SAGHEER AHMAD QADRI, J. --- Through this single . Judgment Writ Petition Nos. 1182 of 2001, 1183 of 2011, 1250 of 2011 and Criminal Original No. 62-W of 2011 are being disposed of as common questions of law and facts are involved in all these petitions.
2. Brief facts in order to dispose of these petitions are that through Writ Petition No 1182 of 2011 petitioner Abdul Ghaffar S/o Muhammad Din in response to advertisement published in different National Dailies he participated in the auction and was awarded contract for collection of royalty on minerals rights for District Jhelum; that subsequent to award of the contract it transpired that a large chunk of area subject matter of mining and leases though located in District Jhelum were being arbitrarily and illegally considered as part and parcel of District Chakwal and thus the petitioner was being prejudiced on account of in-action of the respondent authorities; that petitioner moved various applications supported by the documents bring into the notice of respondent No. 4-Director, Small Mines Assistance/Titles Punjab, Lahore who constituted a committee which actually visited the site, examined the relevant revenue record, carried out physical inspections and thereafter submitted its report endorsing petitioner's point of view vide report present on file (Annex 'E'); that in view of the report above-mentioned respondent No. 4 vide Notification No. DG/M&N/P.A.DIR.S&A(Misc.)/2010/1295- 413, dated 22.1.2011 re-numbered the mining leases while holding that major portion of the leased areas fell within district Jhelum and thus were available for collection of royalty by the petitioner. Similarly lease areas major portion whereof fell within the district Chakwal were re-numbered and notified for collection of royalty by respondent No. 6 Ghulam Murtaza S/o Ghulam Muhammad; that the contract for collection on minerals royalty of district Chakwal was put on auction on 22.2.2011 much after issuance of the Notification dated 22.1.2011; that respondent No. 6 filed an application before respondent No. 4 seeking withdrawal of said notification; that respondent No. 4 in view of clause 15 of the Notification dated 9.12.2002 submitted a Reference in this respect before respondent No. 2-Director General, Mines and Minerals, Punjab, Lahore; that respondent No. 6 subsequently also filed an appeal before respondent No. 2 against the Notification dated 22.1.2011 and the matter was pending before respondent No. 2 for disposal; that it was mentioned in para-11 of Writ Petition No. 1182 of 2011 by the petitioner that a day before filing of the writ petition the officials of respondent authorities visited the petitioner and told him to withdraw from the sites notified vide Notification dated 22.1.2011, however, the petitioner informed them that as the matter has so far not been finalized by respondent No. 2 they had no authority to direct the petitioner to withdraw from the collection of the royalty from the areas in dispute; that it was agitated that the contract of the petitioner was govern under the Punjab Mining Concession Rules, 2002 and the relevant rule 141 was applicable according to which a licensee or any lessee shall on the first day of month of January and July each year pay royalty at such rate or in any manner as prescribed by the Government from time to time on all minerals produced and carried away and in case of non-payment of royalty dues within the grace period of two months, a penalty at the rate of 1% of the outstanding dues for the delay of every month or part- thereof shall be charged from the date the payment become due; that none of the rules provided under the Punjab Mining Concession Rules, 2002 whereby respondent No. 2 has jurisdiction to entertain and dispose of any such Reference and the appeal filed by respondent No. 6 was beyond the period of limitation even otherwise maintainable.
3. On the filing of Writ Petition No. 1182 of 2011 on 17.5.2011 this Court while admitting the writ petition for regular hearing issued notice to the respondents and in C.M. No. 2 of 2011 it was directed that the proceedings before respondent No. 2 shall remain suspended in the meantime and status quo was also directed to be maintained.
4. The petitioner subsequently on 23.5.2011 moved another Writ Petition No. 1250 of 2011 mentioning the basis facts as narrated above with the addition that inspite of the fact that this. Court vide order dated 17.5.2011 in W.P.No. 1182 of 2011 suspended the proceedings before respondent No. 2 and it was also directed that status quo at the spot be maintained respondent No. 2 in connivance with remaining respondents specially respondent No. 5 Ghulam Murtaza, royalty collector for district Chakwal managed/manoeuvred to show passing of an order dated 16.5.2011 whereby Notification dated 22.1.2011 issued by respondent No. 4 was shown set aside and it was also alleged that as a result the royalty collection rights in respect of seven disputed sites have been handed over to respondent No. 6. This Court in view of the submission made by learned counsel for the petitioner passed the following order dated 23.5.2011:- Contends that earlier in Writ Petition No. 1182 of 2011 the petitioner has challenged the legality of Notification dated 22.1.2011 and this Court while admitting the said writ petition for regular hearing issued restraining order dated 17.5.2011 whereby the proceedings before respondent No. 2 were stayed. Learned counsel agitates that in order to undo the order of this Court i.e. 17.5.2011 respondent No. 2 has now passed an ante-dated order dated 11.5.2011 which itself shows the mala fides on the part of respondent authorities although the petitioner was heard while passing the previous order dated 23.4.2011 which was impugned in the above-mentioned writ petition.
2. Point raised need consideration. Admit. Notice to the respondents. To come up for hearing alongwith W.P. No. 1182 of 2011.
C.M. No. 1 of 2011 Dispensation sought for is allowed subject to all just and legal exceptions. C.M.
Stands disposed of.
C.M. No. 2 of 2011 Subject to notice the operation of the impugned order shall remain suspended in the meantime.
