Full Judgment Text
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PETITIONER:
V1NOD KUMAR SHANTILAL GOSALIA
Vs.
RESPONDENT:
GANGADHAR NARSINGDAS AGARWAL & ORS.
DATE OF JUDGMENT26/08/1981
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
FAZALALI, SYED MURTAZA
KOSHAL, A.D.
CITATION:
1981 AIR 1946 1982 SCR (1) 392
1981 SCC (4) 226 1981 SCALE (3)1459
ACT:
Goa, Daman and Diu Administration Act, 1962 (1 of 1962)
S. 5(i); Goa, Daman and Diu (Laws) Regulation 1962 (12 of
1962) S. 2(a), 3(1) and 4(2); Mines and Mineral (Regulation
and Development) Act, 1957, S. 4 and Mineral Concession
Rules 1960, Rule 38-Scope of.
Mining rights in Goa, Daman and Diu-Title of manifest
obtained from Portuguese Colonial Government-Purchased from
Manifestor-Application for mining concession made-
Application pending consideration-Acquisition of Goa by
India-Rights accrued under Portuguese law whether survive-
Whether can be enforced against the new Government.
Words and Phrases-’Legal Proceedings-Meaning of-Goa,
Daman and Diu (Law) Regulation 1962, S. 4(i).
HEADNOTE:
Matters relating to grant, transfer and vesting of
mining rights in Goa, Daman and Diu during the Portuguese
rule, were government by the "Portuguese Colonial Mining
Laws". Under those laws a person could, make a declaration"
in writing stating that "he has discovered a mineral
deposit". Such a declaration was called a "Mining Manifest ’
and the person making the declaration was called a
"Manifestor". The object of making a Mining Manifest was to
acquire mining rights from the Government in respect of the
area covered by the Manifest. On verification, the concerned
authorities would prepare a "Notice of Manifest". The Notice
of Manifest was an acknowledgment by public authorities of
the authenticity of the Mining Manifest and it was a step-
in-aid to the grant of mining rights. The Notice of Manifest
was followed by the grant of "Title of Manifest", "a
certificate in terms of the note of manifest pertaining to
the legal right to concession, and entitled the manifestor
to a "Mining Concession" under which he was permitted "to
explore a mining property and to enjoy thereon all mining
rights". The mining concession was ’unlimited in duration as
long as the concessionaire complied with the conditions
which the law and title of concession imposed on him".
Article 119 of the Portuguese Colonial Mining Laws
provided that a "prospecting license" was not transferable
but by article 120, a Title of Manifest was transferable by
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simple endorsement on the original title, duly executed in
terms of Article 60.
The territories comprised in Goa, Daman and Diu under
the Portuguese rule were annexed by the Government of India
by conquest on December 20,
393
1961. These territories became a part of India, and for the
purpose of making A provision for their administration, the
President of India, promulgated on March 5, 1962 the Goa,
Daman and Diu (Administration) ordinance. On March 27, 1962
the Indian Parliament enacted the Goa, Daman and Diu
(Administration) Act 1 of 1962 replacing the aforesaid
ordinance with effect from March 5, 1962. On the same date,
Parliament enacted the Constitution (Twelfth Amendment) Act,
1962 whereby Goa, Daman and Diu were added as Entry S in
Part II of the First Schedule to the Constitution, and as
clause (d) in Article 240 of the Constitution, with
retrospective effect from December 20, 1961. Goa, Daman and
Diu thus became a part of the Union Territories of India
with effect from the date of their annexation by conquest.
On November 28, 1962 the President promulgated the Goa,
Daman and Diu (Laws) Regulation No. 12 of 1962. The various
Acts specified in the Schedule to the Regulation were
extended to Goa, Daman and Diu, one of such Acts being the
Mines and Minerals (Regulation and Development) Act, 1957.
Section 4 of the Regulation provided or the repeal and
saving of laws. By a notification issued by the Lt. Governor
of Goa, Daman and Diu under section 3 of the Regulation, the
Mines and Minerals (Regulation and Development) Act, 1957
and the Mineral Concession Rules, 1960, were made applicable
to Goa, Daman and Diu with effect from October 1, 1963.
On September 5, 1958 one "K" obtained four Titles of
Manifest from the Portuguese Government, and sold those
Manifests to Respondent No. I sometime in 1959. The sale was
in conformity with the Portuguese Laws and was duly attested
by a Notary Public in Goa. On September 4, 1959, Respondent
No. I made four applications, one in respect of each
Manifest, to the Governor General of Portugal, for
demarcation of the area in respect of which the mineral
concession was sought. On September 17, 1959 Respondent No I
presented four applications attaching to them certain other
documents and on September 24, 1959 he paid the balance of
the fee prescribed for the grant of mineral concessions.
On the date on which the Act was extended to Goa, Daman
and Diu, the applications made by respondent 1 on September
4 and 17, 1959 to the Governor General of Portuguese Goa
were pending consideration for the grant of mineral
concessions. Similar applications filed by other persons
were also pending on that date. On September 16, 1964, the
Mining Engineer, Department of Mines, Goa, informed
respondent 1 that since his applications for mineral
concessions had not been granted prior to October 1, 1963
when the Rules came into force, the said applications were
deemed to have lapsed. He was however asked to submit fresh
applications for grant of mineral concessions which would be
considered on merits. On October S, 1964 the Secretary of
the Goa Mineral ore Exporters Association made a
representation to the Government, requesting that all cases
in which applications were made and mineral concession fees
were paid prior to October 1, 1963 should be treated by the
Government sympathetically and mineral concessions granted.
On October 17, 1964 the appellant applied for a
prospecting licence in respect of a large area, which
included the four areas for which respondent 1 had
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applied for a mining concession during the Portuguese rule.
In September 1965, the Government of Goa, decided to grant a
prospecting licence to the appellant in respect of the whole
area for which he had applied and sought approval of the
Central Government under section 5(2) of the Act. As the
application, was not granted within the time limit
prescribed by the Rules, it was deemed to have been
rejected. However, the Central Government on February 10,
1966 acting under S. 30 of the Act restored the application
of the appellant and made a recommendation to the State
Government that a prospecting licence should be granted to
him in respect of certain area which included the area for
which respondent 1 had applied to the Portuguese Government
in September 1959. In pursuance of the Central Government’s
recommendation, the State Government granted to the
appellant a prospecting licence on February 26, 1966.
On August 16, 1966 respondent 1 made four applications
for mining Leases in respect of the very same area for which
he had applied for mineral concessions during the Portuguese
rule and in respect of which the Government of Goa had,
granted a prospecting licence to the appellant on February
26, 1966.
