2018 PLP 8 (CLCN)

MUDASSIR KHALID ABBASI, J.

Through this constitutional petition, petitioner has challenged order dated 26.09.2016 passed by respondent No.1/Assistant Director, Mines and Minerals Department, D.G. Khan whereby representation of the petitioner was declined. Moreover, interpretation of rules 191 and 208 of the Punjab Mining Concession Rules, 2002 contained in the above said order was also challenged by the petitioner.

2. Brief facts of the case are that petitioner is running a business of excavating gravel. An open auction was held for grant of lease for excavation of gravel in the area of Mangrotha. Respondent No.2 stood successful bidder and was granted lease to excavate the minerals in terms of Rule 191 of the Punjab Mining Concession Rules, 2002. Respondent No.2/lessee has also installed crushing plant in the same zone. Dispute between the petitioner and respondent No.2 arose from denial of respondent No.1 for excavation of gravel from the lease area. Upon refusal by respondent No.2 (lessee), petitioner under the directions of this Court issued in W.P. No.12335/2016 approached respondent No.1 who vide impugned order dated 26.09.2016 decided/declined the representation of the writ petitioner.

3. Learned counsel for the petitioner contends that no mining/ extracting could take place, unless the area is on lease and there are lease rights in lieu of bid price, is to charge sale price on excavation. Further contends that the observation of' respondent No.1 that the lessee himself has a massive need of gravel for his own crushing plant is incorrect and clearly reflects illegal favour of respondent No.2. Argued that impugned interpretation of the Rules 191 and 208 of The Punjab Mining Concession Rules, 2002, is liable to be declared illegal, unwarranted, arbitrary, mala fide and seriously effecting the fundamental rights of the petitioner as envisaged in Article 18 of the Constitution.

4. On the other hand, learned AAG as well as learned counsel for respondent No.2 have opposed the contentions raised by learned counsel for the petitioner and argued that respondent No.2 has been granted lease after going through the process of auction in accordance with Rule 191 of the Punjab Mining Concession Rules, 2002. Further contends that respondent No.2 is not involved in overcharging of the sale of gravel. Argued that under Rule 191 of Punjab Mining Concession Rules 2002, there shall be no mining of minor minerals except under a mining lease and if any person starts excavation of minor minerals without obtaining a mining lease from competent authority, it is violation of Rule 218 rules ibid. Further argued that petitioner is not a lessee of Mines and Minerals Department, therefore, he cannot be allowed to excavate gravel as right from the area for which he is not granted lease. Lastly, argued that petition is not maintainable, therefore, same is liable to be dismissed.

5. I have given my conscious thought to the arguments of learned counsel for the parties and perused the record.

6. Pivotal legal question involved in this case is that as to whether petitioner, in terms of the Punjab Mining Concession Rules, 2002 is entitled to excavate the minor minerals (gravel) as a vested right from the area leased out to respondent No.2. In this context, petitioner has prayed for setting aside order dated 06.09.2016 passed by respondent No.1 at the strength of Rules 191 and 208 of the Punjab Mining Concession Rules, 2002. It would be expedient to reproduce the same:-

191. Mining of minor minerals:

There shall be no mining of minor minerals except under a lease granted in accordance with these rules. Notwithstanding anything contained in these rules a lease for minor minerals to a Government Department or a public sector organization and for limestone and dolomite to a large size Industrial Undertaking manufacturing cement of sodium carbonate or sodium bicarbonate or other product as may be specified by the Government, shall be granted and governed by rules relating to Small Scale Mining under these rules.

208. Surface rent.

(1) A lessee shall pay for all Government land which he may use or occupy superficially for the purpose of the operations conducted under the lease, a surface rent at the rate assessable under the revenue law of rules applicable in the district in which the land is situated: Provided that if no such rent is assessable under the existing law, the rent may be fixed by the Licensing Authority. (2) If the land belongs to a private person, a lessee shall pay surface rent to the owner of the land actually used or occupied superficially at such rate and in such manner as may be mutually agreed upon between the lessee and the land owner and in case of disagreement between them, at such rate and in such manner as may be determined by the Licensing Authority whose decision shall be final.

7. Stance taken by the petitioner is that interpretation of the afore-cited rules would lead to a conclusion that once an area is leased out, excavation could take place by the petitioner or any other person and it does not mean that it is the only lessee who can excavate and none else, at this juncture learned counsel for the petitioner, has relied on section 195-A of the Punjab Mining Concession Rules, 2002 and is of the view that once the scheduled rates of the items/minerals for the areas leased out to respondent No.2, have been declared by the government, the lessee/respondent No.2 is under obligation to allow the petitioner to excavate the minerals after payment of the rates determined. This, in my view is an erroneous interpretation of the afore-referred rules. Purpose of notifying the scheduled rates of the leased out area is that lessee could not exploit the demand of the consumers/customers and in no way it can be interpreted that the lessee/respondent No.2 is under obligation to allow the petitioner to excavate the minerals after payment of the same according to the scheduled rates.

8. It would be pertinent to mention that the grievance of the petitioner was fully addressed/attended by the respondents while passing the impugned order dated 26.09.2016 wherein it has been observed that authorities are not equipped with any such power to compel/direct respondent No.2 to allow the petitioner for excavation from the area leased out to him, on payment of scheduled rates. Only power lies with the mines authorities is that the rates must follow the schedule.

9. Singe respondent No.2 being a successful bidder was granted lease in terms of Rules whereas no such permission is granted to the petitioner for which he can be allowed to carry out the mining activities as a vested right. Plan reading of Rule 191 of the rules ibid makes it abundantly clear that there shall be no mining of minor minerals except under the lease granted in accordance with rules. However, the lessee may allow anyone to carry out such activity upon payment of scheduled rates.

10. Learned counsel for the petitioner has relied on order dated 20.11.2009 passed by Hon'ble Supreme Court in suo motu case No.21/2009. This is not applicable to the present case and is inpat because it relates to the auction of rights of recovery of taxes on sand and gasser (minor minerals) without specifying the rate of taxes (schedule of taxes) and overcharging in this respect. So far as the constitutional guarantee with regard to the freedom of trade and business is concerned it is always subject to certain conditions/qualifications. Moreover, licensing and regulation of trade has also been provided in the relevant constitutional provision which reads as under:- "Article

18. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter any lawful profession or occupation, and to conduct any lawful trade or business: Provided that nothing in this Article shall prevent

(a) the regulation of any trade or profession by a licensing system; or

(b)

(c)

" What has been narrated above, I am not inclined to interfere in the impugned order dated 26.09.2016. This petition does not succeed and is dismissed. No order as to cost. ZC/M-121/L Petition dismissed.