SADANAND U MALIK
I am sure that the conversion of concessions into leases is not at all possible on the following grounds:
1. Conversion is not only against the protection provided to Goans under Sec 5 of Goa Daman and Diu Administration Act 1962 but against the Constitution of India as the land under mining concession is outside the ambit of Indian Constitution or the property as defined under Article 31A read with Art 300A and cannot come under the Seventh schedule of Indian Constitution. How can the Parliament convert the concessions when the land of Goa does not lawfully vest in central governments? Is it not the central government grabbing the ownership of mines in Goa to get them under Central control and reap maximum benefit to National exchequer rather than benefiting the State?
2. Mining leases can be executed when the absolute ownership in land and minerals vest in the Government. In Goa neither the land nor the minerals underneath vest in Government as land is in private ownership and possessions, not held by grants from government. Therefore complete absence of element of estate envisaged under Article 31A.
3. Concessions were granted by Portuguese regime with the condition that the permission from the proprietor of land was to be obtained by the Concession holder as the land did not vest in Portuguese government at all places, and that the concessions holder should not fence the area under concession else attracts penalty.
The condition is contrary to Mining lease which requires leased area to be fenced.
4. Mining concession law exempted the proprietor of land from obtaining prospecting licence from government whereas mining leases does not see the existence of Proprietorship rights to land in the hands of private parties and no such exemption allowed under mining leases.
5. Mining concessions can be granted for precious metals like gold and platinum. Mining leases do not permit private individuals to explore precious metals.
6. Article 14 of Portuguese Mining Laws make it clear that concession of ore bed does not imply possession of the surface of the ground under which ore is found.
Mining leases being on government land the leaseholder has access to ground and cannot be denied. In Goa, proprietors of land have right to deny the entry to concession holders.
7. Art.62 of Portuguese Mining Laws states that every person with title manifest can have right over all other minerals found in the concession area besides mineral manifested. Such privilege does not exist in case of mining leases.
8. Art.130 (2) of Portuguese Mining Laws states no mining tax is applicable on iron and coal. Is it so under mining leases?
9. A very important provision under Article 157 Portuguese Mining Law is servants in mining shall remain under supervision of the Authority of Governor of Province and that care of employees rest with the Authority. Is this provision existing in mining leases? If yes, why do the employees in the mining industry suffer at the moment?
10. The schedule attached to the law on abolition of mining concessions in Goa gives a list of the concession holders with amount of compensation payable to them. In fact these concession holders obtain land from proprietors of land by separate agreement. No mention of rights of these proprietors is found in the law abolishing concessions. I suppose the Central Government had no knowledge that the Land under mining is not owned by concession holders! The law abolishing concessions to declare them leases presumes in third para of the preamble to the law that the old mining law ceased to be in force and doubts are expressed that mining concessions are leases. This presumption itself is objectionable being baseless as can be seen from above differences.
Another very important issue is Goans are not the citizens of India by Statute. Neither Constitution of India nor the citizenship Act 1955 has a special provision declaring Goans as citizens of India being an acquired territory.
Only Goa Daman and Diu Citizenship (order) 1962 declares Goans are deemed to be citizens of India or in short only recognised as citizens. Orders can be withdrawn or amended without the consent of Parliament. What happens if this order is withdrawn by any Government? Do Goans remain citizens of India? So how can the central government interfere with the rights of the Goans when they are not perfect citizens of India?
Therefore, I am of the opinion that no central law can be applied to Goa as Goans are not holding land under tenure either from British government or from Portuguese. The Indians laws are meant for tenure holders and not for absolute allodial owners of land. Already the people of Goa are suffering due to wrongful extension and application of Indian laws. It is time now to challenge the government.
The announcement by Chief Minister of Goa to form Mining Development Corporation before deciding the validity of conversion of concessions is premature and may become redundant if the decision of Supreme Court goes against the government. The law on abolition of concessions is unconstitutional. The judgment of the Supreme Court on mining leases is based on the arguments in the court by the petitioners and government or by mining companies.
All the parties have concealed from the Supreme Court that the Land under mines does not vest in Government but vest in private bodies/parties who were not party to the petition. Therefore in my opinion the judgment can be applied where so called mining leases are in government land and the judgment not binding on absolute allodial land holders. Minerals in such private property of proprietors cannot vest in government and action of government to auction the ore from their property is an act of dacoity.
(The writer is a former MLA and former minister)
