P L D 2011 Peshawar 71 (PLP)

YAHYA AFRIDI, J.

Messrs Pakistan Mineral Development Corporation (Pvt.) Limited, has through the instant petition sought to invoke the constitutional jurisdiction of this Court under Article 199 of the Islamic Republic of Pakistan, 1973 ("Constitution") and prayed that: "It is, therefore, humbly prayed that on acceptance of this writ petition, the impugned orders/actions of respondents Nos.1, 2 and 3 be quashed, the perspective licence issued to respondent No.4 be cancelled, as being illegal and without lawful authority and respondents Nos.1 and 2 may be directed to grant the lease of Gypsum mines of Jatta Ismail Khel Tehsil Banda Daud Shah District Karak, by accepting the application of the petitioner already pending with them."

2. The brief facts leading to the present petition are that the petitioner was in 1974 granted lease of an area of 1619 acres of rock salt mines in Banda Jatta Ismail Khel, District Karak ("Salt Mines"),.which it is still exploiting. The respondent department vide its letter dated 25-3-1997 informed the petitioner that private contractors had applied for the grant of prospecting licence for gypsum mines for an area forming part of the Salt Mines ("Gypsum Mines"), and in case the petitioner was interested in acquiring the said licence, it should submit an appropriate application for the same. The petitioner vide its letter dated 2.3-4-1997 informed the respondent department of its intention to apply for the Gypsum Mines. This was followed by a prescribed application, which was accompanied with the receipt of requisite fee. The respondent department vide its letter dated 31-3-2001 informed the petitioner that the Mines Committee had rejected the application of the petitioner for Gypsum Mines "due to non-availability of the area".

3. The petitioner, for the first time, agitated and protested the allotment of Gypsum Mines to private contractor with the respondent department vide its letter dated 10-10-2005. Having received no positive response, the petitioner vide its appeal dated 12-4-2006, invoked the departmental appeal provided under the N.-W.F.P. Mining Concessions Rules, 1976 ("Rules of 1976"). The main grievance and ground taken by the petitioner in its departmental appeal was that the Gypsum Mines had been allotted to private contractors without consulting the petitioner and that the said lease was capping the Salt Mines of the petitioner.

4. The respondent-Department filed their written comments before the appellate authority and denied the assertions made by the petitioner in its Appeal.

5. The Appellate Authority vide its impugned order dated 10-11-2006 rejected the appeal of the petitioner declaring the same to be barred by time. Hence, the present petition.

6. Messrs Nisar Ahmad; Advocate the learned counsel for the petitioner vehemently argued that the rights of the petitioner vested under Rule 102 of N.-W.F.P. Mining Concession Rules, 2005 ("Rules of 2005") had been violated; that the petitioner was not informed about the acceptance of the appeal of respondent No.4 by the appellate authority; that the reasons of "non-availability of the area" rendered by the respondent-Department for rejecting the application of the petitioner was misrepresentation, if not fraud; that in case the respondent department had informed the petitioner about the acceptance of the appeal of respondent No.4, the petitioner would have surely agitated the same in appeal; that the Rules of 2005 and not the Rules of 1976 would apply in deciding the present case. 6A. Barrister Waqar Ali Additional Advocate-General, representing the respondent-Department and ably supported by Mr. Abdul Haleem Khattak Advocate, the learned counsel for the private respondents Nos.4 and 5 argued that the present petition was not maintainable as the claim of the petitioner was not only devoid of any valid factual basis but also lacked legal grounds; that the appeal of the petitioner was time-barred and was thus rightly rejected by the appellate authority; that the petitioner having been granted a lease since 1976 cannot claim to have been diligently exploring the Salt Mines without knowing that the mineral of gypsum was available in the said area; that it was only respondent No.4 who applied in 1993 for allotment of a prospecting licence having discovered the said mineral; and that the issue of being not informed about the acceptance of the appeal of the respondent No.4 was also not possible as it is beyond any reasonable justification why the petitioner remained mum for five years when mining activities of gypsum were carrying on in the Salt Mines of the petitioner; and that Rule 102 of Rules of 2005 could not be retrospectively applied.

7. Reviewing the record, we note that respondent No.4 had in 1993 applied for a prospecting licence of Gypsum Mines. In this regard the requisite fee of 20,000 was also submitted. The application of the respondent No.4 was processed by respondent department and in this regard two inspections were ordered and carried out. The reports so submitted clearly confirmed that gypsum existed in the Salt Mines and that the mining activities of gypsum and rock salt in the Salt Mines could be carried out together without disturbing each other. However, the Mines Committee in its meeting held on 1-3-1997 rejected the application of respondent No.4 for the reason that; "Since the area stand granted to a public sector organization i.e. Messrs PMDC for Rock Salt, therefore, it may not be advisable to grant a part of this for other mineral to an individual, who may create problems for Messrs PMDC. Therefore, it was asked to PMDC to apply for gypsum mineral. In case they show disinterest, then the case of Mr. Nasrullah be resubmitted for consideration of the Mines Committee." Feeling aggrieved thereof, respondent No.4 impugned the same in appeal. The appellate authority, after considering the submissions of respondent department, finally accepted the appeal of the petitioner vide order dated 1-7-2000 and stated that; "Taking into account the respondent representative arguments, I set aside the order of Licensing Authority. The appellants appeal is accepted and the condition that he should (sic.) an undertaking to the effect that he will not create any hindrance in the smooth operation of PMDC. Further, he should deposit outstanding government dues, if any, within the period of 7 days."

