.e. from 1st October, 1963) governed by the Mines & Minerals (Regulation & Development) Act, 1957, and the Mineral Concession Rules, 1960. He pointed out that under Rule 11 of the Mineral Concession Rules, 1960, an application for the grant of a prospecting license has to be disposed of within nine months from the date of its receipt, and if it is not disposed of within that period, it has to be deemed to have been refused, that similarly under Rule 24(1) of the said Rules, an application for the grant of a mining lease has to be disposed of within nine months from the date of its receipt, and under Rule 24(3) if an application for a mining lease is not disposed of within the period specified in sub-rule (1), it has to be deemed to have been refused. He argued that even on the basis that the applications filed by the petitioner on 4th September, 1959, and 17th September, 1959, for the grant of concessions were subsisting even after 1st October, 1963, and whether the said applications are regarded as applications for the grant of prospecting licenses or as applications for the grant of mining leases within the meaning of the Mineral Concession Rules, they should be deemed to have been refused, since they were not disposed of within nine months from the 1st October, 1963, i.e. by 30th June, 1964. He submitted that this is what was meant by the statement in the communication (Annexure R-5), dated 16th September, 1964, that the petitioner's applications were deemed to have lapsed. It appears to us that this contention ignores the effect of the provision in section 4(2) of Regulation No. 12 of 1962. As already stated, the right of the petitioner to obtain mining concessions and his applications for the grant of the said mining concessions have been preserved. The petitioner is entitled to continue the said applications as if the Regulation had not been made i.e. as if the Portuguese Mining Laws continued to be in force. The applications cannot, thereforee, be regarded as applications for grant of prospecting licenses or mining leases within the meaning of the Mines and Minerals (Regulation & Development) Act, 1957, and the Mineral Concession Rules, 1960, and they cannot be deemed to have been refused by virtue of the provisions in Rule 11 of Rule 24 of the Mineral Concession Rules.

(32) Shri Bobde contended, in the alternative, that even if the Mineral Concession Rules, 1960, are applicable to the four applications of the petitioner from and after 1st October, 1963, it will not be correct to say that the said applications ceased to exist merely because they were not disposed of by the Government within nine months from 1st October, 1963, He pointed out that, dealing with similar provisions in Rules 28(1A) and 57(2) of the Mineral Concession Rules, 1949, it was held by V. Ramaswami, CJ. and R.K. Chaudhri, J. in D. Gupta & Company v. State of Bihar : AIR1961Pat487 , as follows :-

'NOdoubt, reading Rule 28(1A) with Rule 57(2) of the Rules, it is clear that, if the State Government fails to dispose of an application for the grant of a mining lease within nine months, it must be deemed to have been refused by it. But this provision is made, in my opinion, only for the purpose of filing a review application before the Central Government, so that an applicant desirous to have a mining lease may not have to wait unnecessarily for a long period without any order being passed on his application. That, however, does not mean that, after the lapse of nine months from the date of receipt of the application, the State Government ceases to have jurisdiction over the matter so as not to pass any order on any application after the lapse of nine months from the date of its receipt. The expression 'deemed to be a refusal' in Rule 57(2) is only for the purpose of a review application to be filed before the central Government and it is not a part of Rule 28 (1 A). In this view of the matter, the legality of the order passed by the State Government granting a mining lease to Respondent No. 2 cannot be challenged on the above ground.'

(33) The learned counsel argued that, no doubt, under Rules 11 and 24 of the Mineral Concession Rules, 1960, if an application for the grant of a prospecting license or for the grant of a mining lease is not disposed of within nine months from the date of its receipt, it has to be deemed to have been refused, but, as pointed out by the learned Judges of the High Courts of Patna in the above case, the provisions in the aforesaid rules are meant only for the purpose of enabling the applicant to move the Central Government in revision, so that the applicant desirous to have a prospecting license or a mining lease may not have to wait unnecessarily for a long period without any order being passed on his application. That, however, does not mean that, after the lapse of nine months from the date of the receipt of the application, the application ceases to exist and the Government has no jurisdiction to pass an order thereon subsequently granting a prospecting license or a mining lease. The refusal mentioned in the said Rules is only a fictional refusal for the purpose of enabling the applicant to move the Central Government in revision if he so desires. The application itself continues to subsist till an actual order of acceptance or refusal is made by the Government. In the present case, the petitioner's applications continued to subsist after 1st October, 1963. If an order was not made within nine months from 1st October, 1963, the effect of Rule 24(3) of the Mineral Concession Rules, 1950, was only that the petitioner could, if he so desired, move the Central Government in revision. The effect of the said Rule is not to make the applications cease to exist. The applications continue to subsist till an actual order was made thereon by the Government. The period of nine months expired by 30th of June, 1964. It is true that on 16th September, 1964, the Government informed the petitioner by a letter (Annexure R-5) that his applications were 'deemed to have lapsed'. If, as submitted by Shri Brijbans Kishore, these words were based on the provision in Rule 24(3) of the Mineral Concession Rules, the said words could only mean, as already explained above, what was provided in Rule 24(3) i.e. that the applications were deemed to have been refused for purposes of revision to the Central Government. They could not and did not mean that the Government actually refused the prayer of the petitioner for the grant of mining concessions. On the other hand, the further sentence in the said letter that the .petitioner could apply a fresh under the Mineral Concession Rules if he so desired, shows that the Government did not actually and finally refuse to grant the mining concessions prayed for by the petitioner. Thus, argued Shri Bobde, after 1st October, 1963, whether the Portuguese Mining Laws continued to apply or whether the Act of 1957 and the Mineral Concession Rules applied, the right of the petitioner and his applications continued to subsist notwithstanding the provisions in Rules 11 and 24 or the communication (Annexure R-5), dated 16th September, 1964, and there is, thereforee, no force in the argument of Shri Brijhans Kishore that the applications of the petitioner should be regarded to have been refused.

