2015 PLP 719 (YLR)

WAQAR AHMED SETH, J.

Irfan Khan Bangish petitioner seeks the constitutional jurisdiction of this Court praying for:-- that on acceptance of this writ petition, the judgment/order dated 22-8-2013 and notices dated 24-10-2013 to the extent of applying new policy and reduced the applied area upto 200 acres may be set aside and declared as null and void being illegal, without lawful authority and is outcome of sheer mala fide on part of the respondents and ineffective upon the rights of the petitioner and any process issued by any other respondents with regard to the areas applied by the petitioner which is amount to prejudicing the rights and interest of the petitioner may be declared as null and void being illegal, without lawful authority and on outcome of sheer mala fide on part of the respondents and ineffective upon the rights of the petitioner."

2. Brief facts, as per contents of writ petition, are that the petitioner applied for grant of prospecting licenses through-two different applications and completed all the requisite formalities but on 27-11-2008 respondent No.2 rejected both the applications on the pretext that the petitioner did not attend the office of respondent No.1 for site inspection. The petitioners preferred two appeals against the orders of respondent No.2 before respondent No.3 on 24-12-2008 but the same were allegedly put in cold storage. The petitioner filed a writ petition and this court vide order dated 21-3-2013 issued direction to the respondent No.3 to decide the appeals within a period of 15 days. The respondent No.3 decided the appeals of petitioner on 22-8-2013 whereby on acceptance of appeals of petitioner ordered the Licensing Authority to process the application of the petitioner in accordance with law. The respondents, however, on the basis of judgment issued notices dated 24-10-2013 and directed the petitioner to reduce the applied area upto 200 acres, hence, the instant petition.

3. Arguments heard and record perused.

4. The record reveals that appeals of petitioners were lying pending since 24-12-2008 and requests were made to the appellate authority time and again but with no result. Upon the direction of this Court given in the Writ Petition, the respondent No.3 appellate authority accepted the appeals of the petitioner and passed orders with the condition to the competent authority to decide the matter under the new policy. Since the petitioner filed the requisite applications prior to the new policy and the same was kept pending by the department, hence, no fault lies with the petitioner and the public functionaries are required to act with the principles of good governance, equity and fair play, therefore, law favours the petitioner that policy formulated subsequently would not operate retrospectively.

5. In the instant case, there was ban on the grant of Mining Concessions, which was lifted vide Notification No.14905-MDW/DN-6(5)/2009/(BAN) dated 2-2-2009 and simultaneously a new policy dated 19th November, 2009 was introduced and impugned notices were issued to the petitioner under the new policy/law on the old cases of the petitioners. Clause 7 of the New Policy reads:-- "

7. Except or otherwise determined/ approved by the Government a prospecting license may not be granted over an area of more than 200 acres as part of the policy till further orders. This will not be applicable in Court Cases, Appeal Cases in pipeline and already granted cases."

6. Even otherwise, any subsequent change could not be made applicable retrospectively, adversely, affecting the rights of any individual especially regarding the challenged one. The petitioner spent an amount to discover the applied mineral and due to mala fides on the part of the respondents, the petitioner is struggling for more than six years to get the prospecting license, which is his right but he is being penalized on the inactions of the department/respondents.

7. In view of the above, this writ petition is allowed in terms of prayer made in the writ petition with no order as to costs. AG/472/P Petition accepted.