PLJ 2017 Quetta 12 (DB)
Present : MUHAMMAD NOOR MESKANZAI , C.J. AND ABDULLAH BALOCH , J.
M/s. SINO PAK MINERALS, PRIVATE LIMITED, ISLAMABAD through Law
Associates --Petitioner
versus
SECRETARY MINES AND MINERALS, GOVERNMENT OF BALOCHISTAN & others -
-Respondents
C.P. No. 718 of 2013, decided on 21.4.2017.
Balochistan Minerals Rules, 2002--
----R. 33(3) --Allotment of lease license in favor of petitioner --Subsequent cancellation
without notice --Validity --It has been established that notice issued to petitioner for
submission of quarterly progress reports and thereafter for cancellation of mining lease have
not been served upon petitioner in a proper and authenticated manner, as such, petitioner has
been condemned unhread and no opportunity of hea ring was afforded to the petitioner,
therefore orders passed by authorities are void ab initio.
[P. 16] A
Mr. Iqbal Shah, Advocate for Petitioner.
Mr. Zahoor Ahmed Baloch, Assistant Advocate General assisted by Mr. Abdul Mateen
Kakar , Law Officer Mines & Minerals Department for Respondent.
Mr. Behlol Khan Kasi, for Intervener Abdul Jaleel, Proprietor of M/s. Bagh Mental.
Date of hearing: 29.3.2017.
JUDGMENT
Abdullah Baloch, J. --In this Constitutional Petition No. 718 of 2013, the petitioner has
sought the following relief:
“It is accordingly respectfully prayed that keeping in view the above said facts and
law, the petition may kindly be accepted and impugned notification and order dated
20.09.2013 may kindly be declared unlawful, illegal and without la wful authority and
no legal effect and after doing the same the impugned cancellation notification issued by Respondent No. 2 may kindly be set -aside and the Respondent No. 2 be directed to
restore lease in said mines area mentioned in the petition as per law and order passed by respondent has no legal effect be set aside in the interest of justice fair play and
equity.
It is further prayed any other relief deemed appropriate in the circumstances
by this Hon’ble forum may kindly also graciously be granted in the interest of justice. “
2. Facts of the case are that on 5th November 2007 the petitioner i.e. M/s. Sino Pak Minerals (Pvt.) Ltd. was granted mining lease over an area of 619.83 Acres situated at Killa Saifullah for a period of 30- years under the Ba lochistan Minerals Rules, 2002, (hereinafter referred as,
“the Rules of 2002”); that the petitioner after taking over the charge has made investment of huge amount in the shape of infrastructure and started mining operation, but in the year 2009
some armed persons forcibly took over the possession of the mines and such dispute
continued till the year 2011, when after great efforts, once again the mining operation was
started; that the petitioner hired foreign as well as local engineers/technicians and hired
labours from the locality; that the petitioner explored raw material i.e. copper in ore form in very low percentage; that in the month of April 2012 the Managing Director of the petitioner
Company namely Mr. Chen Ping Hung left Pakistan due to serious ail ment (Cancer) of his
mother as well as during exploration an Engineer and two other officials belonging to China were died and the petitioner faced inquiries in Pakistan and China and also the petitioner was
involved in litigation; that on 2nd October 2012 the Respondent No. 2 (D.G. Mines) issued a
letter/notice to the petitioner inquiring about the quarterly progress report, but the same was not served upon the proper official address of the petitioner and thereafter through impugned
Notification dated 20t h May 2013 the allotment order of the lease of the petitioner was
cancelled/withdrawn by the Respondent No. 2 with the allegations of (i) keeping the area idle (ii) reported nil production and (iii) failed to submit the quarterly progress report as require d
under Rule 33(3) of Balochistan Mineral Rules, 2002; that the petitioner assailed the impugned notification of cancellation of mining lease before the Respondent No. 1, but the
same was dismissed, vide order dated 20th September 2013.
3. The Respondents No. 1 & 2 filed their parawise comments to the petition, whereas one
Abdul Jaleel Son of Abdul Kabeer, Proprietor of M/s. Bagh Metal filed an application under
Order 1 Rule 10/2 R/W Section 151 CPC (CM.A. No. 610/2014) for impleading as
respondent in the petition, which application was contested by the petitioner by filing its
rejoinder.
4. Learned counsel for petitioner contended that the Respondent No. 2 allotted prospecting license to the petitioner, which was later on converted into mining lease, where after work
order was also issued to the petitioner and the petitioner after proper development of infrastructure started mining activities; that the petitioner spent huge amount on development
of infrastructure as well as in shape of earth moving machinery and equipments; that during
the course of mining an incident was took place, wherein two Chinese mining experts of the
petitioner have been died and due to unavoidable circumstances the mining activities become
disturbed; that the petitioners are continuously filing the quarterly progress reports to the
Respondent No. 2; that half and sudden the Respondent No. 2 issued a notice to the
petitioner, which was not served upon the petitioner and the petitioner was unaware of the
said letter; that in consequence whereof, the petitioner was unable to reply the same and as a
result whereof the mining lease of the petitioner was cancelled; that the petitioner was condemned unheard “Audi Alteram Parterm” ; that the appellate forum has also failed to
consider the point of view of the petitioner; that the notice was not served upon the petitioner
and the petitioner was not afforded an opportunity of being heard; that the impugned orders
suffer from material illegality and irregularity and are result of miscarriage of jus tice and thus
liable to be set -aside.
