P L D 2021 Balochistan 45
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
AMANULLAH BAZAI through Attorney ---Petitioner
Versus
DIRECTOR GENERAL OF MINES AND MINERAL (DEV.) DEPARTMENT,
BALOCHISTAN and another ---Respondents
C.P. No. 422 of 2019, decided on 19th August, 2020.
Balochistan Mineral Rules, 2002 ---
----Rr. 57, 70, 83 & 90---Constitution of Pakistan, Art. 199--- Constitutional petition---
Condemned unheard--- Show -cause notice---Necessary ingredients ---Petitioner was aggrieved
of cancellati on of his Prospecting Licence for coal ---Plea raised by petitioner was that no
notice was issued by authorities before cancelling his licence---Validity ---Before any action
was taken, affected party was to be given a notice to show cause against proposed a ction and
to seek his explanation, as the same was sine qua non of right of fair hearing---Any order passed without giving notice was against principles of natural justice and was void ab initio---Before taking any action, it was right of a person to know the facts, as without knowing
facts of case no one could defend himself ---Right to notice meant right of being known---
Right to know facts of suit or case was to happen at start of any hearing and notice was a
must to start a hearing ---Notice was to contai n time, place and date of hearing, jurisdiction
under which case was filed, charges and proposed action against person---All such things were to be included in notice to make it proper and adequate ---Whenever statute made it
clear that notice was to be iss ued to party and if no compliance or failure to give notice
occurred, the same had made that act void---Non -issue of notice or any defective service of
notice did not affect jurisdiction of authority but had violated principles of natural justice ---
Cancell ation orders passed by authorities were illegal, perverse to record and arbitrary---
High Court set aside orders passed by authorities as the same were void and of no legal effect ---Constitutional petition was dismissed, in circumstances.
2002 SCMR 1034 r el.
Abdul Zahir Kakar for Petitioner.
Zahoor Ahmed Baloch, Assistant Advocate General ("A.A.G.") for Respondents
Nos.1 and 2.
Ewaz Zehri for Respondent No.3.
Date of hearing: 11th August, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---The petitioner through the instant writ petition has
sought to invoke the constitutional jurisdiction of this Court under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973 and prayed that: --
"It is, therefore, humbly prayed that in view of the submis sion made herein above, the
orders impugned dated 15.04.2016 and 27.03.2019 passed by the respondents may kindly be set aside and restore the same in favour of petitioner, in the interest of justice, equity and fair play.
Further relief may be granted as fit and proper".
2. Brief facts leading to the present petition are that the petitioner had applied for grant
of a Prospecting License for coal measuring 350 acres of land situated at Sorrange District Quetta on 15.04.1975. After fulfillment of all require d formalities of Prospecting License
granted an area of 300 acres in favour of petitioner vide Mining Allotment No.PL -31
(2910)/7012- 18 dated 20.08.1976 and work Order No.PL -31 (2910)/8038- 43 dated
01.10.1976. After allotment of said area in the name of pe titioner (Messrs Amanullah Bazai)
was taken all the necessary steps towards the development of his granted area, first of all, he constructed the link road and residential accommodation for labours and staff. After that petitioner started prospecting opera tion and development work of the area on which the
petitioner invested millions of rupees in the development of area and in the shape of rent and royalties in the office of respondent. It is further averred in the petition that before expiry of Prospecting License the petitioner similarly applied for conversion of Prospecting License
into regular mining lease vide application dated 21.06.1976. The petitioner contacted the
office of respondent No.1 (DG Mines) in connection with his case regarding application for
conversion of Prospecting License into mining lease, it was shocking to know that the Prospecting License of the petitioner has been cancelled vide Notification No.ML -53 (1547)
on 15.04.2016 under Rules 57, 83 and 90 of the Balochistan Mineral Rules, 2002 without any notice of afforded opportunity of hearing to the petitioner.