5. The petitioner in view of the facts narrates in Writ Petition No. 1250 of 2011 whereby in view of the earlier order dated 17.5.2011 passed by this Court in W.P. No. 1182 of 2011 whereby the proceedings before respondent No. 2-Director General, Mining and Minerals, Punjab, Lahore were directed, to remain suspended filed Criminal Original No. 62-W of 2011 with the prayer that as respondent No. 2 has violated the direction issued by this Court, therefore, respondents be proceeded against under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973.
6. Respondents No. 1 to 5 & 7 submitted the following parawise comments:---
1. Correct.
2&3 Admitted to the extent that the petitioner filed an application before the respondent No. 4 on 27.11.2010 whereupon the respondent No. 4 issued notification dated 22.1.2011 which was subsequently set aside by respondent No. 1 vide order dated 11 .5.2011.
4. Admitted to the extent that the Committee examined the record as per topo sheets prepared by the Survey of Pakistan and submitted its report. However, it is pertinent to mentioned here that the petitioner was awarded the contract for collection of royalty for a period of one year with effect from 27.9.2010. Respondent No. 4 issued the order/notification dated 22.1.2011 taking out 07 mining concessions from District Chakwal and including them in District Jhelum thus giving undue benefit to the petitioner. These mining concessions were the part of royalty collection for District Chakwal prior to the grant of contract for collection of royalty of District Jhelum to the petitioner.
Admitted to the extent that 07 'concessions of District Chakwal were renumbered and added to District Jhelum and 03 concessions from District Chakwal vide notification dated 22.1.2011. However, this exercise, if legal, .Should have been undertaken rior to the award of contracts for collection of royalty and that to by the competent authority and not by the Director Small Mines Assistance/Titles (Respondent No. 4) who is not competent to issue any such order/notification. 6.
Admitted to the extent that auction of District Chakwal was conducted on 22.2.2011. However, it is submitted that no new mine should have been assigned to District Jhelum by transferring from other District after the award of royally contract of District Jhelum on 27.9.2010.
7. Admitted to the extent that respondent No. 6 filed on application dated 13.4.2011 before the respondent No. 4 for withdrawal of the notification dated 22.1.2011.
8. Admitted to the extent that respondent No. 4 made a reference to respondent No. 2 referring the matter for decision after heating the parties under the clause 15 of the notification dated 9.12.2002.
It is added that all contract job collection of royalty are auctioned under the notification dated 9.12.2002 which was issued under Rule 141 of the Punjab Mining Concession Rules, 2002. Only respondent No 2 is competent to adjudicate the matter under clause 15 of the notification dated 9.12.2002.
9. Admitted with the remarks that respondent No. 2 is fully competent to adjudicate the petition of respondent No. 6. Accordingly notice for hearing to concerned parties was issued.
10. Not correct. The case was finally heard on 11.5.2011 in presence of the counsel for the petitioner and his representative Mr. Asghar and decided, by respondent No. 2. The decision was announced in presence of all the concerned parties in the open Court according to which the notification dated 22.1.2011 issued by respondent No. 4 was set aside being illegal & incompetent.
11. Not correct. After issuance of order. Dated 11.5.2011, respondent No. 5 delivered the possession of the disputed post to respondent No. 6 on 17.1.2011. Rest of the contents of the para are denied.
12&13The contracts for collection of royalty are governed under notification dated 9.12.2002 which was issued under rule 141 of the Punjab Mining Concession Rules, 2002 under which respondent No. 2 is the only competent authority to decide such disputes.
14. Not correct. Respondent No. 4 has issue a notification dated 22.1.2011 as he was not competent for the same. Respondent No. 2 exercised his competency under clause 15 of the notification dated 9.12.2002. As such, order dated 11.5.2011, wherein the notification dated 22.1.2011 was set aside is quite legal with lawful authority.
15. Absolutely incorrect.
16. The contracts for collection of royalty are governed under notification dated 9.12.2002 which was issued under Rule 141 of the Punjab Mining Concession Rides, 2002, Respondent No. 2 is fully competent to adjudicate the disputes under clause 15 of the said notification.
17&18 Not correct. Royalty contract dated 27.9.2010 granted to the petitioner on the basis of the position of concessions at the time of grant. The modification by respondent No. 4 after the grant of contract to the petitioner vide notification dated 22.1.2011 was illegal as he was not competent to interfere in the position of concessions. As remedy to challenge the order of respondent No. 2 by the petitioner before respondent No. 1 is available under clause 16 of the notification dated 9.12.2002. However, the petitioner did not avail the said remedy which is provided to him under clause 16 of the said notification. As such, the writ petition being pre-mature is not maintainable in the eyes of law.
19: Not correct. The plans of the mining concessions are prepared on the basis of topo sheets prepared by Survey of Pakistan and the entire function of the Directorate is performed on the basis of survey data provided by Survey of Pakistan.. However, the petitioner was given a number of extra mining concessions for collection of royalty withdrawing from District Chakwal after about four months of the award of royalty contract.
20. Notification dated 22.1.2011 was issued after the grant of royalty contract to the petitioner which caused illegal gain to the petitioner and monitory loss to respondent No. 6, as such, respondent No. 6 approached both the respondents No. 2 & 4 for legal remedy under clause 15 of the notification dated 9.12.2002.
