2019 C L C 1825
[Balochistan]
Before Mrs. Syeda Tahira Safdar, C.J. and Muhammad Ejaz Swati, J
Messrs JEEAND COAL COMPANY through Managing Partner and others ----
Petitioners
Versus
APPELLATE AUTHORITY/SECRETARY, MINES AND MINERALS
DEVELOPMENT DEPARTMENT and others ----Respondents
C.Ps. Nos. 707, 626 of 2012, 32 of 2014, 877 of 2015 and 788 of 2016, decided on 21st May, 2019.
Balochistan Mineral Rules, 2002 ---
----Rr.14, 17 & 77 ---Mining lease, grant of ---Prospecting license ---Petitioner was a mi ning
company who was issued prospecting license for purpose of coal mining over an area of 1920 acres and mining lease for a period of 20 years was granted--- On application filed by
respondents, authorities excluded area measuring 215 acres from the lease granted to petitioner ---Validity ---Finding of appellate authorities lacked considerations of provisions of
laws and facts as to whether respondents were seeking prospecting license/No Objection
Certificate or exclusion of land lease to petitioners ---All su ch aspects of matter required
reconsideration of authorities ---High Court set aside order passed by authorities and
remanded matter to decide the same in accordance with law including question of prospecting license granted in favour of respondents ---Const itutional petition was allowed
accordingly.
Syed Ayaz Zahoor for Petitioner (in C.P. No.707 of 2012).
Zahoor Ahmed Baloch, Assistant Advocate General for Respondents Nos.1 to 3 (in
C.P. No.707 of 2012).
Muhammad Riaz Ahmed for Respondents Nos.4 to 6 (i n C.P. No.707 of 2012).
Ahsan Rafique Rana for Petitioners (in C.P. No.626 of 2012).
Ghulam Mustafa Butt for Respondents Nos.3, 5 and 7 (in C.P. No.626 of 2012).
Muhammad Riaz Ahmed for Respondent No.4 (in C.P. No.626 of 2012).
Zahoor Ahmed Baloch, Ass istant, A.G. for Respondents (in C.P. No.626 of 2012).
Syed Ayaz Zahoor for Petitioners (in C.P. No.32 of 2014).
Muhammad Aamir Nawaz Rana for Respondents 3, 4, 6 to 9 and 11 to 16 (in C.P.
No.32 of 2014).
Zahoor Ahmed Baloch, Assistant A.G. for Officia l Respondents (in C.P. No.32 of
2014).
Ms. Sana Suleman for Petitioner (in C.P. No.877 of 2015).
Syed Ayaz Zahoor for Respondent No.1 (in C.P. No.877 of 2015).
Zahoor Ahmed Baloch, Assistant A.G. for Respondent (in C.P. No.877 of 2015).
Syed Ayaz Zahoor for Petitioner (in C.P. No.788 of 2016).
Muhammad Aamir Nawaz Rana and Nadir Ali Chalgari for Respondent No.4 (in C.P.
No.788 of 2016).
Zahoor Ahmed Baloch, Assistant A.G. for Respondent (in C.P. No.788 of 2016).
Date of hearing: 18th April, 2019 .
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The case of the petitioner in C.P. No. 707 of
2012 is that he applied for grant of Prospecting Licence (PL) for coal over an area of 1920
acres situated near Dukki District, Loralai on 30th June 1982 in the recognized name of Yasmeen Mari. The name of firm was changed into Messrs Jeeand Coal Mines after completion of the required formalities. The petitioner was granted a PL for coal over an area 1920 acres situated at Dukki District Loralai on 2nd September 2002, therea fter, the
petitioner was granted Mining Lease (ML) on 21st March, 2012 for a period of 20 years.
