2024 C L C 1495
[Balochistan]
Before Abdullah Baloch and Muhammad Aamir Nawaz Rana, JJ
Messrs KURDISH MINING ENTERPRISES through Adnan Aziz Kurd and others ----
Petitioners
Versus
SECRETARY MINES AND MINERAL, GOVERNMENT OF BALOCHISTAN,
QUETTA and 12 others ----Respondents
C.Ps. Nos.1128, 1129 and 1130 of 2022, decided on 4th March, 2024.
Balochistan Mineral Rules, 2002 ---
----R. 90 ---Mining lease holder ---Restoration of lease---Un -worked / un- utilized area---
Scope ---Condemned unheard ---Lease in question was in favour of respondents which was
cancelled under R. 90 of Balochistan Mineral Rules, 2002 by the authorities and was allotted to petitioners ---Provincial Government set aside the lease cancelling order and restored it in
favour of respondents ---Validity ---Before taking action under R.90 of Balochistan Mineral
Rules, 2002, against mining lease holder on the ground of keeping mining area idle for years, opportunity had to be provided to mining lease holder to explain his position---Authorities
illegally cancelled lease of respondent and allotted the same to petitioners ---High Court
declined to interfere in the notification passed by Provincial Government in exercise of appellate jurisdiction restoring lease of respondents ---Constitutional petition was dismissed,
in circumstances.
Muhammad Riaz Ahmed for Petitioners.
Nusrat Baloch, Additional Advocate General assisted by Aftab Qadir Mughal, Law
Officer, Mines and Minerals Department, Government of Balochistan for Respondents Nos.1 and 2.
Talaat Waheed Khan for Respondent No.3.
Tahir Ali Baloch and Syed Saaduddin Shah along with Attorney Malik Masood Khan
for Respondents Nos.4 to 9.
Syed Ayaz Zahoor for Respondents Nos.10, 11 and 13.
Noor Ahmed Kakar for Respondent No.12.
Date of hearing: 4th December, 2023.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ---By this common judgment, we intend
disposing of the above captioned constitution petitions as identical questions of facts and law are involved in these petitions.
2. The chequered history of litigation between the parties reveals that an arbitration
award dated 01.02.1977 was passed with regard to certain movable and immoveable properties of the family and of the family businesses of late Malik Mir Hassan Khan. The arbitration award was made rule of Court by the High Court of Sindh vide order dated 07.11.1979, passed in suit No.378 of 1979, and subsequently decree was prepared on 08.06.1985. Thereafter, respondent No.3 (Malik Mustafa) filed a suit before High Court of Sindh and sought partition and possession regarding the legacy left by his father late Malik Mir Hassan Khan. Record divulges that vide order dated 23.02.2004, the parties to the suit were restrained from creating third party interest in the suit property till decision of the suit.
Record further divulges that despite pendency of litigation with regard to mining leases of
family of respondents Nos.3 to 13, the respondent No.2 i.e. the Director General ('DG'), Mines and Minerals Department, Government of Balochistan ('GoB'), vide Notification dated 25.11.2009, cancelled the mining leases. For the facility of ready reference, the Notification dated 25.11.2009 issued by DG, Mines and Minerals Department GoB is reproduced:
"NOTIFICATION
The Licensing Authority has been pleased to cancel the Mining Leases for Marble Onyx of under mentioned Firm's situated in District Chagai with immediate effect under rule -90 of the Balochistan Mineral Rules, 2002.
S.No. Name of Firm Area and Location
1 M/S Green Marble Works (Pvt.) Limited
/ Pubni Minerals. ML -Marble (8) 71.22 Acres, Near Zardkan,
District Chagai
2 M/S Green Marble Works (Pvt.) Limited
/ Pubni Minerals. ML -Marble (1479) 50.00 Acres, District Chagai
3 M/S Malik Mir Hassan & Co /Mir
Marbles. ML -Marble (1417) 150 Acres, Near Jhuly,
District Chagai
3. Record transpires that after cancellation of the mining leases through aforementioned
Notification, the mining area of said cancelled mining leases was allotted to the petitioners and in this regard Prospecting Licenses were granted to the petitioners on 03.01.2011, which subsequently were converted into mining leases on 07.03.2013.