21. Not correct. Royalty contract dated 27.9.2010 was granted to the petitioner on the basis of the petition of concessions/number of concessions at the time of grant. The modification by respondent No. 4 after the grant of contract to the petitioner vide notification dated 22.1.2011 was illegal as he was not competent to interfere in the position of concessions without consulting the respondent No. 4. A remedy to challenge the order of respondent No. 2 by the petitioner before respondent No. 2 is available under clause 16 of the notification dated 9.12.2011. However, the petitioner did not avail the said remedy which is provided to him under clause 16 of the said notification. As such, the writ petition being pre-mature is not maintainable in the eyes of law. It is further submitted, that the petitioner has concealed the facts that the decision on reference/petition against the order /notification dated 22.1.2011 of respondent No. 4 has already been taken on 11.5.2011.
7. Respondent No. 6-Ghulam Murtaza submitted his para-wise comments in Writ Petition No. 1250 of 2011 wherein seven preliminary objections were raised on the grounds that as an alternate remedy under Rule 185-A of the Punjab Mining. Concession Rules, 2002 was available to the petitioner which he did not avail, therefore, this writ petition was not maintainable; that this petition was filed with ma/a fides; that actually Appeal/Reference were pending before respondent No. 4 on 11.5.2011 after hearing the arguments it was finally disposed of in presence of the parties, therefore, assertion made by the petitioner that this anti-dated order was manoeuvred shown to have been pronounced' is actually wrong. It was further agitated that proceedings conducted before respondent No. 2 were perfectly lawful and justified. On factual side the assertions made by the petitioner were refuted and it was agitated that Notification dated 22.2.2011 was entirely without any jurisdiction, void ab initio and it was wrongly labelled as Notification as it was never published in the official Gazette in addition it was not covered by the provisions of Rule 112 of the Punjab Mining Concession Rules, 2002; that respondent No. 4 unlawfully re-numbered the leases after auction of the royalty collection rights for district Jhelum and extended undue advantage to the writ petitioner by adding huge productive areas to district Jhelum. It was, however, admitted that the Reference sent by responder No. 4 to respondent No. 2 was not lawful, however, appeal filed by respondent No. 6 in view of the circumstances was maintainable. It was further submitted that vide order dated 11.5.2011 arguments were heard by respondent No. 2 on 11.5.2011 and its copy was issued on 16.5.2011; that no violation of any direction issued by this Court was ever conducted by any of the respondents.
8. In Criminal Original No. 62-W of 2011 comments were submitted by respondent No. 3-Ghulam Murtaza royalty contract of district Chakwal reiterating the stance mentioned above. Respondent No. 1-Munawar Ahmad Majoka, Director General, Mines & Minerals, Punjab, Lahore also denied the violation of any restraining order passed by this Court and it was agitated that actually the order was announced on 11.5.2011, however, its copy was issued on 16.5.2011.
9 Learned counsel for the petitioner argued that admittedly the petitioner was granted contract for collection of royalty rights after declaring him highest successful bidder vide contract dated 27.9.2010. It was argued that if the advertisement notice regarding collection of royalty rights published in Daily 'Nawa-i-Waqt' Lahore present at page 9 of W.P. No. 1182/2011 is seen bids were calls in respect of districts Chakwal, Attock, Jhelum, D.G. Khan, etc. Wherein it was specifically recorded that the royalty shall be collected within the revenue limits of all those district; that the petitioner was declared successful to collect royalty on the minerals falling within the revenue limits of District Jhelum; that when the petitioner started collecting royalty from the concessionaries it transpired that concession areas included within the revenue limits of district Jhelum were being treated failing within the revenue limits of district Chakwal, therefore, application was moved and respondent No. 4 after due enquiry on the basis of detailed report declared seven of the mining leases failing within the revenue limits of district Jhelum while three were declared falling within the revenue limits of district Chakwal and thereafter Notification dated 22.1.2011 was issued. It was further argued that the petitioner had been collecting royalty from the mining leases declared falling within the revenue limits of District Jhelum; that subsequently respondent No. 6 was granted contract for collection of royalty from mining leases failing within the revenue limits of district Chakwal; that at the time of bidding and grant of contract to Respondent No. 6 revenue limits of district Jhelum had already been carved out and declared as such vide Notification dated 22.1.2011; that respondent No. 6 knowingly entered into the auction proceedings and was granted bid but subsequently in connivance with respondent authorities he moved an application before respondent No. 4 who although had no lawful authority to refer the matter to respondent No. 2 in the shape of a Reference; that subsequently realizing that respondent No. 2 has no jurisdiction to dispose of that Reference responded No. 6 filed an appeal whereby he challenged the Notification dated 22.1.2011 passed by respondent No. 4 through appeal which was time-barred even otherwise in view of clause 15 of the Notification dated 9.12.2002 only if a dispute arises between the royalty contractors concessionaries matter could be referred to the Director General, Mining & Minerals, Punjab, Lahore for decision. It was contended by the learned counsel for the petitioner that as there was no dispute between the royalty contractors and any of