(34) The above alternative contention of the learned counsel sounds plausible. But, we consider that the alternative contention does not arise in the view taken by us that the right of the petitioner and the applications filed by him in 1959 have been preserved by the provision in section 4(2) of Regulations No. 12 of 1962, and that the petitioner was entitled to continue the said applications and have the applications considered and disposed of as if the Regulation had not been passed i.e. as if the Portuguese Mining Laws continued to be in force even after Act of 1957 and the Mineral Concession Rules were made applicable to Goa, Daman and Diu.

(35) We shall now consider the contentions of Shri Santosh Chatterjee, learned counsel for respondent No. 3, regarding the applications, dated 4th September, 1959, and 17th September, 1959. He contended firstly that the writ petition was not maintainable as it purported to impugn four different orders of respondent No. 1 made in four different revision petitions preferred by the petitioner against four different orders of respondent No. 2 rejecting four different applications of the petitioner for grant of mining leases in respect of four different areas, that the subject matter and causes of action in each case was different and distinct, that all the four orders sought to be impugned could not be lumped together and impugned by a single writ petition, and that the petitioner should have filed a separate writ petition in each case. This contention was raised by respondent No. 3 in paragraph 10 of the counter sffidavit of Narsidas Datani filed on behalf of respondent No. 3 In answer thereto, the petitioner stated in paragraph 8 of his rejoinder that the cause of action in respect of the four mining manifests in the four revision applications was one and the same, and yet, if this Court so directs, he is ready and willing to pay four sets of court fee, and even to file separate copies of writ petitions with separate court fees. It is not necessary to go into the question raised by Shri Chatterjee in view of the above averment made by the petitioner. The objection raised on behalf of respondent No. 3, is only one of form. The facts and the documents are all common and there is, thereforee, no point in directing the petitioner to file separate copies of writ petitions. The petitioner, however, is directed to pay four sets of court fee, and the writ petition will be treated as four writ petitions, namely, C.W. 712, 712-A, 712-B and 712-C of 1968. The petitioner has already paid one set of court fee, and he should pay the balance of court fees within one week from this date.

(36) The second contention of Shri Chatterjee was that the applications, dated 4th September, 1959, and 17th September, 1959, were invalid on the ground that the four main applications were filed on 4th September, 1959, while, according to the averments of the petitioner in his rejoinder the four titles of manifest were purchased by him by an agreement, dated 10th September, 1959. The argument was that the agreement of purchase was admittedly on 10th September, 1959, and the petitioner was, thereforee, not entitled to file the applications for the grant of mining concessions on the 4th of September, 1959. The petitioner stated in paragraphs 3 of his rejoinder to the affidavit of Narsidas Datani as under :-

'THEsaid four titles of manifestos were purchased by the petitioner by an agreement, dated 10-9-59 and under the agreement, the petitioner paid Rs. 33,000.00 for the said four manifestos. The transfer of the said manifestos was further evidenced by the Notary Public in Goa. The petitioner agreed to pay and did pay the said price for the said four manifestos after duly verifying and ascertaining the existence of mineral deposits.'

(37) As already stated, Article 60 and 120 of the Portuguese Mining Laws provide that titles of manifest may be transferred by a simple endorsement on the original titles, legally registered, and that the acknowledgement can be made in the District Government Office. The original manifestos are in the file produced by Shri Brijbans Kishore and we examined them with the assistance of the learned counsel. We noticed that they were endorsed by Mr. V. J. Keny under his signature and under date 4th September, 1959, written on the stamps affixed on the titles. The attestation of the Notary Public was also on 4th September, 1959. Thus, the transfer was legally made on 4th September, 1959, as required by the Portuguese Mining Laws. The agreement referred to in the rejoinder has not been produced nor is there any Explanationn as to what that agreement was about. It might be that some of the terms of the transfer might have been under negotiation between the parties and were finally concluded on the 10th of September. We are, however, concerned only with the legal transfer of the titles of manifest, and the same was effected on 4th September, 1959. There is, thereforee, no force in the contention of the learned counsel.