4. The Notification dated 25.11.2009, issued by DG, Mines and Minerals Department
GoB, pertaining to cancellation of mining leases, was assailed by respondent No.3 i.e. Malik Mustafa son of Malak Mir Hassan Khan before the Appellate Authority i.e. Secretary, Mines and Minerals Development Department GoB but the appeal was dismissed by the Appellate Authority vide order dated 02.04.2012. The respondent No.3 i.e. Malik Mustafa son of late Malik Mir Hassan Khan as well as the legal heirs of late Malak Mir Hazar Khan filed Constitution Petition Nos.151 of 2011 and 444 of 2012 before this Court which were decided vide common judgment dated 27.11.2017 and the matter was remanded to the Appellate Authority/Secretary, Mines and Minerals Department GoB. For the facility of ready reference, the relevant excerpt of common judgment dated 27.11.2017, passed by this Court, is reproduced:
"18. In view of the above, petitions are partly allowed. The impugned order dated 1st January, 2011 arising out of C.P No.151 of 2011 and order dated 2nd April, 2012 passed by the appellate authority arising out of C.P No.444/2012 to the extent of areas of leases in question alleged by the petitioners are set aside and matter deemed to be pending before the Secretary Mines and Mineral Balochistan. Parties are directed to appear before the Secretary Mines and 'Mineral Balochistan (appellate authority) on 7th December, 2017 to decide the matter in accordance with law".
5. After remand, the Appellate Authority heard the parties and thereafter vide impugned
order dated 08.04.2022 set -aside the Notification dated 25.11.2009 by holding the same void
and contradictory to the facts provided to the High Court of Sindh. For the facility of ready reference, the relevant excerpt of impugned order dated 08.04.2022, passed by the Appellate Authority, is reproduced:
"15. It is worth noting that on 25.11.2009 the DG Mines (vide impugned notification) cancelled following three Mining Leases under question bearing Nos. ML 8, ML 1417 and ML 1479 under Rule 90 of the Balochistan Mineral Rules, 2002:
Particular/Name of Company Total Area and Location
Green Marble Works (Pvt.)
Limited/Pubni Minerals PL -Marble/1747
ML-Marble/8 71.22 Acres Zardkan Tehsil Dalbandin
District Chaghi
Green Marble Works (Pvt.)
Limited/Pubni Minerals PL -Marble/2
ML-Marble/1479 50 Acres Deh Nokundi District Chaghi
Malik Mir Hassan Khan & Co./ Mir
Marbles Pl -Marble/103 Ml -Marble/1417 150 Acres Jhuli Tehsil Nokundi District
Chaghi
The Rule 90 is applicable on un -worked/non -functional mining leases. Whereas just
after six months on 10.05.2010 the same DG Mines furnished a report showing
figures of material extracted from subject mining leases to Nazir of the Honorable
Sindh High Court Karachi:
Firm Name/File No. Dispatches Receivedfrom 1982 to March
2010
Green Marble ML -Marble/8 40296.85
Green Marble ML -Marble/1479 8689.425
Malik Mir Hassan Khan & Co Ml-
Marble/1417 6133.9
This clearly shows the mala fide and incompetency of the then DG Mines. If the mines were productive then why did he cancel the MLs without considering the facts on ground and without giving an opportunity to be heard under Rule 90 of BMR -
2002. Now there arises a decade old complex situation. The Appellant has filed this appeal in 2011 against cancellation of MLs vide order dated 2009 and they are also in
the high court to settle their property disputes among the family members since one
decade. On the other side the Respondent M/s Adnan Kurd obtained Mining Leases as
per BMR -2002, extracting marble, earning money and paying royalty to the
Government on prescribed rate since 2010 -11.
16. Keeping in view all the above, it is concluded that the Director General Mines & Mineral Development Balochistan has misused his authority by- passing all norms, by
ignoring industry practices and provision of Balochistan Mineral Rules, 2002. The
mala fide is evident that Appellants' three potential and productive areas were
cancelled and allotted with extension in favor of one person who formed two different companies and whose partners were/are from his family.
