2025 PLP 1768 (CLC)

MUHAMMAD EJAZ SWATI, ACJ.

Pursuance of recommendations of Mines Committee and approval of the competent authority, the respondent No. 02 (Director General Mines and Mineral Balochistan), being the licensing authority vide offer letter dated 09-09-2022 offered the petitioner to grant an area measuring 70.37 square kilometers (17389.79 Acres) under an Exploration License No.EL-223 for a period of three years (for Copper, Gold, Silver, Precious Metals and Base Metals) near Koh-e-Sultan, District Chagai, Balochistan in terms and conditions contained in the offer letter hereinafter referred to as "Exploration License No.EL-223" in C.P. No. 505 of 2024. Similarly after approval of the competent authority the respondent No.2, vide Provisional Offer Letter dated 23-09-2022, offered the petitioner to grant an area measuring 18.792 square kilometers (4643.76 Acres) under an Exploration License No.EL-224 for a period of three years (for Copper, Gold, Silver, Precious Metal and Based Metals) near Dasht-e-Gauran, District Chagai, Balochistan herein after referred to as "Exploration License No.EL-224 in C.P. No. 506 of 2024".

2. The Exploration Licenses Nos. 223 and 224 were cancelled by the respondent No.2 vide separate Notifications dated 19th September, 2023 (the impugned Notifications). After issuing of the above Notifications, the respondent No.3 (the Forest and Wildlife Department, Government of Balochistan) vide separate letter dated 13th September, 2023 regretted NOCs for mining purpose in Koh-e-Sultan area (Exploration License EL-223) and Dasht-e-Gaurah area district Chaghi (Exploration License EL-224) (impugned letters).

3. The petitioners in the above constitution petitions had sought relief that the impugned Notifications and the impugned letters be declared mala fide, illegal, unlawful and without lawful authority and the respondent No.3 be directed to issue No Objection Certificate (NOC) for the area of license, i.e. EL-223 and EL-224 respectively and direct the respondent No.4 to sign a Joint Venture Agreement with the petitioners with respect to the Exploration Licenses, EL-223 and EL-224 for the area in question. Since the facts and law in both the petitions are same, therefore, are disposed of through this common judgment.

4. Mr. Farooq H. Naek, learned counsel for the petitioners argued that cancellation of the Exploration Licenses was without any iota justification; that the respondent had failed to get conducted the demarcation of the subject exploration area despite deposition of demarcation fee; that the petitioners timely approached the respondent No.3 through letter dated 13-10-2022 for justification obtaining NOC but the said respondent, without any cause regretted the petitioners' request for grant of NOC for mining purpose without providing an opportunity of being heard; that the impugned Notifications infringed the fundamental right of the petitioners as envisaged under Articles 10, 4, 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution); that in respect of availability of the alternate remedy of appeal under section 70 of the Balochistan Mines and Minerals Rules, 2002 (BMR Rules) contended that no remedy of appeal is provided against regret of NOC by the respondent No.3, therefore, in such exceptional circumstances bar could not oust the jurisdiction of this Court as the question of interpretation of the same is involved.

5. The learned Additional Advocate General (AAG) contended that after impugned cancellation of the mineral title, the petitioners have already availed the remedy of appeal, which is pending adjudication before respondent No.1, therefore, the instant petitions are not maintainable; that after grant of Exploration License, a show cause notice dated 16-08-2023 was served to the petitioners reference to clause 7, clause 16, clause 19 and Rules 31 (1) (a) and 57 (1) (a) (c) and d) of the BMR Rules for violation of the same and thereafter on 19-09-2023 licence in question were cancelled due to non-compliance; that area in question was granted to Messrs Balochistan Mineral Exploration Company (BMEC) vide allotment letter dated 30-11-2023 as per Notification dated 26 September, 2020 under amended sub-Rule (2) of Rule 10; that the petitioners have failed to comply with the clause 7, clause 9(b)(c)(d), clause 13 and clause 18, besides they have also failed to submit quarterly progress report under Rule 33(3) of the Rules; that petitioners have also failed to obtain NOC from District Forest Officer; that petitioners failed to finalize the Joint Venture Grant with respondent No.4.

