2020 PLP 1913 (CLC)

AHMAD ALI, J.

The petitioner through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is seeking the following relief: It is, therefore, most humbly prayed that on acceptance of this writ petition this Honourable Court may be pleased to declare the impugned order/verbal direction of respondent No.2 dated 19.06.2018 through which the Coal Mines Excavation was stopped, is illegal, without jurisdiction without lawful authority, void ab initio and the petitioner may please be allowed to run his business (Excavation of Coal Mines) as legally obtained permission for the same. Any other relief though not specifically asked for, to which the petitioner is found entitled in the circumstances of the case may also be granted to the petitioner."

2. The facts of case, in essence, are that originally in the year 2010-2011 a lease for coal mines excavation at Darra Adam Khel was granted to one Saleem Khan son of Jan Badshah, who authorised the petitioner to perform mining operation in the granted area w.e.f. 15.11.2016. The petitioner installed heavy machinery and invested a huge amount over the mining operation. However, the respondent No.2 vide verbal order dated 19.06.2018 stopped the mining operation of petitioner; thus the petitioner filed this constitutional petition seeking the above quoted relief.

3. Respondents Nos.2 and 3 in compliance of the Court directions filed comments wherein they opposed the issuance of desired writ.

4. We have heard arguments advanced before us at the bar and have gone through the record with their valuable assistance.

5. It is the case of petitioner that the lease of coal mines excavation was granted to one Saleem Khan son of Jan Badshah in the year 2010-2011 for an area of 140 acres land; and said Saleem Khan authorised the petitioner to carry-on mining operation in the granted/leased area. If the said version of petitioner is taken as correct then under Rule 170 of the Khyber Pakhtunkhwa Mining Concession Rules, 2005, no lease holder can sublet the mine for the purpose of extraction of the mineral to any third person, however, sub-contracting can be done with the permission of licensing authority; and in case of violation, the license or the lease shall stand cancelled. Rule 170 of the ibid Rules, 2005 is reproduced hereunder:

170. Sub-letting.

(1) No licensee or lessee shall sublet the mine for the purpose of extraction of the mineral to any third person, but it does not include sub-contracting with the permission of the License Authority. (2) The license or the lease shall be cancelled by the Licensing Authority, if the provisions of sub-rule (1) is violated: Provided that before proceeding under sub-rule (1), the licensee or the lessee shall be given an opportunity of being heard. Explanation:

Subletting includes such act on the part of a licensee or a lessee whereby the liberties, powers, privileges and obligations under the license or lease, as the case may be, are transferred to a third party in respect of the area demised under the license or lease.

6. There is no cavil with the proposition that the petitioner, under the purported authorization by the lease holder Saleem Khan, was performing mining operation in the leased/granted area. The authority by the lessee in favour of petitioner falls under the ambit of explanation, provided under Rule 170 ibid. The words "shall" used in the sub-rules (1) & (2) above, makes it clear that the provisions of Rule-170 of the K.P. Mining Concession Rules, 2005, are mandatory; and violation of sub-rule (1) of Rule 170 ibid, shall result in cancellation of lease under sub-rule (2).

7. So far the contention of petitioner, that no notice of hearing was given to him before stopping his mining operation, is concerned, we observe that the opportunity of hearing as provided under the above Rule 170 is the prerogative of lessee/licensee only and such opportunity of hearing is not for the subletee. However, respondents in their comments to the Ground-B have specifically referred the service of notice to the petitioner. It is also very important to note that the actual lease holder i.e. Saleem Khan has not joined the hands with petitioner in filing this writ petition to protect his leased/granted area.

8. Yet there is another aspect of the case which is coming on the surface through C.M. No.08-P/2018, filed by Malik Muhammad Ayub for his impleadment as respondent in this petition. The documents annexed with the said CM reveals a dispute over the mining of coal between Saleem Khan leaseholder, the petitioner Misal Khan, Naseer Khan and one Ayub Khan; and this fact was also mentioned in the Ground-B of comments. This was the reason of closing the coalmine by respondents.

9. In view of the foregoing, we see no merit in this writ petition which is thus dismissed. No order as to cost. ZC/102/P Petition dismissed.