2018 PLP 1765 (CLC)

SYED MUHAMMAD ATTIQUE SHAH, J.

Through instant writ petition, the petitioner has approached this Court with the following prayer. "In the wake of the above it is very humbly prayed that cancellation order dated 10.08.2017 passed by respondent No.2 be declared null and void and be set aside being illegal, without lawful authority tainted with mala fide and hence ineffective upon the rights of the petitioner and the respondents be restrained from acting upon or under the garb of such order to the detriment of the petitioner in any mode, manner or from whatsoever. Allow any other relief deemed appropriate in the attending circumstances of the lis. Costs may follow the event".

2. Brief facts leading to the institution of the present writ petition are that the petitioner was granted mining lease for soap stone over an area of 360 acres near village Kharan, District Abbottabad on 28.08.1984.The said mining lease was renewed from time to time. Respondent No.5 on 27.01.2014, submitted working paper to the Authority for further renewal of the said lease upto 27.08.2019, however, the respondent No.2 instead of renewal, cancelled the said lease with immediate effect, which is now impugned by the petitioner in the instant writ petition. This Court vide order dated 18.08.2017, directed the respondents to submit their para-wise comments, which were submitted by them accordingly.

3. Learned counsel for the petitioner argued that the impugned judgment of respondent No.2 is illegal and passed without lawful authority and jurisdiction, as under Khyber Pakhtunkhwa Minerals Sector Governance Act, 2016, respondent No.2 was having no authority and jurisdiction to cancel the mining lease of the petitioner and prayed for setting aside the same. However, learned AAG appearing on behalf of respondents Nos.1 to 5, assisted by learned counsel for the respondents Nos.6 to 15, have controverted the arguments of learned counsel for the petitioner and argued that the impugned judgment is passed in accordance with law and does not need any interference by this Court in its constitutional jurisdiction under Article 199 of the Constitution.

4. Arguments heard and record of the case perused with the valuable assistance of the learned counsel for the parties.

5. Perusal of record reveals that the respondents Nos.6 to 15 (respondents) submitted an application for cancellation of mining lease of the petitioner on the grounds that the petitioner has violated the terms and conditions of the lease agreement and thus, his lease is liable for cancellation. The respondent No.2 summoned the petitioner and after hearing him, cancelled his mining lease vide judgment dated 10.08.2017.

6. Precise question involved in the present writ petition is "whether the respondent No.2 was competent under Khyber Pakhtunkhwa Minerals Sector Governance Act, 2016, to cancel the lease agreement of the petitioner".

7. It is worth mentioning to note that the matter in question is governed under the Khyber Pakhtunkhwa Minerals Sector Governance Act, 2016. The Act ibid provides complete and comprehensive mechanism for the mining activities in the province. Under the Act ibid, Mineral Title Committee is competent to grant mineral title, however, once a mineral title is granted by the Competent Authority, then it can only be cancelled under section 61 of the Act ibid. For the sake of convenience, the same is reproduced as under.

61. Cancellation of mineral titles: (1) The licensing Authority may, by serving thirty days notice in writing, cancel a mineral title, if the holder of the mineral title. (a) fails to use the land subject to the title for the purpose for which the title was granted; or (b) uses that land for any purpose of other then the purpose for which the title was granted; or (c) fails to comply with any requirement of this Act or rules which the holder is bound to comply; or (d) fails to comply with a condition of the title; or (e) fails to comply with a direction lawfully given under this Act or with a condition on which any certificate of surrender is issued or on which any exemption or consent is given under this Act or rules; or (f) fails to pay any amount payable by him under this Act or rules within one month after the amount becomes due; or (g) being an individual is adjudged bankrupt, or enters into any agreement or scheme of composition with creditors or takes advantage of any law for the benefit of debtors; and (h) is a Company against which an order is made or a resolution is passed for winding up the affairs of the Company. (2) On the cancellation of a mineral title, the rights of the holder of the title thereunder shall cease, and the cancellation shall not affect any liability incurred before the cancellation and any legal proceedings that might have commenced against the holder of the title shall continue against him.

8. Thus, it has become abundantly clear that mineral title can only be cancelled by Licensing Authority under section 61 of the Act ibid.

9. Section 2(q) provides definition of "Licensing Authority" which is reproduced below. "Licensing Authority means,-- (i) In relation to large scale mining and small scale mining the Committee constituted under section 6 of this Act; and (ii) In relation to minor minerals, the Director General Mines and Mineral".

10. In the present case, the respondents Nos.6 to 15 were required under the law to approach the Licensing Authority for the cancellation of the lease agreement of the petitioners if he was violating the terms and conditions of his lease agreement, as it was the mandate of Licensing Authority under section 61 of the Act ibid to decide such like applications, however, in the present case, the respondents Nos.6 to 15 have directly approached respondent No.2 who under the law, was having no authority and jurisdiction to intervene into the matter, as it has clearly been mentioned in section 2(a) of the Act ibid that respondent No.2 could only hear appeals arising out from the orders of Mineral Title Committee. For the sake of convenience, section 2(a) of the said Act is reproduced as under. S. 2(a) Appellate Authority "Appellate Authority means the Secretary to Government, Minerals Development Department, to hear appeals against the orders of Mineral Title Committee in relation to Small Scale Mining and Minor Minerals:

11. By now it is well settled principle of law that "when a thing is to be done in a particular manner it must be done in that manner and not otherwise". Reliance is placed on "Atta Muhammad Qureshi's case" 1971 PLD SC 61, "Maghal Sugical's case" 2005 PLC 634, "Raja Hamayun Sarfraz Khan's case" 2007 SCMR 307 and "Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others" 2010 SCMR 1437.

12. Thus, keeping in view the above stated facts, circumstances and discussion made thereupon, this Court reached at the conclusion that the impugned judgment of respondent No.2 is illegal and passed without lawful authority and jurisdiction, hence the same is liable to be set aside. Thus, on acceptance of the present writ petition, the impugned judgment of respondent No.2 is set aside, however, the respondents Nos.6 to 15 are at liberty to approach the Competent Authority under the Act ibid for the redressal of their grievances which are to be decided strictly in accordance with law. SA/231/P Petition accepted.