3. Being aggrieved from the order of the respondent No.1 dated 15.04.2016 the
petitioner filed appeal under section 70 of the Balochistan Mining Concession Rules, 2002 (hereinaft er "the Rules") before the Secretary Mines and Minerals Department, Government
of Balochistan, Quetta, (respondent No.2), who after hearing both the learned counsel for the parties, dismissed the appeal of the petitioner on 27.03.2019. Hence the petitioner filed the
instant writ petition.
4. On 29.04.2019 the respondent No.2 (Messrs Zafar Shah Coal Mines) filed an
application under Order I, Rule 10, C.P.C. for impleading the applicant/intervener as a respondent in the petition on the ground that after cance llation of the Prospecting License of
the petitioner he applied for Prospecting License for the same coal mines. The said application was accepted by this Court and the applicant/intervener is ordered to be impleaded as respondent No.3. The learned counsel for the petitioner was directed to file
amended title of petition by arraying applicant/intervener as respondent No.3.
5. The respondents were directed by this Court to submit their written comments. The
official respondents and private respondent filed t heir written comments separately and
denied the averments of the writ petition.
6. Learned counsel for the petitioner vehemently argued that the impugned orders are
illegal, arbitrary, perverse and based on malice and mala fide. He further argued that neit her
opportunity of hearing was provided to the petitioner before passing of the impugned orders
of cancellation of Prospecting License of the petitioner and nor show -cause notice was given
to the petitioner, therefore, the petitioner has been condemned unheard, which action of the official respondents is violative of his fundamental rights guaranteed under the Constitution. Lastly prayed for acceptance of the writ petition by setting aside the impugned orders and subsequent allotment in favour of petitioner .
7. Conversely, the learned Assistant Advocate General vehemently opposed the
arguments so advanced by the learned counsel for the petitioner and contended that the petitioner has failed to start mining activity in the mining lease and the same was kept i dle
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 mining lease of the petitioner in ac cordance 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.
8. Learned counsel for the respondent No.3 also strongly controverted the submissions
of the learned counsel for the petitioner and argued that after issuing Prospecting License in the year 1976, the said area was allotted to the petitioner was kept idle and the official respondents rightly cancelled the al lotment of the petitioner and he applied for allotment of
the said area.
9. We have heard the learned counsel for the petitioner as well as learned counsel for the
private respondent and learned A.A.G. and have gone through the available record with their
able assistance.
10. In their para wise comments the respondents have stated that show cause notices were
issued to the petitioner dated 05.03.2013, 01.08.2013 and 19.02.2016 for completion of codal formalities for conversion of Prospecting License i nto mining lease.
On the other hand, the official respondents also admitted in their para wise comments
that the petitioner applied on 21.06.1979 for conversion of Prospecting License into mining lease. However, the petitioner kept the area idle since lon g and failed to submit Exploitation
Scheme and Bank Guarantee.
11. Neither any show -cause notice allegedly issued to the petitioner has been placed
before this Court by the official respondents before this Court nor any documents have been produced by the official respondents to show that any show cause notice was ever served upon the petitioner. It is worthwhile to mention here that no date and dispatch number of show -cause notice mentioned in the impugned notification of cancellation dated 15.04.2016,
but on the other hand, the petitioner denied to have received any show -cause notice.
12. The basic grievance of the petitioner is that the respondent No.1 has passed the order
dated 15.04.2016 and cancelled the coal mines of the petitioner without affording a ny
opportunity of hearing to the petitioner and condemned unheard, as such, there is clear
violation of principle of natural justice and that too this aspect of the matter has not been discussed and resolved by respondent No.2 who passed the impugned order dated
27.03.2019. It will be useful to reproduce Rule 90 pursuant to which the said notice was stated to have been issued: --
"90. Keeping the Area Un- Worked/Un -Utilized. (1) Mining concession holder shall
carry out mining operations in a proper skilful a nd 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 of has k ept 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".
