' IJAZ AHMAD, J.--- This judgment will decide ICA No,5 of 2010 and ICA No,6 of 2010, as both have been preferred against a consolidated judgment passed in two writ petitions instituted to challenge the same set of orders.
2. The matter relates to mining lease and the quarrying in that part of the Margalla Hills which falls in District Rawalpindi of the Province of Punjab. The remainder falls within the Capital Territory of Islamabad. The Margalla Hills have been declared a National Park. The Prime Minister of Pakistan vide order dated 20-4-1991 directed the cessation of the quarrying operations within the area of National Park as it was creating an environmental hazards. The Government of Punjab through notification. Dated 22-6-200 directed a buffer zone covering an area of 1000 square yards between the Territory of the Province of Punjab and the Islamabad Capital Territory. The said notification was unsuccessfully challenged through Constitutional Petitions Nos.2467 and 2667 of 2001. As the quarrying operations had already caused irreversible damage to the hills, therefore, a summary for rehabilitation process in Margalla Hills was prepared by the Secretary Mines and Minerals (M&M)
Government of Punjab for submission before the Chief Minister of Punjab. This rehabilitation plan was proposed to be executed within five years by utilizing the services of the small stone crushers engaged in quarrying. It was suggested that the quarrying in the area would be done in a scientific manner. For the sake of rehabilitation the prospective expenditure was estimated. The rehabilitation of the area was proposed by applying the method of top slicing, bench formation and provision of stacking. The machine owners were to be permitted to sell the stone obtained through this process. The safety of the ecology of the area and the environmental protection were taken to be a paramount consideration and were to be given, the top priority in the plan. The Deputy Director, Mines and Minerals Rawalpindi Region vide letter dated 24-2-2006 .Acknowledged the payment of Rs,1,92,94,150/- by the Margalla Stone Crushers Association. A contract for rehabilitation restoration was entered into, between the department of M&M, Punjab, Lahore, and the Chairman Crusher Owners Association for a period of three years on 28-2-2006. The period under contract for rehabilitation was extended by one year vide letter dated 12-4-2008, that was resultantly to continue till 26-2-2010 without any further extension. A summary was prepared by the Secretary M&M Punjab, Lahore, for grant of limestone mining leases in the Province of Punjab. In this summary, a proposal far withdrawal of the notification dated 20-6-2001 regarding the creation of buffer zone and the letter dated 12-4-2008 regarding the extension of the period of rehabilitation plan and in alternate the auction of 109 original blocks of limestone, also found a room. The Chief Minister, Punjab, while approving the summary , on 30-7-2009 noted with grave concern that the mining in Margalla Hills was resulting in ecological and environmental disaster causing harm to environment and human life. Mining, blasting and all such activities which were injurious to environment and human life were mandated to be stopped forthwith. Zero tolerance against violations was ordered. The unfettered use of explosives for mining was deplored and was ordered to be stopped. In a letter dated 7-8-2009, issued to the Chairman Crusher Owners Association by the M&M Department Government of Punjab, the extension of one year granted vide order dated 12-4-2008 was withdrawn. The mining and crushing in the buffer zone was ordered to be stopped and the possession was ordered to be handed over to the field office. This last mentioned order resulted in filing of Writ Petitions Nos.15659 of 2009, 15661 of 2009 and 15656 of 2009. These petitions were however dismissed as withdrawn vide order dated 12-10-2009. The Director-General M&M issued notice dated 9-10-2009 requiring the addressees to show cause why the contract in favour of the association be not cancelled and the price for the quarried stone be not recovered on account of non completion of the rehabilitation job. This notice was challenged through Writ Petition No 3711 of 2009. During the pendency of this petition the Secretary M&M passed the order dated 10-12-2009: He was of the opinion that the rehabilitation contractors instead of implementing the rehabilitation plan remained indulged in accumulating wealth by selling the crushed stone. He held that the period of contract had already expired. The extension granted by his predecessor secretary on the last day of his service was without lawful authority and was in fact a manoeuvre to allow the contractors, make fortune. He cancelled the rehabilitation contract and approved the recovery of sale proceeds. C.M. No,1405 of 2009 was made in the above writ petition seeking permission to challenge the order dated 10-12-2009. The learned Single Judge of this Court vide order dated 23-12-2009 dismissed the civil miscellaneous petition and the writ petition as well.
This order has been challenged through ICA No,6' of 2010. In order to challenge the order dated 10- 12-2009, Writ Petition No,3821 of 2009 was filed. It was dismissed vide order dated 1-1-2010 passed by the learned Single Judge. The said order has been challenged through ICA No,5 of 2010.
3. It is contended by the learned counsel for the appellants that the learned Single Judge while deciding C.M. No,1405 of 2009 whereby the amendment in the memo of Writ Petition No,3711 of 2009 was sought dismissed the writ petition without hearing the arguments; that in Writ Petition No,3711 of 2009 parawise comments were ordered to be submitted within a period of three weeks, the said petition was dismissed without submission of the comments sought; that the conclusion drawn by the learned Single Judge that the appellants did not have the locus standi to file the petition is contrary to the judgments passed by the superior Courts of this country; that the learned Single Judge failed to note the discrimination practised by the respondents as the rehabilitation contract in favour of the appellants had been cancelled while some others vis-a-vis the. Fecto Cement Pvt.
Ltd. Had been allowed to continue the quarrying; that the appellants have not incurred any non rectifiable breach that' would have necessitated the cancellation of the contract; that the actual contract uptill 27-2-2009 having been extended till 26-9-2010 and the appellants having already started executing the contract, the same could not be cancelled; that the Secretary M&M does not figure anywhere in case of grant or the cancellation of the licence, therefore, order impugned in the writ petition had been passed without lawful authority.