6. We have heard learned counsel for the parties and perused the record. The instant petitions have been filed against the separate Notifications dated 9th September, 2023, whereby the Exploration Licenses EL-223 and EL-224 were cancelled by the respondent No.2. The Rule 70 of the Rules provides the remedy of appeal against the order passed under the Rules, therefore, the threshold question of maintainability of the constitution petitions require determination. For the sake of convenience Rule 70 of the BMR Rules is reproduced herein under, "Appeal. - (I) Subject to the terms of a mineral agreement, a mineral title or a mineral concession any person aggrieved by a decision of the licensing authority in respect of any matter or dispute regarding the mineral title or mineral concession may, within thirty days of tile date of that decision, appeal against that decision to the Government in the appropriate department. Explanation:- Appropriate department mean the Secretary Department of Mines and Minerals, Government of Balochistan. (2) A person who lodges an appeal pursuant to this Rule, shall pay in respect of that appeal, the fee specified in the First Schedule or such other fee as may be notified in the Official Gazette. (3) Every appeal on proper format in quadruplicate shall be accompanied by:

(a) Original receipted challan of the appeal fee; (b) An attested copy of the impugned order (4) The decision of the Government of such appeal shall be final. (5) The Government, while hearing the appeal under sub-rule (1) may, if it so considers necessary in the interest of justice, grant a stay order; Provided that no such order shall be passed in respect of Government dues unless the appellant deposits 25% of the disputed amount with the Licensing authority"

7. The bare reading of the above Rule outline the hierarchy and process for appeal in cases involving order of the respondent No.2 touching the grievance of the parties relating to licenses in question. The above provision provides a clear mandate for appeal, ensuring that the aggrieved person can seek redress accordingly. The petitioners filed both appeals before respondent No.1 and these constitution petitions under Article 199 of the Constitution simultaneously against the same impugned notifications issued by respondent No.2 on the premise of abundant caution "to avoid the appeal being time barred" is generally not a sufficient reason for this Court to entertain the constitution petition. The petitioners in the instant petitions seek a declaration that the impugned notifications are illegal, unlawful and void ab initio. It is well settled principle that mere an order is not in accordance with law or incorrect or void, it cannot be said that it has been passed without jurisdiction. Reliance in this respect is to be placed on case reported in 2023 SCMR

866. The authority which passed the order was conferred a power by statute, which provides the right of appeal. The prescribe legal procedure must be followed to avoid excessive cases in the High Court against all types of orders by passing the remedy of appeal provided by th relevant stature. In case titled Muhammad Ismail v. Fazal Zada (PLD 1996 SC 246), the apex Court observed as under, "

9. The High Courts are already huddled up with thousands of cases. If the litigant public is permitted to take all sorts of disputes to the High Court without first availing of the other remedies available to them, under law, it not only necessarily increase the work-load of the High Courts but would also defeat the provisions of law by which the said remedies have been made available. Such a spree on the part of the litigant public would, if we may say so, amount to abuse of the Constitutional jurisdiction which is to be exercised by the High Courts in exceptional cases to provide justice which cannot be otherwise obtained by the aggrieved parties.

10. What emerges from the above discussion is that there is nothing wrong with the order of the learned Single Judge by which he had declined to exercise Constitutional jurisdiction at the instance of the petitioner qua the aforesaid order of the learned Civil Judge. In any case, the order of the learned Judge in Chambers does not, in the aforementioned circumstances, call for interference by this Court.."