13. From the above it is very much clear that the affecting person should not be
condemned unheard and should be allowed opportunity of hearing in case any order is passed
against him/her. In view of the peculiar facts and circumstances of the case in hand, this Court would not discuss in deep the merits of the case, lest it may prejudice the case of any of the parties. However, on cursory perusal of the record reveals that the respondent No.1 without giving any notice to the petitioner and providing him opportunity of hearing passed order of cancellation of the mines of the petitioner which is against the principle of natural justice.
14. This is the first principle of civilized jurisprudence and is accepted by laws of men.
Before any action is taken, the affected party must be given a notice to show cause against the proposed action and seek his explanation. It is a sine qua non of the right of fair hearing. Any order passed without giving notice is against the principles of natural justice and is void ab initio. Before taking any action, it is the right of the person to know the facts. Without knowing the facts of the case, no one can defe nd himself. The right to notice means the right
of being known. The right to know the facts of the suit or case happens at the start of any hearing. Therefore, notice is a must to start a hearing. A notice must contain the time, place and date of hearing. jurisdiction under which the case is filed, the charges, and proposed
action against the person. All these things should be included in a notice to make it proper and adequate. Whenever a statute makes it clear that a notice must be issued to the party and
if no compliance or failure to give notice occurs, this makes the act void. Non- issue of the
notice or any defective service of the notice do not affect the jurisdiction of the authority but violates the principle of natural justice.
15. Be that as it may , by now it is well settled that even if statutory law or rule does not
provide a right and opportunity of hearing before taking any action or passing any order
detrimental to the rights of a person (s) still it would be deemed that such right is available to
the person/persons aggrieved, which cannot be taken away from him/them on the ground that the authority under the law is not obliged to give him/them prior notice. Even the principle of
natural justice "audi alteram partem" is to be read into every statute regardless of that
whether or not the same is contemplated in a statute/instrument governing proceedings and
rights of the parties in this respect. Wisdom is derived from the judgment of apex Court reported in 2002 SCMR 1034, wherein it is held that: -
"We have considered the arguments so advanced by both the sides in this behalf it may be noted that in the judicial history of our country as well as in those countries where identical/ corresponding system of administration of justice is in vogue the principle enshrined in the maxim audi alteram partem has been made applicable
expressly or impliedly in every instrument governing the proceedings which may be
statutory or otherwise and if its absence is conspicuous by not making it a part of the
instrument governing the proceedings. Though the principle of audi alteram partem is
not universally accepted principle but emphasis on its application has always been made on those proceedings where adverse action is being contemplated to be taken against the perso n/persons who have at least a right to defend such action or during
course of time they have acquired a right to negate allegations on basis of which an action adversely affecting their interest is being taken".
There is no allotment in favour of the respondent No.3 for the disputed area. The
respondent No. 3 had only filed an application for allotment and same is pending before the respondent No.1, therefore, respondent No.3 has no locus standi to contest the instant constitution petition.
16. In the ligh t of above discussion, we have reached to the conclusion that the
cancellation order dated 15.04.2016 passed by respondent No.1 (DG Mines and Minerals) and order dated 27.03.2019 passed by respondent No.2 (Secretary Mines and Minerals) are illegal, pervers e to record and arbitrary, therefore, the constitution petition is accepted and
the orders dated 15.04.2016 and 27.03.2019 passed by respondents Nos.1 and 2 are declared void and of no legal effect.
The respondent No.1 is held at liberty to issue a fresh show -cause notice to the
petitioner for violation, if any, of the provisions of Balochistan Minerals Rules, 2002 and shall afford fair opportunity of hearing to the petitioner. The respondent No.1 is directed to decide the application dated 21.06.1979 subm itted by the petitioner for converting the
Prospecting License into Mining Lease on merits in accordance with law after hearing the petitioner.
The petition is disposed of in the above terms.
MH/209/Bal. Petition alloweThis 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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