the concessionaire, therefore, this matter could not be referred to the Director General, Mining & Minerals Punjab, Lahore under Rule 141 of the Punjab Mining Concession Rules, 2002. It is contended that there is no provision/rule available under the Punjab Mining Concession Rules, 2002 if any dispute arises between two royalty contractors and in that eventuality the matter ought to be decided by a Civil Court or any other competent forum; that in order to undue advantage respondent No. 6 who knowingly participated in the bid and subsequent to passing of the impugned notification dated 22.1.2011 filed time-barred appeal before respondent No. 2 who had no jurisdiction to entertain any such appeal, however, respondent No. 2 without any lawful justification in order to grant undue advantage to respondent No. 6 after passing of the order by this Court on 1.7.5.2011 in W.P. No. 1182 of 2011 passed another anti-dated order dated 11.5.2011 allegedly announced on 16.5.2011 whereby Notification dated 22.1.2011 was shown set aside. Learned counsel argued that if the impugned order.Dated 11.5.2011 challenged in W.P.No. 1250 of 2011 is seen while referring the facts and arguments from both sides without adverting to the factual aspect that the appeal was barred by time as under Rule 185 of the Punjab Mining Concession Rules, 2002 a period of limitation of filing the appeal 30 days is provided shown decided the matter while setting aside the impugned notification dated 22.1.2011 which itself is illegal. Learned counsel while referring the order sheet maintained before respondent No. 2 annexed with the comments submitted by respondent No. 6 in Criminal Original No. 62-W of 2011 argued that if order dated 6.5.2011 is seen it is shown passed and signed by respondent No. 1-Munawar Ahmad Majoka, Director General, Mines and Minerals, Punjab, Lahore wherein it is shown that the case was shown adjourned to 10.5.2011. Learned counsel referred that if the order dated 10.5.2011 is seen it is shown signed by Muhammad Tufail, Superintendent of the office of Respondent No. 1 whereby it was recorded that the appeal could have not been heard as the respondent No. 1 remained busy in meeting and it was shown adjourned, to 11.5.2011; that subsequent to that no order was passed on 11.5.2011 and it was shown that on 16.5.2011 the order was announced. Learned counsel argued that this itself proves that no order was passed on 11.5.2011; and in order to frustrate the order dated 17.5.2011 passed by this Court in W.P. No. 1182 of 2011 these orders were manoeuvred and prepared anti-dated. It was further argued that in 'the circumstances at the time when respondent No. 6 was granted contract Notification dated 22.12011 had already been pronounced/issued, therefore, respondent No. 6 knowingly entered into bid, therefore, he subsequently estopped to challenge the same. Reliance has been placed on Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1), Barkat A.I v.
Muhammad Nawaz (PLD 2004 SC 489), Muhammad Sabir alias Ghulam Sabir v. Sher Muhammad, etc. (KLR 1987 Civil Cases 143), Sh. Allah Rakha through legal heirs v. U.P. Church and others (1993 MLD 2126), Noor Muhammad and 4 others v. Additional District Judge, Gojra and 35 others (2004 MLD 1321), Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 SC 153), Abdul Rehman and another v. Mukhtar Ahmad and another (1985 CLC 1072), Muzaffar A.I v.
Muhammad Shafi (PLD 1981 SC 94), Ibrahim v. Muhammad Hussain (PLJ 1975 SC 331), Bahadur v.
Muhammad Shoaib and 9 others (PLD 1981 Karachi 788), Syed A.I Abid Zaidi and others v. Deputy Settlement and Rehabilitation Commissioner, Gujranwala and others (PLD 1967 Lahore 836), Mst.
Zahida Sattar and others v. Federation of Pakistan and others (PLD 2002 SC 408), Syed Anjum Zafar and 8 others v. Syed Abbas A.I Shah and 6 others (2002 SCMR 59), Government N.W.F.P. & another v.
Gul Naas Khan (1987 SCMR 1709) and S.A. Rizvi v. Pakistan Atomic Energy Commission and another (1986 SCMR 965). Prayed that these writ petitions be allowed whereby the Notification dated 22.1.2011 be declared lawful as'respondent No. 2 has no authority to set aside the same. It was also prayed that contempt proceedings be initiated against the respondents for violating the order of this Court.
10. On the other hand learned Additional Advocate General representing respondent department/Government of the Punjab has vehemently opposed these petitions on the grounds that as the petitioner when he was granted rights to collect royalty on minerals for district Jhelum the mining areas which subsequently were included in district Jhelum vide Notification dated22.1.2011 were being treated as part and parcel of district Chakwal; that as these are the productive areas and the petitioner offered bid in view of the previous arrangements, therefore, when subsequently on 22.1.2011 those seven sites were included in district Jhelum and as the same are in more productive areas, in order to earn more royalty than expected, petitioner is agitating the writs; that in the circumstances Government exchequer is loosing as the petitioner is collecting more royalty as compared to his contractual liability. Learned .Additional Advocate General, however, conceded on the basis of instructions by the department that according to the Mapsrlopographical surveys conducted by Survey of Pakistan seven sites now included within district Jhelum are to be included in district Jhelum, however, at present when contract was awarded in favour of the petitioner at that time those sites were not included for district Jhelum, therefore, Notification dated 22.1.2011 was rightly set aside by respondent No. 2 vide order dated 11.5.2011 while disposing of the appeal. It was further agitated that as the appeal was pending at the time of filing of these writ petitions coupled with the fact that the writ petitioners participated in those proceedings, therefore, these writ petitions are not maintainable and the same are liable to be dismissed.
