2024 C L C 167
[Balochistan]
Before Muhammad Hashim Khan Kakar and Shoukat Ali Rakhshani, JJ
Messrs FRIENDS COAL COMPANY through Director---- Petitioner
Versus
The GOVERNMENT OF BALOCHISTAN, CIVIL SECRETARIAT through Secretary
Mines and another ----Respondents
Constitution Petition No.335 of 2023, decided on 15th June, 2023.
(a) Balochistan Mineral Rules, 2002---
----R. 46 ---Mining lease, cancellation of ---Opportunity of hearing not given--- Effect ---
Mining lease for exploration of coal for period of 20 years was granted to the petitioner but the same was cancelled just after six years by the respondent (Director General Mines and Minerals) vide notification and the respondent (Secretary Mines and Minerals) also dismissed appeal preferred by the petitioner ---Validity ---Impugned notification/order
revealed that mining lease, having been granted to the petitioner, was cancelled on account of non- submission of lease deed, exploration scheme and demarcation certificate within time ---
However, the impugned notification/order did not reflect that before cancellation, any notice
was issued to the petitioner or any order of satisfaction under Cl. (2) of R.46 of Balochistan Mineral Rules, 2002, ('the Rules, 2002') was drawn---Clause (2) of R. 46 of the Rules, 2002 manifested that the licensing Authority had to satisfy itself that the delay in execution was nether caused by the petitioner nor was due to the circumstances beyond the control of the petitioner, which inquiry did not seem to have taken place, in the present case, before cancellation of Mining License which (non- holding of inquiry) not only offended the said
provision but the principle "Audi Alteram Partem" as well as the petitioner had not been provided with an opportunity of hearing by the respondent (DG Mines and Minerals) before cancellation of Mining License ---Similarly the respondent (Secretary Mines and
Minerals)being appellate Authority also did not consider said aspect of the matter and endorsed the notification of cancellation of Mining License, through a non- speaking order by
dismissing the appeal , which had made the same illegal and perverse ---Petitioner had made
out a case for the High Court to intervene by invoking jurisdiction under Art. 199 of the Constitution ---High Court set aside impugned notification/ order passed by the respondents
declaring the same null and void without any legal effect and remitted the case to the respondent (DG Mines and Minerals) to afford opportunity of hearing to the parties at lis and decide the case on merits ---Constitutional petition was partly allowed, in circumstances.
(b) Constitution of Pakistan ---
----Art. 10 -A---Balochistan Mineral Rules, 2002, R. 46 ---Mining lease, cancellation of ---
Opportunity of hearing not given---Effect ---Mining lease for exploration of coal for period of
20 years was granted to the petitioner but the same was cancelled just after six years by the
respondent (Director General Mines and Minerals) vide notification and the respondent (Secretary Mines and Minerals) also dismissed appeal preferred by the petitioner ---Validity --
-Impugned notification passed by the respondent (DG Mines and Minerals) had been
rendered in utter violation of Art. 10- A of the Constitution, which could not in any way be
allowed to hold field--- High Court set aside impugned notification/ order passed by the
respondents declaring the same null and void without any legal effect and remitted the case to the respondent (DG Mines and Minerals) to afford opportunity of hearing to the parties at lis and decide the case on merits ---Constitutional petition was partly allowed, in
circumstances.
Abdul Musavir for Petitioner.
Shai Haq Baloch, A.A.G. for Respondents.
Date of hearing: 19th April, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ----The petitioner has brought before us the
captioned constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"), seeking annulment of the impugned order dated 18.12.2018, passed by Director General Mines and Minerals ("DG Mines and Minerals') Government of Balochistan ("GoB") (respondent No.2), whereby the Mining Lease ("ML")
No.ML -53(1778)/4607- 14 dated 24.06.2014 was cancelled and impugned order dated
19.11.2022 rendered by Secretary Mines GoB (respondent No.1), whereby his appeal was dismissed.
2. Relevant facts of the instant case are that the petitioner was granted a Prospecting
License ("PL") over an area of 1239.66 acres situated near Habib Kila District, Duki for exploitation of coal, following issuance of allotment letter bearing No.PL -31(4517)/815- 24
dated 09.02.2008 and work order bearing No.PL -31(4517)/2538 -44 dated 28.03.2008
measuring an area of 1239.66 acres, which was subsequently converted into ML bearing No.ML -53(1778)/4607- 14 dated 24.06.2014 over an area of 999.16 acres for a period of 20
years, w.e.f. 09.02.2008, however later on vide notification No.ML -53(1778)/3749- 54 dated
18.12.2018, the ML of the petitioner was cancelled by respondent No.2 for non- compliance
of the codal formalities, which order was assailed in appeal by the petitioner before the respondent No.1, who after hearing the parties, dismissed the appeal, hence this petition.
3. In response to the notices issued by this Court, learned AAG appeared.
4. Heard. Record pondered upon with the able assistance of the learned counsel for the
petitioner and learned AAG. The impugned order dated 18.12.2018 whereby the ML bearing No.ML -53(1778)/4607- 14 granted to the petitioner was cancelled on account of non-
submission of lease deed, exploration scheme and demarcation certificate within time, does
not reflect that before cancellation any notice was issued or any order of satisfaction under
clause (2) of Rule 46 of Balochistan Mineral Rules of 2002 ("Rules of 2002") was drawn. For ease of reference, clause (2) of Rule ibid is reproduce hereunder;
"(2) If the agreement in case of L.S. M and the lease deed in case of Small Scale Mining is not executed within three months of the communication of the approval of the application for a mining lease and the presentation of the mineral agreement/ lease deed for signature, the right of the applicant to such lease shall be deemed to have lapsed unless the licensing authority is satisfied that the delay in execution was not caused by the applicant or was due to circumstances beyond the applicant's control."
[Emphasis supplied]
5. Clause (2) of Rule 46 of Rules of 2002 clearly manifest that the licensing Authority
has to satisfy itself that the delay in execution was neither caused by the applicant nor was due to the circumstances beyond the control of the applicant, which inquiry does not seem to have taken place before cancellation of ML, which not only offends the provision ibid, but the principle "Audi Alteram partem" as well, because the petitioner has not been provided with an opportunity of hearing by respondent No.2 before cancellation of his ML.
Apart from that, the order impugned has also been rendered in utter violation of
Article 10 -A of the Constitution, which cannot in any way be allowed to hold field as the
impugned notification of cancellation of ML is unsustainable for being perverse.
Similarly, respondent No.1 being the appellate authority also did not consider such
aspect of the matter and endorsed the notification of cancellation of ML dated 18.12.2018, through a non- speaking order by dismissing the appeal, which has made the same illegal and
perverse, thus we are left with no other option but to intervene by invoking jurisdiction under Article 199 of Constitution.
6. In view of the above, the instant petition is partly allowed, the impugned notification
dated 18.12.2018 rendered by respondent No.2 and order dated 19.11.2022 penned by respondent No.1 are declared null and void, without any legal effect and the case is remitted to the respondent No.2 to afford opportunity of hearing to the parties at lis and decide the case on merits at the earliest.
MQ/126/Bal. Order accordingly.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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