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2003 Supreme(Bom) 836
BOMBAY HIGH COURT AT PANAJI, GOA
F.I. REBELLO & P.V. HARDAS, JJ.
Nishikant Sukerkar, legal heir of Narsinva P. Sukerkar, Margao, Goa & other – Appellant
Versus
Government of India, through Secretary, Ministry of Mines & other – Respondents
Writ Petition No. 101 of 2003
Decided On: 29th July, 2003
Shri Anil Diwan, Senior Advocate with Shri Dhruv Metha & Shri M.S. Joshi, Advocates for the Petitioners.
Shri J.S. Vaz. Additional Central Government Standing Counsel for Respondent No.1.
Shri N.K. Sawaikar Additional Government Advocate for Respondent No.2.
Shri S.K. Kakodkar, Senior Advocate with Shri J.J. D'Souza, Advocate for Respondent No.3.
Headnote:
MINING CONCESSION - ABOLITION AND DECLARATION AS MINING LEASES ACT, 1987 - SECTION 4(3) - POWER TO CORRECT ERROR, OMISSION OR MISDESCRIPTION - DOES NOT INCLUDE POWER TO INCLUDE A CONCESSION NOT INCLUDED IN THE FIRST OR SECOND SCHEDULE TO THE ACT.
Fact of the Case:
Petitioner claimed to be the legal heir of N.P. Sukerkar, who was granted a mining concession in 1955 by the Portuguese Administration. After the annexation of Goa by India in 1961, the Mines and Minerals (Regulation and Development) Act, 1957 (MMRD Act) came into force in Goa in 1963. In 1976, the Government of Goa terminated Sukerkar's mining concession under the MMRD Act. Sukerkar filed a revision petition, which was dismissed in 1978. In 1987, the Goa, Daman and Diu Mining Concessions (Abolition and Declaration as Mining Leases) Act, 1987 (the 1987 Act) was enacted, which abolished certain mining concessions and declared them as mining leases under the MMRD Act. Sukerkar's concession was not included in the Schedules to the 1987 Act. In 1998, the petitioner applied to the Central Government under Section 4(3) of the 1987 Act for inclusion of Sukerkar's mining concession in the Schedule to the Act. The application was rejected by the Central Government.
Finding of the Court:
The Court held that the power conferred on the Central Government under Section 4(3) of the 1987 Act is the power to correct error, omission or misdescription only in respect of those mining concessions which are listed in Schedule I or II as referred to in Sections 4(1) and 4(2). The exercise of power stops there. It does not include the power to include in the Schedule concessions which Parliament has not included.
Issues: Whether the power under Section 4(3) to correct error, omission, or misdescription, includes the power to include a concession not included, in the First or Second Schedule to the Act of 1987?
Ratio Decidendi: The Court interpreted Section 4(3) of the 1987 Act and held that the power conferred on the Central Government is the power to correct error, omission or misdescription only in respect of those mining concessions which are listed in Schedule I or II as referred to in Sections 4(1) and 4(2). The exercise of power stops there. It does not include the power to include in the Schedule concessions which Parliament has not included.
Final Decision: The Court dismissed the petition, holding that the Central Government did not err in rejecting the petitioner's application for inclusion of Sukerkar's mining concession in the Schedule to the 1987 Act.
F.I. REBELLO, J.
1. This petition was originally filed in the High Court of Delhi and was numbered as Civil Writ Petition No. 5648 of 1998. A transfer petition came to be filed before the Apex Court. By order dated January 20, 2003, the Apex Court directed this petition to be transferred to this Bench of the High Court to be heard alongwith Writ Petition No. 268 of 1996, which was pending here. That petition has also been heard.
2. A few facts as they emerge from the pleadings of the petitioners and the documents annexed may now be set out for the purpose of disposing of, the issues which arise in the present petition. The late Narsinva P. Sukerkar, in the year 1955, was granted mining concession being title No.7 of 1955 was granted mining concession being title No.7 of 1955 for an area admeasuring 22.0807 hectares of village Pissurlem, Sattari Taluka, North Goa, by the then Portuguese Administration under the Portuguese Mining Laws of 1906. Goa came to be annexed by conquest and became a part of the Union of India on 19th December, 1961. By Section 5 of the Goa, Daman and Diu Administration Act. 1961, all laws in force prior to liberation were continued. The Mines and Minerals (Regulation and Development) Act, 1957, (hereinafter referred to as the M.M.R.D. Act) became enforceable with effect from 1st October, 1963, except Section 16 which came into force with effect from 15th June, 1966. The M.M.R.D. Act, repealed corresponding Portuguese laws. The Controller of Mining Leases purporting to exercise powers under Section 16 sought to and converted several mining concessions granted under the erstwhile Portuguese regime into lease. Against those orders revision applications came to be filed, which were allowed. One such revision was in respect of the lease granted to Vassudev Mahadev Salgaokar. By order of 5th August, 1975, the Central Government held that the Rule speaks of the power to modify a lease executed prior to 25th October, 1949 and therefore, in respect of lease granted after 25th October, 1949, there could be no such power. Section 16 then came to be amended by an Act of Parliament and came into force with effect from 12th September, 1972.
Fresh notices were issued in the year 1975 proposing modification based on the 1972 amendment to Section 16. Pursuant to notice issued to late Sukerkar, the Government of Goa terminated the mining concession granted to the late N.P. Sukerkar by order dated 6th April, 1976. A revision came to be filed before the Central Government. Some of the grounds raised were, as to why mining operations could not be undertaken and as reflected from the order passed in revision, were as under:-
(i) The concession is surrounded by several concessions village hutments and agricultural land.
(ii) He had tried several times to acquire access roads to the concession through the village, but the villagers refused fearing that the agricultural land would be damaged.
(iii) The other concessions refused him permission to access through their concessions.
In revision a finding was recorded that the revision petitioner had not utilized the opportunity given to him to bring his difficulties to the notice of the Government and instead, chose to claim that he was working in the area when he was not. To avoid repetition, another grounds raised and as set out in the petition was that the M.M.R.D. Act was inapplicable to mining concessions.
On 5th January, 1977, consequent to the termination, the Government of Goa issued a Notification under Rule 59 declaring the said area covered by Sukerkar's concession as free for grant, by publishing the same in the Government Gazette 43, II series, dated 20th October, 1977. On 4th March, 1977, an order came to be passed stating that during the pendency of the revision application the State Government should not take any action in respect of the area which is the subject-matter of the revision petition as the matter was sub-justice. The revision itself came to be dismisse
