P L D 2017 Balochistan 100
Before Muhammad Noor Meskanzai, C.J. and Abdullah Baloch, J
Messrs SINO PAK MINERALS PRIVATE LIMITED, ISLAMABAD through Law
Associates Office--- Petitioner
Versus
SECRETARY MINES AND MINERALS, GOVERNMENT OF BALOCHISTAN and
another ---Respondents
Constitutional Petition No.718 of 2013, decided on 21st April, 2017.
(a) Balochistan Minerals Rules, 2002---
----Rr. 33(3), 47(2)(f) & 56(3)(4) ---Mine lease, cancellation of ---Lease of mines granted in
favour of petitioner were cancel led by authorities on the ground that petitioner did not submit
quarterly progress reports and violated the rules ---Plea raised by petitioner was that no notice
was served upon petitioner and it was unaware of letter on its addresses issued by authorities ---
Notice issued to petitioner for submission of quarterly progress reports and thereafter for
cancellation of mining lease were not served upon petitioner in a proper and authenticated
manner ---Petitioner was condemned unheard and no opportunity was afforded to it ---High Court
set aside orders passed by authorities, as they were void ab initio and of no legal effect ---High
Court directed authorities to provide proper opportunity to petitioner and to decide the matter in
accordance with law ---Constitutional petition was allowed accordingly.
(b) Constitution of Pakistan --
----Art. 199---Civil Procedure Code (V of 1908), S.151 & O.I, R.10---Constitutional petition ---
Necessary party ---Scope ---Applicants sought to be impleaded as respondents ---Validity ---After
surrender of rights in favour of petitioner, interveners had no character in title of leasing, having
no locus standi to be impleaded as necessary party ---Application was dismissed in
circumstances.
Iqbal Shah for Petitioner.
Zahoor Ahmed Baloch, Assistant Advocate General assisted by Abdul Mateen Kakar,
Law Officer Mines and Minerals Department for Respondents.
Behlol Khan Kasi for Intervener Abdul Jaleel, Proprietor of Messrs Bagh Metal for
Respondents.
Date of hearing: 29th March, 2017.
JUDGMENT
ABDUL LAH 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 noti fication and order dated 20- 9-2013
may kindly be declared unlawful, illegal and without lawful 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 approp riate 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 a rea of 619.83 Acres situated at Killa
Saifullah for a period of 30 years under the Balochistan 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 s hape 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 s 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 ailment (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 officia l address of the petitioner and thereafter through impugned Notification dated 20th
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 required 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 Nos. 1 and 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, Rul es 10/2 read with Section 151 C.P.C. (C.M.A. No.610/2014) for impleading as
respondent in the petition, which application was contested by the petitioner by filing it
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, whereafter work order
was also issued to the petitioner and the petitioner after proper development of infrastructure
started mining activities, that the petitioner spen t 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 report to the respondent No.2; that half and(sic)
sudden the respondent No.2 issued a notice to the petitioner, which was not ser ved 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 partem"; 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 justice 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 mining 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 mining 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 la ter on
surrendered in favour of the petitioner i.e. M/s Sino Pak Minerals 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 s ame in favour of M/s Sino Pak Minerals (Pvt.) Ltd. "petitioner's Company" and the said
application was accepted and the mining lease was allotted to the petitioner on 5th November,
2007, which was later on converted in to mining lease and the work order wa s 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 c arried out in the said lease, however, during the course
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 here 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, which 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, Pounch
House, Adamjee Road, Saddar, Rawalpindi" and in consequence whereof the respondent No.2
has cancelled the mining lease of the petitioner, vide notification dated 20th May, 2013 and the
said letter was also addressed to the petitioner on the sam e 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 mentioned here that initially
when the respondent N o.2 allotted the mining lease to the petitioner, the address of the petitioner
was mentioned in the allotment 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 initially 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 address 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 response 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 w as
cancelled. Hence, the notice so issued cannot termed to be served upon the petitioner.
9. During the course of argument, it was confronted to the Law Officer of the respondent
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 portion is reproduce herein below;
"After hearing the parties and consulting the record, it has been observed that the
appellant has kept the area idle, n ever submitted quarterly progress report and violated
the rules 33(3) and 56(3)(4), 47(2)(f) of BMR 2002. Moreover, 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 pr ogress 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, t herefore,
the order passed by the authorities are void ab intio and of no legal affect, as such, we are
inclined to accept this petition and to set aside both the orders, dated 20th 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 to 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 bef ore it by filing reply of the said notice and the respondent No.2
is directed after providing proper opportunity 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 costs.
MH/74/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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