2. The respondents Nos.4 to 6 filed an application dated 11th February 2012 to the
Deputy Commissioner (DC), Loralai that their owned land measuring 215 acres had been included in the area of ML granted to Jeeand Coal Company and requested for exclusion of the same. The DC vide letter dated 9th March, 2012 addressed to the Director General Mines and Minerals Department Balochistan, Quetta while issuing No Object ion Certificate (NOC)
in favour of the respondents Nos.4 to 6 also recommended exclusion of 215 acres from the granted area of the petitioner. The respondents Nos.4 to 6 filed an appeal under section 70 of the Balochistan Mineral Rules, 2002 (the Rules, 2002) against the petitioner before the respondent No.1 for invoking Rule 14 of the Rules, 2002.
3. The respondent No.1 (Appellate Authority) vide order dated 9th August 2012
(hereinafter the impugned order) while remanding the case to the Mines Committee to review
its earlier decision in the light of recommendation of the DC, Loralai also observed as under:
"The Deputy Commissioner Loralai in his letter dated 9th March, 2012 has
recommended that the Agriculture land of Messrs Haji Abdul Rehman son of Saidal
Khan caste Baloch, Abdul Ghafoor son of Haji Muhammad Ibrahim and Saidal Khan son of Haji Abdul Rehman caste Baloch, Mouza Jungle Halqa Saddar Duki measuring 215 acres may be excluded from the allotted area of Messrs Jeeand Co. The DG Mines has no objecti on if the area is excluded.
In the light of detailed arguments by the Appellants and Respondents counsel departmental representative, I have reached to the conclusion to remand the case to the Mines Committee to review its earlier decision in the light of recommendations of
the Deputy Commissioner Loralai."
4. The petitioner has challenged the impugned order and this Court vide order dated
22nd October, 2012 while issuing notice granted interim relief as under:
"Till the next date of hearing the Mining Committee shall not announce its order."
5. The petitioners in C.P. No. 626 of 2012 filed an appeal before the appellate authority
against the respondents Nos.3 to 7 (Jeeand Coal Company) and contended that they are permanent residents of Dukki and they along with other persons had agriculture as well as barren lands in the granted area of Messrs Jeeand Coal Company and prayed as under:
"It is, therefore, respectfully prayed that by accepting appeal prospecting licence issued in favour of private re spondents on 02- 09-2002 may kindly be cancelled, in the
interest of justice."
6. The appellate authority vide order dated 9th August 2012 (the impugned order)
dismissed the appeal, however, observed that the licence should ensure that clause 14 of the Rule s, 2002 is complied with in letter and spirit.
7. In C.P. No.32 of 2014, the respondents Nos.3 to 18 filed an appeal against the
petitioner (Jeeand Coal Company) before the respondent No.1 contending therein that they are the land owners of different Mouza s Jangle Tehsil Dukki District, Loralai, which
includes agricultural lands and livestock production and prayed as under:
"It is therefore, respectfully prayed that this Hon'ble authority may graciously cancel the impugned prospecting licence bearing No.PL -31(3389)8771- 79 dated 02/09/2002.
Any other relief which this Hon'ble authority may deem (sic) fit and proper may also be awarded in favour of appellants in the interest of justice, equity and fairplay."
8. The appellate authority i.e. respo ndent No.1 vide order dated 14th October, 2013
(impugned order) declined the first limb of the prayer, however in the second limb of the prayer decided as under:
i. It has been decided that clause 14 of BMR 2002 may be strictly implemented and the Mining a ctivities by the Respondents be carried out hundred (100) meters away from
the Houses, Mosques, Schools, Graveyards.
ii. The Fard -e-haqiat of Agriculture Land which has been produced/submitted before the
Appellate court by the Appellants comprising of 289 rod 28 Pole (bearing Khasra
Nos.415, 416, 436, 437, 438, 440, 441, 443, 444, 445, 446, 447, 448, 449, 452, 454, 455, 456, 457, 473, 631, 632, 634, 636, 637, 638, 639, 640, 641, 642, 643) reveals reveals that the same is a settled property, therefore, the s ame may be deducted from
the allotted area of respondents.
iii. Beron -Az-line is a state property, therefore the claim on the same cannot be
entertained because that land has been leased out to lessee, hence Appellants cannot claim its right on the same."
