2018 C L C 213
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer- ud-Din Kakar, JJ
GHULAM SABIR through Special Power of Attorney ----Petitioner
Versus
GOVERNMENT OF BALOCHISTAN through Secretary Mines and Minerals
Development and 2 others ----Respondents
C.P. No.156 of 2017, decided on 9th October, 2017.
Balochistan Mineral Rules, 2002---
----R.70---Constitution of Pakistan, Art. 199---Constitutional petition ---Time barred appeal ---
Effect ---Petitioner assailed order passed by authorit ies in appeal filed by respondent restoring
its prospecting license ---Plea raised by petitioner was that appeal filed by respondent was
barred by 20 years ---Validity ---Remedy as provided under R.70 of Balochistan Mineral Rules,
2002 was not availed within prescribed period of limitation and appellate authority exercised
its jurisdiction wrongly ---Delay had been condoned for reasons not recognized by law ---Initial
appeal having been filed beyond stipulated period and without explanation of delay and was not sustainable ---High Court set aside order restoring prospecting license in favour of
respondent ---Constitutional petition was allowed under circumstances.
Dr. Muhammad Javed Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 rel.
Muhammad Ishaq Nasar for Petitioner.
B.K. Marwat for Respondent No.3.
Naseer Bangulzai and Shai Haq, Additional Advocate General for Respondents Nos.1
and 2.
Dates of hearing: 24th May and 13th September, 2017.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. --- This Constitutional Petition, filed under Article
199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution), carries the following prayer:
"it is humbly submitted that the petition in hand may kindly be allowed and the order in appeal of respondent No.01 dated 02.02.2017 and the restoration of prospecting license dated 09.02.2017 by respondent No.02 be set aside, cancelled and recalled as having no any sanctity in the eye of law, equity and golden principle of natural justice overtly or covertly; any other relief which this Hon'ble Court may deem fit and proper
may also be awarded , in the interest of justice, equity and fair play."
2. Facts relevant for disposal of the instant petition are that on 25.11.1987, the respondent
No.3 applied for grant of prospe cting license for coal over an area of 90 acres at Shahrag. The
application of respondent No.3 was placed before the meeting of Mines Committee for consideration, which was rejected vide letter dated 19.12.1988 on the following grounds:
i. No sufficient ar ea is available for grant.
ii. The applied for by the applicant is not a compact unit. It is against the provisions of rule 58 of Balochistan Mining Concession Rules, 1970.
iii. The width of the applied for area is too less.
iv. It forms a narrow strip which is falling between the granted areas of other parties.
3. Feeling aggrieved, respondent No.3 preferred appeal under section 71 of the
Balochistan Mining Concession Rules, 1970 (the Rules, 1970) before the appellate authority,
which was accepted vide order dated 29.7.1989 and prospecting license for coal over an area
of 38.81 acres, situated near Shahrag granted in his favour. Subsequently, the said prospecting
license was cancelled under Rule 31 of the Rules, 1970 vide Notification No.PL -
31(3692)/2391- 97-A dated 16.5.1996. Feeling aggrieved of the said Notification, the
respondent No.3 filed an appeal under Section 70 of the Balochistan Mineral Rules, 2002 on 22.4.2016 before the respondent No.1 (Secretary Mines and Minerals) after the delay, of about
twenty (20) years which was accepted vide order dated 02.02.2017 and in pursuance whereof, the respondent No.2 restored the Prospecting License vide order dated 09.2.2017 of respondent No.3 and issued work order to him. The petitioner, feeling aggrie ved of the order of respondent
No.1 dated 02.02.2017 and restoration of Prospecting License by respondent No.2 dated 09.02.2017, preferred the instant petition.
4. Learned counsel for the petitioner contended that the appeal of respondent No.3, before
respondent No.1 was hopelessly barred by time; that the Hon'ble Apex Court has categorically
declared in a large number of judgments that when an appeal is time barred, then the delay of each and every day has to be explained with cogent reasons, which is lacking in the instant case; that the area applied for, by respondent No.3 is not a compact unit and against the provisions of Rule 58 of the Rules, 1970. Finally he prayed for setting aside of the order dated 2.2.2017 and letter dated 9.2.2017, issued in favour of respondent No.3.
5. On the other hand, learned Additional Advocate General assisted by learned counsel
for respondent No.3 vehemently opposed the petition and defended the impugned order dated 2.2.2017 and restoration of the prospecting license dated 9.2.2017.