However, keeping in view the facts and in the best interest of justice and fair play, I
hereby decide to set aside the impugned order dated 25- 11-2009 being void and
contradictory to the facts as provided to the Honorable Sindh High Court. The DG Mines/Licensing Authority should not have issued cancellation order if the mines were productive during mining lease period. He should have provided an opportunity to the Appellant to be heard to explain his position under Rule 90(2) of BMR -2002.
Thus the DG/Licensing Authority is hereby directed to issue fresh map(s) to M/S Adnan Mining and M/S Kurdish Mining by excluding the overlapped area(s) of three mining Leases respectively and in case any party wants compensation then initiate proceeding under Rule 94 (e) of BMR -2002 ".
6. Learned counsel for the petitioners mainly contended that the Prospecting Licenses
were issued to the petitioners through independent transactions after cancellation of mining leases to the previous mining rights holders. Per learned counsel, since all the legal formalities were fulfilled while allotting mines to the petitioners, therefore, the mining leases could not be subsequently cancelled as a vested right had been created in favour of the petitioners as millions of rupees were spent by the petitioners to develop the mining area.
Learned counsel further contended that common judgment dated 27.11.2017 passed by this
Court was not implemented by the Appellate Authority as no necessary amendments were allowed in the appeal filed by respondent No.3, therefore, according to learned counsel, the impugned order is devoid of any merit. Learned counsel also raised objection regarding limitation and submitted that since the Notification dated 25.11.2009, pertaining to cancellation of mining leases, was challenged by respondent No.3 after considerable delay without providing any explanation in this regard, therefore, the claim of legal heirs of late Malik Mir Hassan Khan should have been rejected at the very outset.
7. While responding to the arguments of learned counsel for the petitioners, the
respondents' counsel referred Rule 90 of the Balochistan Mineral Rules, 2002 ("the BMR, 2002") and contended that while issuing the Notification dated 25.11.2009, the ibid Rule was violated by the DG, Mines and Minerals Department GoB (Respondent No.2) and the mining leases of private respondents were illegally cancelled. Per learned counsel, no notice had either been issued or served upon the private respondents, which otherwi se is mandatory
condition under Rule 90 of the BMR, 2002. Learned counsel argued that in a clandestine manner, the complete mining area allotted to the predecessor -in-interest of respondent No.3
i.e. late Malik Mir Hassan Khan was subsequently illegally allotted to one party who had
made three proxy companies to get the mining area of private respondents allotted, through illegal means. Per learned counsel, the dispute between the legal heirs of late Malik Mir Hassan Khan was pending adjudication before different Courts and in this regard on 23.02.2004 the High Court of Sindh had passed an order, whereby it was directed that no 3rd
Party interest in the subject properties be created in any manner. Per learned counsel the
subject mining leases are in fact subject matter of the suit pending before High Court of
Sindh, therefore, the stay order was effected to the extent of subject mining leases, but even then, illegally first the mining leases were cancelled vide Notification dated 25.11.2009 and subsequently without any justification same were allotted to the petitioners.
8. Learned Additional Advocate General appearing on behalf of the official respondents
supported the impugned order. Arguments heard. Record perused.
9. The controversy involved in these petitions has its genesis in the Notification dated
25.11.2009, issued by the DG, Mines and Minerals Department GoB (respondent No.2), whereby under Rule 90 of the BMR, 2002, the following mining leases of private respondents were cancelled:
S.No Name of Firm Area and Location
1 M/S Green Marble Works (Pvt)
Limited /Pubni Minerals. ML -
Marble (8) 71.22 Acres, Near Zardkan,
District Chagai
2 M/S Green Marble Works (Pvt)
Limited /Pubni Minerals. ML -
Marble (1479) 50.00 Acres, District Chagai
3. M/S Malik Mir Hassan and Co. /
Mir Marbles. ML -Marble (1417) 150 Acres, Near Jhuly, District
Chagai
10. The aforementioned Notification was issued by DG, Mines and Minerals Department
GoB in view of Rule 90 of the BMR, 2002 on the ground that the allotted area of aforementioned mining leases was kept idle for years. For the facility of ready reference, Rule 90 of BMR, 2002 is reproduced:
"90. Keeping the Area Un- Worked /Un- Utilized. ----(1) Mining concession holder
shall carry out mining operations in a proper skillful and workman like manner over the granted concession. If at any time it is found on inspection that the concession holder is not conforming to the provisions of Prospecting /Exploitation Scheme or has not been able to utilize the entire allotted area or has kept the allotted areas idle for years together continuously, the Licensing Authority shall take action for cancellation of the un- worked/un- utilized area and grant the same under the provisions of these
rules.