9. In C.P. No. 877 of 2015, the petitioner/appellant filed an appeal against the Jeeand
Coal Company before the respondent No.1 contending therein that he is in cultivating
possession of 30 acres land situated in Dukki and the respondent No.1 (Jeeand Coal
Company) is non- local of the area, has got no right for allotment of the ML in his favour.
10. The appellate authority vide order dated 19th August, 2015 (impugned order)
dismissed the appeal.
11. In C.P. No. 788 of 2016, the respondent No.3 Haji Sultan Mu hammad/appellant filed
an appeal against the petitioner (Jeeand Coal Company) and respondent No.2 and contended therein that he applied for PL and raised objection on the ML issued in favour of the petitioner. The licensing authority vide order dated 29th June, 2016 declined issuance of PL in favour of the respondent No.3. The appellant authority after hearing of the parties accepted the appeal vide order dated 19th August, 2016 (impugned order) as under:
"Therefore, the Appellate Authority on rational and legal grounds and in the interest
of justice hereby accepts the appeal of the Appellant and sets aside the impugned letter No.PL -31(4894)/1799- 1802, dated 29- 6-2016 issued by the Respondent and
direct the Respondent to deduct/reduce the area of 94.27 acre s granted in excess of
the upper area limit in Mining Lease to Messrs Jeeand Coal Mines and place the case of the Appellant before the Mines Committee for consideration and grant of Prospecting License to the Appellant against the applied for and deducted area of 94.27 acres of Messrs Jeeand Coal Mines keeping in view the material on record and fulfillment of all codal formalities and strict observance of Rule 14 of the Balochistan Mineral Rules, 2002."
12. Learned counsel for the petitioner in C.Ps. Nos.707 of 2012 and 32 of 2014 and 788
of 2016 contended that the private respondents/appellants had only challenged the PL granted in favour of the appellant instead of ML; that vide impugned order, the appellat e
authority remanded the case to the Mining Committee (MC) for decision in the light of recommendation of DC and thus deprived the petitioner from opportunity of being heard or defending his right; that the PL issued in favour of the petitioner was challenged after lapse of 10 years by the respondents Nos.4 to 6, whereas appeal was to be filed within 30 days of the issuance of PL; that the question with regard to exclusion of the area from mining area is to be dealt with under the provision of Rule 14 of the Rules, 2002 and the report of DC was contrary to the above provision, therefore, remand of the case to the MC was contrary to the Rules, 2002; that the appellate authority without calling inspection report of the site or
considering the provisions of the Rules, 2002 has passed the impugned order; that the
question attracting provision of Rule 14 of the Rules, 2002, required evidence and equal
opportunity; that the licensing authority is respondent No.2, while the appellate authority remanded the matter to the MC; that the private respondents in C.P. Nos. 707 of 2012, 32 of
2014 and 788 of 2016 had no locus -standi to challenge PL of the petitioner; that Rule 14 of
the Rules, 2002, nowhere provides exclusion of area of the private persons from the ML of
the petitioner (Jeeand Coal Company); that the appellate authority without holding any
inquiry in view of the referred provision of Rules, 2002, had excluded the area and thus
passed an order contrary to the provisions of law; that despite stay order passed by this Court
on 22nd October 2012, the MC announced its decision and thereby PL for coal over an area i.e. 207.29 acres situated near Dukki District Loralai had been granted in favour of the private respondents, which overlaps the granted area of the petiti oner and is liable to be set
aside on this ground alone; that the private respondents had filed an application to the Deputy Commissioner on 11th February 2012 for exclusion of their area, but the learned DC, Loralai vide order dated 9th March 2012, beside s recommendation of exclusion of an area of 215,
also issued NOC in favour of the private respondents and thereby exceeded his authority; that mere ownership of land does not enable the owner to seek cancellation of subsisting mining lease and could only claim compensation or rent of surface land respectively.
13. Learned counsel for the petitioners in respect of C.P. No.32 of 2014, contended that
the exclusion of an area as mentioned in the impugned order from the ML of the petitioners is also contrary to Rule 14.
14. While contesting C.Ps. Nos. 877 of 2015 and 626 of 2012 supported the impugned
order passed by the appellate authority and contended that the referred C.P. be also
dismissed.
