P L D 1977 Lahore 707 (PLP)

(6) the control of production, storage and distribution of minerals and mineral oils ; (7) the fixation of the prices at which minerals and mineral oils may be brought or sold ; and (8) any matter ancillary or incidental to the matters set out in the foregoing clauses of this section, and the appropriate Government may, by notification in the official Gazette, make rules accordingly. Section 4 of the Act provides that any rule made under this Act and any order made under any such rule, shall have effect notwithstanding anything inconsistent therewith contained in any enactment or in any instrument having effect by virtue of an enactment other than this Act. The Act XXIV of 1948 was made inapplicable for the purpose of regulating and controlling the mines and mineral development in the province by Act XLIV of 1958, West Pakistan Regulation of Mines and Mineral Development Act, 1958. Section 7 of the said Act provides that notwithstanding anything to the contrary contained in any enactment, rules, or instrument having effect by virtue of any enactment or rules other than this Act. Government may in the public interest, at any time, in the manner hereinafter prescribed, determine a prospecting licence or mining lease, whether granted or deemed to have been granted and continued under this Act, and recover possession of and acquire any immovable property or undertaking pertaining to that licence or lease on payment of compensation. It is admitted by the parties that no rules, whatsoever, were framed under the said Act by the Government.

8. Thereafter. President's Order No. 8 of 1961 i.e.. Minerals (Acquisition and Transfer) Order, 1961 was promulgated on 17-5-1961 ; whereby it was provided that all minerals and rights appertaining thereto shall stand acquired by, and transferred to, and shall vest in the Central Government free from all encumbrances. It further provided that any lease or concession granted, or any agreement or contract made, at any time before the commencement of this Order by or on behalf of a Provincial Government or any other party shall $e deemed to have been granted or made by or on behalf of the Central Government. Subsequently President's Order No. 1 of 1964 (Central Adaptation of Laws Order, 1964) was enforced on 28-5-1964 whereby the Mines Act of 1923 was amended providing that throughout the Act, except in section 3, clause (aa) for "Central Government" will be substituted by "appropriate Government". Section 3 of the Act was also amended to the effect that the "appropriate Government" would mean, in relation to mines of nuclear substances, oilfields and gasfields, the Central Government and, in relation to other mines, the Provincial Government. After that, Ordinance No. XXV of 1969 (West Pakistan Regulation of Mines and Mineral Development (Repeal) Ordinance, 1969) was enacted on 16-10-1969 repealing Act XLIV of 1958. It was provided that the said Act would be deemed to have been no repealed with effect from list of November, I

959. All that shows that the initial enactment of 1948 was restored after the repeal of Act XLIV of 1958. The relevant rules, the Pakistan Mining Concession Rules of 1960, were enforced on 15th of June, 1960, framed under section 2 of Act XXIV of 1948. The necessary provisions of the said rules have already been adverted to above.

9. It has been argued by the learned counsel for the respondents that the petition being premature, the prospecting licence having not been issued so far, is liable to be dismissed as such. According to the learned counsel, the grant of a licence is a mere privilege and not a right, a6 mere filing of an application for grant of licence would not confer upon the applicant a legal right. Reliance in this respect has been specifically placed upon Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmad Khan P L D 1975 S C

667. It has also been contended with reference of Dr. Habibur Rahman v. The West Pakistan Public Service Commissioner. Lahore and 4 others P L D 1973 S C 144, Khan Faizullah Khan v. Government of Pakistan through the Establishment Secretary. Cabinet Secretariat and another P L D 1974 S C 291 and Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi P L D 1969 S C 407 that even the instructions issued by the Provincial Government with regard to regulation and grant of prospecting licence would enjoy the status of statutory rules and have to be followed by the authorities concerned while deciding the matter in question. The learned counsel for the respondents have also relied upon rule 12 of Rules of Business, 1962 of the Government of West Pakistan, as contained in Part 'C' (Departmental Procedure) thereof.