4. On the other hand, the appeals are opposed by the learned counsel appearing on behalf of the respondents. It is contended that the appellants had themselves withdrawn Writ Petitions Nos.15659 of 2009, 15661 of 2009 and 15656 of 2009 in order to seek remedy before Secretary. The appellants having themselves acquiesced to authority and secretary could not on the eve of passing of the impugned order against them, take a somersault to argue that the secretary had no business to meddle with granting or cancelling of the mining lease; that some controversial facts are involved in the instant case which could not be resolved through a constitutional petition, therefore, the petitions were rightly dismissed by the learned Single Judge.
5. We have heard the learned counsel for the appellants, learned counsel for the respondents and have also gone through the record.
6. In order to understand the issue and to resolve the same we will have to have an introduction with the Margalla Hills lying in the Foots of the Himalayas. It possesses the first interception to the unchecked monsoon winds rising from the hot Arabian Sea heading towards the Cool North of the Sub-Continent. The Margalla Hump intercepts them makes them rise, cool and shower in the plateau of Pothohar and the plains, of Punjab and Sindh'. The districts of Rawalpindi and Islamabad and the adjoining areas owe its rich harvest and the green forests to the hillocks it also provides a beautiful background to the twin cities of Rawalpindi and Islamabad. If these hills are obliviated, all the area to the south, will receive no rain. The plateau will be turned into a cauldron, the land will be sun-baked, human life will perish, flora and fauna will find it hard to persist.
7. The Mines and Minerals Department has been granting leases for quarrying of limestone in this area. The unchecked excavation, the uncontrolled quarrying and the imprudent manner of cutting, slashing and slicing the beautiful hills has already caused irreversible loss to them. These hills are expected not to withstand and last very long against one millimeter slash of its mass each day. In view of its vicinity to the capital of the nation and due to the beauty it exposes to the beholder, the Margalla Hills were declared a National Park by Prime Minister of Pakistan. The picturesque contours of the hills have already been reduced to ledges, cliffs, pinnacles and ditches. The Prime Minister was pleased to issue a directorative dated 20-4-1991 for stopping of the quarrying operations within the area of the National Park.
8. Although too late but better than never, a rehabilitation plan was conceived. A summary dated 30-3-2004 was prepared by the Secretary, M&M, Government of the Punjab wherein the rehabilitation was suggested to be completed within the next three years by utilizing the services of small crusher machine owners in top slicing of the conical hills and benching process in order to reduce the verticality of the hills already slashed by the quarriers in a right angle. There was a contract dated 28-2-2006 between the Chairman Crusher Owners Association on the one hand and the Mines and Mineral Department, Punjab on the other hand. The period was agreed to be three years. It was extended by another year. We have to see the nature of this contract. Whether it was meant to allow the appellants to further excavate and quarry or to apply the balm to the bleeding wounds of the hills. The bare reading of the contract exposes its nature. It was meant for rehabilitation and restoration of damaged and effected site. The amount mustered for the plan was to be applied on slope restoration spreading of soil over slopes, landscaping, levelling, plantation and water supply according, to para 3 of the contract. According to para 4 of the contract, the exploitable stone above 50 feet was to be removed by developing benches and steps leaving slope of 350. The over burden/waste was to make the take-away for the appellants. It is crystal clear that the basic purpose was the restoration and all that was to be taken away was a byproduct of the process. It is as if a kneader is allowed to take the remnants of the dough, home. It is like allowing a sculptor to take away the bits of the clay after the sculpture is finally finished. The appellants never undertook the task of restoration and reclamation. They frenzied in ravaging the beauty of the mountain and in plundering the limestone. The Chief Minister, Government of the Punjab while approving the mining in the Province of Punjab rightly held the Mining at Margalla Hills an ecological and environmental disaster. He had further ordered the complete stoppage of mining and blasting there and a qualified stoppage of all such activities there which were injurious to environment and human life. The phrase of ejusdem gereris does not apply in the instant case.
Here the mining and blasting being done at Margalla Hills was declared ecological and environmental disaster. All the other activities ordered to be stopped. Were however conditioned with having the characteristic of being injurious to environment and human life. The appellants had not mobilized themselves towards the execution of contract for restoration, therefore, the Secretary who extended the contract had the potential and authority to withdraw the extension.
We don't see any illegality in the order dated 7-8-2009 passed by the Government of Punjab M&M Department withdrawing the extension, of period of the contract. It was followed by a notice dated 9-10-2009, issued by the Secretary M&M requiring the appellants to show cause, why the contract be not cancelled for the reasons stated therein. The President of Crusher Owners Association was heard through his learned advocate before passing the impugned order by the respondent- Secretary M&M. The contractor instead of resorting to restoration of the site, repairing the damages caused to the hills and applying balm to its bleeding wounds, chose for making a fortune by further deepening the wounds caused by excavation and quarrying. The appellants deserve no relief. Their petitions were rightly dismissed by the learned Single Judge of this Court.
9. We are of the view that by allowing the appellants who are by nature the excavators and not the rehabilitators, the respondents had themselves incurred a glaring wrong. The respondents had put the cat among the pigeons. The appellants brought a holocaust to the site. The contract of three years taking effect from February 28, 2006 has already come to an end on February 27, 2009. The extension granted has already been withdrawn. There exists no contract in favour of the appellants.
They do not have the locus standi to file the petitions. Moreover, the learned Single Judge has rightly held that it was not a matter of mere interpretation of the contract, there were disputed questions of facts which the parties controverted and which needed be resolved. The same could not be done by the learned Single Judge of this Court in exercise of the Constitutional jurisdiction.
10. We don't see any illegality in the impugned order. These appeals being devoid of merit are hereby dismissed.