(38) The third contention of Shri Chatterjee was that according to the provision in Article 66(2) of the Portuguese Mining Laws, the validity of a title of manifest expires after a period of one year from the date of issue, if no concession or extension has been applied for, or when the terms of Articles 73(6) have not been complied with, that the four titles of manifest possessed by the petitioner were issued on 5th September, 1958, that the period of their validity would expire on 5-9-1959 unless applications for concessions had been made prior to the date, that though the petitioner filed applications for concessions on 4th September, 1959, they were not valid applications in that they were not accompanied by certain documents as required under Article 91 of the Portuguese Mining Laws, and that, thereforee, the titles of manifest must be regarded to have expired on 5th September, 1959. He also contended that the terms of Article 73 also were not complied with and the titles of manifest became invalid for that reason also. As regards the first part of the contention, it is true that Article 66(2) provides that the validity of a title of manifest expires after a period of one year from the date of issue, if no concession or extension has been applied for. It is also true that the four titles of manifest were issued to Shri V..L Keny on 5th September, 1958, and their validity would expire on 5th September, 1959. But, the petitioner applied for the grant of mining concessions on the basis of the said titles of manifest on 4th September, 1959 i.e. within one year. The argument of Shri Chatterjee was that although the petitioner filed the applications for the grant of concessions on 4th September, 1959, within the period of one year mentioned in Article 66(2), the said applications were invalid applications, in that the provisions in clauses (a), (b), (c) and (e) of Article 91 of the Portuguese Mining Laws were not complied with. The relevant portion of the said Article is as follows :-

'91.The application for concession shall be made at the Headquarters of the Government of the District within a year from the date of the title of manifest........... the application shall always be accompanied by the following documents :- (a) An authentic copy, or the proper original of the title of manifest. When this has been endorsed the original is required. (b) Certificate of having paid the respective Government Treasury Office a sum of 3 $000 reis for each claim for precious stones or precious metals applied for, or of 10031)000 reis when the claim is for any other mineral substance. (c) A receipt of the sum paid under the terms of Article 73. (d) ** ** ** ** (e)A declaration of having relinquished national rights (model 'D') if the applicant, being a foreigner, possesses a title of manifest by virtue of endorsement. (f) ** ** ** **

(39) A perusal of the applications, dated 4th September, 1959, shows that the original titles of manifest were filed along with the applications as required by clause (a). The certificates mentioned in clauses (b) and (c) were also filed along with the applications. It was stated in the applications that the petitioner would produce the remaining documents demanded by law within 30 days. Then, on 17th September, 1959, he filed four applications along with certain documents praying that they may be attached to the earlier applications. The documents so sought to be attached were the declaration mentioned in clause (e) and some challans. Thus, some of the documents mentioned in Article 91 were filed along with the applications, dated 4th September, 1959, and the others were filed on 17th September 1959. Shri Chatterjee argued that the provisions of Article 91 are mandatory, that if the applications for mining concessions were not accompanied by the documents mentioned in the various clauses of Article 91, they would be invalid applications, and that since the applications filed by the petitioner on 4th September, 1959, were not accompanied by all the documents mentioned in Article 91, they must be regarded as invalid and, thereforee, incapable of extending the validity of the titles of manifest. He also argued that even though the remaining documents were filed on the 17th with a prayer for attaching the same to the earlier applications, there is no provision in the Portuguese Mining Laws for condoning the delay in filling the documents, that it would, thereforee, follow that the applications for concessions have to be regarded to have been filed only on 17th September, 1959, when the provisions in Article 91 were fully complied with, and consequently there were no valid applications for grant of mining concessions filed prior to 5th September, 1959. We are unable to agree with the said arguments of Shri Chatterjee. No doubt, there does not seem to be an express provision in the Portuguese Mining Law empowering the concerned authority to condone the delay in the filling of the documents mentioned in Article 91. But, Article 66(2) itself refers to the extension of the period of validity of a title of manifest. It clearly means that the concerned authority has a power to extend the period of validity. If that is so, the power to extend the period of validity implies the power to condone the delay in filing the necessary documents along with an application for the grant of mining concessions. The petitioner filed the applications for the grant of mining concessions on 4th September, 1959, within the period of one year from the date of issue of the titles of manifest along with some of the documents required to be filed under Article 91, and then filed the remaining documents on 17th September, 1959, praying that they may be accepted and attached to the earlier application. Whether the authority would accept or reject the documents so filed subsequently is a different question. It has the power to accept the documents and, thereforee, the applications filed on 4th September 1959, cannot be regard as invalid applications as the remaining documents were filed subsequently along with a prayer that they may be accepted and attached to the applications filed on 4th September, 1959. The first part of the third contention of Shri Chatterjee cannot, thereforee, be accepted.