10. So far as the first contention is concerned, it has no substance in the circumstances of the case. In the case reported in P L D 1975 S C the respondent before tine Supreme Court had been refused to be issued licence under the Registration (Importers and Exporters) Order, 1952, issued under subsection (1) of section 3 of Exports (Control) Act, 1950 (XXXIX of 1950). At the time when the submitted his application for grant of licence for certain cinematograph films, item No. 49 of the Free List had not been amended, but due to the amendment as notified by the Government on 10-8-1972 import of such films was to be allowed only through the agency to be specified by the Ministry of Information and Broadcasting. It was observed by their Lordships of the Supreme Court, while repelling the contention of the respondent, that by applying for the grant of licence he had obtained legal right, that it was wrong to suggest that the respondent had acquired any legal right for the grant of licence by mere applying for the same and deposit of the necessary fee. It was observed that grant of licence remains a privilege until it is actually granted and is accompanied by a grant. In the instant case, licence has been withheld ab initio and, therefore, no legal liability is incurred and there is no further question whether licence was coupled with grant. While referring to the cases such as reported in P L D 1972 Lah. 572 and (1954) 3 Q B D 270, the Supreme Court held that there was clear distinction between refusal to grant licence and to cancel licence already granted. In the latter case, legal rights are often created because of the incident of the grant as a sequel to the licence. The view taken above is further supported by two cases of the Indian jurisdiction, Peddarangaswami v. The State of Madras A I R 1953 Mad. 583 and Muhammad Yasin v. The District Magistrate, Kanpur and another A I R 1954 All. 317, holding that once a grant has been made either of a licence or a lease validly and in accordance with the rules by the competent authority then such a grant may be binding on the Government and confer rights on the grantee.

11. The learned counsel for the respondent have also relied upon Mir Rasool Bux Khan Sundrani & Co. v. People's Municipality, Sukkur and 2 others P L D 1973 Kar. 878 in order to show the non. maintainability of the writ petition. I am afraid, the facts of that case are quite different from the facts of the present case. In that case, after lease was granted by the Municipal Committee to collect octroi, export and toll tax in favour of the petitioner an agreement in that behalf was executed between the parties. The main grievance of the petitioner before the High Court was in relation to the violation of certain terms and conditions of the said agreement and it was in that context that it was held that superior Courts in exercise of extraordinary jurisdiction do not issue orders or directions for enforcement of contractual obligations.

12. In the present ease, as mentioned above, it was decided by the Mines Committee in 1973 to grant a prospecting licence for a period of one year to the petitioner. This decision was conveyed to him vide Annex. 'B' on 14-4-1975 and the petitioner was asked to reply to the letter for compliance or otherwise of the decision of the Committee. He was further conveyed that formal allotment order in this behalf would be issued after the petitioner submitted the original copy of the Treasury Challan in respect of the amounts to be deposited by him within 15 days from the date of issue of the letter. The petitioner in turn, vide his letter Annex. B/1, dated 15.4-1975, intimated the Joint Director, Mineral Development, Lahore, that be was thankful for grant of prospecting licence to him by the Mines Committee ; and further that in compliance with the directions contained in the letter of the respondent necessary amount as required had been deposited.

13. As mentioned above, the decision taken by the Mines Committees granting prospecting licence to the petitioner for a period of one year has not so far been amended in any manner or rescinded. The appeal/represen tation previously submitted by respondent No. 1, in Writ 'Petition 3114/75, Messrs Sultan & Co., has already been rejected by the Mines Committee In this view of the matter since the petitioner was never refused to be issued licence by the Mines Committee, therefore, it cannot be said that he has no right or locus standi to approach this Court by invoking its extraordinary; jurisdiction. If he bad been refused to be granted licence, then the situation; would have been different. The contention of the learned counsel for the; respondents about the maintainability of the writ petitions is, therefore, hereby repelled.

14. I am afraid, the next contention raised by the learned counsel for the respondents that the so-called instructions, copies of which have been placed on record, regulating the grant of prospecting licence enjoy the status of statutory rules has also no substance. According to the letter of April, 1966. issued by the Forest Department of the Government of West Pakistan, addressed to the Secretary of Industries and Commerce Department of the same Government, the case with regard to exploitations of sand, stone and bajri in the forest area was examined by the Forest Department and it was observed that the utilization of these items in Government Forests was a forestry operation. It was further intimated that the Governor of West Pakistan bad been intimated with regard to that decision, who had directed that exploitation of the said items might continue to be done by the Forest Department. It was further intimated that the Governor had desired that the Law Department of the Government might be moved for arranging the implementation of the decision. According to the letter dated 24-8-1965, addressed to the Section Officer, Industries & Commerce Department by the Deputy Secretary Law (I), Government of West Pakistan, it was stated that in view of the provision of rule 12 of the West Pakistan Government Business Rules it was obligatory for the Department incharge to consult the other department concerned when the subject-matter of a case concerned more than one department ; and since the Forest Department was concerned with the grant of mining lease etc. in the reserved forest area, therefore, it should be consulted in the matter.

15. Copy of the minutes of the meeting held on 11-5-1967, with regard to exploitation of sand, stone and bajri from the forest area, shows that according to the decision the Forest Department would permit exploitation of sand, stone and bajri only on a short term basis which may not extend one year in any case. With regard to exploitation of other minerals from forest limits the Director of Mineral Development was to consult the Forest Department before the Issue of prospecting licences. It was also decided at the meeting that in the interest of forest conservancy the Director of Mineral Development should consult the concerned Chief Conservator of Forests before the grant of any such lease for other minerals over the forest area.