The appellant applied for mining lease on May 8, 1967.
The State Government having delayed the grant to the
appellant, he filed a revision application under rule 54 of
the Rules against the deemed refusal of his application. On
April 20, 1969 the revision application was allowed by the
Central Government which directed the State Government to
grant a mining lease to the appellant in respect of a
smaller area. This area covered the area in respect of which
respondent 1 was agitating his right to obtain a mining
lease.
In between, upon the rejection of his revision
application by the Central Government in September 1967,
respondent I filed a writ petition challenging the orders of
the Government refusing to grant a mining lease to him in
respect of the four areas for which he had applied on August
16, 1966, contending that by virtue of the four titles of
manifest duly transferred in his favour he had acquired an
indefeasible right to obtain concessions over the said area
even prior to the annexation of Goa, that he had presented
applications and paid the necessary fees prior to the
annexation, and that therefore, the right which had accrued
in his favour could not be considered as having lapsed on
the annexation.
The High Court allowed the writ petition and quashed
the orders dated September 16, 1964, September 18, 1967 and
September 29, 1967 whereby respondent 1’s applications for
mining leases and his revision applications were rejected by
the Government. The High Court also quashed the order dated
February 26, 1966 whereby a prospecting licence was granted
to the appellant and directed the State Government to treat
the applications of respondent I dated September 4 and
September 17, 1959 as still subsisting and to dispose them
of.
In the appeal to this Court, it was contended on behalf
of the appellant, that there was an interregnum between
December 20, 1961 when the Government of India annexed Goa,
and March 5, 1962 when the Administration Act was brought
into force, as a result of which, laws which were in force
in Portuguese
395
Goa immediately before the annexation of Goa ceased to apply
to that territory with effect from December 20, 1961 until
March S, 1962. By section 5(1) of the Administration Act, it
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was only with effect from March S, 1962 that such laws
continued in force in the annexed territory. Since
respondent 1 had made his applications for mining leases or
mining concessions under the Portuguese law and since that
law itself ceased to apply to the conquered territory with
effect from the date of conquest, the applications lapsed on
that date. The "Titles of Manifest" obtained by respondent I
under those laws conferred upon him no vested right to
obtain the mineral concessions or mining leases. They only
enabled him to apply for concessions, since the Title of
Manifest under the Portuguese law was no more than what a
prospecting licence is under the Indian law of mining.
On behalf of respondent I it was contended that by
virtue of the four Titles of Manifest which were duly
transferred in his favour he had acquired the right to
obtain mineral concessions in respect of the four areas
prior to the annexation of Goa. He had presented the
necessary applications within the prescribed period and he
had also paid the necessary fees for obtaining mineral
concessions. Since he was entitled to obtain mineral
concessions or mining leases from the Portuguese Government,
he would be entitled to obtain such concessions or leases
from the Government of Goa also. Though, on the extension of
the Act and the Rules to Goa with effect from October I,
1963, the Portuguese mining laws stood repealed by reason of
section 4(1) of the Regulation the previous operation of the
Portuguese mining laws so repealed was saved by reason of
section 4(2) of the Regulation. Sub-section (2) also saved
anything duly done or suffered under the Portuguese laws, as
also the right, privilege, obligation or liability acquired,
accrued or incurred under those laws. The applications filed
by respondent I for the grant of mining concessions were
"legal proceedings" within the meaning of section 4(2) of
the Regulation. Since those proceedings were instituted in
accordance with the Portuguese mining laws on the basis of
the right possessed by respondent I to obtain mining
concessions, he was entitled to continue the proceedings as
if the Regulation had not been passed, that is, to say as if
the Portuguese mining laws continued to be in force in the
conquered territory of Goa.
Allowing the appeal,
^
HELD: 1. The applications for mineral concessions made
by respondent 1 on the basis of Title Manifests of 1959 had
lapsed. Even assuming that those applications were pending
when the Act and the Rules were extended to Goa on October
1,1963, respondent 1’s applications could only be decided in
conformity with the Act and the Rules. Section 4 of the Act
and rule 38 of the Rules support this view. Section 21 of
the Act makes it penal to do any prospecting or mining
operation otherwise than in accordance with the Act or the
Rules. The Act and the Rules having been made applicable to
the territory of Goa on October 1,1963, and the supposedly
pending applications of respondent I not having been granted
within a period of nine months, they must be deemed to have
been refused under rule 24(3) of the Rules. [416 C-E]
2. Incases of acquisition of a territory by conquest,
rights which had accrued under the old laws do not survive
and cannot be enforced against the
396
new Government unless it chooses to recognise those rights.
In order to recognise the old rights, it is not necessary
for the new Government to continue the old laws under which
those rights had accrued because, old rights can be
recognised without continuing the old laws as, for example.
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by contract or executive action. On the other hand, the mere
continuance of old laws does not imply the recognition of
old rights which had accrued under those laws. Something
more than the continuance of old laws is necessary in order
to support the claim that old rights have been recognised by
the new Government. That ’something more’ can be found in a
statutory provision whereby rights which had already accrued
under the old laws are saved. In so far as the continuance
of old laws is concerned, as a general rule, they continue
in operation after the conquest, which means that the new
Government is at liberty not to adopt them at all or to
adopt them without a break in their continuity or else to
adopt them from a date subsequent to the date of conquest.
[413 D-F]
In the instant case there was an interregnum between
December 20, 1961 and March 5, 1962. During that period the
old laws of the Portuguese regime were not in operation in
the conquered territory of Goa. Secondly the rights
recognised under sub-section 2 of section 4 the Regulation
did not extend any protection to the rights which had
accrued prior December 20, 1961 but envisaged only such
rights which had come into being after March 5, 1962 by
reason of the laws continued by the Act and the Regulation.