(2) Before taking action under the above rule the concession holder shall be provided opportunity of being heard to explain his position".
11. The mandatory condition before cancellation of mining lease under Rule 90 of the
BMR, 2002 is to provide an opportunity to the mining lease holders to defend their cases and explain their position. The minute scrutiny of record reveals that no such opportunity had
been provided by the DG, Mines and Minerals Department GoB to the mining lease rights
holders prior to issuance of Notification dated 25.11.2009; as no report of any notice served upon the private respondents has ever been brought on record and despite pendency of litigation before High Court of Sindh as well as Honourable Supreme Court of Pakistan
regarding the same mining leases, initially the mining leases were cancelled vide ibid
Notification and thereafter the mining area was allotted to the petitioners by the DG, Mines
and Minerals Department GoB, that too without addressing the objections raised by the
private respondents.
12. Record further divulges that on 23.02.2004 restraining order was passed by High
Court of Sindh with regard to suit properties, which included the aforementioned mining
leases. Apart from that this Court in Constitution Petition No. 151 of 2011, filed by respondent No.3, while issuing notices to the respondents, had passed the following order on C.M.A No.407/2011.
"C.M.A. No.407/2011: Learned counsel states that subsequent to the passing of the
impugned order the respondent No.2 has granted formal allotment order and work order in favour of respondents Nos.3 to 5, whereas appeal was only filed by respondent No.3. Further the petitioners being share holders have been threatened to be dispossessed by the Deputy Commissioner of the area where the mining operations have been carried out since several decades, whereas the respondent No.3 has simply being allotted a Prospecting License and in the garb of the Prospecting License the running mines of the petitioners are sought to be grabbed. Notice. Till the next date of hearing, the petitioners shall not be dispossessed from the mines at their possession".
Rule 90 of BMR, 2002 clearly envisages that before taking action against mining
lease holder on the ground of keeping the mining area idle for years, opportunity has to be provided to the mining lease holder to explain his position, but in the instant case the DG, Mines and Minerals Department GoB had been submitting contrary reports to the Nazir of High Court of Sindh in Execution No.47 of 1985, tiled as "Malik Mir Hazar v. Malik Sikandar and others". In this regard, the report dated 11.03.2010, submitted by the DG, Mines and Minerals Department GoB to the Nazir of High Court of Sindh is relevant, which clearly manifests that subject mines were not idle, rather mining activities were going on. So,
in such view of the matter, despite the aforementioned report, the mining leases of private
respondents as well as of family members of late Malik Mir Hassan Khan were cancelled by
the DG, Mines and Minerals Department GoB by invoking the provisions of Rule 90 of
BMR, 2002, in violation to Rule 90 of BMR, 2002.
13. We have gone through the impugned order dated 08.04.2022 passed by the Appellate
Authority i.e. Secretary, Mines and Minerals Development Department GoB and have found
the same in accordance with law, as all the objections taken by the petitioners were
exhaustively addressed by the Appellate Authority. Even otherwise, the hypertechnical objections raised by the petitioners before this Court are without any merit as conspicuously through illegal Notification dated 25.11.2009 issued by DG, Mines and Minerals Department GoB, the subject mining leases were cancelled and subsequently illegally same were allotted to the petitioners, therefore, the impugned order dated 08.04.2022 passed by the Appellate Authority/Secretary, Mines and Minerals Development Department GoB does not warrant interference by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
For foregoing reasons, the above -captioned petitions, being meritless, are dismissed.
The interim order dated 20.07.2022 passed in Constitution Petition No. 1128 of 2022 stands recalled.
MH/30/Bal.
Petitions dismissed.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,
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