P L D 1984 Quetta 163 (PLP)

MUFTAKHIRUDDIN, J.‑By this petition the 2 orders, one the order dated 31‑1‑1984 made by Director, Mineral Development, Government of Baluchistan and the other dated 11‑2‑1984 passed by the Secretary, Industries and Mineral Resources, Quetta have been challenged and it has been prayed that these two orders may be set aside and a direct enquiry into the matter by an impartial authority or agency be made. It has been further prayed that this "Hon'ble Court may be pleased to direct the suspension of the orders of the respondent No. 2, dated 31‑1‑1984 whereby he has allowed the respondent No. 4 to continue excavation of the coal with the connivance of the respon dent No. 3.

2. This petition is filed by Malik Abbas Raza son of Malik Wilayat Hussain, claiming himself as Director of the private Limited Company called Malik Wilayat Hussain and Sons Ltd. According to the averments this private limited company owned coal mines at Quetta, Mach and Sharigh and according to the petitioner on the basis of internal arrangement between the petitioner's group 'A' and respondent No. 3's group `B' the mines were distributed among the heirs of late Malik Wilayat Hussain. This petition is concerned with lease No. 109/152 at Sharigh. It is the case of the petitioner that group 'A' has been working this lease No. 108/152 at Sharigh and in order to cause loss to group `A' this lease has been handed over or sold by the respondent No. 3 to the respondent No. 4, who has been illegally excavating coal from this mine. In the month of March, 1983 on account of the disturbance created by the labour at the instance of respondent No. 3 the petitioner's group 'A' was deprived of the management of the lease at Sharigh whereupon the respondent No. 2 was approached who first ordered that the illegall mining be discontinu ed but later on 31‑1‑1984 the order was withdrawn and mining operation in lease No. 109/152 at Sharigh was allowed. Since a copy of this. order was endorsed to respondent No. 4, Haji Habibullah, the petitioner considered this order as allowing the respondent No. 4 to work the mine. This order dated 31‑1‑1984, impugned in this petition being relevant is reproduced ;‑ STATE ORDINARY TELEGRAM To The Deputy Commissioner, Sibi Repeated Assistant Commissioner, Harnai In continuation of Telegra‑M No. ML‑53 (101)/601‑4, dated 25‑1‑1984 please furnish your report immediately on physical verification about the alleged unauthorised mining by one Haji Habibullah son of Haji Ajab Khan (.) Till then the mining operation in leases Nos. 109 and 152 at Sharigh should not be stopped. N. T. B. T. (sd.) . . ... ...... Director, Mineral Development, Quetta No. DMDIML‑53 (101)/697‑700, dated Quetta 31‑1‑1984. Copy by post in confirmation is forwarded to :- (1) The Deputy Commissioner, Sibi. (2) The Assistant Commissioner, Harnai. (Sd.) Director, Mineral Development, Quetta Endst. No. DMD/ML‑53 (101)/697‑700, dated Quetta 31‑1‑1984. The Mineral Development Officer, Regional Office, Duki with the direc tions to investigate in the matter and report immediately. (Sd.) .. .. . .... . ... Director, Mineral Development, Quetta. Endst. No. DMD/ML‑53 (101)/697‑700, dated Quetta 31‑1‑1984. Copy to (1) Messrs Mallick Willayat Hussain and Sons Limited, Jinnah Road, Quetta with reference to his letter No. MWEI/152/109, dated 24‑1‑1984. (2) Messrs Haji Habibullah son of Haji Ajab Khan, Coal Agent, Jinnah Road, Quetta. (3) Master File. (Sd.) Director, Mineral Development Quetta. 2‑A. Messrs Mallick Willayat Hussain and Sons Ltd., filed an appeal against this order before the Secretary, Industries, Government of Baluchistan. From the lengthy pleadings it appears that the respondent No. 3 on coming to know of the appeal controverted the facts contained in the appeal and prayed for the dismissal of the appeal. The respondent No. 1, however, vide an interim order made on I1‑2‑1984 required the Director, Mineral Development and (Licensing Authority) to submit his comments and forward the documents produced by parties before him and the appeal was fixed for 7‑3‑1984 for hearing. The operative part of the order is reproduced in the words used by the Secretary, Industries himself :‑ "Both the representatives of the two groups belonging to the same company namely Messrs Mallick Willayat Hussain and Sons Limited did not produce evidence or documentary proof with regard to the authority of running leases No. 109 and 152 at Sharigh in the event of any disagreement or conflict. However, Mr. Iftikhar Hyder claimed that he can produce documentary evidence during the next hearing. After hearing both the groups, no decision can be made with regard to the conduct of business unless all documents connected with the regis tration of the Company under Company's Act, 1913 and transfer deeds etc. of all the mines originally owned by Messrs Mallick Willayat Hussain and Sons Limited are thoroughly examined. Under the present circumstances 1 hereby order that the Director, Mineral Development (Licensing Authority) may consult their record and collect additional information, if required for ascertaining as to who has been authorised to exercise authority on behalf of firm Messrs Mallick Willayat Hussain and Sons Limited to conduct affairs of leases No. 109 and 152 at Sharigh. Moreover, Director, Mineral Development (Licensing Authority) should also submit his comments with regard to the question of illegal mining taking into account rules. The next hear ing of this case is fixed for 7‑3‑1984." The petitioner feeling aggrieved of this order of the Secretary has approached this Court.

3. It is significant to mention that the appeal before the Secretary, Industries the respondent No. 1 was filed in the name of Messrs Mallick Willayat Hussain and Sons Limited but this petition has been filed by Malik Abbas Raza claiming himself as a i. !rector of Mallick Willayat Hussain and Company.

