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Judgment
N.A. Britto, J.—This appeal is directed against the Order dated 5-6-2008 by which an application for temporary injunction filed by the Plaintiff has been rejected by the learned trial Court. In order to dispose off this appeal some basic facts are required to be stated.
There is no dispute that Defendant No.3 is the owner of the property surveyed under No.7, the same having been purchased by him by sale deed dated 30-3-1990. There is also no dispute that this property was within a concession given to the Plaintiff by the erstwhile Portuguese Government which was converted into a mining lease w.e.f. 23-5-1987 by virtue of the Mining Concession(Abolition and Declaration of the Mining Leases) Act, 1987. The vires of the said Act were challenged before this Court and the same were upheld by this Court by Order dated 20-6-1997. In upholding the vires of the said Act this Court observed that the Concession holders enjoyed special rights in perpetuity over our basic and natural resources under Colonial laws which were inequitable situation which was required to be cured with a view to bring about equality with the rest of India that the said Act was enacted and it was not violative of Article 14 of the Constitution.
The Plaintiffs as well as other similarly situated persons challenged the said Order dated 20-6-1997 before the Apex Court and the Apex Court by interim Order dated 2-3-1990 stated thus:
During the pendency of the appeals, the appellants are permitted to carry on mining operations and mining business in the mining areas for which renewal applications have been made on the condition that the appellant shall pay to the respondents from the date of commencement of the impugned Act all the amount of dead rent, royalty as now stipulated by the respondents under the impugned Act without prejudice and under protest. The appellants will also comply with all other conditions
(emphasis supplied).
The Plaintiffs sought renewal of their lease by application dated 15-11-1988 which came to be rejected by the State Government on 20-10-1989. It appears that the Plaintiffs did not pursue the matter of rejection by filing a revision application to the Central Government. Subsequently, the Plaintiffs filed another application for renewal to the State Government which is pending and admittedly as on date the Plaintiffs do not have in their names any order of renewal of their lease.
The learned trial Court dismissed the Plaintiffs application on the ground that the Plaintiffs had failed to make out a prima facie case for the grant of injunction. At the same time, the learned trial Court also restrained Respondent No.3 from carrying out any mining activity in survey no.7 of Village Gaunem, Ambelim without obtaining the requisite permissions from the competent authorities of the Goa Government. The learned trial Court observed that the interim Order dated 2-3-1998 of the Hon''ble Supreme Court did not grant a license either to the Plaintiffs or to any other former Concession holders to do any mining activity in the mining area where the renewal applications under the Mines and Minerals Concession Rules, 1960 has been rejected and had become final for want of further challenge. The learned trial Court also observed that it was not the case of the Plaintiffs that the fact of renewal application of the Plaintiffs, being rejected by the State Government on 20-10-1989, was disclosed by the Plaintiffs, as Petitioners, before this Court or before the Supreme Court. The learned trial Court also observed that the order of the Supreme Court stated that such mining operation and mining business can be carried out only on the condition that the amount of dead rent and royalty has been paid to the Government of Goa from the commencement of the Mining Act i.e. w.e.f. 23-5-1987. The trial Court also noted that the Plaintiffs neither in the plaint or in the rejoinder had stated that the Plaintiffs had paid any such dead rent or royalty w.e.f. 23-5-1987. Here, it may be observed that in case the Plaintiffs had not obtained a renewal of their release there was no question of the Government accepting either the dead rent or royalty from the Plaintiffs. The learned trial Court also observed that a perusal of the Order of the Apex Court showed that only those parties who had renewed their leases were permitted to carry on mining operations as on the date of the order of the Apex Court and since the Plaintiffs as on the date of the Order of the Apex Court i.e. on 2-3-1998 had filed no application for renewal of any mining lease nor there was any renewal application of the Plaintiffs pending disposal, the interim order passed by the Apex Court did not help the Plaintiffs.
Shri P. Lotlikar, learned Counsel appearing on behalf of the Plaintiffs submits that the SLP filed by the Plaintiffs is pending before the Apex Court and in case that is allowed the Concession given to the Plaintiffs by the erstwhile Government would be revived. Learned Counsel further submits that Defendant No.3 has illegally extracted about 10,000 tonnes of ore which is lying in the said survey No.7. Learned Counsel further submits that although at present the Plaintiffs may not have a renewal of lease in their favour the main purpose of the application for temporary injunction was to restrain Defendant No.3 from operating a mine in survey No.7 which was part of the lease and earlier a Concession, since in case his SLP is allowed he would be deprived from operating the same.
On the other hand, Shri V. P. Thali, learned Counsel on behalf of Defendant No.3, submits that the Plaintiffs could not have maintained an injunction application as against Defendant No.3, who was the owner of the property in the absence of any right in favour of the Plaintiffs to carry on the mining activity in the absence of renewal of the lease and as such the application filed by the Plaintiffs was rightly rejected. Learned Counsel further submits that if the Plaintiffs had no right to carry on mining activity, the learned trial Court could not have restrained Defendant No.3 from carrying out the mining activity without obtaining requisite permission from the competent authorities. To this, Shri S. R. Rivonkar, learned Government Advocate on behalf of Respondent Nos. 1 and 2 submits that the Government will not allow either the Plaintiffs or Defendant No.3 to carry on any mining activities unless requisite permissions as required under law are obtained from the Government.
In my view, the submissions made by Shri Lotlikar, learned Counsel on behalf of the Plaintiffs, cannot be accepted inasmuch as the impugned Order also could not be faulted. The interim Order of the Supreme Court dated 2-3-1998 could not have come to the rescue of the Plaintiffs as the said Order was in favour of only those who had made applications for renewal and the Plaintiff was not one of them as their application was rejected on 20-10-1989. As on that date, the Plaintiffs'' application for renewal was made and was rejected and the Plaintiffs had not pursued their remedy as available to the Plaintiffs in accordance with law against the said order of rejection. Needless to observe that in the light of the said Order dated 20-10-1989 the Plaintiffs could not have carried on any mining activities in a property which belonged to Defendant No.3 and regarding which in the absence of a mining lease or renewal thereof the Plaintiffs had no right to carry on mining activity. The Plaintiffs had to prove that they had a right to carry on mining activities against the right which Defendant No.3 was entitled to exercise as an owner of the property. Having not proved prima facie any such right, in my view, the learned trial Court could not be faulted in dismissing his application for temporary injunction. If the Plaintiffs had no right then obviously no order of restraint could be passed against Defendant No.3 from carrying out any mining activity. This issue no longer now survives in view of the stand taken by the Government. Nevertheless the restraint placed on Defendant No.3 cannot survive and that part of the Order is modified. In view of the above, I find there is no merit in this appeal and the same is hereby dismissed. Civil Application is disposed off in terms of this Order.