(40) As regards the second part of the third contention of Shri Chatterjee, reference has to be made to a few other provisions of the Portuguese Mining Laws. Articles 49 to 70 in Chapter Iii of the said Mining Laws deal with the 'manifest of mines and rights and obligations of manifestor'. Chapter Iv, which contains Articles 71 to 87, deals with' recognition and demarcation of mineral claims.' Article 71 provides that 'recognition of the deposit is made after the preparation of the plan or at the time of making it. The plan may be prepared by the Government Engineer of Mines or whoever acts for him, or by some authorised surveyor.' Article 72 specifies the authorised surveyors. Then, Article 73 provides that 'recognition and demarcation shall be made by the Mining Engineer or by one who acts for him, within a period of three months from the date of request for demarcation or concession.' Clauses (1) to (8) of Article 73 require the manifestor to make certain payments. Article 73(4) in particular provides that the manifestor can apply for the final recognition and demarcation at any time during the term of validity of his manifest irrespective of application for concession. The argument of Shri Chatterjee was that there is nothing on the record to show that the petitioner complied with the requirements of Article, 73 and, thereforee, the validity of the titles of manifest possessed by him should be regarded to have expired as provided in Article 66(2). This contention is not tenable. A reading of Article 66(2) shows that it provides that the validity of a title of manifest expires (1) after a period of one year from the date of issue, if no concession or extension has been applied for; or (2) when the terms of Article 73(6) have not been complied with. The second part of Article 66(2) has nothing to do with the expiry of a period of one year from the date of issue of the title of manifest. In other words, Article 66(2) consists of two parts. Under the first part, the validity of a title of manifest expires after a period of one year from the date of issue if no concession or extension has been applied for. We have already pointed out that the titles of manifest in the present case did not expire after the period of one year as the petitioner had applied within the period for the grant of mining concessions. As regards the second part of Article 66(2), there is no question of complying with Article 73 within the period of one year. A perusal of the provisions in Article 73 shows that no particular period of time has been prescribed for compliance with the said provisions, and there is nothing in the said provisions which compels the petitioner to make the payments mentioned in the said Article within any particular period. Even the provision in Article 73(4) is only permissive and not obligatory.

(41) The period of three months mentioned in Article 73 is a period within which the Mining Engineer has to make the recognition and demarcation, and it does not relate to what the manifestor has to do under the said Article. There is thus no force in the second part of the third contention of Shri Chatterjee.

(42) The fourth contention of Shri Chatterjee was that the provisions in Articles 73 read with Article 89 are a condition precedent for the filing of an application for concessions, and that in the present case the petitioner had not complied with the said provisions, and consequently his applications for concessions filed on 4th September, 1959, were not valid applications. This contention also cannot be accepted. We have already referred to the provisions in Article 73. The Article itself states that recognition and demarcation shall be made by the Mining Engineer within a period of three months from the date of the request for demarcation or concession. Thus, recognition and demarcation were to be made subsequent to the application for concession, and were not a condition precedent for the filing of an application for concession. Similarly, compliance with the provision in Article 89 is not a condition precedent for the filing of an application for concession. The argument of Shri Chatterjee was based on the translation of Article 89 as contained in a printed book of the Portuguese Colonial Mining Laws published by 'LIVRARIA Singbal, Larco Da Igreja, CIDA-DE De GOA'. It runs as follows :-

'AFTERthe existence of the useful mineral substances has been recognised and verified by the Engineer of Mines in the manifested area, an application for concession in accordance with the terms of this Article can be made.'

(43) However, the learned counsel for the petitioner has filed a translation of Article 89 made by an Official Translator in the Secretariat of the Government of Goa. Daman and Di

'ART.89. On the existence of useful mineral substance in the declared area, being acknowledged and verified by the mining engineer, the lease applied for may be granted, with the observance of the procedure laid down in the psent chapter.'

(44) It is obvious from the official translation that the acknowledgement and verification is not stated to be a condition precedent for the filing of an application for concession. The said acknowledgement and verification are to precede only the grant of the concession or lease. Even the translation contained in the printed book shows that the provision is only permissive and not obligatory. It appears to contemplate that normally an application for concession can be made after the existence of useful mineral substances has been recognised and verified by the Engineer of Mines in the manifested area. But, the language does not show that the filing of an application before the recognition and verification are made by the Engineer of Mines, is prohibited. It cannot, thereforee, be said that the recognition and verification of the existence of useful mineral substances in the manifested area is a condition precedent for the filling of an application for concession, and that an application for concession filed before such recognition and verification would necessarily be an invalid application. The contention of Shri Chatterjee cannot, thereforee, be accepted.

(45) The fifth contention of Shri Chatterjee was that no process was shown to have been constituted under Article 93 of the Portuguese Mining Laws. The said Article provides that when the petition of concession i.e. the application for concession is delivered, the case or process shall be constituted of certain specified items of documents. It is obvious that the constitution of the case or process is a matter to be done by the Authorities and the applicant, like the petitioner herein, had nothing to do with the same. If the case or process was not constituted, it was the default of the authorities and not of the petitioner.

