IJAZ-UL-AHSAN, J. --- The petitioners are aggrieved of order dated 16.9.2010 passed by the Secretary, Government of Punjab, Mines and Minerals Department. Through the impugned order a revision petition filed by the petitioners was dismissed.
2. The brief facts necessitating filing of this petition are that petitioner No. 2 was a contractor of petitioner No. .1 for the purpose of construction of Ghazi Barotha Hydro Power Project (the Project).
For the purpose of execution of the Project thousands of acres of land were acquired by petitioner No. 1, who subsequently awarded a contract to petitioner No. 2 to execute the Project by way of excavation and construction of the Ghazi Barotha Hydro Power Project. While digging the power channel for the Project; petitioner No. 2 found deposits of ordinary/slate stone in the right of way.
They excavated the said stone and used the same for construction of the power channel and other related works. On inspection by the respondents on 18.11.1997, it was assessed that the petitioner No. 2 had \ excavated and used ordinary/slate stone with Rs. 4.5 million. The said assessment was duly approved by the Licensing Authority as per the law. Petitioner No. 2 filed an appeal before the Director of Industries and Mineral Development, Punjab. The same was rejected vide order dated 17.12.1998. Petitioner No. 2 thereafter filed revision petition before the Secretary Industries and Mineral Development which was adjourned sine die vide order dated 28.6.2000 for the reason that matter had been agitated by the petitioners before Courts of law and was pending before the said Courts.
3. It appears that while the matter was pending before departmental functionaries, petitioner No. 2 had filed a civil suit against the respondents in which the aforesaid order passed by the departmental functionaries was challenged. Initially a status quo order was issued which was subsequently confirmed on 4.2.1999. The Department filed an appeal against grant/confirmation of the status quo order before the District Judge, Attock. The order dated 4.2.1999 passed by the learned Civil Judge was set aside. Aggrieved of the order passed by the learned Additional District Judge, Attock, petitioner No. 2 filed Civil Revision No. 264/1999 before this Court. Vide order dated 18.4.2000, petitioner No. 2 was directed to deposit the sale price of minerals excavated and used by them with the Trial Court. A further direction was issued that if in future they continue excavation, then they should deposit the sale price of minerals excavated and used by them with the Trial Court. It appears that petitioner No. 2 deposited the sale price of ordinary/slate stone excavated and used in the Project with the Trial Court.
4. On 4.1.2003, the site near Kamra was inspected by the Department. Petitioner No. 2 was again found to have excavated and used ordinary/slate stone in various civil works including construction of road along the power channels. A claim of Rs. 35,02,827/- was raised against petitioner No. 2 on account of unauthorized excavation and use. Show-cause notices were issued to the petitioners. The petitioners filed their respective responses. The stance taken by the petitioners was that WAPDA had engaged petitioner No. 2 for construction of power channel of Ghazi Barotha Hydro Power Project. During excavation ordinary /slate stone was found which was ed for civil works relating to the power channel. The land falling in the route of the power channel was acquired by WAPDA. Therefore, excavation of ordinary/slate stone from right of way of the power channel was neither illegal nor unauthorized. It was admitted that pursuant to order passed by this Court on 18.4.2000, the petitioner had already deposited a sum of Rs. 4.5 million. It was, however, prayed that since the civil suit was pending in the Civil Courts of Attock, the fresh assessm ent of Rs. 35,02,827/- may be stayed till final decision of the Civil Courts. After hearing the parties, the Licensing Authority approved recovery of the aforesaid amount of Rs. 35,02,827/-.
5. Aggrieved of the aforesaid order, the petitioners filed an appeal before the Director General, Mines and Minerals, Lahore. The appeal in question was dismissed on 3.4.2006. Being dissatisfied with the order passed by the Director General, Mines and Minerals, a revision petition was preferred before the Secretary, Government of Punjab, Mines and Minerals Department. However, the revision petition did not succeed and the same was dismissed vide the impugned order dated 16.9.2010.
Hence this petition.
6. This petition has not yet been admitted to regular hearing.. However, as the parties are represented and their learned counsels have been heard at considerable length, with their consent, this case is treated as a pacca case and is being disposed of as such.