6. We have heard learned counsel for the parties and have gone through the record. The
real issue for determination would be that whether the respondent No.3 filed appeal under Section 70 of Balochistan Mineral Rules, 2002 against the cancellati on of Notification No.PL -
31(3692) dated 16.5.1996 before the Secretary (appellate authority) Mines and Minerals Development Department, Government of Balochistan (the appellate authority) within the stipulated time or otherwise? No doubt, provided period f or filing of an appeal before appellate
authority under Rule 70 of the Balochistan Mineral Rules, 2002 is thirty (30) days. For convenience, Rule 70 is reproduced herein below:
"70. Appeal . (1) Subject to the terms of a mineral agreement, a mineral title o r a
mineral concession any person aggrieved by a decision of the licensing authority in respect of any matter or dispute regarding the mineral title or mineral concession may, within thirty days of the date of that decision, appeal against that decision to the
Government in the appropriate department.
Explanation. Appropriate department mean the Secretary Department of Mines and
Minerals, Government of Balochistan.
7. Admittedly, the appeal under section 70 of Balochistan Mineral Rules, 2002 was filed
before appellate authority with a delay of about 20 years and the appellate authority condoned
the delay without any plausible reason. It is settled principle of law that by invoking of remedy by some aggrieved party beyond the prescribed period of limitation creates valuable legal rights in favour of the opposite party, therefore, in such cases delay of each day is to be explained by the defaulting party to the satisfaction of the Court, which cannot be condoned lightly or as of routine, as such, arbitrary exe rcise of discretion will cause serious prejudice to the interest of
the opposite party. In the instant case, perusal of appeal shows that the respondent No.3 failed to plausibly explain about twenty years delay of filing of appeal before the appellate authority. The law of limitation is thoroughly discussed by the Hon'ble Supreme Court in case Dr. Muhammad Javed Shafi v. Syed Rashid Arshad and others {PLD 2015 SC 212}, wherein it was held:
"From the various dicta/pronouncements of the Superior Court. it can be deduced
without any fear of contradiction that such law is founded upon public policy and State interest. This law is vital for an orderly and organized society and the people at large, who believe in being governed by systemized law. The obvious objec t of the law is that
if no time constraints and limits are prescribed for pursuing a cause of action and for seeking reliefs/remedies relating to such cause of action, and a person is allowed to sue for the redressal of his grievance within an infinite and unlimited time period, it shall
adversely affect the disciplined and structured judicial process and mechanism of the State, which is sine qua non for any State to perform its functions within the parameters of the Constitution and the rule of law. The object of the law of limitation and the law itself, prescribing time constraints for each cause or case or for seeking any relief or remedy has been examined by the courts in many a cases, and it has been held to be a
valid piece of legislation, and law of t he land. It is 'THE LAW' which should be strictly
construed and applied in its letter and spirit; and by no stretch of legal interpretation it
can be held that such law (i.e. limitation law) is merely a technicality and that too of procedural in nature. Ra ther from the mandate of section 3 of the Limitation Act, it is
obligatory upon the court to dismiss a cause/lis which is barred by time even though limitation has not been set out as a defence. And this shows the imperative adherence to and the mandatory application of such law by the courts. The said law is considered
prescriptive and preventive in nature and is held to mean and serve as a major deterrent against the factors and the elements which would affect peace, tranquility and due order of the State and society. The law of limitation requires that a person must approach the
Court and take recourse to legal remedies with due diligence, without dilatoriness and negligence and within the time provided by the law; as against choosing his own time for the purpose of bringing forth a legal action at his own whim and desire. Because if
that is so permitted to happen, it shall not only result in the misuse of the judicial process of the State, but shall also cause exploitation of the legal system and the soci ety as a
whole. This is not permissible in a State which is governed by law and Constitution. And it may be relevant to mention here that the law providing for limitation for various causes/reliefs is not a matter of mere technicality but foundationally of the "LAW"
itself. In the above context, a judgment of this Court reported as Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446) has thrown considerable light on the subject and has provided guidance, in the following words:
"We may add that public interest require that there should be an end to litigation. The law of limitation provides an element of certainty in the conduct of human affair. Statutes of limitation and prescription are, thus, statues of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the
presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal r emedies with due diligence. "(Underlining is provided by us for emphasis)
8. In view of the above discussion, it is clear that the remedy as provided under Rule 70
of Balochistan Mineral Rules, 2002 was not availed within the prescribed period of limitation and the Appellate Authority mis -exercised its jurisdiction. The delay was condoned for the
reasons not recognized by the law. As the initial appeal was filed beyond the stipulated period without explanation of the delay, thus, the order passed by the App ellate Authority is not
sustainable. In view, there is no need to further go into merit of the case and to record findings thereon. Thus, the petition is accepted for the reasons. The order dated 02.02.2017, passed by the Appellate Authority, and the order for restoration of prospecting license dated 09.02.2017,
of respondent No.2, are set aside.
MH/147/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.