Apart from that, the Government of India never recognised
either during the interregnum or thereafter, any rights on
the basis of titles of manifest obtained by any person
during the Portuguese rule. On September 16, 1964 the
Government of India issued an order stating expressly that
all applications for mineral concessions made to the
Portuguese Government on the basis of titles of manifest
shall be deemed to have lapsed. Thus, far from there being
any recognition by the Indian Government of rights accruing
from titles of manifest there is a clear indication that it
decided not to recognise those rights. For two years after
the order of the Government of India dated September 16,
1961, Respondent 1 did not take any steps at all for the
recognition or reassertion of his rights. He had obtained an
order of refund of the amount which he had paid to the
Portuguese Government. It was on August 16, 1966 that he
applied for a mining lease under the Indian Law. He did so
after the appellant had obtained a mining lease in his
favour on February 26, 1966 and he applied for a lease in
respect of the very same areas over which the appellant was
granted a mining lease. On September 20, 1967 the Central
Government rejected the application of respondent 1 for a
mining lease and it is eleven months thereafter that he
filed a writ petition challenging the various orders passed
against him and the order by which a mining lease was
granted to the appellant. No right had accrued in favour of
respondent I under the Portuguese law and correspondingly,
no liability or obligation was incurred by the Portuguese
Government which the Government of India would be under a
compulsion to accept by reason of the provisions contained
in section 4 of the Regulation. [413 H-414 A]
Pema Chibar v. Union of India, [1966] I SCR 357,
applied.
J. Fernandes and Co. v. The Deputy Chief Controller of
Imports and Exports and ors. [1975] 1 SCR 867, 876, referred
to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1440-
1443 (N) of 1970.
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397
From the judgment and order dated the 20th February,
1970 A of the Delhi High Court in Civil Writs Nos. 712, 712
A, 712 & 712-C of 1968.
S. N. Kackar, Santosh Chatterjee, A. K. Panda, R. C.
Parija and G. S. Chatterjee for the appellant.
G. L. Sanghi, Vinod Bobde, B. R. Agarwal, P. G. Gokhale
and Miss Vasudha Sanghi for Respondent No. 1.
M. M. Abdul Khader, Shobha Dikshit and M. N. Shroff for
Respondents Nos. 2 & 3.
The Judgment of the Court was delivered by C
CHANDRACHUD, C. J.: These appeals are by certificates
granted by the Delhi High Court under Article 133 (1) (a)
and (c) of the Constitution in regard to its judgment dated
February 20, 1970 in C. W. No. 712 of 1968
The dispute in these appeals relates to the grant of
mining rights in respect of an area situated in the villages
of Karanzol and Sonaulim in Goa, the rival claimants being
the appellant and Respondent 1. Respondent I claims
preference over the appellant by reason of certain events
which happened prior to the conquest and annexation of Goa
by the Government of India on December 20, 1961. Before we
turn to those events, it would be useful to notice the
relevant provisions of the Mining Laws which were in force
in Portuguese Goa.
During the Portuguese rule, matters relating to grant,
transfer and vesting of mining rights in Goa, Daman and Diu
were governed by the "Portuguese Colonial Mining Laws".
Under those laws a person could, in stated circumstances,
make a "declaration" in writing stating that "he has
discovered a mineral deposit". Such a declaration was called
a "Mining Manifest" and the person making the declaration
was called a "Manifestor". The object of making a Mining
Manifest was to acquire mining rights from the Government in
respect of the area covered by the manifest. On verification
of the facts stated in the Manifest, the concerned
authorities would prepare a "Notice of Manifest", by which
was meant "the record in a special book of prospector’s
declaration, which in a fixed term will ensure the exclusive
right to ’concession’ of a manifested mining property when
such property contains minerals and the manifested land is
398
free". The Notice of Manifest was thus an acknowledgment by
public authorities of the authenticity of the Mining
Manifest. It was a step-in-aid to the grant of mining
rights, since the particular entry in the special book
maintained for keeping the record of mining manifests
ensured the exclusive right of the manifestor to mineral
concession or rights. The Notice of Manifest was followed by
the grant of "Title of Manifest" which meant "a certificate
in terms of the note of manifest, pertaining to the legal
right to concession". The Title of Manifest entitled the
manifestor to a ’Mining Concession’ under which he was
permitted "to explore a mining property and to enjoy thereon
all mining rights". The mining concession was "unlimited in
duration as long as the concessionaire complied with the
conditions which the law and title of concession imposed on
him". Article 119 of the Portuguese Colonial Mining Laws
provided that a ’prospecting license’, was not transferable
but by article 120, a Title of Manifest was transferable by
simple endorsement on the original title, duly executed in
terms of Article 60.
On September 5, 1958 one V. J. Keny of Goa had obtained
four Titles of Manifest from the Portuguese Government,
being Manifests Nos. 31, 33, 34 and 35 of 1958, in respect
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of an area admeasuring about 400 Hectares. Some time in
1959, Keny sold those Manifests to Respondent I for Rs.
33,000/-. The sale was in a conformity with the Portuguese
laws and was duly attested by a Notary Public in Goa. On
September 4, 1959, which was one day before the expiry of a
period of one year from the date on which Keny had obtained
the Titles of Manifest from the Portuguese Government,
Respondent i made four applications, one in respect of each
Manifest, to the Governor General of Portugal, attaching
with each application the relative Title of Manifest, a
challan evidencing payment of the prescribed fee for the
grant of mineral concession and a challan evidencing deposit
of the prescribed mileage fee for demarcation of the area in
respect of which the mineral concession was sought. On
September 17, 1959 Respondent I presented four applications
attaching to them certain other documents and on September
24, 1959 he paid the balance of the fee prescribed for the
grant of mineral concessions.
The territories comprised in Goa, Daman and Diu under
the Portuguese rule were annexed by the Government of India
by conquest on December 20, 1961. By virtue of Article I (3)
(c) of the Constitution of India, these territories became a
part of India. For
399
the purpose of making provision for the administration of
the said A territories, the President of India, in exercise
of the powers conferred upon him by Article 123 (1) of the
Constitution, promulgated on March 5, 1962 ordinance No. 2
of 1962, called the Goa, Daman and Diu (Administration)
ordinance. On March 27, 1962 the Indian Parliament enacted
the Goa, Daman and Diu (Administration) Act, 1 of 1962,
replacing the aforesaid ordinance with effect from March 5,
1962. On the same date, the Parliament enacted the
Constitution (Twelfth Amendment) Act, 1962 whereby Goa,
Daman and Diu were added as Entry 5 in Part II of the First
Schedule to the Constitution, and as clause (d) in Article
240 of the Constitution, with retrospective effect from
December 20, 1961. Thus, Goa, Daman and Diu became a part of
the Union Territories of India with effect from the date of
their annexation by conquest.
On November 28, 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. The various Acts specified in the Schedule to the
Regulation were extended to Goa, Daman and Diu one of such
Acts being the Mines and Minerals (Regulation and
Development) Act, 1957. Section 4 of the Regulation provided
for the repeal and saving of laws. By a notification issued
by the Lt. Governor of Goa, Daman and Diu under section 3 of
the Regulation, the Mines and Minerals (Regulation and
Development) Act, 1957, and the Mineral Concession Rules,
1960, were made applicable to Goa, Daman and Diu with effect
from October 1, 1963. We will refer to these as "The Act"
and "The Rules" respectively.