(46) The sixth contention of Shri Chatterjee was that the petitioner should be regarded to have abandoned the applications filed by him on 4th September, 1959, and 17th September 1959, in view of the lapse of time and the fact that the petitioner did not take any steps for an expeditious disposal of his applications for the grant of mining concessions. There is no substance in this contention. The petitioner filed his application on the basis of his right to obtain mining concessions in accordance with the provision in the Portuguese Mining Laws. He cannot be held to be responsible if the concerned authorities kept the applications pending without passing orders thereon. Any abandonment by the petitioner of his right or the applications cannot be inferred from the fact that the concerned authorities allowed time to pass and did not pass any orders on the applications. It was more an inaction on the part of the authorities rather than on the part of the petitioner.

(47) Shri Chatterjee pointed out that the petitioner applied for the refund of the fees paid by him for the granting of the concessions, and the fees were ordered to be paid to him. The learned counsel argued that the said conduct of the petitioner also shows his intention to abandon the applications filed by him. This argument also cannot be accepted. The Government informed the petitioner by the communication (Annexure R-5), dated 16th September, 1964, that his applications, dated 4th September, 1959, and 17th September, 1959, were deemed to have lapsed, and that he might submit, if he so desired, fresh applications for the grant of mineral concessions in accordance with the provisions of the Mines & Minerals (Regulation & Development Act, 1957, and the Mineral Concession Rules, 1960. On 5th October, 1964, the Goa Mineral Ore Exporters' Association made a representation (Annexure 'B') to the Secretary, Industries & Labour Department, Government of Goa, Daman and Diu, on behalf of the members of the Association, of whom petitioner was one, that concessions may be granted to all persons who had applied for concessions prior to 1st October, 1963. The Association appears to have made a similar representation to the Government of India also. While the said representations were pending, respondent No. 3 applied on 17th/26th October, 1964, for grant of a prospecting license in respect of the same areas. On 22nd March, 1965, the Government of India informed the Association (Annexure 'D') on the same lines as in the letter (Annexure R-5), dated 16th September, 1964. On 17th September, 1965, the Government of Goa, Daman and Diu, appears to have addressed the Government of India regarding the application of respondent No. 3 for the grant of a prospecting license. This was apparently because the application of respondent No. 3, dated 17th/26th October, 1964, was to be deemed to have been refused as it had remained undisposed of for more than nine months. The Government of India, in exercise of the powers of revision conferred by section 30 of the Mines & Mineral (Development and Regulation) Act, 1957, directed the State Government to take into consideration the application of respondent No. 3, dated 17th October, 1964, and pass orders thereon at an early date. The State Government accordingly sanctioned the application of respondent No. 3 by an order (Annexure R-7), dated 26th February, 1966. The petitioner was not a party to the proceedings relating to the application of respondent No. 3. He made a fresh application on 16th August, 1966, for the grant of mining leases for the four areas in question, on the basis of the four titles of manifest. He made the said application in pursuance of the suggestion by the Government in the communication (Annexure R-5), dated 16th September, 1964. Then, on 26th September, 1966, he made an application to the Government of Goa, Daman and Diu, stating that since his applications, dated 4th September, 1959, were deemed to have lapsed and he was directed to submit a fresh application in accordance with the provisions of the Mines and Mineral (Regulation & Development) Act, 1957, and the Mineral Concession Rules, 1960, he had no other alternative but to request the Lt. Governor of Goa, Daman and Diu to order the concerned Directorate to refund to him the concession tax and mileage deposits of Rs. 2857.25 and Rs. 2142-87 made on the 4th September, 1959, to obtain mining concessions. On 28th September, 1966, the Government of Goa, Daman and Diu rejected (Annexure 'E' Collectively) the petitioner's application for mining leases on the ground that the prospecting license was already issued to to some other parties, and then ordered on 17th October, 1966, that the amounts deposited by the petitioner may be refunded to him. Thus, it is clear that the petitioner asked for the payment of the amounts deposited by him as he was asked to file fresh applications for the grant of mining concessions. He cannot, thereby be said to have abandoned his right to obtain mining concessions. His application for the payment of the amounts deposited by him was made at a time when he had been told that his applications filed in 1959 were deemed to have lapsed and he was asked to apply for mining concessions in accordance with the Act of 1957 and the Mineral Concession Rules, 1960. He was, thus, pursuing his claim for the grant of mining concessions or mining leases, and no inference can be drawn of any intention on his part to abandon his right to obtain mining concessions or the applications, dated 4th September, 1959, and 17th September 1959, filed by him for that purpose. In the circumstances, the submission of the learned counsel that the petitioner should be regarded to have abandoned his right and the applications filed by him in 1959, cannot be accepted.

(48) Thus, none of the contentions of the learned counsel for respondents 1 to 3 regarding the right of the petitioner to obtain mining concessions and his applications filed on 4th September, 1959, and 17th September, 1959, can be accepted.

