P L D 2004 Supreme Court 137 (PLP)

MUNIR A. SHEIKH, J.

This appeal, with the leave of the Court is directed against judgment of the Lahore High Court dated 16-8-1995 whereby Constitutional petition filed by respondent No:9 has been accepted.

2. Facts of the case relevant for the disposal of this appeal shortly stated are that prospecting licence of the area measuring 1065 acres was granted to Messrs Badar Sons initially in the year 1975, which was extended from time to time. A notification was issued on 15-6-1989 declaring that the prospecting licence of Messrs Badar Sons had expired with immediate effect. The appellant, on 12-6-1989 at 11-30 a.m. had already made an application for the grant of prospecting licence for the same area. He, however, submitted another application on 15-6-1989 at 2-00 p.m. Respondent No. 9 filed his application at 10-30 a.m. on 15-6-1989 for the same purpose. He made another application on 17-6-1989 at 8-00 a.m. Respondents granted prospecting licence to the appellant on the assumption that his application was earlier in point of time according to principle of first come first served, embodied in rule 15 of the Punjab Mining Conc9ssion Rules, 1986 (hereinafter referred as the Rules). This order was` challenged by respondent No.9 through Constitutional petition before the Lahore High Court, which has been accepted through the impugned judgment. Learned Judge of the High Court has taken the view that on issuance of notification dated 15-6-1989 period of prospecting licence of Messrs Badar Sons ended at 12-00 hours midnight between 15-6-1989 and 16-6-1989, therefore, application thereafter made on 17-6-1989 by respondent No.9 was earlier in time.

3. Leave was granted to consider the contention raised on behalf of the appellant that in fact the lease period of prospecting licence of Messrs Badar Sons had expired in 1987 and application of the appellant dated 12-6-1989 would be earlier in time.

4. We have gone through Constitution petition filed by respondent No.9 in High Court and the comments filed by the department and found that it was. nobody's case that the prospecting licence of Messrs Badar Sons was treated to have expired at 12.00 hours mid-night between 15-6-1989 and 16-6-1989. It was also not the case of the appellant in the High Court that prospecting licence of Messrs Badar Sons had expired in the year 1987, on the basis of which leave was obtained, therefore, we are justified to hold that according to both the parties, the notification regarding expiry of the period of prospecting licence of Messrs Badar Sons was issued on 15-6-1989 with immediate effect.

5. Learned counsel for the appellant submitted that rule laid down in the judgment AIR 1963 Punjab 378, which has been followed by the learned Judge of the High Court to hold that the period of prospecting licence of Messrs Badar Sons had expired at 12-00 hours mid-night between 15-6-1989 and 16-6-1989 was not applicable for in the .said judgment matter under consideration was regarding submission of an application 'within specified days' : therefore, interpretation of word 'day' was made and not the date. According to him on 15-6-1989, when notification was issued by the department the period of prospecting licence of Messrs Badar Sons, shall be deemed to have expired and application filed by respondent, No.9 at 10-30 A.m. on the same date was first in the order, therefore, it was rightly held, to have been made earlier to that of the appellant.

6. In our-view, merely because it was found that application made by respondent No.9 was prior in time, was not by itself a ground to hold that the said respondent was entitled to the grant of licence, because under rule 15 of the Rules the concerned Authorities are vested with the power to deviate from the principle of first come first served for reasons to be recorded and refuse grant of licence to such an applicant. Besides the competent authority under the rule has the option to grant prospecting licence through sealed bids or open auction. .

7. For the foregoing reasons, this appeal is partly allowed. Declaration made by the High Court to the extent that application made by respondent No.9 is prior in time, is maintained and that on this ground only he was entitled to the grant of licence is set aside. The case is remanded to the concerned Authorities to decide the question of grant of prospecting licence keeping in view Rule 15 and the rules on the subject as observed above. There will be ho order as to costs. M.H./G-202/S Case remanded.