On the date on which the Act was extended to Goa, Daman
and Diu, the applications made by respondent 1 on September
4 and 17, 1959 to the Governor-General of Portuguese Goa
were pending consideration for the grant of mineral
concessions. Similar applications filed by other persons
were also pending on that date. On September 16, 1964, the
Mining Engineer, Department of Mines, Goa, informed
respondent 1 that since his applications for mineral
concessions had not been granted prior to October 1, 1963
when the Rules came into force, the said applications were
deemed to have lapsed. Respondent 1 was asked, if he so
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desired, to submit fresh applications for grant of mineral
concessions in accordance with the provisions of the Act and
the Rules which, it was stated, would be
400
considered on merits. It was added that the Government held
forth no assurance that the concessions would be granted.
Similar communications were sent by the Department of Mines
to 55 other persons whose applications were pending before
the Portuguese Government when the Act and the Rules came
into force. On October 5, 1964, the Secretary of the Goa
Mineral ore Exporters Association made a representation to
the Secretary, Industries and Labour Department, Government
of Goa, Daman and Diu, requesting that all cases in which
applications were made and mineral concession fees were paid
prior to October 1, 1963, should be treated by the
Government sympathetically and mineral concessions should be
granted.
On October 17, 1964 the appellant applied to the
Government of Goa for a prospecting licence in respect of a
total area of 2600 hectares, which included the four areas
for which respondent I had applied for a mining concession
during the Portuguese rule. In September 1965, the
Government of Goa decided to grant a prospecting licence to
the appellant in respect of the whole area for which he had
applied and sought approval of the Central Government to its
proposed action, under section S(2) of the Act. Since
appellant’s application was not granted within the time
prescribed by the Rules, it was deemed to have been
rejected. But on February 10, 1966 the Central Government,
acting under section 30 of the Act, restored the application
of the appellant suo motu and made a recommendation to the
Government of Goa that a prospecting licence should be
granted to him in respect of an area of 2425 hectares, which
included the area in respect of which respondent I had
applied for a mineral concession to the Portuguese
Government in September 1959. In pursuance of the Central
Government’s recommendation, the Government of Goa granted
to the appellant a prospecting licence on February 26, 1966
over an area admeasuring 2425 hectares.
On August 16, 1966 respondent 1 made four applications
for mining leases in respect of the very same area for which
he had applied for mineral concessions during the Portuguese
rule and in respect of which the Government of Goa had, as
stated above, granted a prospecting licence to the appellant
on February 26, 1966. Those applications having been
rejected by the Government of Goa on September 29, 1966,
respondent 1 filed revision applications to the Central
Government which were also rejected in September 1967.
401
In pursuance of the prospecting licence granted to him
on A February 26, 1966, the appellant applied for a mining
lease on May 8, 1967. The State Government having delayed
the grant of a mining lease to the appellant, he filed a
revision application to the Central Government under rule 54
of the Rules against the deemed refusal of his application.
On April 20, 1969, the revision application was allowed by
the Central Government which directed the State Government
to grant a mining lease to the appellant in respect of an
area of 918.6050 hectares. This area covers the areas in
respect of which respondent 1 was agitating his right to
obtain a mining lease ever since the Portuguese rule.
In between, upon the rejection of his revision
application by the Central Government in September 1967,
respondent 1 had filed a Writ Petition (C.W. No. 712 of
1968) in the Delhi High Court on July 23, 1968 challenging
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the orders of the Government refusing to grant a mining
lease to him in respect of the four areas for which he had
applied on August 16, 1966. It was contended in the High
Court on behalf of respondent 1 that by virtue of the four
titles of manifest duly transferred in his favour, he had
acquired an indefeasible right to obtain concessions over
the four areas in question even prior to the annexation of
Goa, that he had presented applications and paid the
necessary fees prior to the said annexation and that
therefore, the right which had accrued in his favour could
not be considered as having lapsed on the annexation of Goa
by the Government of India. It was stated on behalf of
respondent 1 that it was out of abundant caution that he
made fresh applications for mining leases to the Government
of Goa after the annexation of Goa. These contentions were
refuted on behalf of the appellant on the ground that the
applications filed by respondent 1 to the Portuguese
Government had lapsed on the annexation of Goa by the
Government of India, that no right had accrued in favour of
respondent 1 which the Government of Goa, after the
annexation of Goa, was under an obligation to recognise and
that since the appellant’s application for a mining lease
was granted, respondent 1 had no right to ask for a lease in
respect of the areas which were included in the appellant’s
lease. The High Court allowed respondent 1’s Writ Petition
and quashed the orders dated September 16, 1964, September
18, 1967 and September 29, 1967 whereby respondent 1’s
applications for mining leases and his revision applications
were rejected by the Government. The High Court also quashed
the order dated February 26, 1966 whereby a prospecting
licence was granted to the appellant and directed the
Government of Goa
402
to treat the applications of respondent 1 dated September 4
and September 17, 1959 as still subsisting and to dispose
them of in accordance with the findings and observations
contained in the judgment. The correctness of the High
Court’s judgment is questioned in these appeals.
The main question which arises for consideration in
these appeals is whether, prior to the annexation of Goa by
the Government of India, respondent 1 had acquired the right
to obtain a mining lease from the Portuguese Government and,
if so, whether after the annexation of Goa, the Government
of India recognised that right and is therefore bound to
grant a mining lease to respondent 1 in terms of the
applications made by him in that behalf to the Portuguese
Government. The question of recognition of respondent 1’s
right by the Government of India will, of course, depend
initially upon whether, as a matter of fact, he had acquired
the right to obtain a mining lease from the Portuguese
Government, which in turn will depend upon the provisions of
the Portuguese mining laws. The question as to whether the
Govt. of India is bound to grant a mining lease to
respondent 1 will depend upon the effect of the laws passed
by the Indian legislature after the annexation of Goa, in
the matter of continuance of laws which were in force in
Portuguese Goa and in the matter of protection of the rights
arising under those laws. It, therefore, becomes necessary
to notice the relevant provisions of The Goa, Daman and Diu
(Administration) Act, 1 of 1962, and of the Goa, Daman And
Diu (Laws) Regulation, 12 of 1962, to which we will refer
respectively as "The Administration Act" and "The
Regulation".
