2019 PLP 640 (MLD)

RAJA SAEED AKRAM KHAN, J.

This appeal by leave of the Court has been directed against the judgment/order of the High Court dated 26.01.2018, whereby the writ petition filed by the appellant, herein, has been dismissed in limine.

2. The facts necessary for disposal of this appeal are that a lease/mining permit of the land situated at Shawai Muzaffarabad was issued in favour of the grandfather of the appellant. The acreage of the land/area was subsequently increased and no objection certificates (N.O.Cs.), from the concerned departments were also obtained. The grandfather of the appellant due to serious illness executed an Iqrar Nama, for transfer of the leased property in favour of the appellant. After due process of law, the mining permit was issued in favour of the appellant on 24.06.2016. For protection of the said permit, the appellant filed a writ of prohibition before the High Court on 15.12.2016. The writ petition was dismissed on the ground that the appellant is minor and no lease can be granted in his favour. The judgment/order of the High Court was challenged before this Court by filing a petition for leave to appeal. During the pendency of petition for leave to appeal before this Court, the concerned authorities vide order dated 02.06.2017, cancelled the mining permit issued in favour of the appellant. Thus, the petition for leave to appeal being infructous, was dismissed. The appellant, feeling aggrieved from the cancellation order dated 02.06.2017, filed an appeal before respondent No.1, which was dismissed on 14.09.2017. Thereafter, the appellant filed writ petition before the High Court which has been dismissed through the impugned judgment dated 26.01.2018, on the ground that on the same cause of action the writ petition previously filed was dismissed, therefore, subsequent writ petition is not competent, hence, this appeal by leave of the Court.

3. Mr. Muhammad Pervaiz Mughal, Advocate, the learned counsel for the appellant argued that the impugned judgment/order is based on misconception. The learned High Court dismissed the writ petition in limine on the sole ground that on the same cause of action earlier writ petition filed by the appellant was dismissed and the subsequent writ is not maintainable, whereas, previously the writ of prohibition was filed which was dismissed by the High Court and during the pendency of petition for the leave to appeal filed before this Court the disputed mining permit was cancelled, whereupon, the appellant filed the subsequent writ of certiorari. Thus, the learned High Court was not justified to dismiss the writ petition on the ground that on the same cause previously the appellant filed the writ petition which was dismissed. The learned counsel drew the attention of this Court towards the prayer clauses of both the writ petitions and submitted that the nature of both the writ petitions is quite different, but this aspect escaped the notice of the High Court.

4. On the other hand, Raja Akhlaq Hussain Kiani, Additional Advocate-General, Syed Hazoor Imam Kazmi and Mr. Muhammad Hanif Khan Minhas, Advocates, strongly controverted the arguments advanced by the learned counsel for the appellant. They supported the impugned judgment and submitted that as the second writ petition was filed on the same set of facts, as were involved in the previous writ petition, thus, the learned High Court rightly dismissed the same. When the attention of the learned counsel for the respondents was drawn towards the fact that previously the appellant filed writ of prohibition, and subsequently he filed the writ of certiorari, they were unable to satisfy the Court.

6. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgment/ order. The perusal of the impugned judgment/order shows that the learned High Court has dismissed the writ petition on the sole ground that on the same cause the appellant previously had filed the writ petition which was dismissed vide judgment/order dated 29.03.2017, therefore, the second writ on the same cause of action is not competent. To appreciate the controversy involved in the matter, we have examined the record minutely. From the record it transpires that on 15.1.2016, the appellant filed a writ petition and sought prohibition against the respondents not to cancel/suspend mining permit dated 24.06.2016. The learned High Court vide its judgment/order dated 29.03.2017, had dismissed the writ petition in limine. The appellant challenged the said judgment/order of the High Court by filing petition for leave to appeal before this Court and during its pendency the concerned authorities cancelled the disputed mining permit, whereupon, this Court dismissed the petition while observing that in view of the subsequent event the writ petition filed by the petitioner-appellant, herein, has become infructuous. Thereafter, the appellant, herein, by filing another writ petition challenged the cancellation order dated 02.06.2017 along with some other orders passed by the authorities. After going through the controversy involved in the matter and the facts of both the writ petitions, we agree with the stance taken by the learned counsel for the appellant that the nature of both the writ petitions is quite different as through the earlier writ petition a prohibition was sought, whereas, through the subsequent writ petition the cancellation order dated 02.06.2017, has been challenged. It may be observed here that under the provisions of Rule 39 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, the second writ petition is not competent if the same is filed on same facts as were involved in the first writ petition decided by the Court, but no such eventuality is available in the case in hand. Thus, we are justified to hold that the impugned judgment/order is based on misconception which is not maintainable. In view of the above, we are constrained to accept this appeal and while setting aside the impugned judgment/order the writ petition is admitted for regular hearing and the case is remanded to the High Court with the direction to decide the same on merits after providing fair opportunity of hearing to the parties. No order as to costs. ZC/68/SC(AJK) Case remanded.