2015 PLP 1762 (CLC)

HAIDER ALI KHAN, J.

Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have sought the following relief:

"It is therefore, humbly prayed, that on acceptance of this writ petition the letters issued by the respondents and the claims of the respondents may kindly be declared against law and treated to be cancelled."

2. Brief facts as narrated in the writ petition are that the petitioners are the legal heirs of Ex/last Mehtar Chitral and own the river bed/river side known as "Shotar" situated at village Balach through notification No.10/31-SOTA-II (HD)71 dated 31-7-1975; that said notification to the extent of words "number of Chakoram" was challenged by the then Ex-Mehtar-e-Chitral before Joint Secretary, Chitral Land Dispute Inquiry Commission for deletion thereof and pursuant to order dated 29-3-1976 of the Inquiry Commission, the aforesaid words were deleted from the notification. This order was challenged by Mir Bahada Shah and others before the Federal Land Commissioner, Islamabad, who accepted the same vide order dated 26-6-1976. A review petition against the aforesaid order was filed before the Chairman Tribunal Land Dispute Dir, Swat and Chitral by the Ex-Mehtar-e-Chitral, which was accepted on 25-1-1982 and pursuant thereto order dated 26-6-1976, was set aside while that of Joint Secretary/Inquiry Commission dated 29-3-1976 was restored. Then petitioners filed a writ petition bearing W.P. No.592 of 1987 against the respondent-Provincial Government in the Peshawar High Court for not complying with the order dated 29-3-976. The writ petition was allowed and it was directed vide judgment dated 14-6-1988, that necessary amendment may be made in the Notification as prayed for by the petitioner in accordance with the decision stated above if the said order has not been set aside by the competent authority after the decision given in review petition decided on 25-1-1987. The judgment dated 14-6-1988 was assailed by the respondent-Government in C.M.A. No.1 of 1989 before the Peshawar High Court, which was dismissed vide judgment/order dated 25-4-1989. Subsequently, the respondent-Government approached the Supreme Court of Pakistan in CPSLA No.275-P of 1989, but the leave to appeal was refused. Thereafter, the respondents issued notification No.4/2-SOS-II(HD)/88 dated 28-5-1991, pursuant to which the words 'number of chakoram' were deleted from the notification dated 31-7-1975.

3. Subsequently, a suit in the representative capacity was brought by the residents of village Balach in respect of the suit property known as 'Shotar' challenging the ownership of Ex-Mehtar-e-Chitral. The trial Court dismissed the suit vide judgment dated 1-8-2005, which was not further assailed and thereby attained finality. The late predecessor-in-interest of the petitioner also filed a suit against the respondents in respect of the property before the Civil Court at Chitral, which was decreed vide judgment dated 1-8-2005. Appeal against the same preferred by the then Deputy Commissioner was dismissed by the appellate Court vide judgment dated 31-3-2007. That late predecessor-in-interest of the petitioners leased out the suit property to M/s. SAMBU JV through its Project Manager for Golen Gol Hydropower Project owing to which the respondents issued the impugned notices to the petitioner/lessor and SAMBU/lessee and thereby interfering in the ownership and possession of the petitioners, which prompted the petitioners to file the instant writ petition.

4. The respondents submitted written statement, wherein they refuted the claim of petitioners on factual as well as legal grounds. The respondents Nos.1 to 7 in their written statement have urged that as per Constitution of Islamic Republic of Pakistan, 1973 and under section 49 of the Land Revenue Act, 1967, all Mines and Minerals have been declared to be the Government property and for that matter the Government of Khyber Pakhtunkhwa has framed the Mining Concession Rules, 2005 according to which, Director and Director General have been authorized to issue licence to the interested parties through auction and as per Rule 142 and 204 of the ibid Rules, the land owners have the right of surface rent payable by the lessee concerned of the Mineral Department. It is further in the written statement that the petitioners are not the sole owners of the River Bed of Balach, therefore, they are not authorized to execute agreement with M/s. SAMBO SARCO JV, pursuant to which the management of SAMBO were engaged in unauthorized Mining of Minor Minerals from the said River Bed. Hence, act of the respondents to issue letter dated 17-7-2012 is in accordance with law.

5. In response to the written statement, petitioners submitted rejoinder wherein they stated that the disputed property is the ownership of their late predecessor, which was interfered by the District Revenue Officer by issuing a letter in this behalf which was challenged by their late predecessor and finally vide judgment dated 22-9-2014 in C.R. No.1175-P of 2007, delivered by this Court, the disputed property was declared their ownership.

6. Learned counsel for the petitioners argued that petitioners being legal heirs of their late predecessor, are owners in possession of the property i.e. River Bed, commonly known as 'Shotar' and interference of the respondents is against law and fundamental rights enshrined in the Constitution of Islamic Republic of Pakistan, 1973; that issuance of the impugned notice without consultation of the Provincial Government is against unlawful and without jurisdiction. Learned counsel lastly contended that the aforesaid property has been declared as ownership of the petitioners by the competent Court of law, therefore, the respondents have no authority to interfere in the same in any manner whatsoever to the detriment of petitioners. He prayed for acceptance of the writ petition.

7. As against the above, the learned A.A.-G. submitted that under section 49 of the Land Revenue Act, 1967, all the Mines and Minerals have been declared as the property of Provincial Government and to this effect Mining Concession Rules, 2005 have been framed. He further contended that the petitioner was not authorized to execute any agreement with M/s. SAMBU SARCO JV. He prayed that writ petition being misconceived be dismissed.

8. Arguments heard and record perused.

9. Perusal of the record would reveal that according to section 49 of the Land Revenue Act, 1967, all the Mines and Minerals have been declared to be property of Provincial Government and in this regard Mining Concession Rules, 2005 have been' framed by the respondent-Government. For convenience section 49 is reproduced herein below: "

49. Rights of government in mines and minerals.

Notwithstanding anything to the contrary in any other law, or in any order or decree of Court or other authority, or in any rule of custom or usage, or in any contract, instrument, need 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 rights thereto. The above-quoted provision is clear on the subject and exception could be taken therefrom.

10. Apart from the above, vide notification No.10/31-SOTA.II.(HD) 173 dated 31st July, 1975 published in N.-W.F.P. Government Gazette, Extraordinary, 5th August, 1975, all rivers, river beds, rivulets and nullahs have been declared to be the State Property of the former State of Chitral.

10. In view of what has been discussed above, this petition being devoid of merit is hereby dismissed. SL/315/P Petition dismissed.