The learned counsel for the respondents in C.P. Nos. 707 of 2012, 32 of 2014 and 788
of 2016 contended that they had applied for PL and exclusion of their area measuring 215 acres from the ML of the petitioners i.e. Jeeand Coal Company; that the appellate authority after hearing both the parties had rightly remanded the c ase to the MC for decision in the
light of letter dated 9th March 2012 of DC, Loralai; that the PL in favour of the private respondents of C.P. No. 707 of 2012 has been issued by the competent authority and the same has not been challenged; that the appell ate authority vide impugned order rightly
directed to deduct the area of the land belonging to the private respondents in C.P. No. 32 of 2012 from the allocated area of the petitioners, therefore, the impugned orders arising out of C.P. Nos. 707 of 2012, 32 of 2014 and 788 of 2016, are in accordance with law and liable to be sustained.
15. The learned counsel for the petitioners in C.P. No. 626 of 2012 contended that the
petitioners had challenged the PL issued in favour of Jeeand Coal Company on the ground
that their property had been included in the area, but the appellate authority has failed to consider the contention of the petitioners in accordance with law.
16. The learned counsel for the petitioner in C.P. No. 877 of 2015 contended that they are
in cultivating possession of 30 acres land situated in Dukki and Jeeand Coal Company is
non- local of the area and had got no right for allotment of the ML in their favour, but the
appellate authority has failed to consider his case in view of the factual and l egal position of
the site in question.
The learned Assistant Advocate General while supporting the impugned order passed by
the appellate authority contended that after considering the Rule 14 of Rules, 2002 has
decided the issue between the parties and no material illegality and irregularity has been
pointed out to warrant interference in the impugned order; that in C.P. No. 707 of 2012, though interim order dated 22nd October, 2012 was passed by this Court that the Mines Committee shall not announce its order/decision, which has not been communicated to the concerned authority on the said date, the mining committee had already passed an order on 22nd October 2012, consequent whereof the PL was issued in favour of the private respondents of C.P. No. 707 of 2012.
17. We have heard the learned counsel for the parties and perused the record. The private
respondents in C.P. No. 707 of 2012 had initially filed an application before the Deputy Commissioner, Loralai, wherein it was claimed that they are residents o f Dukki and their
property measuring 215 acres had been included in the granted area of Jeeand Coal Company and they requested for exclusion of the area from the leased area of Jeeand Coal Company. The D.C, Loralai after obtaining report from the Revenue s taff of Dukki Tehsil through letter
dated 9th March 2012 addressed to the Director General Mines and Minerals Department Balochistan, Quetta recommended for exclusion of 215 acres of land of the private respondents of C.P. No. 707 of 2012 and also issued N OC in favour of the private
respondents. Thereafter, the private respondents of C.P. No. 707 of 2012 filed an appeal before the respondent No.1 (appellate authority), which was decided vide impugned order
dated 9th August 2012 arising out of C.P No. 707 of 2012 and remanded the matter to the
MC to review its earlier decision in the light of recommendation of the D.C., Loralai. The impugned order was challenged before this Court by way of filing C.P. No. 707 of 2012 and this Court while issuing notices to the respondents passed an interim order pursuant to C.P. No. 2385 of 2009 as under:
"Till next date of hearing, the Mining Committee shall not announce its order/decision."
18. Despite of above order, the respondent No.2 vide order dated 23rd October 2012
granted PL for coal over an area of 207.29 acres land situated near Dukki and this Court vide
order dated 31st July 2013 passed following order:
"Learned Asst: AG files report on behalf of the respondents Nos.1 and 2, copy whereof has been provided to the learned counsel for the petitioner. Mr. Muhammad
Riaz Ahmed, Advocate, states that counter affidavit on behalf of the respondents Nos.4, 5 and 6 have also been filed and undertakes to provide copy of the same to the learned counsel for the petitioner during the course of the day.