5. Conversely, the learned Assistant Advocate General vehemently opposed the arguments so advanced by the learned counsel for petitioner and contended that the petitioner has failed
to start mining activity in the min ing lease and the same was kept idle till indefinite period:
that the respondents timely issued notice to the petitioner, which was served upon the petitioner, but the petitioner have nothing to reply; that the Respondent No. 2 has rightly
cancelled the mi ning lease of the petitioner in accordance with law; that the petitioner was
also failed to bring any illegality or irregularity before the appellate Forum, as such, the appellate forum has rightly dismissed the appeal of the petitioner.
6. On the other hand, Mr. Behlol Khan Kasi learned counsel for intervener submitted that initially the mining lease was allotted to the interveners i.e. M/s. Bagh Metals, which was
later on surrendered in favour of the petitioner i.e. M/s. Sino Pak Minera ls Pvt. Ltd. and since
the petitioners have failed to start the mining activities and kept the mining lease in idle
condition, as such, the Respondent No. 2 has rightly cancelled the mining lease of the
petitioner and thereafter the interveners are entitled to be allotted the same mining lease as a
matter of priority.
7. Heard the learned counsel for parties and perused the record. Perusal of record reveals that initially the prospecting license of lease in question was allotted in favour of M/s. Bagh
Metals Killah Saifullah (the Company of intervener) on 3rd October 2007. However, during
the course of process the M/s. Bagh Metals through application to the Respondent No. 2
surrendered the same in favour of M/s. Sino Pak Minerals (Pvt.) Ltd. “petitioner’s C ompany”
and the said application was accepted and the mining lease was allotted to the petitioner on 5th November 2007, which was later on converted into mining lease and the work order was issued in favour of petitioner vide order dated 14th November 2007. It is further transpired
from the record that certain quarterly progress reports were also submitted by the petitioner to the Respondent No. 2, showing that the mining activities being carried out in the said lease,
however, during the cours e of time the Respondent No. 2 vide its letter dated 2nd October
2012 directed the petitioner for submission of quarterly progress report regularly and in case of failure, the petitioner was warned for taking action against it. It is pertinent to mention h ere
that the main grievance of the counsel for the petitioner is that the said notice was not served upon the petitioner to its official address.
8. To ascertain the factual positions, we have gone through the aforesaid letter dated 2nd October 2012, whic h was issued to the petitioner by the Respondent No. 2, wherein the
address of the petitioner is mentioned “M/s. Sino Pak Minerals, (Private) Limited, 601,
Punch House, Adamjee road, Sadden; Rawalpindi” and in consequence whereof the Respondent No. 2 has c ancelled the mining lease of the petitioner, vide notification dated
20th May 2013 and the said letter was also addressed to the petitioner on the same address as mentioned above and the learned counsel for petitioner also taken the same plea that both the
aforesaid mentioned letters were not served upon the petitioner to reply the same. It is worth to mention here that initially when the Respondent No. 2 allotted the mining lease to the
petitioner, the address of the petitioner was mentioned in the allotme nt order dated 5th
November 2007 as “86- A, Chaman Housing Scheme, Air Port Road, Quetta, Pakistan” and
thereafter the work order was also issued to the petitioner on 14th November 2007 containing
the same address. Perusal of record further reveals that ini tially the petitioner applied for
prospecting license of the mining lease to the Respondent No. 2 and it is also transpired from
the record from the letter dated 19th October 2010 issued by the Respondent No. 2 was
addressed to the petitioner on the same a ddress i.e. 86- A, Chaman Housing Scheme, Air Port
Road, Quetta, Pakistan, thus it would have been more appropriate if the Show Cause Notice was also issued to the petitioner on the same address, but this has not been done, which
resulted into without any r esponse from the petitioner’s side and on the basis of non-
compliance to reply such Show Cause Notice, the mining lease allotted to the petitioner was cancelled. Hence, the notice so issued cannot termed to be served upon the petitioner.
9. During the course of arguments, it was confronted to the Law Officer of the respondents
Mr. Abdul Mateen Kakar, whether they have any sort of proof to show that the notice issued
by the Respondent No. 2 has been served upon the petitioner, the learned Law Officer had nothing to say in affirmative. We have also gone through the impugned order dated 20th
September 2013 passed by the learned appellate Authority, wherein the appeal of the
petitioner was dismissed for the reasons mentioned in the impugned order, relevant port ion is
reproduced herein below:
“After hearing the parties and consulting the record, it has been observed that the
appellant has kept the area idle, never submitted quarterly progress report and violated
the Rule 33(3) and 56(3)(4), 47(2) of BMR 2002. Mor eover, the appellant never
approached the respondent for change in firm’s address required under Rule 56(4) of BMR 2002. It has been further observed that the subject area is under litigation in
Hon’ble High Court of Balochistan, therefore, the subject appeal is hereby
dismissed.”
10. In view of the above, it has been established that the notice issued to the petitioner for
submission of quarterly progress reports and thereafter for cancellation of mining lease have
not been served upon the petitioner in a proper and authenticated manner, as such, the
petitioner has been condemned unheard and no opportunity of hearing was afforded to the petitioner, therefore, the orders passed by the authorities are void abinitio and of no legal
affect, as such, we are inclined to accept this petition and to set -aside both the orders dated
20
th May 2013 issued by the Respondent No. 2 and order dated 20th September 2013 passed
by the Respondent No. 1 and in consequence thereof, the case is remanded the Respondent No. 2 with the directions that, the notice dated 2nd October 2012 deemed to be pending
before the Respondent No. 2 and the petitioner is directed to appear before it by filing reply
of the said notice and the Respondent No. 2 is directed after providing proper opport unity to
the petitioner decide the matter in accordance with law within a period of three months.
11. As far as the case of interveners is concerned, since after surrender of their rights in
favour of petitioner, they had no character in the title leasing , having no locus -standi to be
impleaded as a necessary party before this Court, as such, their application is dismissed with no order as to cost.
(Z.I.S.) Application dismissedThis 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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