The Administration Act replaced ordinance No. 2 of
1962, which had come into force on March 5, 1962. The
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Administration Act, though passed on March 27, 1962, was
given retrospective effect from the date of the ordinance,
namely, March 5, 1962. The Administration Act makes
provisions relating to appointment of officers, continuance
of existing laws until amended or repealed, extension of
enactments in force to Goa, Daman and Diu and for allied
matters. Section 2(b) of the Administration Act provides
that "appointed day" means the 20th of December 1961. That
is the date on which the territories comprised in Goa, Daman
and Diu under the Portuguese rule were annexed by the
Government of
403
India by conquest. Section 5(1) of the Administration Act
reads thus:
"Continuance of existing laws and their
adaptation,- (1) All laws in force immediately before
the appointed day in Goa. Daman and Diu or and part
thereof shall continue to be in force therein until
amended or repealed by a competent Legislature or other
competent authority."
The object of passing the Regulation was to extend
certain laws to the Union Territory of Goa, Daman and Diu.
Section 2(a) of the Regulation defines the "Act" to mean an
act or the ordinance specified in the Schedule to the
Regulation. Section 3(1) of the Regulation provides that the
acts, as they are generally in force in the territories to
which they extend, shall extend to Goa, Daman and Diu,
subject to the modifications, if any, specified to the
Schedule. Sub-section (2) of section 3 provides that the
provisions of the acts referred in sub-section (1) shall
come into force in Goa, Daman and Diu on such date as the
Lieutenant-Governor may, by notification, appoint. Section 4
of the Regulation, which bears directly on the point at
issue, reads thus:
"4. Repeal and saving-(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 affect
(a) the previous operation of any law so repealed or
anything duly done or suffered thereunder; or
(b) any right, privilege, obligation or liability
acquired, accrued or incurred under any law so
revealed: 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 o} punishment as
aforesaid, and
404
any such investigation, legal proceeding or remedy
may be instituted, continued or enforced and any
such penalty, forfeiture or punishment may be
imposed as if this Regulation had not been made:
Provided that any thing 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 licence granted, or registration effected)
under any such law, shall be deemed to have been done
or taken under the corresponding provision of the Act
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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."
Shri Kacker, who appears on behalf of the appellant,
contends that there was an interregnum between December 20,
1961, when the Government of India annexed Goa, and March 5,
1962 when the Administration Act was brought into force, as
a result of which, laws which were in force in Portuguese
Goa immediately before the annexation of Goa cease to apply
to that territory with effect from December 20, 1961 until
March 5, 1962. It is urged by counsel that by reason of
section 5(1) of the Administration Act, it is only with
effect from March 5, 1962 that such laws continued in force
in the annexed territory. Since respondent 1 had made his
applications for mining leases or mining concessions under
the Portuguese law and since that law itself ceased to apply
to the conquered territory with effect from the date of
conquest, the applications lapsed on that date. Respondent
1, not having made any application after March 5, 1962 under
the Portuguese mining laws, forfeited his right to ask for
mining leases on the basis of those laws. According to Shri
Kacker, not only did the applications made by respondent 1
prior to the annexation of Goa cease to have existence on
December 20, 1961, but the Manifests of Title which were
granted to respondent 1 under the previous mining laws,
which might have formed the basis for applying for mineral
concessions under the same laws, also came to a termination.
This, according to counsel, was much more so with effect
from October 1, 1963, on which date the Mines and Minerals
(Regulation and Development) Act, 1957, and the Mineral
Concessions Rules, 1960 were extended to Goa. In regard to
the nature of the right which respondent 1 claimed under the
Portuguese law, it is
405
argued by Shri Kacker that the "Titles of Manifest" obtained
by respondent 1 under those laws conferred upon him no
vested right to obtain the mineral concessions or mining
leases. They only enabled him to apply for concessions,
since the Title of Manifest under the Portuguese law was no
more than what a prospecting licence is under the Indian law
of mining.
The argument of Shri G. L. Sanghi in answer to the
points made by Shri Kacker runs thus: By virtue of the four
Titles of Manifest which were duly transferred in his
favour, respondent 1 acquired the right to obtain mineral
concessions in respect of the four areas, prior to the
annexation of Goa. He had presented the necessary
applications within the prescribed period and he had also
paid the necessary fees for obtaining mineral concessions.
Since respondent I was entitled to obtain mineral
concessions or mining leases from the Portuguese Government,
he would be entitled to obtain such concessions or leases
from the Government of Goa also. Though, on the extension of
the Act and the Rules to Goa with effect from October 1,
1963, the Portuguese mining laws stood repealed by reason of
section 4(1) of the Regulation, the previous operation of
the Portuguese mining laws so repealed was saved by reason
of section 4(2) of the Regulation. Sub-section (2) also
saved anything duly done or suffered under the Portuguese
laws, as also the right, privilege, obligation or liability
acquired, accrued or incurred under those laws. Not only
that, but sub-section (2) also preserved any investigation,
legal proceeding or remedy in respect of any such right,
privilege, obligation or liability, which could be
instituted, continued or enforced as if the Regulation had
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not been passed. The applications filed by respondent I for
the grant of mining concessions were "legal proceedings"
within the meaning of section 4(2) of the Regulation. Since
those proceedings were instituted in accordance with the
Portuguese mining laws on the basis of the right possessed
by respondent 1 to obtain mining concessions, he was
entitled to continue the proceedings as if the Regulations
had not been passed, that is to say, as if the Portuguese
mining laws continued to be in force in the conquered
territory of Goa.
Before considering the merits of the respective
contentions bearing on the effect of the provisions of the
Administration Act and the Regulation, it is necessary to
reiterate a well-settled legal position that when a new
territory is acquired in any manner-be it by conquest,
annexation or cession following upon a treaty-the
406
new "sovereign" is not bound by the rights which the
residents of the conquered territory had against their
sovereign or by the obligations of the old sovereign towards
his subjects. The rights of the residents of a territory
against their state or sovereign come to an end with the
conquest, annexation or cession of that territory and do not
pass on to the new environment. The inhabitants of the
acquired territory bring with them no rights which they can
enforce against the new state of which they become
inhabitants. The new state is not required, by any positive
assertion or declaration, to repudiate its obligation by
disowning such rights. The new state may recognise the old
rights by re-granting them which, in the majority of cases,
would be a matter of contract or of executive action; or,
alternatively, the recognition of old rights may be made by
an appropriate statutory provision whereby rights which were
in force immediately before an appointed date are saved.
Whether the new state has accepted new obligations by
recognising old rights, is a question of fact depending upon
whether one or the other course has been adopted by it. And,
whether it is alleged that old rights are saved by a
statutory provision, it becomes necessary to determine the
kind of rights which are saved and the extent to which they
are saved.
