P L D 1977 Quetta 15 (PLP)

MIR KHUDA BAKHSH MARRY, C. J.--‑This constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against a very short order of respondent No. 2, Chief Minister, Government of Baluchistan, Quetta dated 22‑2‑1975 wherein he has on an application of the respondent No. 3, Messrs Washo Brothers Mine Owners, Mach Town, a directed Joint Director, Mineral Development thus: "send the file and don't take any action till further orders".

2. The facts briefly are that the petitioner filed an application on 13‑3‑1974 to the Joint Director, Mineral Development under Baluchistan Mining Concession Rules, 1970 for grant of prospecting licence for coal within Mach district. That after necessary enquiries, according to the petitioner, prospecting licence was issued to him by the relevant authority on 15‑10‑1974 which was followed by Work Order on E‑11‑1974 to start mining operation in area applied for.

3. That on 15‑I1‑1974, the Joint Director informed the petitioner that the Work Order earlier granted had been withdrawn. The petitioner challenged the above latter order in this Court by a Constitutional Petition, during pendency of the same the Joint Director Mineral informed the petitioner that he has withdrawn the previous order. This order is dated 19‑12‑1974, Annex. "H".

4. Later on however, it appears that respondent No. 3, moved an application for correction of the data saying that angle 334 of their line JIG be corrected as

344. This application was rejected by Licensing Authority. Annexures 'K & L' thereafter respondent No. 3, filed a representation before the Secretary Industries, Government of Baluchistan and subsequently an appeal also, the same were dismissed Annexures 'M & M/.' Not being satisfied with these orders he moved an application to the Chief Minister, Baluchistan who passed the impugned order.

5. We have heard Mr. I. H. B' Hanafi, Advocate for the petitioner, Mr. Mohammad Ahmed Mirza, Advocate‑General for respondents Nos. 1 and 2 Government of Baluchistan and Chief Minister and Mr. Basharatullah, Advocate for respondent No. 3, Messrs Washo Brothers in some detail. The only question before us was legality or otherwise of the impugned order of Chief Minister of Government of Baluchistan. It may be noted that issuing of mining lease and regulating of the mines etc. is governed by Baluchistan Mining Concession Rules, 1970, which came into operation on 10th November, 1970 comprising of 102 sections and some schedules. The scheme of the Rules nowhere recognises or gives any power to the Chief Minister directly either to issue, stay or cancel a prospecting licence. Section 3 of the Rules provides "except with the previous sanction of the Government no licence to prospect for any mineral and no lease of mines and minerals shall be granted otherwise than in accordance with these Rules "subsection (2)," the Government may by notification in the official Gazette delegate powers to grant and regulate prospecting licences or mining leases in respect of a parti cular mineral or class of minerals to any officer or class of officers not below the status of Class‑1, Gazetted and may frame separate rules for the purpose".

6. Thereafter the rules very elaborately provide for exigencies such as entertaining applications for Prospecting Licence, their acceptance, rejection and appeal by various departments, such as Mineral Department and Appel late Committee but nowhere under the Rules, Chief Minister has been dele gated or given as power to interfere directly. Learned Advocate‑General when questioned with regard to legality of the impugned order submitted that he was not in a position to support that order of the Chief Minister and he did concede that in the Mining Rules the Chief Minister cannot interfere directly although he may come within the definition of Government being Chief Execu tive of the Province and ho may pass some such orders. Not only to say that this argument was not only unconvincing but it was very feebly advanced also. The same was position with Mr. Basharatullah, Advocate, who, also failed to satisfy us as to how the impugned order of the Chief Minister can be sustained in law. However, Mr. Basharatullan tried to introduce certain extraneous matters with regard to certain interference by certain officers of the Department with regard to demarcation and allotment of certain portions to Washo Brothers misusing the official position. We, however, pointed out that these matters can be settled within the Department if at all there is any such thing because we are only concerned here with the legality or otherwise of the impugned order of the Chief Minister.

7. For the reasons given above we see sufficient force in this petition and accept the same and hold that the impugned order of the Chief Minister dated 22‑7‑1975 is without lawful authority and is of no legal effect and is hereby set aside. The parties to bear their own costs. S. A. H. Petition allowed.