8. The enabling provisions of both Rules of 1976 and Rules of 2005, (collectively referred to as "rules"); prescribe thirty days period for filing an appeal against any order or decision made therein. The enabling provisions of the rules contained therein are as follows: Rules of 1976 "Rule 93 appeal (1) Any person aggrieved by a decision given or order made by a licensing authority under these rules may, within thirty days of such decision or order prefer an appeal to the government." Rules of 2005 "Rule

183. Appeal-(1) If a person is aggrieved by an order of the Licensing Authority passed under these rules, he may, within thirty days of the communication of the impugned order, prefer an appeal to Government." In view of the above, thirty days period has been expressly for submitting an appeal against any decision or order under the rules. Thus the appellate authority was correct in declaring the appeal of the petitioner to be time-barred. In addition thereto, what is interesting to note is that the petitioner's claim of having no knowledge of the lease been granted to the private contractor is belied by the very fact that in its representation dated 10-10-2005; the petitioner mentioned the allotment of lease to private contractors. The formal appeal thereto has been made on 12-4-2006, which too is beyond the period prescribed.

9. In regard to the objection of the present petitioner regarding misrepresentation on the part of the respondent-Department while rejecting the application of the petitioner for Gypsum Mines vide order dated 31-3-2001 for non-availability of the area, we note that the Gypsum Mines had already been allotted to respondent No.4 vide order dated 1-7-2000, the same could not be termed as misrepresentation. Thus this objection of the petitioner is not valid.

10. The fact that the appeal of the present petitioner was correctly recorded to be barred by time under the rules did not prevent this court from looking into the bona fide of the proceedings of the appeal of respondent No.4, for which the original file was requisitioned from the respondent-Department. Reviewing the same, this court finds that the appellate authority had correctly accepted the appeal of respondent No.4 against the decision of the Mines Committee dated I-3-1997. In this regard, it would be pertinent to note that the said decision of the Mining Committee had not considered the "priority rights" in favour of the person, who had submitted the prescribed application prior in. time, as laid down in Rule 15 of Rules of 1976. The said rule states: "(15) Priority.--If more than one application for the grant of prospecting licence or mining lease in respect of the same land is made, then unless the Licensing Authority in his discretion decides otherwise, preference may be given to the applicant who has, in accordance, with these rules, filed his application first, subject to the fitness or the applicant and his suitability which may be proved or established to the satisfaction of the Licensing Authority."

11. In regard to the objection of the petitioner regarding the non-application of Rule 102 of Rules of 2005, this Court finds that the same is misplaced and the said Rule is not applicable to the facts and circumstances of the present case. Rule 102 of Rules of 2005 states that: --

102. Availability of area.

On receipt of the application, the Licensing Authority shall, before granting any mining concession, ascertain that the area applied for does not overlap with an already covered by a licence or a lease." The crucial issue for the petitioner is the acceptance of the appeal of respondent No.4, whereby the Gypsum Mines were awarded to him vide order of the appellate authority dated 1-7-2000. While deciding the said appeal, the appellate authority could not apply Rule 102 of Rules of 2005, as the same were then not framed. Hence, could not be applied. Thus this objection of the petitioner is unreasonable, if not absurd.

12. This brings us to the appeal of the present petitioner, which was filed and decided by the appellate authority after the framing of the Rules 1 of 2005. Hence, the said rules would be applicable to the form, forum and the procedure regarding the appeal filed by the petitioner. However, the substantive provisions of Rules of 2005, such as Rule 102, could not be retrospectively applied by the appellate authority, while deciding the appeal of the petitioner. Substantive provisions of any subordinate legislation including rules are to be applied prospectively, while the procedural provisions contained therein are to be applied retrospectively. Viewed from another perspective, the Rules of 2005 are a creation of the powers vested in the Provincial Government under Mines and Oil Fields and Mineral Development (Government Control) Act, 1948. The parent statute does not expressly provide the Provincial Government to frame Rules having retrospective effect. Furthermore, the Rules of 2005 expressly provide under Rule 1(2) to be prospective in nature as "they shall come in force at once". Thus viewed from all angles, the substantive provisions of Rules of 2005 cannot be given retrospective effect. In this regard NS Bindra's Interpretation of Statutes, (9th Edition) explains this principle more eloquently in the following terms:- "Rules cannot ordinarily be given retrospective effect, but the legislature may confer such a power on the rule-making authority. It is well-settled that the subordinate legislative authority (rule-making authority) has no power to make a rule or regulation with retrospective effect, unless it is expressly empowered to do so Where the notification itself does not, by its own terms, make its operation retrospective, it would be extravagant to claim that by necessary implication .it has retroactive operation, and takes effect from the date it is issued and not from any prior date."

13. We have thoroughly considered the submissions of the learned counsel for the petitioner and noted that the same do not hold any factual or legal basis for this constitutional court to invoke its writ jurisdiction as prayed for in the petition. The respondent-Department has, as apparent from the record, exercised its duties and discretion in accordance with the law. In fact, the petitioner has been indolent in ' agitating and protecting its claims before the competent authority at -the 'appropriate stage. This silence cannot be ignored.

14. Accordingly, no case has been made out by the petitioner. The petition is, therefore, dismissed. S.A.K./400/P Petition dismisse