1996 PLP 1421 (SCMR)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.

This petition for leave to appeal arises out of an order of a learned ,Judge in Chamber of Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 31-10-1995 whereby Writ Petition No.965 of 1995 to challenge the order of revocation of mining lease of quarrying of lime stone within the area of Islamabad Capital Territory granted to the petitioner was dismissed in limine.

2. The petitioner was granted lease by the respondents for a period of ten years with effect from 14-3-1986 for quarrying of lime stone on the western side of G.T. Road in Islamabad. District; he also acquired the lease of land from private owners for superficial use and occupation for the purposes of operations to be conducted under the mining lease on payment of surface rent; and obtained powers connection from WAPDA.

3. Respondent No.2 had earlier revoked the lease of the petitioner as aforesaid by virtue of his communication dated 19-8-1991 which was assailed in Writ Petition No.956 of 1991 alongwith few others also in the Rawalpindi Bench of Lahore High Court. Those writ petitions were accepted and the impugned orders of revocation of mining lease were declared to be illegal and without lawful authority and having been passed without issuance of a show- cause notice. In consequence, the respondents after issuing show-cause notice on 6-7-1994 admittedly determined the lease on 13-4-1995. On behalf of the petitioner it was, inter alia, contended before the High Court that the lease in favour of the petitioner could only have been terminated after the expiry of lease period as originally fixed or by revocation thereof in terms of the lease agreement between the parties and in accordance with the provisions of clause 72 of Schedule 11 to Part II of the Mining Concession Rules, 1960 (hereinafter called as the Rules) and as the lease has not been determined in accordance therewith but has been revoked under the provisions of the Islamabad Wild Life (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979) (hereinafter called as the Ordinance), it was without lawful authority and of no legal effect.

4. It was next contended before the High Court that the area which formed part of the lease of the petitioner did not fall under the Margalla Hills National Park within the contemplation of section 21 of the Ordinance, therefore, the lease could not have been terminated under the purported authority vested-under section 21 (ibid). On behalf of the respondents it was urged before the High Court that the petitioner had been granted a mining lease for quarrying lime stone from the area forming part of the National Park which had been verified after demarcation strictly in accordance with law and, therefore, the breaking up of land within the area, inter alia, for mining was rightly prohibited. It was next argued on behalf of the respondents that the lease could not have been granted to the petitioner from the area in dispute and when it came to the notice of the authorities the lease was terminated in accordance with the terms of the lease which, inter alia, provided that in case any area was not legally available for leasing out, the lease shall be terminated and that, therefore, the impugned order passed by the respondents was neither unlawful nor was viloltive of the terms of the lease.

5. The learned Single Judge in the High Court invoked the provision of clauses (14) and (1-5) of the Lease Agreement and held that "the authorities demarcated the area which was declared to be Margala Hills National Park under section 21 of the Ordinance and as the law had specifically prohibited the breaking up of the earth or digging or removal of stone etc. from this area, the petitioner was issued a show-cause notice on 20-7-1994". According to the learned Judge, it was specifically mentioned in the show-cause notice that the lease granted to the petitioner was for an area which fell within the National Park Area and for prevention of environmental pollution the blasting or quarrying of limestone in the National Park Area could not be permitted to which the petitioner had put in a reply denying that the site in dispute fell within the territorial limits of National Park Area. The learned Judge reached the conclusion that the proceedings in the case had been taken in accordance with the provision of law as well as the terms and conditions of the lease granting letter; that the objection that area leased out to the petitioner did not fall within the National Park Area was a question of fact which had been determined twice and had been found to have fallen within the territorial limits of National Park Area and, therefore, being a question of fact could not be the subject-matter of writ petition. In consequence, the petition was dismissed.

6. Mr. Tanvir Bashir Ansari, learned counsel appearing on behalf of the petitioner, has reiterated before us the contention that the lease granted to the petitioner was liable to termination after the expiry of lease period or on the ground of violation of any one or more of the terms and conditions of the Lease Agreement in accordance with the provision of clause (72) of Schedule II ibid which has an overriding effect and, therefore, the lease could not have been legally terminated under section 21 of the Ordinance. In this context, the learned counsel has vociferously argued that the provisions of the Ordinance could not have been invoked in terminating the mining lease in favour of the petitioner and emphasised that the Mining Concession Rules, 1960, framed under the Regulation of Mines and Oilfields and Mineral Development (Government Control) Act (No.XXIV of 1948) (hereinafter called as the Act have the overriding effect qua any other law for the time being in force and, therefore, no recourse could be had to be provision of the Ordinance. In support of this proposition, the learned counsel made reference to section 4 of the. Act which reads as under:

"Effect of rules etc., inconsistent with other enactment.-- Any rule made under this Act, and any order made under any such .rules, shall have effect notwithstanding anything inconsistent therewith contained in any enactment or in any instrument having effect by virtue of any enactment other than this Act. " The contention is untenable on two-fold grounds: firstly, because the period of lease has admittedly expired and, secondly, because the lease was terminated under clause (15) of the Lease Agreement.

7. The learned counsel for the petitioner then maintained that the High Court should have granted a lease for the additional year during which the petitioner had been restrained from quarrying the mining area. We have not been impressed by this submission of the learned counsel. If the petitioner has suffered any monetary loss on account of violation of the Lease Agreement, the High Court could not have granted any relief to the petitioner under the extraordinary Constitutional jurisdiction on the ground that it was a contractual obligation and if any of the terms and conditions of the Lease Agreement has been violated, the remedy lay in claiming damages by filing a suit and not invoking writ jurisdiction of the High Court. The learned Single Judge has rightly made a reference to the provision of clause (15) of the Lease Agreement which provides that in case it is found that the area or any part thereof was not free and was granted to the lessee by inadvertence, the lessee would release the same unconditionally as and when required to do so. We are, therefore, of the considered view that the provisions of clause (72) of Schedule II ibid shall have no overriding effect as envisaged by section 4 of the Act, in that, the impugned orders had been passed under clause (15)- of the Lease Agreement which empowers the lessor to determine the lease as provided therein. The overriding effect of clause (72) of Schedule II (ibid) with reference to section 4 of the Act has, therefore, been diluted qua the lease herein which had not been determined under section 21 of the Ordinance but had been revoked under clause (15) of the Lease Agreement. This contention of the learned counsel for the petitioner is, therefore, not tenable.

8. For the foregoing reasons, we are of the considered opinion that there is no substance in this petition which is; accordingly, dismissed and leave is not granted. A.A./A-1393/S Leave refused.