16. According to the copy of the minutes of the meeting held on 11-3-1970, it was decided that in the case of minerals other than minor minerals the Directorate of Minerals would continue granting mineral leases in forest area in consultation with the Forest Department. It was further decided that since period of one month for the issue of a N.O.C. by the Forest Department was not sufficient, therefore, such certificate could be issued within a period of three months. According to the decision taken at a meeting held on 3-12-1971, it was agreed that in case of grant of prospecting licence for underground mineral i.e. coal, the Forest Department ordinarily should have no objection but prior consultation with the Forest Department was considered to be necessary. The minutes of the meeting further show that much grievance was expressed by the representative of the Minerals Department that cases for grant of N.O,C. with regard to prospecting licences were unnecessarily delayed by the Office of the Forest Department with the result that the purpose of grant of such licence lapsed. At this, he was assured by the Secretary, Agriculture, that in future the master with regard to issue of N.O.C. would be examined at a higher level and where the erosion of soil and damgae to the forest could not be stopped even by taking necessary preventive measures by the licensee N.O.C. only in such cases might not be issued.

17. The copies of the various decisions taken at-the meetings of the Forest & Mineral Departmental Heads do not, at all, show that such decisions were ever issued by means of a memoranda in the name of the Government. They are only the decisions takers at certain meetings : the necessary instructions in pursuance thereof were never issued in the appropriate form on behalf of the Government. In 1973 S C it is not clear as to whether the instructions issued by the Provincial Government in consultation with the Public Service Commission were in the form of memoranda or not. It is, however, clear that the said instructions, regulating awarding of marks to candidates recruited for various posts and services, were issued by the Provincial Government concerned, it was not merely a decision taken at the departmental level but further implemented by issuance of instructions in the name of the Government directing the Public Service Commission to adopt a particular method for the recruitment of various posts and services. It was in that context that the Supreme Court held that such instructions were in the nature of rules made under rule-making power conferred an Provincial Government in terms of Arts. 178 and 186 of the 1962 Constitution and the instructions so issued were binding on Public Service Commission in the matter of assessing merits, of contesting candidates. In the present case as already mentioned, no instructions, whatsoever, were issued by the Government regulating the grant of prospecting licence, lease etc. to the interested parties.

18. In 1974 S C the grievance of the appellant was that although according to the terms and conditions of service applicable to him at the time of joining of the Provincial Civil Service (Judicial Branch), he was entitled on promotion to a listed post in whatever capacity, to a salary in the old Indian Civil Services grade vide resolution adopted by the Secretary of State for India-in-Council on 15-7-1924, yet he was denied this grade owing to instructions embodied in Memo. No. 3885/EC/II/48, dated 12-7-1948, issued by the Secretary to Government of Punjab in the Ministry of Finance. After the establishment of Pakistan Civil Service of Pakistan was formed in 1950 and necessary resolution in this behalf was passed by the Government on 8-11-1950. It was issued in the official Gazette of 8-11-1950 and with the establishment of the Civil Service of Pakistan under the resolution referred to above the pre-Independence Indian Civil Service and its short lived successor, the Pakistan Administrative Service disappeared. It was held by the Supreme Court that the said resolution took the place of former Rules made by the Secretary of State-in-Council in respect of the matters covered by the resolution. It was in that context that the Supreme Court observed that the instructions contained in the memorandum issued by the appropriate Government could be regarded as being in the nature of statutory rules ; provided they were expressed with precision and yet possessed generality so as to be capable of application to a large number of cases. In the present case no such instructions have been placed on the file which were issued by the Provincial Government by a memoranda and as, such the so-called decisions arrived at various meetings of the Departmental Heads cannot be considered to be enjoying the status of statutory rules.

19. The case as reported in P L D 1969 S C referred to above, is also not applicable to the facts of the present case. In that case it was alleged by the appellant before the Supreme Court that rule 10 of the Rules of Business had not been applied inasmuch as the Ministry of Finance, Govern ment of Punjab, bad not been consulted while settling the terms and conditions of service of the respondent. This contention was repelled on the ground that necessary rule as mentioned above was applied and consultation was made with the Ministry of Finance before the said terms and conditions were settled.

20. Rule 12 of West Pakistan Government Rules of Business, 1962 and rule 13 of the Punjab Government Rules of Business, 1974 may be relevant provisions in order to find out the nature of departmental procedure in a case where there is more than one department. It has been made obligatory for the department incharge to consult the other department concerned. In the present case there has been no violation of the said rules, so far as the consultation by the Mineral Development Department with the Forest Department for the purpose of exploiting coal mineral is concerned. As mentioned above, the Forest Department even conceded to this extent that in future in the case of coal mineral ordinarily no objection would be raised for its exploitation by means of a prospecting licence. The relevant business rule, as referred to above, does not lay down that in each and every case reference has to be made to the other Department concerned or they have to be consulted at every step.