11. Learned counsel for respondent No. 6 while vehemently opposing these petitioner argued that firstly these writ petitions in view of Rule 185 read with rule 185-A of the Punjab Mining Concession Rules, 2002 are not maintainable. It was agitated that as respondent No. 6- Ghulam Murtaza when offered the bid for collection of the royalty in respect of minerals of district Chakwal no Notification was published in official Gazette, therefore, he under the impression that seven sites subsequently included in district Jhelum were part and parcel of district Chakwal as being treated since 1985, that respondent No. 6 submitted an application before respondent No. 4 who submitted the Reference before respondent No. 2 but as that Reference was not maintainable in view of para-15 of the Notification dated 9.12.2002, therefore, he preferred an appeal under Rule 185 of the Punjab Mining Concession Rules, 2002; that respondent No. 2 was competent as in case if any person is aggrieved by an order passed by a licensing authority an appeal can be preferred under the Punjab Mining Concession Rules, 2002; that the petitioner through his counsel participated in the proceedings conducted by respondent No. 2 and when it transpired that there is no chance of success he filed the instant writ petitions. It was argued that present writ petitions are not maintainable and if the petitioner has any grievance he should file revision before the competent authority/Government of the Punjab which is a proper forum; that as far as the impugned Notification dated 22.1.2011 is concerned respondent No. 4 had no authority whatsoever to pass any Notification under Rule 141 of the Punjab Mining Concession Rules, 2002 in this respect. Learned counsel argued that subsequent to setting aside the impugned Notification dated 22.1.2011 by respondent No. 2 vide order dated 11.5.2011 the possession of the seven sites for royalty collecting rights have already been handed over to respondent No. 6 and in this respect handing over and taking over documents were prepared and those were submitted alongwith the written reply of the writ petitions. Learned counsel further argued that presumption of correctness is attached to the official proceedings, therefore it cannot be challenged; that conduct of the petitioner right from beginning is tainted with mala fides and he suppressed material facts from this Court while filing these writ petitions and that as equally efficacious remedy is available to the petitioner, therefore, these writ petitions in the circumstances are not maintainable, While relying on Muhammad Arshad and others v. Returning Officer and others (2006 YLR 388), M/s. Vulcan Company (Pvt.) Limited, Lahore through M.D. v. Collector of Customs, Karachi and 3 others (PLD 2000 SC 825), Muhammad Moosa and others v. Secretary (Settlement and Rehabilitation/Settlement Commissioner (Industries), Punjab, Board of Revenue, Lahore and others (2003 MLD 368), Muhammad lkram and another v. Rent Controller (2004 CLC 1326), Nawab Syed Raunaq A.I, etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236), Khiali Khan v. Haji Nazir and 4 others (PLD 1997 SC 304), Sheikh Munir Ahrnad v. Rent Controller, Kasur, District Kasur and another (2000 YLR 181), Rizwan Rabbani v. University of Health Sciences (2005 CLC 1632), Shahtaj Sugar Mills Ltd. Through Chief Executive v. G.A. Jahangir and 2 others (2004 PTD 1621), Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others (PLD 1996 SC 246), Mst. Yasmeen Bibi v. Mst. Sakina Bibi and 5 others (2004 CLC 960), Abdul Rashid v. Pakistan and others (1969 SCMR 141) and Allied Management Group v. Federation, of Pakistan through Secretary Finance, Islamabad and others (2002 SCMR 1740). Prayed that these petitions be dismissed.
12. I have heard the learned counsel for the parties and perused the record.
13. Admittedly the petitioner Abdul Ghaffar as a result of auction notice whereby it was specifically mentioned that bids were summoned for the'grant of royalty collection rights within the revenue limits of districts Chakwal, Attock, Jhelum, D.G. Khan, Mianwali, Khushab, Rawalpindi and Sargodha offered his bid and vide contract dated 27.9.2010 he was granted royalty collection rights in respect of district Jhelum. The terms and conditions of the contract were also provided which are present at page-10 (Annexure-B) of the file in W.P.No. 1182 of 2011. Respondent No. 6 Ghulam Murtaza was granted royalty collection rights through contract dated 19.3.2011. The petitioner submitted application before respondent No. 4 prior to the grant of the contract for recovery of royalty of niinerals in favour of respondent No. 6 whereby he agitated that differen' points/mines for collection of royalty were wrongly being treated included in district Chakwal. An enquiry was conducted by respondent No. 4 and Notification dated 22.1.2011 was passed. It is to be noted. However during the pendency of the proceedings before respondent No. 4 respondent No. 6-Ghulam Murtaza the royalty collector for district Chakwal also joined the proceedings before respondent No. 6 and enquiry committee after conducting due inspections details of which is given in the report present on file (Annexure E) from pages 28 to 31 in W.P. No. 1182/2011 passed the order on the basis of which impugned Notification dated 22.1.2011 was issued. It is worth mentioning that this Notification issued on 22.1.2011 and copy whereof immediately was sent to the Manager (Works) with the request to get published this Notification in the Punjab Official Gazette. Admittedly when respondent No. 6 entered into contract with respondent department for collection of - the royalty rights of the minerals in district Chakwal Notification dated 22.1.2011 had already been passed and he keeping in view the situation offered his bid. However, subsequently, he moved application on the basis of which respondent No. 4 sent a Reference to respondent No. 2 and thereafter respondent No. 6-Ghulam Murtaza filed appeal under Rule 185 of the Punjab Mining Concession Rules, 2002 before the same authority as already above-mentioned.
14. Under Punjab Mining Concession Rules, 2002 in Chapter (IV) under the heading of Miscellaneous vide rule 141, the provision for the collection royalty are enacted. To better understand the rule 141 ibid is hereby reproduced:-- "A licensee or a lessee shall, on the first day of the month of January and July each year, pay royalty at such rate or in any manner as prescribed by the Government from time to time on all minerals produced and carried away.
(2) In case of non-payment of rent and royalty dues within the grace period of two months, a penalty at the rate'of one percent of the outstanding dues for the delay of every month or part thereof shall be charged from the date, the payment due."