(49) As regards the application filed by the petitioner on 16th August, 1966, Shri Chatterjee contended that it was not maintainable as a prospecting license was already granted to respondent No. 3 in respect of the same area, and respondent No. 3 had acquired a preferential right thereby to the grant of a mining lease by virtue of the provision in section 11 of the Mines & Minerals (Development & Regulation) Act, 1957. This contention also is untenable. We have already held above that the petitioner had acquired a right to obtain mining concessions, and that he was entitled to the grant of mining concessions in respect of the four areas in question as if the Regulation No. 12 of 1962 had not been passed i.e. as if the Portuguese Mining Laws continued to be in force. The areas in question were not thus free and available for a grant of prospecting license in respect thereof to any other person. It follows that the application of respondent No. 3 for the grant of a prospecting license in respect of the same areas was not maintainable, and consequently the order granting prospecting license to him was illegal. It appears from the affidavit of Narsidas Datani, dated 5th August, 1969. filed on behalf of respondent No. 3, that a mining lease has since been granted to respondent No. 3 by the Government of Goa, Daman & Diu. The said lease, being pendente lite, could only be subject to the decision in this writ petition, and cannot be operative and binding on the petitioner in view of our decision in this writ petition. The petitioner was obliged to file the application, dated 16th August, 1966, as the Government had informed him that his earlier applications were deemed to have lapsed and that he might apply again for the grant of mining concessions in accordance with the provisions of the Act of 1957 and the Rules of of 1960. As already pointed out by us, the petitioner had a right to obtain mining concessions and he had already filed the necessary applications for the same. It was in that situation that he made the application on 16th August, 1966, although it was not at all necessary in the circumstances. It was more or less a reminder and a request to the Government to grant the mining concessions which he was entitled to. The Government rejected the application by its order (Annexure 'E' Collectively dated 29th September, 1966, on the ground that prospecting license had already been issued to other parties meaning apparently respondent No. 3. This was based on the view taken by the Government that the earlier applications of the petitioner were to be deemed to have lapsed. As held by us above, the said view taken by the Government was incorrect and not in accordance with the provisions of law. It follows that the order (Annexure R-7), dated 26th February, 1966, granting a prospecting license to respondent No. 3 as well as the order (Annexure 'E' collectively), dated 29th September, 1966,rejecting the application of the petitioner, dated 16th August, 1966, are illegal and liable to be quashed. It also follows from the above that the orders of the Government of India rejecting the revision applications filed by the petitioner are also liable to be quashed.

(50) Shri Chatterjee, however, submitted that three of the four revision applications were filed beyond time. He pointed out that under Rule 54 of the Mineral Concession Rules, the revisions had to be filed within two months from 29th September, 1966, the date on which the order (Annexure 'E' Collectively) was passed. There is no substance in this contention. A perusal of the revision applications (Annexure 'F' collectively) shows that in column 8 in which the petitioner was to state whether the revision application was filed within two months of the date of communication of the order passed by the State Government, the petitioner stated as follows :-

'YES.-THErevision applications for the above mentioned area was first filed along with other documents under cover of our letter, dated 10-11-66, and this is a separate application for the same area.'

(51) Thus, the petitioner had filed an application within two months on 10th November, 1966, and the applications filed on 9th January, 1967, were only a second set of applications. The petitioner explained in paragraph 9 of his rejoinder that he had first made one joint revision application on 10th November, 1966, in respect of the four areas, but on the advice of the Director, Industry & Mines, Goa, and in order to avoid any technical objection he filed four further separate applications on 10th January, 1967. He further stated that he was informed by the Ministry that the revision application, dated 10th November, 1966, was being treated by them as one relating to 99 .30 hectares in Caranzol. He submitted that there was thus no question of any of the applications being time-barred and no such question was ever raised by the Government, and that in any case, the delay, if any, must be deemed to have been condoned by the Government. We consider that in the circumstances mentioned by the petitioner, it cannot be said that three of the revision applications were barred by limitation.

(52) The next contention of Shri Chatterjee was that the communication (Annexure R-5), dated 16th September, 1964, by the Government stating that the applications filed by the petitioner were deemed to have lapsed on the Mineral Concession Rules coming into force on 1st October, 1963, was an act of State. He argued that after the liberation of Goa, Daman and Diu, the new Government was not bound to recognise and accept the commitments of the previous Government of Goa, Daman and Diu, and that as an act of State, the new Government refused to recognise the subsistence of the petitioner's applications by sending the said communications. This plea that the communication was an act of State was not put forward by the Government at any stage and even in their counter-affidavit. The plea was, if at all, open only to the Government and not to a private individual like respondent No. 3. But, the Government did not choose to put forward any such plea at any stage, and it cannot, thereforee, be allowed to be put forward and canvassed by a private individual like respondent No. 3.