In Vajesingji Joravarsingji v. Secretary of State, Lord
Dunedin said in an oft-cited passage:
"...when a territory is acquired by a sovereign
state for the first time that is an act of state. It
matters not how the acquisition has been brought about.
It may be by conquest, it may be by cession following
on treaty, it may be by occupation of territory
hitherto unoccupied by a recognised ruler. In all cases
the result is the same. Any inhabitant of the territory
can make good in the municipal Courts established by
the new sovereign only such rights as that sovereign
has, through his officers, recognised. Such rights as
he had under the rule of predecessors avail him
nothing..."
The decision of the Privy Council in Vajesingji (supra) and
the decisions in similar other cases like Secretary of State
v. Sardar
407
Rustam Khan were followed by this Court in Dalmia Dadri
Cement Co. Ltd. v. C.l.T., State of Saurashtra v. Memon Haji
Ismail Haji, Jagannath Agarwala v. State of Orissa, State of
Saurashtra v. Jamadar Mohamad Abdulla, Promod Chandra v.
State of Orissa and Pema Chibar v. Union of India. A
discordant note was struck by Bose J. who spoke for the
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Court in Virendra Singh v. The State of Uttar Pradesh, but a
7-Judge Bench held by a majority, Subba Rao J. dissenting,
in Stale of Gujarat v. Vora Fiddali that Virendra Singh’s
case (supra) was decided wrongly. Five considered judgments
were delivered in that case, four of which, on behalf of six
learned Judges, affirmed the view of the Privy Council.
Mudholkar J. who delivered a separate judgment concurring
with the majority on the point at issue before us, said:
The rule of international law on which the several
Privy Council decisions as to the effect of conquest or
cession on the private rights of the inhabitants of the
conquered or ceded territory are founded has become a
part of the common law of this country. (page 5 90).
We must accordingly proceed on the basis that the
right, if any, which respondent 1 had against the Portuguese
Government to obtain a mineral concession or a mining lease
came to an end with the conquest of Goa by the Government of
India on December 20, 1961. In the absence of any allegation
that the right was re-granted either by a private agreement
or by executive fiat, the sole question for our
consideration is whether the Government of India is under an
obligation to recognise the right, if any, of respondent 1
by reason of a statutory provision which saves that right.
The first limb of Shri Sanghi’s argument on behalf of
respondent 1 is that the laws which were in force in the
annexed territory continued to be in force therein even
after the annexation of that territory by the Government of
India. According to the learned
408
counsel, nothing was required to be done by the Indian
Legislature to continue those laws in force inasmuch as they
continued to operate on their own force despite the
annexation of Goa by the Government of India. It is urged
that section 5 (1) of the Administration Act provides for
the continuation of all laws which were in force immediately
before the appointed day, that is before December 20, 1961,
and a plain and necessary implication of that provision is
that all laws which were in force in the annexed territory
before the appointed day continued to be in force in that
territory after the appointed day. There was, therefore, no
hiatus between the appointed day and March 5, 1962 when the
Administration Act came into force. This implication is read
by counsel in the provision of section 5 (1) on the
reasoning that it could not possibly have revived something
which had already died a natural death on the date of
annexation. He contends that the expression "continue to be
in force" used in section 5 (1) presupposes that the laws
which were in force in the annexed territory prior to the
date of annexation were still in force and all that was
required was the expression of a legislative will to
continue those laws in force until they are amended or
repealed by a competent legislature or other competent
authority. Counsel illustrated his argument by taking the
example of the penal laws of Goa. Those laws, says he, could
not be deemed to have come to an end with the conquest of
Goa for, otherwise, its inhabitants would have got a free
licence to commit any crime that they chose like murder,
arson and rape.
In support of this submission learned counsel relies on
the decisions in The Mayor of the City of Lyons v. The East
India Company, R. V. Vaughan, Rao Shiv Bahadur Singh v. The
State of Vindhya Pradesh, Rajendra Mills v. I.T. Officer and
Sebastlao v. State.
In Mayor of Lyons Lord Brougham said:
"It is agreed, on all hands, that a foreign
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settlement, obtained in an inhabited country, by
conquest, or by cession from another Power, stands in a
different relation to the
409
present question, from a settlement made by colonizing,
that is, peopling an uninhabited country.
In the latter case, it is said, that the subjects
of the Crown carry with them the laws of England, there
being, of course, no lex loci. In the former case, it
is allowed, that the law of the country continues until
the Crown, or the legislature, change it. This
distinction, to this extent is taken in all the books."
(pp. 270-71)
The decision in Mayor of Lyons was referred to by Jagannadha
Das J. in his judgment in Rao Shiv Bahadur Singh. Observing
that the various component States became the United State of
Vindhya Pradesh on March 18, 1948, the learned Judge said:
"In the normal course and in the absence of any
attempts to introduce uniform legislation throughout
the State, the pre-existing laws of the various
component States would continue to be in force on the
well-accepted principle laid down by the Privy Council
in Mayor of Lyons v. East India Company."
It was held that by virtue of the orders of the Regent of
Rewa of 1921 and 1922, the Indian Penal Code and the
Criminal Procedure Code with the necessary adaptations were
in force in the Rewa State and either became extended to the
entire Vindhya Pradesh State from the 9th August, 1948, by
Ordinance No. IV of 1948, or continued to be in force in the
Rewa portion of that State by virtue of the principle laid
down in Mayor of Lyons and were the penal law in force in
the relevant area when the criminal acts in question were
committed by the appellants.
R.V. Vaughan was a unique case in which a person in
Jamaica had attempted to bribe a Privy Councillor in order
to procure an office. Lord Mansfield C.J. Observed:
"If Jamaica was considered as a conquest, they would
retain their old laws until the conqueror had thought
fit to alter them."
In Rajendra Mills, (supra) Rajagopala Ayyangar J.,
speaking for a Division Bench of the Madras High Court,
quoted a passage from Hyde’s "International Law" at page
397, which is to the effect that "Law once established
continues until changed by some compe-
410
tent legislative power. It is not changed by mere change of
sovereignty". Quoting Beale, the learned author says in a
footnote in his book that:
"There can be no break or interregnum in law. Once
created it persists until a change takes place and when
changed, it continues in such a changed condition until
the next change and so on forever. Conquest or
colonization is impotent to bring law to an end; in
spite of change of Constitution the law continues
unchanged until a new sovereign by legislative act
creates a change."