15. Licence, licensee and lessee are defined under Section 2(xx), (xxi) & (xxii). These definitions are hereby reproduced:---
(xx) "lessess" means a person, a firm or a company to whom, a mining lease is granted under these rules and includes his successors-ininterest";
(xxi) "licence" means a prospecting licence granted under these rules;
(xxii) "licensee" means a person, a firm, or a company to whom a prospecting licence is granted under these rules, and includes his successors-in-interest.
16. It is clear from the above-mentioned provisions as provided under rule 141 that a licensee or lessee who has been granted licence under these rules for mining or prospecting licensing or mining -etc. Of the mineral is to pay the royalty and in order to make arrangement for the collection of the royalty under rule 141 ibid, a notification No. V(IM&MD)5-25/2001, dated 9.12.2002 was issued by the Govt. Of Punjab. Under said notification, royalty collection rights are auctions to the registered contractors. Admittedly petitioner Abdul Ghaffar was granted the royalty collection rights vide extract dated 27th September, 2010 in respect of the minerals which were being excavated by the licensee or the lessee falling within the revenue limits of district Jhelum. The petitioner as already mentioned subsequently when found that some of the mines which actually was situated within the revenue limits of district Jhelum had been treated as falling within the District Chakwal, moved application before respondent No. 4 who as already mentioned got conducted inquiry and on the basis of the demarcations/topo sheets issued by the Survey of Pakistan vide notification dated 22.1.2011 declared 07 points of the mines/areas falling within the revenue limits of district Jhelum while three within the revenue limits of district Chakwal and allowed the petitioner to collect the royalty from those 07 points who actually started so. The respondent No. 6 moved an application before respondent No. 4 who while invoking para No. 15 of the notification dated 9.12.2002 sent the reference to respondent No. 2, the Director General, Mines and Minerals, Punjab, Lahore for his decision in this respect. Respondent No. 6 subsequently moved appeal under rule 185 of Punjab Mining Concession Rules, 2002 mentioned above.
17. If parawise comments submitted by respondent No. 2 are seen, it has specifically been agitated that in view of para 15 of the notification dated 9.12.2002, he had the jurisdiction to adjudicate and dispose of the controversy between the parties. In order to appreciate para 15 of the notification dated 9.12.2002 issued under Rule 141 ibid is hereby reproduced:--
15. "In case of any dispute between Royalty Contractor and Concessionaires, matter shall be referred to Director General, Mines & Minerals, Punjab, Lahore for decision."
18. Bare reading of the above-mentioned paragraph if seen, it is clear that it provides a mechanism for resolving a dispute if arises between a Royalty Contractor and Concessionaires and not between the two royalty contractors. The factual aspect of this case if seen, none of the concessionaires/lessee/licensee of the mines have ever raised any dispute with the petitioner Abdul Ghaffar i.e. Royalty contractor for district Jhelum as well as respondent Ghulam Murtaza, the royalty contractor for district Chakwal. It is clearly a dispute between the royalty contractors of two districts. Except Rule 141 ibid and the notification dated 9.12.2002 there is no provision available under the Punjab. Mining Concession Rules, 2002 whereby any authority was provided any powers to dispose of any dispute between the two royalty contractors. This fact has been admitted by learned counsel for the respondent No. 6 during the arguments, however, he raised an alternate argument that as the impugned notification dated 21.1.2011 was passed by the licensing authority, therefore, under rule 185 of Punjab Mining Concession Rules, 2002 appeal was maintainable before respondent No. 2, Director General, Mines and Minerals, Punjab, Lahore which was preferred accordingly, thus respondents No. 2 had the jurisdiction to entertain or adjudicate the said controversy.
19. Apart from the maintainability of the appeal under rule 185 ibid here at present is the question was raised that when writ petition No. 1182 was filed, this Court while admitting the same for regular hearing on 17.5.2011 recorded the following admitting note:- "Contends that vide allotment order dated 27.9.2010 the petitioner was granted rights to collect royalty in respect of small mines situated within the revenue boundaries of district Jhelum and in order to resolve questions involved for the collection of royalty between the petitioner and respondent No. 6 who was granted such rights for collection within the revenue limits of district Chakwal an enquiry committed was constituted to submit report and subsequently on the basis of said report vide Notification No. DG/M&M/P.A.DIR.SMA(Misc)/2010, dated 22.1.2011 seven mines were declared falling within the revenue limits of District Jhelum and three mines within the revenue limits of District Chakwal; that subsequent to that the petitioner and respondent No. 6 had been collecting the royalty according to their contracts but thereafter an application was moved by respondent No. 6 before respondent No. 4 who vide impugned order dated 23.4.2011 further referred the matter to respondent No. 2 for deciding the issue as according to Clause 15 of the Notification dated 9.12.2002 it was provided that "in case of any Dispute between Royalty Contractor- and Concessionaires, matter shall be referred to Director General, Mines & Minerals Punjab, Lahore for decision". Learned counsel contends that actually that dispute does not fall within the ambit of Clause 15 as no such dispute has ever arisen between the parties and it is basically the controversy which has already been decided.
2. Points raised need consideration. Admit.
Notice to the respondents.
C.M. No. 1 of 2011. Dispensation sought for is allowed subject to all just and legal exceptions. C.M stands disposed of.
C.M. No. 2 of 2011. Subject to notice the proceedings before respondent No. 2 shall remain suspended in the meantime . Status quo shall also be maintained.