(53) The last contention of Shri Chatterjee was that the petitioner was guilty of laches, in that he did not act diligently in prosecuting his claim for the grant of mining concessions, and the writ petition should, thereforee, be dismissed on that ground. Shri Chatterjee pointed out firstly that from 4th September, 1959, to 19th December, 1961, the petitioner did not take any steps to see that his applications were ordered by the Government of Goa, Daman and Diu. The petitioner explained in his writ petition and his rejoinder that he had acquired a definite and vested right to the concessions and that he had filed the applications for concessions within the prescribed time, paid the necessary fees and completed all the necessary formalites for obtaining the concessions, and only a formal signature of the Governor General had remained to complete the grant of the concessions in his favor, and that the remaining formality could not be completed in view of the political situation in Goa, Daman and Diu during that period. We consider the said Explanationn to be quite satisfactory . If the Government of Goa, Daman and Diu did not deal with and dispose of the applications during that period, the petitioner cannot be held responsible for the same and no adverse inference can be drawn against him.

(54) Shri Chatterjee next pointed out that the petitioner did not take any active steps even during the period 20th of December, 1961, to 16th September, 1964. During this period also, it is not as if the situation was quite a settled one. It was only on the 5th of March, 1962 that the Goa, Daman and Diu Administration Act (No. 1 of 1962) was enacted with retrospective effect from 20th of December, 1961. The Goa, Daman and Diu (Laws) Regulations No. 12 of 1962 was promulgated on 28th November, 1962, and it was only subsequently that the Mines & Minerals (Regulation & Development) Act, 1957, and the Mineral Concession Rules, 1960, were made applicable to Goa, Daman and Diu with effect from 1st October, 1963. The petitioner stated in his writ petition and in his rejoinder that he was constantly agitating the matter through the Goa Mineral Ore Exporters Association which, on behalf of the petitioner and other members of the Associations was in correspondence with and and had made representations to the Government. The communication (Annexure 'B') dated 5th October, 1964, addressed by the Goa Mineral Ore Exporters, Association to the Secretary, Industries and Labour Department, Government of Goa, Daman and Diu, supports the said statement of the petitioner. It shows that the Association had previously made representations to the Government regarding the grant of mining concessions, and that in reply to the said representations the Industries & Labour Department, in their letter No. 1 & L/741/63/219 of 19th October, 1963, communicated to the Association that 'pending applications for grant of concessions and transfer of concessions previously granted would be considered sympathetically, in cases where all preliminary action had been completed at or about the time of liberation, and that suitable action is being taken accordingly by the Mining Department which has been given requisite instructions.' It thus appears that the petitioner and the members of the Association were awaiting the dicision of the Government in view of the aforesaid communication, and then on 16th of September, 1964, the petitioner received the communication (Annexure R-5) from the Government that his applications were deemed to have lapsed. It cannot, thereforee, be said that the petitioner was guilty of any inaction or laches during the period mentioned above.

(55) Shri Chatterjee further pointed out that the petitioner did not prefer any revision to the Government of India against the said communication (Annexure R-5), dated 16th September, 1964. The Explanationn of the petitioner is that on 5th October, 1964 their Association made the representation (Annexure 'B'), and that he awaited a response from the Government. The Government of Goa replied to the representation of the Association on 22nd March, 1965 (Annexure 'D') in which they reiterated what was stated in the earlier communication (Annexure R-5), dated 16th September, 1964. The petitioner then made an application for a mining lease on 16th August, 1966, as suggested in the said communication by the Government. It is true that the petitioner does not appear to have taken any step during the period between 22nd of March, 1965, and 16th August, 1966. It is also true that it was during this period that respondent No. 3 applied for a prospecting license, the Government of India passed an order under section 30 directing the State Government to consider the application of respondent No. 3, and a prospecting license was granted to respondent No. 3. But, there is nothing on the record to show that the petitioner had any notice of the said proceedings. The petitioner had acquired a right to obtain mining concessions as early as 1959, and was entitled to the grant of mining concessions under the Portuguese Mining Laws. He thereafter took a number of steps. Taking all the circumstances into consideration, we do not consider that his omission to take any specific step during the period between 22nd of March, 1965 and 16th of August, 1966, was such a lapse on his part as to disentitle him to seek the aid of Court under Article 226 of the Constitution. His application, dated 16th August, 1966, was rejected by the State Government on 29th September, 1966. It is not as if the petitioner left the matter to itself. The Association again made a representation (Annexure 'C') on 18th November, 1966, and he himself filed revisions (Annexure 1-' collectively) before the Government of India on 9th of January, 1967. The revisions were rejected on 18th/20th September, 1967. He filed the writ petition on 5th August 1958. The petitioner stated in paragraph 25 of his writ petition that being a resident of Goa to which the Indian laws were applied, he was not in a position to understand his rights and the implications of the various laws applied to Goa. He further stated that in view of the unsettled and obscure position of law prevailing in the territory of Goa after its liberation, it took him some time to get into touch with legal advisers outside Goa and obtain proper legal advice. Shri Chatterjee argued that ignorance of law was no excuse and cannot be an Explanationn for the delay in filing the writ petition. We do not think so. The question of delay in the context of exercise of jurisdiction under Article 226 of the Constitution is not the same as the question of limitation, and it is not as if the petitioner should explain every day that had passed before he filed his writ petition. Nor can it be said that there is any rigid rule that the Court should refuse to exercise its jurisdiction under Article 226 merely because some time had lapsed before the petitioner approached the Court under Article 226. The Court has to take all the circumstances of the case into consideration and decline to interfere under Article 226 only if the laches or delay on the part of the petitioner were such as to disentitle him to the relief sought for by him. As already stated, taking into consideration all the steps taken by the petitioner from time to time since 1959, we do not consider that he should be non-suited merely because he took some time for filing the writ petition subsequent to the rejection of his revision applications by the Government of India.

