' SARMAD JALAL OSMANY, J.---This petition impugns the Judgment of the learned Lahore High Court (Rawalpindi Bench) dated 18-8-2011 passed in Writ Petition No,1182 of 2011 filed by respondent No,7 against the petitioner and others.
2. Briefly stated the facts of the case are that the petitioner (Ghulam Murtaza) was awarded a contract for collection of royalties over the mining of minerals within the revenue limits of District Chakwal on 19-3-2001. Earlier respondent No,7 (Abdul Ghaffar) was given a similar contract for District Jhelum on 27-9-2010. After the award of the contract to the respondent No,7 he discovered that a large chunk of area which was the subject matter of mining leases, though located in District Jhelum, were being considered a part and parcel of District Chakwal and thus he was being prejudiced on account of in-action of the concerned authorities. He therefore moved the appropriate application before the respondent No,4 (Director Small Mines Assistance/Titles Punjab, Lahore) who constituted a committee which visited the site, examined the relevant revenue record and thereafter submitted its report endorsing the respondent No,7's point of view pursuant to which a Notification dated 22-1-2011 was issued by the department which re-numbered the mining leases while holding that a major portion of the leased area fell within District Jhelum and hence the respondent No,7 had the right to collect the royalty therefrom in accordance with his earlier contract.
' Similarly some areas the major portion of which fell within District Chakwal were re-numbered and notified for the collection of royalty by the petitioner. Being aggrieved by such notification the petitioner filed an application before the respondent No,4 seeking withdrawal of the same and in view of Clause 15 of the same submitted a reference in this respect before the respondent No,2 viz. Director-General Mines and Minerals, Punjab, Lahore. Later the petitioner also filed an appeal before the respondent No,2 against the impugned Notification dated 22-1-2011. The respondent No,2 after hearing the parties etc. Set aside the notification dated 22-1-2001 which finding was also set aside by the impugned Judgment and hence this petition.
3. Mr. Ahmed Awais, learned Advocate Supreme Court appearing for the petitioner has firstly submitted that as per the Notification dated 22-1-2011 seven areas were given to District Jhelum from District Chakwal which are vast and only three areas from District Jhelum to District Chakwal which is manifestly unjust as admittedly the petitioner had offered a larger sum of money (contract price) than the respondent No,7. Learned Advocate Supreme Court next submitted that Writ Petition No,1182 of 2011 was filed by respondent No,7 on 17-5-2011 i,e, seven days after passing of the order i,e, on 11-5-2011 by the respondent No,2 with the prayer that the proceedings before the appellate authority viz. Respondent No,2 be stopped. Per learned Advocate Supreme Court this is mischievous in nature that as by that time the Order dated 11-5-2011 had already been passed.
Then another petition was filed to set aside the Order of the Appellate Authority which was allowed by the impugned Judgment although vide rule 185-A of the Punjab Mining Concession Rules, 2002 the remedy of a revision was available with any person who has been aggrieved by an order of the Director-General Mines and Minerals, Punjab.
4. Learned Advocate Supreme Court has also criticized the impugned Judgment delivered by the learned Lahore High Court on the ground that no reasons have been given for holding that the order passed by respondent No,2 was without jurisdiction. This in spite of the fact that under Rule 185 of the Punjab Mining Concession Rules, 2002 an Appeal is specifically provided against any order of the Licensing Authority passed under the Rules. Similarly learned Advocate Supreme Court has argued that there is no question of limitation since the impugned Notification dated 22-1-2011 was never published in the gazette and the petitioner only came to know about it after the contract was awarded to him in March. Consequently the appeal filed in April 2011 was within time i,e, within 30 days of the date of knowledge.
5. In order to rebut the arguments of the learned counsel for the petitioner, Mr. A.R. Sheikh, learned Advocate Supreme Court for the respondent No,7 has submitted that as per para No,13 of the impugned Judgment the Order dated 11-5-2011 passed in appeal has been found to be mala fide as it was ante dated only for the purpose of defeating the interim stay granted by the learned Lahore High Court in W.P. No,1181 of 2011. Hence the same was correctly set aside vide the impugned Judgment. He has further stated that as the petitioner had put in his bid after Notification dated 22-1-2011 had been issued, he could not impugn the same.
6. Mr. Javed Hasan, learned Additional Advocate-General, Punjab has agreed with the submission made by the learned Advocate Supreme Court appearing for respondent No,7.
7. We have heard both the learned ASC's for the parties as well as the learned Additional Advocate- General, Punjab and our conclusions are as follows.
8. It would be seen that insofar as the Notification dated 22-1-2011 is concerned admittedly a number of areas covering seven mining leases have been transferred from the District of Chakwal to the District of Jhelum while only three areas have been transferred from the District of Jhelum to the District of Chakwal. This Notification has been issued on the objections of respondent No,7 after he had been granted the royalty contract on 27-9-2010 in the sum of Rs,10,100,000 in the open auction held on 18-8-2010. On the other hand the petitioner was granted the contract for A such collection for the District of Chakwal on 19-3-2010 when his offer to the tune of Rs,81,000,000 was accepted in open auction held on 22-2-2011. In these circumstances we have no hesitation in reaching the conclusion that, indeed both the petitioner and respondent No,7 had submitted their bid on the basis of previous demarcation of District Jhelum and District Chakwal vis-a-vis the collection of royalty on the mining concessions in question. This is demonstrated from the fact that the bid of the petitioner was to the tune of Rs,81 million and that of respondent No,6 only Rs,10 million which would establish that the mining areas for which the petitioner had bid in District Chakwal were larger than those for which the respondent No,7 had submitted his bid located in District Jhelum. Consequently it would be manifestly unfair to act upon the Notification dated 22-1- 2011 which as observed above has significantly reduced the areas of mining leases in District Chakwal and increased those of District Jhelum and as much has been observed in the order of the respondent No,2 dated 11-5-2011. Hence we would hold that the impugned judgment which has been passed on technicalities alone did not consider the merits of the case at all. Insofar as Mr. A.R.
Sheikh's submission regarding the mala fide nature of the order dated 11-5-2011 is concerned, suffice it to say that the said conclusions are not borne' out from the record and hence we are not at all impressed with the same.
9. In view of the foregoing reasons we convert this petition into an -appeal and allow the same. The concerned authorities are directed to act in accordance with the recommendations as per the order dated 11-5-2011 of respondent No,2 regarding publication of the demarcation of the areas in question prior to the auction process in future.