20. This Court if the above-mentioned admitting note is seen directed the respondent No. 2 to keep on suspending the proceedings before him as . Allegedly pending. Subsequently writ petition No. 1250/2011 was filed alleging that, the respondent No. 2 inspite of the restraining order, trough an anti-dated order allegedly passed on 11.5.2011 has shown disposed of the matter. This Court issued notices to the parties on the said writ petition as well as Crl. Org. No. 62-W of 2011. Parawise comments were submitted by the respondent No. 2, the Director General, Mines and Minerals, Punjab, Lahore is well as respondent No. 6 Ghulam Murtaza, royalty contractor for district Chakwal.
The order dated 11.5.2011 passed by respondent No. 2 as alleged passed on said date alongwith the interim order sheet was annexed by the respondents in writ petition No. 1250 of 2011 as well as the Crl. Org. No. 62-W of 2011 while subsequently the comments submitted by respondent No. 6 Ghulam Murtaza in writ petition No. 1250 of 2011 are seen , the copy or order sheet is shown annexed at pages 14 to 19 of the written comments. In order to further elaborate and for better appreciation, the interim orders dated 6.5.2011 to 16.5.2011 are hereby reproduced:--- 6.5.2011. Present:- M. Shahid Shabbir & Mr. Saeed Anjum Khokhar, Advocate alongwith appellant.
Sh. Ijaz Hussain, DDMM & Mr. Abdul Majeed Sumba!, Superintendent, Hqr's Office for Licensing Authority. Rana Abdul Waheed Khan, Advocate alongwith Mr. Asghar for respondent No 2.
Partly heard. The case is adjourned to 10.5.2011 for further arguments.
Sd/- D.G.
10.5.2011. Present:- Mr. Shahid Shabbir, Advocate alongwith appellant.
Mr. Abdul Majeed Sumba', Superintendent, Hqr's Office for Licensing Authority.
Rana Abdul Waheed Khan. Advocate alongwith Mr. Asghar for respondent No. 2.
The appeal could not be heard by DGM & MD as he remained busy in a meeting in office of the- Secretary, Mines & Minerals Department, therefore, the case was adjourned to 11.5.2011.
SWD.G.
29.4.2011. Present:- M. Shahid Shabbir & Mr. Saeed Anjum Khokhar, Advocate alongwith appellant.
Sh. Ejaz Hussain, DDMM & Mr. Abdul Majeed Sumba!, Superintendent, Hqr's Office for Licensing Authority.
Rana Abdul Waheed Khan, Advocate alongwith Mr. Asghar for respondent No. 2.
Partly heard. The case is adjourned to 6.5.2011 for further arguments. _ Sd/- D.G.
6.5.2011 Present:- M. Shahid Shabbir & Mr. Saeed Anjum Khokhar, Advocate alongwith appellant Sh. Ejaz Hussain, DDMM & Mr. Abdul Majeed Sumbal, Superintendent, Hqr's Office for Licensing Authority.
Rana Abdul Waheed Khan, Advocate alongwith Mr. Asghar for respondent No. 2.
Partly heard. The case is adjourned to 10.5.2011 for further arguments.
Sd/- D.G.
10.5.2011 Present:- M. Shahid Shabbir & Mr. Saeed Anjum Khokhar, Advocate alongwith appellant.
Sh. Ejaz Hussain, DDMM & Mr. Abdul Majeed Sumbal, Superintendent. Hqr's Office for Licensing Authority.
Rana Abdul Waheed Khan, Advocate alongwith Asghar for respondent No. 2.
The appeal could not be heard by DGM&MD as he remained busy in a meeting in the office of Secretary, Mines & Minerals Department, therefore, the case was adjourned to 11.5.2011.
Sd/- Superintendent Reference U.O. Note dated 23.4.2011 regarding contract for collection of royalty on minerals from Districts Chakwal & Jhelum. The case was heard by the undersigned and decision was announced on 11.5.2011. All the concerned parties appeared and argued their cases in detail.
Fair order signed be issued. This single order shall also dispose of the petition filed by Ghulam Murtaza, Royalty Contractor.
Sd/- Munawar Ahmad Majoka Director General Mines & Minerals Punjab, Lahore.
Signed order with cohering letter be issued.
Sd/- Superintendent 16.5.2011
21. If the alleged short order dated 11th May of 2011 is seen, names of counsel for the parties as recorded in the earlier orders is not found mentioned. It is only recorded all the concerned parties appeared and argued their cases in detail. There is no date of hearing as recorded in the earlier orders in routine is mentioned and even underneath the signatures of Mr. Munawar Ahmad Majoka, Director General, Mines and Mineral, Punjab, Lahore, no date is shown recorded. The order itself shows that the date of hearing as well as the'presence of the parties is treated to be shown without giving its detail in this short order subsequent to the typed order further two lines written by hand in order added showing "this single order will dispose of petition filed, by Ghulam Murtaza, royalty contractor" underneath the signatures of Director General respondent No. 2, a note perhaps recorded on 16.5.2011 by the Superintendent of the said office whereby it is recorded signed order with covering letter be issued.