Mr. Muhammad Aslam Chishti, Advocate, states that this matter has been connected with C.P. No.626 of 2012, however the petitioners in C.P. No.626 of 2012 are not parties in this case, and as such, requests for provision of pleadin gs of the respective
parties. Messer Syed Ayaz Zahoor and learned Assistant AG undertake to provide a
complete set of the respective pleadings to Mr. Chishti within two days. In case, Mr.
Chishti feels that the petitioners' interest is likely to be effecte d in this petition, they
may seek to be joined as necessary parties.
Mr. Muhammad Riaz Ahmed, Advocate for the respondents Nos.4, 5 and 6 states that interim order passed earlier may not be extended because his clients have been granted Prospecting Licens e in respect of the area of 207.209 acre in respect of coal,
and in this regard has referred to 'Annexure -F' to his counter affidavit, which is dated
23.10.2012 and other documents. Syed Ayaz Zahoor, Advocate, states that the interim order was passed earli er to the issuance of purported Prospecting License, and that he
will be bringing on record the proof that the order passed by this Court had been communicated/received by the Directorate, and also in presence of the counsel namely Abdul Ghani Khilji, Advocate. Mr. Muhammad Riaz Ahmed states that Mr. Abdul Ghani Khilji was never engaged by the respondents Nos.4, 5 and 6. Syed Ayaz Zahoor, Advocate further stated that the petitioner continues to retain the possession of the land.
Subject to the respective contention of the parties, interim order passed earlier is extended till the next date of hearing. The office is directed to issue notice to Mr. Abdul Ghani Khilji Advocate along with copy of this order to explain whether he was contacted/engaged by the res pondents Nos.4, 5 and 6."
19. Whereas, C.P. No. 32 of 2014 is concerned, the private respondents Nos. 3 to 18 had
filed an appeal before the respondent No.1, contending therein that they are land owners of different Mouzas in Tehsil Dukki, District Loralai , which consist of agricultural and
livestock production and prayed for cancellation of PL issued in favour of Jeeand Coal Company. The appellate authority vide impugned order dated 14th October 2013 dismissed
the appeal of the Respondents Nos.3 to 18 aris ing out of C.P. No. 32 of 2014 to the extent of
cancellation of PL granted in favour of the petitioners, however, directions have been made to deduct the area of Khasra number mentioned therein from allotted area of Jeeand Coal Company. Similarly, in C.P. No. 788 of 2016, the private respondent No.3 Haji Sultan Muhammad had filed an appeal against the petitioners and respondent No.2 contending therein that he applied for PL and raised objection of ML issued in favour of the petitioner. The Licensing Authori ty vide order dated 29th June 2016 declined issuance of PL in favour
of respondent No.3. The appellate authority vide impugned order dated 19th August 2016
while accepting the appeal, set aside the order of respondent No.2 dated 29th June 2016 and
directed the official respondents to deduct/reduce the area of 94.27 acres from the granted
area of Messrs Jeeand Coal Company and the case of respondent No.3 was sent for
consideration and for grant of PL to the MC.
20. The above factual and legal aspects of the matter indicate that the PL and ML of
Jeeand Coal Company was objected by the respondents Nos.4 to 6 arising out of C.P. No. 707 of 2012 and respondents Nos.3 to 18 arising out of C.P. No. 32 of 2014, the responde nt
No.3 Haji Sultan Muhammad, arising out of C.P. No. 788 of 2016 in their favour on the ground that their property had been included in the granted area of Messrs Jeeand Coal Company and the area is to be deducted from the granted area of Messrs Jeeand Co al
Company and in respect of same area, PL be granted in their favour. The grant of PL is
governed under Rule 76 of Rules, 2002, which provides that "an application for grant of
prospecting licence shall be in the prescribed form set out in the seventh Schedule".
Rule 77 of Rules, 2002 empowers the Licensing Authority to grant the licence on
such condition, as the authority may determine or to refuse to grant the licence. Sub- clause
(c) of sub -rule (2) of Rule 77 of Rules, 2002 further provides that the li censing authority
shall not grant a prospecting licence under clause (1) in respect of an area of land, on application not supported 'NOC' from the concerned District Collector/authorities. Sub- rule
(4) of Rule 3 of Rules, 2002 further provides as under:
"Minutes of the Meeting of Mines Committee shall be recorded and signed by all the members and shall be submitted to the Secretary Mines and Minerals Development Department. The Secretary Mines and Minerals Development Department is a final authority may grant or refuse to grant licence or to refer the matter to Mines Committee for re -consideration."