On this consideration the Court rejected the contention that
the right to claim arrears of tax due to the Central
Government under the Government of India Act, 1935, did not
pass or vest in the government of the Indian Union under the
Constitution.
The decision of the learned Judicial Commissioner of
Goa in Sebastlao, (supra) rejecting the contention advanced
on behalf of a Portuguese citizen that the sovereignty of
Goa before the appointed day "was Portugal, is Portugal and
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remains Portugal" and that after the conquest of Goa, India
was exercising a mere de facto sovereignty over the
erstwhile Portuguese territory for the purpose of
international law, need not detain us.
These decisions on which Shri Sanghi relies may be
considered as authority for the proposition that, as a
general rule, laws which are in force in the annexed or
conquered territory continue to remain in force after the
conquest or annexation until they are altered or repealed.
But the real question which will determine the controversy
in these proceedings is whether the continuance, ipso facto,
of old laws after the conquest or annexation is tantamount
to a recognition, without more, of the rights and privileges
accruing under those laws. Secondly, the general rule is
naturally subject to any specific provision to the contrary
which the new Government may make. These questions are
directly covered by the decision of this Court in Pema
Chibar v. Union of India (supra) and are no longer res
integra.
In Pema Chibar, (supra) the petitioner who was a
resident of Daman, a former Portuguese territory, had
obtained licences between October 9 and December 4, 1961 for
the import of various goods. Those licences were valid for a
period of 180 days. On December
411
20, 1961 the Portuguese territories of Goa, Daman and Diu
were conquered by the Government of India, whereupon on
December 30, 1961 the Military Governor of the conquered
territory issued a proclamation recognising only certain
kinds of import licences, amongst which were not included
the licences granted to the petitioner. Having failed to
obtain recognition for his import licences, the petitioner
filed a petition in this Court under Article 32 contending
firstly that under the Administration Act, the previous laws
in the Portuguese territories continued in force from March
5, 1962, which amounted to recognition by the Government of
India of all rights flowing from the previous laws which
were in force in the Portuguese territories, and secondly,
that section 4(2) of the Regulation preserved all rights and
privileges acquired or accrued under the Portuguese law, as
a result of which is right under the import licences which
were issued to him under the Portuguese law stood preserved.
These contentions were rejected by a Constitution Bench of
this Court consisting of Gajendragadkar C. J. and Wanchoo,
Hidayatullah, Shah and Sikri JJ. It was held by the Court
that the mere fact that the old laws were continued did not
mean that the rights under those laws were recognised by the
Government of India and, therefore, the petitioner was not
entitled to seek recognition of his import licences from the
Government of India. Having held that in the face of the
proclamation issued by the Military Governor on December 30,
1961, it was impossible to hold that the Government of India
had adopted the laws of the a Portuguese Government the
Court, speaking through Wanchoo J., observed:
"But this is not all. The ordinance and the Act of
1962 on which the petitioner relies came into force
from March 5, 1962. It is true that they provided for
the continuance of old laws but that could only be from
the date from which they came into force i.e. from
March 5, 1962. There was a period between December 20,
1961 and March S, 1952 during which it cannot be said
that the old laws necessarily continued so far as the
rights and liabilities between the new subjects and the
new sovereign were concerned. So far as such rights and
liabilities are concerned, (we say nothing here as to
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the rights and liabilities between subjects and
subjects under the old laws), the old laws were
apparently not in force during this interregnum. That
is why we find in s. 7(1) of the ordinance, a provision
to the effect that all things done and all action taken
(includ-
412
ing any acts of executive authority, proceedings,
decrees and sentences) in or with respect to Goa, Daman
and Diu on or after the appointed day and before the
commencement of this ordinance, by the Administrator or
any other officer of Government, whether civil or
military or by any other person acting under the orders
of the Administrator ff or such officer, which have
been done or taken in good faith and in a reasonable
belief that they were necessary for the peace and good
Government of Goa, Daman and Diu, shall be as valid and
operative as if they (had been done or taken in
accordance with law. Similarly we have a provision in
s. 9(1) of the Act, which is in exactly the C’ same
terms. These provisions in our opinion show that as
between the subjects and the new sovereign, the old
laws did not continue during this interregnum and that
is why things done and action taken by various
authorities during this period were validated as if
they had been done or taken in accordance with law."
The argument based on the saving clause contained in sub-
section (2) of section 4 of the Regulation was repelled by
the Court thus:
"As for Regulation No. XII of 1962, that is also
of no help to the petitioner. The laws repealed thereby
(as between the sovereign and the subjects) were in
force only from March S, 1962. Section 4(2) on which
reliance is placed would have helped the petitioner if
his licences had been granted on March S, 1962 or
thereafter. But as his licences are of a date even
anterior to the acquisition of the Portuguese
territories, s. 4(2) of the Regulation cannot help him.
The contention under this head must also be . ’
rejected."
The decision in Pema Chibar (supra) is an authority for
four distinct and important propositions: (1) The fact that
laws which were in force in the conquered territory are
continued by the new Government after the conquest is not by
itself enough to show that the new sovereign has recognised
the rights under the old laws; (2) The rights which arose
out of the old laws prior to the conquest or annexation can
be enforced against the new sovereign only if he has chosen
to recognise those rights; (3) Neither section 5 of the
Administration Act nor section 4(2) of the Regulation
amounts to recognition by the new sovereign of old rights
which arose prior to
413
December 20, 1961 under the laws which were in force in the
conquered territory, the only rights protected under section
4(2) aforesaid being those which accrued subsequent to the
date of enforcement of the Administration Act, namely, March
5, 1962; and (4) The period between December 20, 1961 when
the territories comprised in Goa, Daman and Diu were annexed
by the Government of India, and March 5, 1962 when the
Administration Act came into force, was a period of
interregnum. These propositions afford a complete answer to
the contentions raised by Shri Sanghi. The judgment in Pema
Chibar (supra) was brought to the attention of the High
Court and was argued upon but surprisingly, it has not
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referred to the judgment at all. We have no doubt that if
the High Court were alive to the position laid down in Pema
Chibar, (supra) it could not have possibly come to the
conclusion to which it did.