22. The procedure and manner of above passing and recording the order shows, something wrong.
As if any such order was passed after hearing the parties, then names of the learned counsel, the presence of the Dailies with their specific names, hearing of the arguments and then announcement of the order must have been recorded in manner in which earlier orders were being passed and recorded by the Director General. Interestingly after passing the alleged order dated 11.5.2011, the possession of the Check Posts were handed over to the royalty contractor respondent No. 6 on 17th May, 2011 and a copy of handing over and taking over of the possession is placed on record by respondent No. 6 in his written comments as Annexure-G page, 30 in writ petition No. 1250/2011. If this document is seen, it is recorded that under the orders of the Director General, Mines and Minerals vide order dated 11.5.2011, the Deputy Director, Small Scale Mines Chakwal alongwith other officials reached Check Post at 10:40 a.m. And found the representative of royalty contractor for district Jhelum collecting the royalty. The presence of Muhammad Akram son of Muhammad Rafique and Noor Afsar Khan son of Khush Haal Khan is shown at the spot as representative of the royalty contractor for the district Jhelum and than it is shown charge of the post has been resumed and handed over to representative of Malik Ghulam Murtaza, royalty contractor for district Chakwal through Muhammad Bashir son of Muhammad Bakhsh, Malik Muhammad Nausherwan, Nawazish A.I and Bahadar Khan etc. And they started functioning as royalty collector/contractor from 11.00 a.m. On 17.5.2011. Interestingly, if this document is seen on its back, the names of the representative of the royalty contractor of district Jhelum are shown Afsar Khan son of Khush Haal Khan and Muhammad Amin son of Naseer contrary to the names earlier mentioned as Muhammad Akram son of Rafique and Nausherwan son of Khush Haal Khan. The Deputy Director, Small Scale Mines, Muhammad Nawaz Malik, Sajid Rehman, Assistant Director, Chakwal, Sadaqat AU, Rafique, the minor Development Officers, Chakwal, Muhammad Arshad Field Inspector, Chakwal, Abdul Ghafoor Paracha, Field Inspector, Chakwal, the two representatives of the royalty contractor of district Jhelum and the witnesses signed this document on 17.5.2011. However, if the signatures of Malik Ghulam Martaza, respondent No. 6 royalty contractor for district Chakwal is seen, it is shown signed on 16.5.2011. Had the handing over and taking over took place on 17.5.2011, then how the contractor for district Chakwal took over me charge on 16.5.2011 is a question which can only be answered by the officials who prepared this document. It seems that after passing the order on 17.5.2011 by this Court whereby this Court directed that the proceedings before the respondent No. .2 be remained suspended as alleged by the learned counsel for the petitioner an ante-dated order was manoeuvred and managed to be prepared and allegedly passed on 11.5.2011 and then subsequently it was shown that the possession was handed over to the respondent No. 6.
23. If the parawise comments submitted by respondent No. 2 are seen, throughout it was not denied that the Notification dated 21.1.2011 passed by respondent No. 4 whereby 07 of the mines were shown following within the revenue limits of district Jhelum was factually and legally a wrong order. It was only agitated that as the petitioner Abdul Ghaffar when was awarded contract for recovery of the royalty rights in respect of district Jhelum those sites/mining areas were not being treated included within the revenue limits of that district, hence the order was without any justification although it was not an illegal order.
24. The above-mentioned narration of the factual aspect shows that the respondent No. 2 was bent upon on all cost to pass on order setting aside the impugned notification dated 21.1.2011. It is now settled that whenever mala fides are alleged and if these are evident from facts and record the most solemn proceedings falls on the ground as a force. Herein this case, as already mentioned keeping in view the factual as well as the legal aspects under para 15 of the notification dated 9.12.2002, the respondent No. 2 had no jurisdiction to decide the dispute between the two royalty contractors and he knowingly assumed the jurisdiction and then the appeal was filed be respondent No. 6 before respondent No. 2 although it was agitated thatit was barred by time as under rule 185 ibid, a period for 30 days is provided as limitation for filing of the appeal and such objections were raised by the petitioner but none of those objections were looked into, while passing 'the order allegedly on 11.5.2011. As the respondent No. 2 had no jurisdiction to entertain and dispose of the dispute/controversies between the petitioner and respondent No. 6, therefore, the order dated 11.5.2011 whereby notification dated 22.1.2011 was set aside is hereby declared illegal, without jurisdiction and ineffective on the rights of the petitioner and same is hereby set aside. Writ Petitions Nos. 1182, 1182 and 1250 of 2011 are allowed.
25. As earlier mentioned during arguments advanced by the learned Additional Advocate General that no doubt when the contract dated 27.9.2010 was awarded in favour of the petitioner at that time even sites of mining concessions which subsequently were included within the revenue limits of district Jhelum were not available for the collection of the royalty, therefore, the bid was offered keeping in view the mineral capacity with the exclusion of seven those points/mines concessions thus the royalty contractor was getting undue benefit and the respondent department was a looser in recovery of public exchequer. For that purpose if the contract dated 27.9.2010 awarded in favour of the petitioner is seen in para 15 it is provided:--- "That in case of any increase/decrease if made in the schedule of rates of royalty under rule 141, ibid the bid money will be enhanced/reduced proportionately from the date on -which the increase/decrease in the schedule takes place and in the event, you will have to pay the instalment on revised rates."
24. In view of the above, if the respondent authorities /Government of the Punjab feel appropriate the above-mentioned condition can be invoked and any loss may be made accordingly.
26. As far as Criminal Original No. 62-W of 2011 is concerned learned counsel for the petitioner has referred certain documents showing some manipulation on the part of the respondent authorities, however, keeping in view the peculiar facts and circumstances of the case this Court is of the opinion that no action in this respect be initiated, however, it is directed respondent No. 2 to be careful in future. Disposed of. .