2010 PLP 462 (CLC)

HAFIZ ABDUL REHMAN, J.

Through this writ petition the petitioner assails orders dated 7-7-2009 and 17-6-2009 passed by respondent No.1, Secretary Mines and Minerals Department, Govt. of the Punjab, Lahore, allegedly being illegal, arbitrary, violative of' principle of natural justice, without lawful authority and of having no legal effect.

2. The brief facts of the instant writ petition are that petitioner was allotted a mines lease for excavation of ord sand/gasser over area namely KWI/ord sand/Khanewal Zone-I against a bid of Rs.39,05,000 for a period of two years w.e.f. 11-6-2008 to 10-6-2010 through an open auction dated 10-3-2008. In the second para of the parawise comments it is stated by the department that the allotment letter was issued to the petitioner on 11-6-2008 indicating therein due dates of instalments of lease money is as under:

2nd instalment 10-12-2008 3rd instalment 10-6-2009 4th instalment 10-12-2009 That the petitioner for the payment of 3rd instalment which was due on 10-6-2009 dispatched C.D.R. Of amount of third instalment i.e. Rs.9,76,259 through Courier Service Company but unfortunately instead of sending same to D.G. Khan, respondent No.4, Courier Service mistakenly sent the same to Abbottabad which was sent back to Khanewal from where it was sent to D.G. Khan and was duly received by respondent No.4 on 15-6-2009, considering it as default of payment of third instalment which was due on 10-6-2009. Respondent No.4 without issuing any notice to the petitioner treated the mines lease in favour of the petitioner cancelled and put the mines lease for fresh auction on 13-6-2009, just after two days, when instalments had become due on 10-6-2009; that the petitioner rushed to the Chairman Auction Committee by way of an application, apprising him the whole situation that the due instalment amount through C.D.R. was dispatched by him on 10-6-2009 through Courier Service namely DELTEX Courier Service but same instead of going to D.G. Khan, respondent No.4 mistakenly sent CDR to Abbottabad from where it has been sent back to Khanewal then it was sent to D.G. Khan, anyhow later on it was received by the Department. The petitioner further contended that he also brought to the notice of Secretary respondent No.1 through an application and sought his interference against unjust, oppressive and illegal action of respondent No.4 vide application dated 10-6-2009, that respondent No.1 keeping in view the whole situation and bona fide mistake of the petitioner in making the payment of 3rd instalment in favour of respondent No.4 through C.D.R. found the mistake of courier service which was beyond the control of the petitioner and observed that respondent No.4 had received the amount of instalment through C.D.R. on 15-6-2009 within five days, found no legal or moral justification with respondent No.4 for which an extreme step was taken, present bid in favour of respondent No.5 and restraining respondents Nos.3 and 4 not to issue allotment in his favour by respondent on 13-6-2009 and allow the petitioner to continue the mines lease vide his order dated 17-6-2009. This was the just and fair view of the Secretary Mines and Minerals, Government of Punjab, Lahore. As the petitioner had already exhausted the major period of the lease and only a few months still remains in which the petitioner had to complete the lease period respondent No.1 just within one month passed another order dated 7-7-2009 which was contrary to previous order dated 17-6-2009.

3. Learned counsel for the petitioner contends that order dated 7-7-2009 was without lawful authority. The respondent No.1 had no authority to review his earlier order dated 17-6-2009 which was passed in favour of the present petitioner permitting the petitioner to continue the work on lease and Secretary himself had admitted the receipt of payment of third instalment. I am fortified from the judgments 2004 CLC 1525 (a) Ijaz Sarwar v. Nadeem Farooq, 2006 CLC 1381 (b) Hafiz Ahmad v. Rent Controller, "Muzaffar Ali v. Muhammad Shafi" PLD 1981 SC 94.

4. Letter dated 17-6-2009 is reproduced hereunder:

"As the lessee has paid the due instalment amounting to Rs.9,76,250 through C.D.R. No.1121116 and Deputy Director, Mines and Minerals D.G. Khan has confirmed that they have received the C.D.R. on 15-6-2009 through Courier Service. Therefore, I am directed that Licensing Authority may be asked not to confirm the present bid and also not to issue allotment letter to the highest bidder and lessee may be allowed to continue work in the area." Then the same competent authority vide letter dated 7-7-2009 passed the following order:

"In continuation of this office letter of even number dated 17-6-2009 wherein the Competent Authority allowed the applicant to continue work in the area, on the subject noted above. It is to inform that your letter dated 20-6-2009. was examined and discussed by the Secretary, Mines & Minerals with you and Director Licensing Authority and on your recommendations, the petition of Syed Abrar Hussain Shah has been dismissed and allowed to stop the work of ex-lessee at site and to issue allotment letter to the highest bidder was approved. You are, therefore, requested to take further necessary action in the matter."

5. From the facts narrated above it is crystal clear that the present petitioner had paid the third instalment of the lease work which the respondents admitted in their comments. C.D.R, for third instalment was dispatched through Courier Service. Unfortunately it reached Abbottabad instead of its real destination D.G. Khan which was not the default of the petitioner. Anyhow, competent authority had accepted the same and had permitted the petitioner to continue the work and not to confirm the subsequent auction of the same work which was already with the petitioner. The Secretary Mines vide his order dated 17-6-2009 had redressed the grievance of the petitioner allowing the petitioner to continue work on site of mines as the C.D.R. for third. instalment was acknowledged that it has been received. After passing of this order it was incumbent upon the Secretary Mines if he had made opinion otherwise he should have issued a notice to petitioner, the affected party, which was not issued, as such, the petitioner is condemned unheard. Reliance can be made on Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232 in which the honourable Supreme Court held as under:

"Principle of Maxim "audi alteram parterm" would be applicable to judicial as well as to non-judicial proceedings and it would be read into every statute as its part if right of hearing has not been expressly provided therein. Violation of the Maxim could be equated with the violation of a provision of law warranting pressing into service constitutional jurisdiction." The competent authority wrongly reviewed the same and passed fresh order dated 7-7-2009. In Punjab Mining Concession Rules, 2002 there is no such power vested in the Secretary to review his earlier order without issuing any show-cause notice to the affected party. The petitioner was also condemned unheard. The petitioner had very valuable rights in the work leased out to petitioner for which the petitioner contractor has almost had completed major portion of the lease. All of a sudden to grant the lease to any other contractor for same work without hearing the affected party cannot be permitted under any law.

6. In view of the above discussion this writ petition is allowed and order dated 7-7-2009 passed by Secretary Mines & Minerals, Government of Punjab, Lahore is hereby set aside. The petitioner contractor will continue to work on site and will complete his two years of lease since 11-6-2008 to 10-6-2010. No order as to costs. M.H./I-1/L Petition allowed.