P L D 2024 Peshawar 20 (PLP)

WIQAR AHMAD, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, petitioner Malik Israel has challenged the impugned order dated 07.09.2022 passed by learned Appellate Tribunal Mines and Minerals Peshawar, whereby appeal of respondent No.7 against the order dated 03.02.2022 of Licensing Authority/ Mineral Titles Committee, Peshawar was allowed.

2. As per contents of instant petition, petitioner had been granted Prospecting License for marble over an area of 206 acres near village Ziarat District Mohmand in the year 2008, with consent of local community namely Said Khan Kor. Subsequently it was converted into Mining Lease over reduced area of 200 acres vide office order dated 17.06.2021. In the year 2016, petitioner intended to assign/transfer 38.71 out of his 200 acres lease in favour of one Jan Wali (respondent No.7) being in close terms with him. After fulfilling codal formalities, respondent No.7 was granted lease over 47.83 acres instead of 38.71 acres. Aggrieved from same, petitioner and local community known as "Said Khan Kor" submitted application before Deputy Commissioner, District Mohmand (respondent No.6) to prevent grant of Mining lease to respondent No.7, which was marked to Tehsildar Safi for inquiry and verification. He submitted his report dated 26.12.2019, concluding therein that Qoum Said Khan Kor was unwilling to make any agreement with respondent No.7 for grant of Mining Lease in their area. It had also been mentioned therein that petitioner was reluctant/unwilling to give NOC to respondent No.7 regarding assignment process. Meanwhile, petitioner also submitted application on 25.07.2019 before Director General, Mines and Minerals, Peshawar (respondent No.3) for withdrawal and cancellation of assignment and NOC in favour of respondent No.7. It was marked to Additional Assistant Commissioner Safi, who submitted his report dated 13.12.2021, expressing apprehension that in case of assigning lease in favour of respondent No.7, against will/consent of owners/Qoum, it would lead to law and order situation as well as unending disputes. On 14.05.2020 respondent No.7 entered into agreement with 44 persons of Qoum Said Khan Kor while remaining people of Qoum Said Khan Kor executed agreements with one Arifullah and Haji Gulsher. The case of part assignment in favour of respondent No.7 was placed before respondent No.4/Licensing Authority/Mineral Titles Committee (hereinafter referred to as MTC) in its meeting dated 03.02.2022, whereby it was decided to refer the case to Dispute Resolution Committee (hereinafter referred to as DRC) constituted under the Khyber Pakhtunkhwa Mines and Minerals Act 2017, for looking into matter and submitting its recommendations, who submitted recommendations/ report. Against decision dated 03.02.2022, respondent No.7 preferred appeal under Sections 102/102-A of the Khyber Pakhtunkhwa Mines and Minerals Act, 2017 (hereinafter referred to as Act 2017), before Mines and Minerals Appellate Tribunal, Peshawar (respondent No.1), which was allowed vide judgment dated 07.09.2022, thereby granting Prospecting License to respondent No.7 over 47.83 acres of area earlier granted to petitioner. Aggrieved from same, petitioner has filed instant Constitutional petition.

3. We have heard learned counsel for the parties and gone through available record.

4. Perusal of record reveals that MTC was seized with dispute in case in hand and had not yet finally decided the matter when Mines and Minerals Appellate Tribunal (hereinafter referred to as Appellate Tribunal) entertained and allowed appeal filed by respondent No.7 without hearing petitioner. Last decision of MTC is also reproduced herein for ready reference:- "The Mineral Title Committee in light of personal hearing decided to refer the case to the Dispute Resolution Committee (DRC) constituted under Section 8(A) (amended) of the Khyber Pakhtunkhwa Mines and Minerals Act, 2017 to look into the matter as per available record and procedure in vogue and submit its recommendations."

5. After report of DRC, decision regarding allowing assignment or otherwise in favour of respondent No.7 was yet to be taken by MTC. Entertaining of appeal before decision of MTC was premature. Section 102 of Act 2017, an appeal is provided against order of Licensing Authority i.e., MTC. When the Licensing Authority had not passed final order in the matter, appeal was not maintainable under Section 102 of the Act 2017. MTC had just referred the matter for resolution to DRC and had not taken decision regarding grant or refusal of mining title. Appeal had clearly been filed at a premature stage.

6. Besides, the Appellate Tribunal entertained an appeal wherein petitioner, who had been Mineral Title Holder had not been arrayed as party. The appeal was even allowed despite the fact that it had been brought to notice of Appellate Tribunal that petitioner had been the original Mineral Title holder, as the discussion in impugned order devolved around said fact. Rule 19 of the Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal, 2022 provides that any person likely to be adversely affected by any decision has to be arrayed as respondent and give due notice of appeal. Said Rule being relevant is also reproduced herein for ready reference:-

19. Adding respondent

When it appears to the Appellate Tribunal at the hearing that any person, who is interested in the result of the appeal, has not been made a party in the appeal, the Appellate Tribunal may adjourn the hearing to a further date to be fixed by it and direct that such person be made respondent."

7. It is strange that despite having knowledge of the above stated facts, learned Appellate Tribunal closed its eyes and the affected person i.e., existing mineral title holder, could not be impleaded in appeal nor given any notice of pendency of such appeal. On both scores mentioned above, impugned judgment of Appellate Tribunal is not sustainable.

8. We also noted that in the decision of appeal names of members of Adjudicating forum could not be found anywhere. Neither their names nor designations have been mentioned, even along with signatures at the end. Hon'ble Supreme Court of Pakistan has taken a serious notice of such manner of issuing of orders by public authorities while giving its judgment in case of "Province of Sindh and others v. Shahzad Hussain Talpur" reported as 2022 SCMR

439. Relevant observation in said judgment is also being reproduced herein for ready reference:- "We are also convinced that there is a need to put a stop to the use of the illusive and elusive term - the competent authority without disclosure of the competent authority's designation and name. Therefore, the governments of Sindh (petitioner No. 1), Baluchistan, Khyber Pakhtunkhwa, Punjab, the Government of Pakistan, Registrars of the Supreme Court and all High Courts, and through the Registrars of the High Courts all District and Sessions courts, are required to issue requisite orders/directions that they and their respective functionaries, semi-government and statutory organizations whenever issuing notifications, orders, office memorandums, instructions, letters and other communications must disclose the designation and the name of the person issuing the same to ensure that it is by one who is legally authorized to do so, and which will ensure that such person remains accountable."

9. We in the circumstances direct that Appellate Tribunal shall give full names of Chairman as well as members along with their respective designations in future. We also expect that Appellate Tribunal would comply with its own rules, particularly Rule 19 of Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal 2022, before rendering decisions in appeals. 11(sic). In light of what has been discussed above, instant petition is allowed, impugned judgment dated 07.09.2022 of Appellate Tribunal is set aside and matter is remanded to Mineral Titles Committee with direction to decide the matter afresh. MQ/224/P Petition allowe