The true position then is that in cases of acquisition
of a territory by conquest, rights which had accrued under
the old laws do not survive and cannot be enforced against
the new Government unless it chooses to recognise those
rights. In order to recognise the old rights, it is not
necessary for the new Government to continue the old laws
under which those rights had accrued because, old rights can
be recognised without continuing the old laws as, for
example, by contract or executive action. On the one hand,
old rights can be recognised by the new Government without.
continuing the old laws; on the other, the mere continuance
of old laws does not imply the recognition of old rights
which had accrued under those laws. Something more than the
continuance of old laws is necessary in order to support the
claim that old rights have been recognised by the new
Government. That ’something more’ can be found in a
statutory provision whereby rights which had already accrued
under the old laws are saved. In so far as continuance of
old laws is concerned, as a general rule, they continue in
operation after the conquest, which means that the new
Government is at liberty not to adopt them at all or to
adopt them without a break in their continuity or else to
adopt them from a date subsequent to the date of conquest.
Int he instant case there was in the first place, on
the authority of Pema Chibar, (supra) an interregnum between
December 20, 1961 and March S, 1962. During that period, the
old laws of the Portuguese regime were not in operation in
the conquered territory of Goa. Secondly, the rights
recognised under subsection (2) of section 4 of the
Regulation did not extend any protection to the rights which
had accrued prior to December 20, 1961 but envisaged
414
only such rights which had come into being after March S,
1962 by reason of the laws continued by the Act and the
Regulation. Apart from that position, the Government of
India never recognised, either during the interregnum or
thereafter, any rights on the basis of titles of manifest
obtained by any person during the Portuguese rule. on
September 16, 1964 the Government of India issued an order
stating expressly that all applications for mineral
concessions made to the Portuguese Government on the basis
of titles of manifest shall be deemed to have lapsed. Thus,
far from there being any recognition by the Indian
Government of rights accruing from titles of manifest, there
is a clear indication that it decided not to recognise those
rights. It is significant that for two years after the order
of the Government of India dated September 16. 1964,
respondent 1 did not take any steps at all for the
recognition or reassertion of his rights. He obtained an
order of refund of the amount which he had paid to the
Portuguese Government on the applications which were made by
him for obtaining mineral concessions. It was on August 16,
1966 that he applied for a mining lease under the Indian
Law. He did so after the appellant had obtained a mining
lease in his favour on February 26, 1966 and he applied for
a lease in respect of the very same areas over which the
appellant was granted a mining lease. On September 20, 1967
the ’Central Government rejected the application of
respondent 1 fora mining lease and it is eleven months
thereafter that he filed a writ petition in the Delhi High
Court challenging the various orders passed against him and
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the order by which a mining lease was granted to the
appellant. We do not rely on these later facts for the
purpose of showing any laches on the part of respondent 1
because the Court cannot take a hyper-technical view of
self-imposed limitations when important rights are involved
We have referred generally to the course of events, only in
order to show how no right had accrued in favour of
respondent I under the Portuguese law and how,
correspondingly, no liability or obligation was incurred by
the Portuguese Government which the Government of India
would be under a compulsion to accept by reason of the
provisions contained in section 4 of the Regulation.
Shri Sanghi tried to distinguish the decision in Pema
Chibar by contending that whereas in that case the dispute
was between the Government on the one hand and a citizen on
the other, the dispute the instant case is between two
individuals, namely, the appellant and respondent 1. It is
contended by the learned counsel that the ratio of Pema
Chibar cannot apply to a dispute of the present nature,
415
especially since Wanchoo J. in his judgment in that case has
stated A expressly that the decision was confined to the
matter in which the dispute was not between two private
citizens but between the State on the one hand and a citizen
on the other. We may assume for the sake of argument that
the ratio of Pema Chibar may be confined to cases in which
the dispute is between the State and a citizen and not
between two or more citizens. But it is fallacious to say
that the dispute in the instant case is between two private
individuals. The case undoubtedly involves the consideration
of competing claims made by the appellant and respondent 1
to a mining lease but the true question is whether the
Government of India is under an obligation to grant a lease
to respondent I by virtue of the fact, as alleged by him,
that a right had accured in his favour under the Portuguese
laws and that, by reason of the fact that those laws were
continued by section S(l) of the Administration Act and
further, that the rights which had accrued under those laws
were saved by section 4(2) of the Regulation, the Government
of India was bound to recognise his tight. If the appellant
was not in the field and the Government of India were yet to
reject the application of respondent 1, the self-same
question would have arisen, which shows that the inter-
position of the appellant cannot take away the present case
out of the ratio of Pema Chibar, any more than the presence
of a competing applicant for an import licence would have
made a difference to the ratio of the decision.
Yet another attempt was made by Shri Sanghi to
distinguish the decision in Pema Chibar by saying that
whereas there was no Law as such regulating the grant of
import licences, there is in the instant case a law which
governs the grant of mining leases. We are unable to
appreciate this distinction. The decision in Pema Chibar
does not rest on the presence or absence of a law governing
a particular subject-matter. Nor indeed does the decision
say that there was no law at all governing the grant of
import licences. In fact, the reference to the time limit of
180 days and to the restriction that no import can be made
without a valid licence shows that there was in existence a
law which regulated the grant of impart licences. Counsel
relied on the decision in J. Fernandes and Co. v. The Deputy
Chief Controller of Imports and Exports and Ors., (1) in
order to show that during the Portuguese regime there was no
law in existence governing the grant of import licences. We
are unable
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416
to deduce any such conclusion from the said decision. The
judgment does not say that there was no law governing the
grant of import licences. It only says that the petitioner
therein had failed to show that he possessed any right under
the law. That would rather show that there was in existence
a law governing the grant of import licences but that the
petitioner was unable to show that he had any right under
that law. We may mention incidentally that J. Fernandes and
co. (supra) reiterated the position which has been treated
over the years as well settled that rights available against
the old sovereign can be enforced after conquest against the
new sovereign, only if they are recognised by the new
sovereign.
It is clear from the facts on the record of the case
that the applications for mineral concessions made by
respondent 1 on the basis of Title Manifests of 1959 had
lapsed. Even assuming that those applications were pending
when the Act and the Rules were extended to Goa on October,
1, 1963, respondent I ’s applications could only be decided
in conformity with the Act and the Rules. Section 4 of the
Act and rule 38 of the Rules support this view. Section 21
of the Act makes it penal to do any prospecting or mining
operation otherwise than in accordance with the Act or the
Rules. The Act and the Rules having been made applicable to
the territory of Goa on October 1, 1963, and the supposedly
pending applications of respondent I not having been granted
within a period of nine months, they must be deemed to have
been refused under rule 24(3) of the Rules
For these reasons, we set aside the judgment of the
High Court, allow the appeals and dismiss the writ petition
filed by respondent 1 in the Delhi High Court.
The appellant will get his costs here and in the High
Court from Respondent 1. Hearing fee one set only.
N. V. K. Appeals allowed.
417