Gajendranath R. Usgaonkar
50 years of Portuguese rule on the territory of Goa, Daman & Diu, was the longest foreign rule over the Indian Continent compared to the 150 years of British rule. Prior to British Rule, Indians never experienced rule of law or justice delivery system. In British India there was neither citizenry nor citizens had any right, more specifically right to land. There is nothing that we can talk great about Indian way of administration or about right to lands. The overall picture emerged was that there was anarchy. East India Company which initially ruled India also employed same system which earlier rulers employed as they had to stepin shoes of those rulers. The British recognize that system was cruel, however, they had no alternative to it and in this lies birth of Collectorate system of Administration in India. After Independence, new Indian rulers has no desire to change this system and People, judiciary all are accustomed to this system.
Portuguese rulers had given to us civil rights, more importantly right to own a property and dispose it as your own. It had specifically guaranteed right to explore minerals without permission of the Government under Article 465 and 466of the Code, which reads that only owner of the land has right to allow exploit minerals from his land. Further, Article 467 recognized right of Government to enact legislation for regulation of those rights under said Code. Under the powers vested to it, the Portuguese Government passed Portuguese Colonial Mining Law Decree dated 20.09.1906 regulating prospecting and exploration of minerals. The Article 2 of said decree reads that Minerals mentioned therein which includes magnesim and Iron ore and other minerals can be exploited with permission of the Government and Article 3 of the said decree reads that “deposits of mineral substance” [ minor minerals] not included in Article 2 can be freely exploited by the proprietor of the ground or by any other person with his consent independently without authorization by the official title. It is specified in the said decree that minerals mentioned in Article 2, if are exploited, shall be taxed and no right to the minerals was ever claimed by the Portuguese Government. The Portuguese developed regulatory mechanism by identifying and demarcating the minerals and area, with help of French geologist. However, Portuguese did not claim right to the deposits as various article of said decree only claimed tax on the mineral exploited by the concessionary.
I will discuss this issue in detail later in context of prevailing legal scenario law because it has been always misunderstood and misinterpreted in the legal field and in general and State/ Union Government that Portuguese by said decree had abolished mineral rights of land owners. And Goans mutely accepted it as gospel truth. The Government and mine owner exploited this fallacy and land owners who were owners of the minerals did not claim royalty from the concessionaries, for which they were entitled for price of minerals exploited from their own lands.
The Mines and Minerals (Development & Regulation) Act, 1957, hereinafter referred to as “ said MMDR Act” was extended to Territory of Goa on 1.10.1963. Said MMDR Act allows union Government to make rules under section 13 of said act in respect of major minerals and state Government to make rules under section 15 in respect of minor minerals.
The Union Government regulates exploiting minerals and dealing with grant of prospecting licence and mineral leases and for said purpose, categorizes land containing major mineral into three broad categoriesunder Mineral Concession Rules, 1960. In Chapter III and IV deals, where minerals vest in Government, Chapter V deals, where minerals vest in a person other than the Government and Chapter VI deals, where mineral vest partly in Government and partly in private persons. This shows that mineral deposits in private lands belongs to its owners and he is entitled for royalty from the concessionaries who is allowed to exploit minerals from his land, and State as sovereign power has right to impose tax based on the extracted quantity of minerals. But in any case price of minerals has to be paid to the land owner because he is owner of the minerals in his land. However, land owners do not get anything today and the government and mine owners take away everything. The fraud of 35,000 crores claimed to have been committed during illegal mining operation actually belongs to the landowners and Government has no right to it. This is larger issue have to be dealt separately.
Mineral Concession Rule, 1960 and Portuguese Colonial Mining Law decree, both speak of concessions granted for exploring mining deposits and imposition of taxes on the exploited minerals, as sovereign power and not as owner of the minerals exploited. It must be noted here that till minerals are exploited Government has no pwer to tax it and only after exploration they are called minerals and government get authority to tax it. Therefore, Union Government has no right to collect royalty from the mineral exploited from private land owner and right to collect royalty is with the owner. This has been explained by the Hon’ble Supreme Court in constitutional bench decision Kesoaram Industries Vs. State of West Bengal AIR 2005 SC 1646.