8. As a Court of constitutional jurisdiction this Court does not intervene where an aggrieved person has adequate remedy available by way of appeal. In case titled Mumtaz Ahmed v. Assistant Commissioner (PLD 1990 SC 1195) has established that the petitioner should not have approached the High Court without first exhausting other remedy provided in law in the hierarchy. In Jameel Qadir v. Government of Balochistan (2023 SCMR 1919), the Hon'ble Supreme Court observed as under, "

13. The writ jurisdiction of the High Court cannot be worn out as a solitary way out or remedy for aerating all sufferings and deprivations. The doctrine of exhaustion of remedies stops a litigant from pursuing a remedy in a new court or jurisdiction until the remedy already provided under the law is exhausted. The underlying principle accentuated in this doctrine is that the litigant should not be encouraged to circumvent or bypass the provisions assimilated in the relevant statute. The extraordinary jurisdiction of the High Court under Article 199 of the Constitution cannot be reduced to an ordinary jurisdiction of the High Court. It is a well settled exposition of law that disputed questions of facts cannot be entertained and adjudicated in the writ jurisdiction. The expression "adequate remedy" signifies an effectual, accessible, advantageous and expeditious remedy."

9. In the instant petitions, the petitioners' appeals are pending before respondent No.1, where an efficacious alternate and time bound definite remedy is available specifically constituted under the law, the resort to extraordinary constitutional jurisdiction before this Court does not favour unless exceptional circumstance is shown. The Hon'ble Supreme Court of Pakistan in case title Aftab Ahmed Khan v. Muhammad Ajmal (PLD 2010 SC 1066) laid down the very principle while observing as follows, "

11. We have considered the above and are constrained to hold that the constitutional jurisdiction (reference Article 199) of the High Court in all the cases cannot be invoked as a matter of right, course or routine, rather such jurisdiction has certain circumventions which the Court is required to keep in view while exercising its extraordinary discretionary powers, as the conditions mentioned in Article 199 of the Constitution are obviously meant for the purposes of regulation of the Courts jurisdiction and the availability of "other remedy" is one of such limitations. When the petitioner has no explanation to offer, as to why the "other remedy", which is a definite one in nature; is time bound and is, specifically designed and prescribed by the legislature keeping into consideration time constraints in the election process, but has not been availed for any good reason, by the petitioner. Whether still the High Court should have imperatively interfered in the matter and the refusal thereof should be construed as an erroneous or patently illegal order or an order suffering from any jurisdictional defect calling for the intervention by this Court in its instant jurisdiction? The answer is in negative." In Para-12 it was observed as under, "

12. Resultantly, in the circumstances of the case, the High Court had rightly refused to interfere in its constitutional jurisdiction, when an appropriate, efficacious and adequate alternate remedy available to the petitioner has not been availed by him without any justification. The High Court in such like cases is not bound to issue the writ, especially when there was no material on record to eminently and conclusively establish the inherent lack (as shall be explained in succeeding part of this judgment while dilating on another point) of respondent's qualification so that he could be hit by Article 62(f) of the Constitution. It may be pertinent to mention here that to hold a person lacking honesty, being not, Sagacious, righteous, Ameen and non-profligate, in other words is to declare him a fraud, cheat and dishonest, etc. which shall be a stigma on his face entailing great immense, and innumerable legal and social consequences and repercussions; this to our mind shall not be justified without there being an adjudication made by the Court of competent jurisdiction to hold him carrying such a "vice". In this connection reference can be made to the judgment of this Court reported as Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD SC 265), in which it has been held "if a person involved in corruption and corrupt practices has been finally adjudged to be so, then on the basis of such final judgment his candidature on the touchstone of Art. 620 of the Constitution could be adjudged to the effect whether he was sagacious, righteous, non-profligate, honest or Ameen". This means that the declaration, determination and adjudication of a person falling within the mischief of the noted Article by appropriate forum is a pre-requisite. Such determination in appropriate cases can also be possible though the medium of Retuning Officer or the appeal arising therefrom, but it can hardly be agreed if it should be straight away done in the Writ Jurisdiction when there is a factual controversy involved."

10. In the instant petitions, the petitioners have already availed the remedy of the appeal, which is pending adjudication before respondent No.1, which is not only efficacious, but also effective as it allows for both factual and legal question to be examined by the authority designated under the BMR Rules. In view of the above, C.Ps. Nos. 505 and 506 of 2024 are dismissed being not maintainable. However, the appellate authority is directed to decide the appeal expeditiously in accordance with law after providing opportunity of being heard to both the parties. UN/81/Bal Petitions dismissed.