P L D 2017 Lahore 390 (PLP)

ATIR MAHMOOD, J.--By way of filing this writ petition, the petitioner has challenged a Tender Notice of Public Auction dated 1.8.05.2005 in daily newspaper "Khabrain" dated 28.04.2005 (hereinafter called "the auction notice") and Lease Order bearing No.MM/ML-Attock-Sale Stone Qibla Bandi 3/623 dated 01.06.2005 by Mines and Minerals Department of Government of Punjab (hereinafter called "the respondent department") to respondent No.6 for five years of 99-17 acres of land allegedly acquired by the petitioner.

2. Learned counsel for the petitioner inter alia contends that the respondent department has issued a mining licence for exploration of minerals to respondent No.6 for the land which is already acquired by the petitioner; that the respondent department has erred to have assumed jurisdiction on the piece of land acquired by the petitioner; that the project work of Islamabad-Peshawar Motorway (M-1) is stretched on an acquired area with additional width of 100 meters on both sides of the alignment; that the impugned lease agreement/order dated 01.06.2005 is ultra vires to the provisions of law; that the respondent has not taken into consideration the vires of the Punjab Mining Concession Rules 2002; that the petitioner has not been afforded any opportunity of hearing with regard to auction proceedings conducted on the basis of auction notice. She has prayed that the impugned auction notice and lease order dated 01.06.2005 may be declared illegal and of no legal consequence qua the Right of Way of the petitioner-authority of the Islamabad-Peshawar Motorway (M-1) and the respondents be restrained from illegally interfering in the execution and construction of the project work.

3. On the other hand, learned Additional Advocate General assisted by learned counsel for the respondents has vehemently opposed this writ petition. They aver that the land over which the licence for exploration of mining has been issued is not owned by the petitioner and even if it is agreed for sake of arguments, the minerals contained therein are the property of the provincial government.

4. Arguments heard. Record perused.

5. First of all, there is dispute between the parties regarding ownership of the land. Learned counsel for the petitioner asserts that the land in question was acquired by the NHA. In this regard, she has referred the award dated 15.10.2004 wherein details of the property have been mentioned. However, any such detail is absent in the impugned auction notice. Therefore, it cannot be said with certainty as to whether it is the same land which was acquired by the NHA through the award or it is some other land. In the circumstances, the question of ownership of land under reference is a matter of factual controversy which cannot be decided in writ jurisdiction, as such, this writ petition being not maintainable is liable to be dismissed on this score alone.

6. Another aspect of the matter is that an appeal is provided under Section 234 of the Punjab Mining Concession Rules, 2002 which remedy has not been availed by the petitioner and the petitioner has directly filed this constitutional petition. Under the law, the constitutional jurisdiction of this Court cannot be invoked if there is some alternate remedy available, therefore, this writ petition is liable to be dismissed on this score as well.

7. Regarding issuance of mining licence, Section 49 of the West Pakistan Land Revenue Act, 1967 being relevant is reproduced hereunder: "

49. Right of Government in mines and minerals: Notwithstanding anything to the contrary in any other law, or in any order to decree of Court or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document, all mines and minerals shall be and shall always be deemed to have been the property of Government, and Government shall have all powers necessary for the proper enjoyment of its right thereto." (Emphasis provided) The minerals and land are two distinct commodities. The land can be owned or acquired by public or private sectors but the minerals cannot be acquired. All the minerals beneath the surface of the land, either it is owned by the government or any other private person or body, are property of the government concerned. Admittedly, the land in question comes within the territorial jurisdiction of the Province of the Punjab, therefore, I have no hesitation to hold that the mines and minerals under the land in question are owned by the Punjab Government and the petitioner has no concern therewith, and the Punjab Government could issue public auction notice for issuance of mining licence and could make lease agreement in result thereof and the petitioner has no locus standi to challenge the same.

8. It has been contended in the writ petition that the impugned mining licence by the Punjab Government is an illegal interference by the respondents in the Project Work of Islamabad-Peshawar Motorway (M-1), therefore, the respondents be restrained from interfering in execution and construction of the Project Work. On Court inquiry, learned counsel for the petitioner frankly admits that the said Motorway stands completed in the year 2009, as such, this issue exists no more.

9. Even otherwise, issues similar to those raised in this writ. petition stand settled in the judgments passed by this Court in case titled "Water and Power Development Authority and another v. Assistant Director Mines and Minerals, Attock and others (PLD 2012 Lahore 83) and by the Hon'ble Supreme Court of Pakistan in C.A. No.123/2013 titled "Water and Power Development Authority (WAPDA) through its G.M. and Project Director Attock and another v. The Assistant Director, Mines and Mineral Attock and others". It has been held in the later judgment: "

6. It cannot be caviled at that the property wherefrom excavation was made was acquired by the appellant for public purpose. It too cannot be caviled at that the activity embarked upon by the appellant was not mining in its intent and purpose. It as such, it did not have any mens rea as far as the penal provision of Rules is concerned. But whatever was brought forth pursuant to the activity embarked upon by the appellant was minor minerals. Minor minerals in no case could be owned and appropriated by the appellant. It by virtue of section 49 of the West Pakistan Land Revenue Act vested in the government notwithstanding it was excavated from the property acquired by the appellant for public purpose.

7. The question that when what had been excavated was earth and used as such, it could not be construed as minor minerals, cannot be appreciated at this stage, firstly because it was never raised in the fora below and secondly because it being factual goes outside the scope of this appeal. The argument that spirit of Rules has to be kept intact is no doubt correct, but we do not think we can keep the spirit of the Rules intact by interpreting them against the letter and legislative intent behind them." (Emphasis provided)

10. Learned counsel for the petitioner has prayed that the bank guarantee furnished by the petitioner in compliance of order of this Court be released. In this regard, she has also averred that the excessive rates on account of cess/duty have been imposed by the respondents upon the petitioner. In my view, this is a matter of evidence and this Court in its constitutional jurisdiction cannot decide the same. Needless to observe that the respondents are entitled to encash the bank guarantee furnished by the petitioner. The petitioner has, however, every right to claim differential of the amount due and amount received by the respondents. Therefore, the petitioner may approach the proper forum for determination of petitioner's rights.

11. For what has been discussed above, this writ petition is dismissed on merits as well as maintainability. MH/N-4/L Petition dismissed.