In full bench decision of Hon’ble Supreme Court in Threesiamma Jacob &ors.Vs. Geologist Deptt. Of Mining and Geology &ors AIR 2013 SC 1961 it has held that landholder has legal right and title to the minerals/ subsoil over land comprising his estate and he is legally entitled either to grant mining rights or withhold the same. It was held that neither in England nor in this country, during British regime there was any such established proposition of law that all minerals belong to crown. There is nothing in law which declares that all mineral wealth sub soil right vest in State. Ownership of sub soil minerals wealth should normally follow ownership of land, unless owner of land is deprived of same by some valid process.
On background of the above decision, it is very clear that Portuguese colonial mining law decree is not a decree depriving the landholders owners from their mineral rights. However, it is falsly given to understand to the people of Goa that mineral underneath their land belongs to Government. Actually, Minerals explored from lands of private landowner belongs to them and they are entitle for royalty on that count, however, these land owners are keeping quite with the surface rent they are receiving and given up their rights to the minerals exploited by mine owners , which is basically royalty. Government will have right to royalty so far as land belonging to it.
Thelaw on abolition of mineral concession under Portugese decree and converting it into leaseswas passed on false pretext that Portuguese Government had abolished mineral rights of landowners and therefore, Government of India, being successor Government has right to the same. This law was subject matter of challenge before high Court, were High Court upheld it and same was before Supreme Court as we understand, however, its result is not known. In any case in reality Portuguese Government had enacted the decree regulating the mineral exploitation and imposition of tax on mineral exploited because taxation is sovereign function, however, Portugese had never abolished landowners right to land and minerals. InKesoaram Industries case Hon’bleSupeme Court distinguishes between direct tax on the land and tax on the produce of the land. Similarly, collection of tax by Portuguese Government would not give right to collect royalty to the Indian Government because Portuguese Civil Code expressely give right to grant lease to exploit / extract mineral from land owners land, and grant of mineral Concession was merely regulatory mechanism for collection of tax on minerals.
It is blindely accepted by land owners in Goa that because Government has right to regulate mineral concessions, Concessionaries have right to exploit minerals from the lands and owners have no rights to the minerals. Our High Court has passed several erroneous judgments undermining the landowners right to grant lease for extraction of minerals in their lands only to please Government. The general misconception and misinterpretation of law by our High Court has led government to misrule and mal-administered the State of Goa.
Recently, in year 2005, State Government of Goa, deleted chapter III of Goa Minor Mineral concession Rule 1985 by amendment Aact of 2005, where under chapter III whereby right to grant quarry lease in private property was deleted. This amendment was done under pretext that minor mineral like basalt, laterite stone, even matti / mud in private property belongs to the State Government, when from Portuguese time till 2005 land owners were giving leases to extractor by taking price for mineral found. Said amendment has damaged the right of private owners to grant lease of minor minerals in their land. This amendment was challenged by way of writ petition no.158/2009 and division bench conveniently, cunningly and illegally held that right to minerals were abolished by Portuguese Colonial Mining Decree neglecting the fact that Article 3 of the said decree gives free hand to the landowners to exploit basalt and other building material without permission of the Government, even if it is presumed that right to major mineral were abolished. Our High Court has always shielded the Government illegality, since Bombay High Court Bench was extended to Goa since, 1985. Prior to that Judicial Commissioner Court has upheld the right of landlord to extract minor minerals from his own land. Sudden change in judicial perspective without going into earlier decisions and over ridding it, is not only per-incuriam but leading to lawlessness on the said subject. There is always presumption in favour of Government that whatever Government does is right, however, when illegality is established High Court avoides striking down the law, which help the State Government more on encroaching people’s right and liberty. This reminds us of great Greek Philosopher Hercules said that is “law helps those who are on power”. Today, Goa Government is illegally collecting royalty on minor minerals on presumption that State is owner of everything underneath private land and no consent of the land owner is required for exploiting minor minerals from private property. People of Goa have been always sleeping over their right and liberty and time has come that we all have become slaves of the State Government because we have no right to property when such right was guaranteed under Portuguese law. Many time one feels to ask question whether Goanswere really liberated Indians or were made their slaves, by illegally encroaching on Goan Territory. However, this issue another questions whether Indian conquered Goa and also Goan private lands or only what belonged to Portuguese? Goans have always been misled and misguided by the politcians and kept away from main issue and therefore, they are agitating on useless issues such as RP-2021, Goenkar etc. and main issue which is Government right to their land is neglected.