21. From the above provisions of Rules, 2002, it is mandate of law that application for
grant of PL shall be in the prescribed Form set out in the seventh sche dule and the disposal
of an application for prospecting licence by the licensing authority shall be subject to Rule 77 and Rule 3 of Rules, 2002, which provide that Mines Committee shall advise the licensing authority concerning the administration of the r ule with respect enumerated therein including
grant of PL. Sub- rule (4) of Rule 3 of Rules, 2002, further provides that recommendation of
the Mines Committee shall be submitted to the Secretary Mines and Minerals Development Department, who as a final auth ority may grant or refuse to grant licence or to refer the
matter to the Mines Committee for re- consideration.
22. In the instant cases, the appellate authority without adhering to the above provision of
law and without considering the fact as to whether a ny of the private respondents arising out
of C.P. Nos. 707 of 2012, 32 of 2014 and 788 of 2016 had filed any application in prescribed / respective 'Form' set out in the seventh schedule as provided under Rule 76 of Rules, 2002 to the licensing authority f or grant of PL and thereto Minutes of meeting of the Mines
Committee signed by all the members had ever been submitted to the Secretary Mines and Minerals Development Department as final authority as provided under sub- rule (4) of Rule
3 of Rules, 2002. Be sides, the rule specifically set out the procedure to be followed, if the
official respondents are of the opinion that the leased area is not being worked or utilized in the manner provided under Rule 57 or 14(3)(d) of the Rules, 2002.
23. The reasons ment ioned in the impugned orders of C.P. Nos. 707 of 2012, 32 of 2014
and 788 of 2016 for remanding the case to the Mines Committee for exclusion of the area from the part of the petitioners' licence was in respect of land belonging to the private respondents, but in this respect, Rules 14(8) and 109 of Rules, 2002 have not been
considered nor any notice as provided under sub- rule (2) of Rule 57 of Rules, 2002 had been
given to Jeenad Coal Company. Reliance is placed on the judgment of the Hon'ble Supreme Court in the case titled Tribal Coal Company v. Secretary Industries, 2007 SCMR 1947.
24. The findings of the appellate authority in the impugned orders arising out of C.Ps.
Nos. 707 of 2012, 32 of 214 and 788 of 2016 lacks consideration of the above provision of
law, facts and as to whether the private respondents were seeking PL/NOC or exclusion of
land leased to the petitioners, therefore, all these aspects of the matter require re-consideration by the appellate authority.
25. Whereas, C.Ps. Nos. 626 of 2012 and 877 of 2015 are concerned, the petitioners
claimed that they and other persons are local of the area and possessing some land including barren land in the area, whereas Jeeand Coal Company being stranger had no right to maintain his lease hold rights a nd licence is to be granted to suitable persons. The learned
counsel for the petitioners could not cite any rule or law that on this ground lease can be cancelled. The impugned orders arising out of C.Ps. Nos. 626 of 2012 and 877 of 2015 reflect that the a ppellate authority while dismissing the appeal of the petitioners also
observed that the licence should ensure that Rule 14 of Rules, 2002 is complied with in letter and spirit, which warrants no interference.
In view of the above, Constitutional Petition s Nos. 626 of 2012 and 877 of 2015 are
dismissed. Whereas, C.P. Nos. 707 of 2012, 32 of 2014 and 788 of 2016 are partly allowed, the impugned orders arising out of C.P. Nos. 707 of 2012, 32 of 2014 and 788 of 2016 dated 9th August 2012, 14th October 2013 a nd 19th August 2016 respectively passed by the
respondent No.1 are set aside and the matters are remanded to the appellate authority to decide the same in accordance with law including the question of PL granted in favour of the private respondents.
MH/31/ Bal
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