http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 19  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 19  

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 394

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 19  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 19  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 19  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 19  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 19  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 19  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 19  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 19  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 19  

    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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 19  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 19  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 19  

    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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 19  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 19  

    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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 19  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 19  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 19  

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