4. The respondent No. 3 has replied to the contents of the petition and has disputed the facts that there was a family settlement which the petitioner wants to be maintained/enforced through this petition and it is denied that the mines at Sharigh were ever entrusted to Group 'A' of the heirs of late Mallick Willayat Hussain. It is also. disputed that respondent No. 4 is in any way concerned with the excavation of the working of the coal at' Sharigh. It is also claimed by respondent No. 3 that the petitioner has no locus stand! to file this petition in his personal name. The petition has been filed by Mallick Abbas Raza because the majority of the members of the Board of Directors of the company have applied for withdrawal of the proceedings before the respondent No.

1. It is also contended in the counter‑affidavit on behalf of the respondent No. 3 that the parties have agreed to refer the dispute to the three arbitrators named in the rejoinder, as such the petition has become infructuous. It is asserted by the respondent No. 3 that they are working the lease No. 109/152 at Sharigh in their own right to the knowledge of the petitioner throughout.

5. On behalf of the respondent No. 1 it is shown in the comments furnished by the respondent No. 1 that the order was in fact made on 11‑2‑1984 and not 21;2‑1984, as shown in the petition. The order impugned is not a final order and the appeal filed by Mallick Willayat Hussain and Sons is still sub judice. The documents and the information from the respondent No. 2 were required for the proper and effective adjudication of the appeal and since no final order has been passed, the constitutional petition is not maintainable, as the remedy of appeal is sought by Messrs Mallick Willayat Hussain and Sons through whom only the petitioner can claim any benefit.

6. We have heard learned counsels of‑the parties at considerable length but in our opinion the petition can be disposed of on a short ground that the appellate authority has so far not passed any order in the matter. Apart from the factual controversies raised in the matter the real question that falls for determination in the case is whether !t will be proper to stay the operation of the impugned order (order dated 11‑2‑1984) which is entirely within. the discretion of the authority in the exercise of its appellate jurisdiction. It can, not be doubted that the documents referred to by the appellate authority are relevant to the matter before him. It can also not be disputed that the question whether or not to grant interim relief to a party was entirely discre tionary with the respondent No. 2 which he exercised subject to jurisdiction of the appellate authority. The question whether in the circumstances of the case interlocutory injunction/order should have or should not have been issued is mainly a question of individual judgment and approach. The mere fact that in the instant case, the discretion has not been exercised by the appellate authority will not lay a foundation for interference by the High Court, even in its revisional jurisdiction had that authority been directly subordinate to High Court. The question relating to prerequisites for the exercise of revisianal jurisdiction of the High Court was considered by a Full Bench of Seven Judges of erstwhile High Court of West Pakistan in S. Zafar Ahmad v. Abdul Khuliq (1) and it was ruled in that case that section 115, C. P. C. does not concern itself directly with justice or injustice. It is not a power to substitute what appears to the revisional Court to be the correct view of the merits of a case. It is on the contrary concerned with the exercise of jurisdic tion. On this question the learned Chief Justice who wrote the leading judg ment summed up his conclusions, relevant to.this case at page 158 of the report are as follows :‑‑ "

20. It seems appropriate to take this opportunity to state clearlY a few guiding rules of practice which are liable to be overlooked when dealing with particular cases :‑ (a) . (b) Since the power conferred on section 115 is meant for correcting errors made by the subordinate Courts in relation ‑to the existence or the exercise of their jurisdiction, no occasion arises to exercise it in relation to a matter which is within the discretion or authority of a subordinate Court. This power should therefore, never be exercised so as to usurp the discretion or authority of a subordinate Court. We feel ourselves bound by the above dictum of their Lordships. So, where all that can be said is that the subordinate Court had not exercised its discretion in a proper manner, or in other words it is case of improper exercise of discretion the matter is not revisable under this section. The Supreme Court in Muhammad Hussain Munir v. Sikandar (P L D 1974 S C 139) had declared that the High Court's supervisory jurisdiction, having regard to its nature or contents is assimilable to its jurisdiction under section 115, C.P. C. A Division Bench of the Lahore High Court in Dr. Abdul Hafeez v. Chairman Municipal Corporation (P L D 1967 Lab. 1251) has laid down that the discretion con ferred on the High Court cannot be exercised as a matter of course. The High Court acts in aid of the law and not to hamper smooth working of the agencies establised by law or set up a hegemony in itself. A Division Bench of this Court to which I was a party in Quetta Club's case (P L D 1983 Quetta 46) has also expressed the same view.

7. From the above discussion we must not be understood as saying that in no case a revision would lie against an interlocutory order, or for that matter against any other order which was within the discretion of a subordinate Court to make. It is possible to conceive of cases in which the discretion has been exercised mala fide or arbitrarily or for extraneous reasons not germane to the case. The High Court in such cases is bound to interfere to set the matter right. The present case is certainly not such an exceptional case. 'The appellate authority, the respondent No. 1 has not so far made any observation touching the merits of the case. It will still be open to the petitioner to satisfy the authorities that he has a prima facie case or that the documents relied upon by them establish their case and they are entitled to the relief claimed in the appeal and we do not find ourselves justified in expressing ourselves on the merits and thus substitute our opinion for the appellate authority. The upshot of the above discussion is that the supervisory jurisdiction of the High Court in the present case is definitely not called for, because no order so far exists, no misuse of jurisdiction to involve interference by the High Court in Constitutional jurisdiction is found. For the above reasons the petition fails and is accordingly dismissed with costs. M. Z. er. Petition dismissed.