21. It is interesting to notice, as mentioned above, that according to section 4 of Act XXIV of 1948 any rule made under the Act and any rule made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment or in any instrument having the effect by virtue of an enactment other than this Act. As discussed above, rule 44 of Pakistan Mining Concession Rules, 1960, framed under the Act of 19413, provides that it shall be a condition of every licence granted under these rules that before the commencement of prospecting operations within a reserved or protected forest thirty days' notice shall be given to the District or Divisional Forest Officer of the intention to commence operations and that the operations shall be conducted subject to any condition regarding the use of fire that he may prescribe. According to section 4 of Act XXIV of 1948 any enactment or any instrument, if inconsis tent with the provisions of the Act or the rules framed thereunder, would have no effect whatsoever.

22. Even if it is accepted for argument's sake that the said decisions arrived at various meetings of the departmental heads enjoy the status of instructions, even then if they are inconsistent with the 1960 Rules the same would not be applicable. In that context it is to be seen as to what is the correct import and purpose of rule 44 of the 1960 Rules. It is correct that while deciding to grant prospecting licence in favour of the petitioner the Mines Committee directed that allotment letter in favour of the licensee would be issued after clearance from the Forest Department had been obtained. The question is whether such decisions or instructions are contrary to the statutory provision as contained in rule 44 or not. The language as used in the said rule indicates that after the licence has been granted it will be a condition for every licensee to give thirty days' notice to the District or Divisional Forest Officer before the commencement of the prospecting operations within the reserved forest area about his intention to commence the same, so that the operations in this behalf may be taken subject to any condition to be imposed by the Forest Department regarding the use of fire. The provisions as contained in the 1960 Rules do not show, at all, that it is a condition precedent for grant of prospecting licence to have first N.O.C from the Forest Department. If it is so, then the authority of tire Mines Committee/ Mineral Department to issue prospecting licences/leases would be nullified, as in that case it would be the Forest Department to control the affairs of the Mineral Department, so far as the grant of such licences or leases is concerned. If the intention of the Legislature had been like that then necessary provision in that behalf would have been inserted in the relevant rules. In order to safeguard and protect the forestry it has, however, been provided in rule 44, as referred to above, that before the commencement of the operations by a licensee it would be obligatory for him to inform the Forest Officer concerned, at least, thirty days before, about his intention to commence such operations so that he may impose, certain conditions regarding the use of tire. It means that such conditions to be imposed by the Forest Department can only be with regard to use! of fire by the licensees so that the forest otherwise may not catch fire on account of the carelessness of the licensees or bad conduct of the operations.

23. Even if there are certain instructions issued by the Provincial Government, if they are contrary to the provision as contained in rule 441 of the Mining Concession Rules, 1960, they would be inapplicable in view of section 4 of Act XXIV of 1948. -In view of that it is not, at all, necessary for respondents 1 and 2, in Writ Petition No. 157/76 to wait for the grant IF of N.O.C. by the Forest Department before the implementation of their own decision awarding prospecting licence in favour of the petitioner. They are, therefore, obliged under the law to implement the said decision by issue of prospecting licence in favour of the petitioner. They are, therefore, directed to do so.

24. So far as Writ Petition No. 3 114/75 is concerned, it stands automa tically disposed of with the decision of Writ Petition No. 157/76, as it has been found that respondents 1 and 2 in that writ petition are obliged to implement their decision awarding the prospecting licence in favour of the petitioner ; meaning thereby that any application/representation preferred. by respondent No. 1 in this writ petition, namely Messrs Sultan & Company, need not be considered any further. Even otherwise I have not been able to find out any provision in the statutory rules of 1960 conferring any power of appeal, revision or review upon the Mines Committee or any other. officer of the Mineral Department against the order with regard to grant or prospecting licence. According to law in the absence of any provision. conferring such power the same cannot be exercised.

25. Further, if grantee of a licence does not execute the same within three months of the communication of the approval of the application by the Licensing Authority, then the right of the applicant to such licence or lease shall be deemed to have lapsed unless the Licensing Authority considers that the delay is not attributable to the fault of the applicant. In view of that provision no other provision for the purpose of setting aside its own order in appeal, revision or review by the Mines Committee has been made in the relevant rules. In the present case, it is, however, clear, in view of the circumstances explained above, that the licence already awarded in favour of the petitioner has not been executed for no fault of the petitioner, rather on account of the conduct of the respondents in not implementing the decision awarding the licence in accordance with law.

26. The result Is that both the writ petitions are hereby accepted in the terms stated above. There will, however, be no order as to costs. S. A. H. Petition accepted.