(56) Shri Chatterjee submitted that the respondent No. 3 was granted a prospecting license in respect of the same areas, and he, thereby, acquired a preferential right to the grant of mining lease, and that a writ of certiorari should not be issued when a substantive right had accrued to respondent No. 3. He referred to the decision of the Supreme Court in the Moon Mills Ltd. v. M.R. Mehar, President Industrial Court, Bombay, A.I.R. 1967 S.C. 1450. It is true that in that case, the Supreme Court pointed out that a writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with a lapse of time and other circumstances, causes prejudice to the adverse party. But, we have already pointed out above that there was no such negligence and laches or abandonment on the part of the petitioner as may disentitle him to the grant of a writ. As regards the grant of prospecting license to respondent No. 3 and the preferential right which is said to have accrued to him, we consider that it cannot outweigh the circumstances which are in favor of the peritioner The petitioner had acquired a right to obtain mining concessions as early as 1959, and had applied for the grant of mining concessions. The petitioner, personally and through the Goa Mineral ore Exporters' Association, was pressing his claim for the grant of mineral conscession before the Government of Goa, Daman and Diu, and the Government of India. It was in that situation that respondent No. 3 appeared on the scene and involved himself by making an application for the grant of a prospecting license in respect of the same areas. If the petitioner succeeds in making good his claims, respondent No. 3 cannot be heard to say that in the meantime he has secured a prospecting license and a preferential right to a mining lease. In the circumstances of the present case, we consider that the alleged accrual of a right to respondent No. 3 is not a circumstance which disentitles the petitioner to a writ of certiorari.

(57) Shri Chatterjee lastly urged that the applications of the petitioner filed in 1959 were deemed to have lapsed and the petitioner was informed of the same on 16th September, 1964, that a suit for enforcement of his claim would be governed by Article 58 or Article 113 of the Indian Limitation Act, 1963, under which the period of limitation is three years, that his right to enforce his claim was thus barred by the time he filed the writ petition on 5th August, 1968, and that this Court should not, thereforee, grant him a writ of certiorari in the exercise of jurisdiction under Article 226 of the Constitution. There is no force in this contention also. It was stated in the communication (Annexure R-5), dated 16th September, 1964, itself that the petitioner might apply afresh for grant of mineral concessions in accordance with the Act of 1957 and the Mineral Concession Rules, 1960. The said communication was not, thereforee, a final denial of the right claimed by the petitioner. He made an application on 16th August, 1966, which was rejected by the State Government on 29th September, 1966. The petitioner preferred revisions to the Government of India and the same were rejected on 18th September, 1967. He filed the writ petition on 5th August, 1968. It is thus clear that even if a suit for enforcement of his claim is governed by Article 58 or Article 113 of the Limitation Act, it cannot be said that the suit was barred by the date on which the writ petition was filed. The contention of the learned counsel cannot, thereforee, be accepted.

(58) For the above reasons, we allow the writ petitions and quash

(1)the order communicated by Annexure R-5, dated 16th September, 1964, whereby the petitioner's applications, dated 4th September, 1959, and 17th September, 1959, were deemed to have lapsed; (2) the order (Annexure R-7), dated 26th February, 1966, whereby the Government of Goa, Daman and Diu granted prospecting license to respondent No. 3, as well as the said prospecting license and the mining lease granted to him subsequently; (3) the order (Annexure 'E' collectively), dated 29th September, 1966, of the Government of Goa, Daman and Diu, whereby the petitioner's applications for the grant of mining leases in respect of the areas in question were rejected, and (4) the orders (Annexure 'G' collectively), of the Government of India, dated 18th September, 1967, whereby the revisions filed by the petitioner were rejected. We further direct the Government of Goa, Daman and Diu (respondent No. 2) to treat the applications of the petitioner, dated 4th September, 1959, and 17th September, 1959, as subsisting and dispose them of in accordance with the findings and observations in this judgment. As already stated, the petitioner should pay the balance of court fee within a week from this date. In the circumstances, we direct the parties to bear their own costs.


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