7. The learned counsel for the petitioner submits that the main allegation against the petitioner is that it violated the provisions of Rule 32 of the Punjab Minor Minerals Concession Rules, 1990. He submits that notice under Rule 32 has been issued in oblivion of the fact that excavation for public purpose is excluded where the said area is acquired for public purpose. In this regard, he has referred to Rule 31 of the Punjab Minor Minerals Concession Rules, 1990 which provides that:- "If an area or a portion thereof held under a lease is required at any time for any public purpose, the lessee shall forthwith release to the Licensing Authority such area and to such extent as is required by the Government and in such a case the bid money will be reduced proportionately."
8. The learned counsel has also referred Rule 27 of the Punjab Minor Minerals Concession Rules, 1990 to argue that a lessee can be restricted from carrying on any mining operations at or upto any point within a distance of' 100 meters from any Railway Line, water reservoir, power line, gas pipeline or other public works. He maintains that the rationale of this rule is that no interference may be made in works being undertaken for public purpose. He therefore submits that since the Project is for public purpose and no mining operation could have been carried on within 100 meters from the Project, the Government has not suffered any loss which is sought to be recovered.
9. The learned counsel has referred to "Muhammad lqbal Khan and others Vs. Collector, Mansehra and others" (PLD 2004 SC 659) in which the Hon'ble Supreme Court of Pakistan has drawn a distinction between minor and major minerals and has held that the rules need to be a liberally interpreted. It has been held that "the liberal interpretation has to be adopted in order to safeguard the interest of the owners of the land having deposits of minor minerals because if besides them a third party succeeds to acquire leasehold right in an auction to extract minor minerals from their land, it would cause multiple administrative problems for both the sides and owners of the land would be deprived to utilize the benefits of the land owned by them".
10. The learned counsel further submits that a pre- condition to attract Rule 32 of the Punjab Minor Minerals Concession Rules, 1990 is that there should be unauthorized mining. In this connection, he has referred to the definition of mine as given in the Punjab Mining Concession Rules, 2002 in sub- section 2(xxv) which provides as follows:-- "mine" means any surface or underground excavation where any operation for the purpose of searching for or obtaining a mineral has been or is being carried on, and includes all works, machinery, tramway, ropeway and siding, whether above or below ground, in or adjacent or belonging to or appurtenant to a mine but does not include the manufacturing or processing plant."
11. From the said definition, the learned counsel has attempted to build an argument that if the purpose of excavation is not mining, the provisions of Rule 32 are not attracted. The learned counsel further submits that the authority to issue a show-cause notice namely Additional Director, Mines and Mineral was not the competent authority to issue such a notice. He submits that in terms of the Rule 32 of the Rules 1990, action can only be initiated by Licensing Authority whereby the Additional Director is not the licensing authority.
12. The learned counsel submits that the term "Licensing Authority" has been defined in Rule 2(ii) of the Punjab Minor Minerals Concession Rules, 1990 which provides as follows:-- "Licensing Authority" means the Joint Director (Mineral Development), Punjab, or an authority notified by the Government as a Licensing Authority for purposes of these rules."
He therefore, submits that the notice was issued without jurisdiction. At this stage, the learned Additional Advocate General has pointed out that the Additional Director has been notified by the Competent Authority as the Licensing Authority through a notification which has been placed on record. Faced with this situation the learned counsel for the petitioners has not pressed this argument.
13. The learned counsel for the petitioner finally argues that the impugned order dated 5.10.2010 passed by the Secretary, Mines is an arbitrary order which has mechanically been passed without discussing the arguments of the petitioner. Further, the judgment of the Hon'ble Supreme Court of Pakistan in Muhammad lqbal's case ibid has not been considered. He therefore, submits that the impugned order is not sustainable in law.
14. The learned Additional Advocate General, on the other hand, submits that under Section 49 of the Land Revenue Act, all mines and minerals are deemed to be the property of the Government.
He argues that the petitioners do not deny that stone was excavated from the site in question and the same was utilized for the purpose of construction of the bed 'of the water channel and other ancillary purposes. The learned counsel submits that law governing mines, oilfields and minerals is the Regulation of Mines and Oilfields and Minerals Development (Government Control) Act, 1948.
Section 2 of the said Act empowers the "Appropriate Government" to frame rules. The term "Appropriate Government" has been defined In Section 6 to mean in relation to the mines of nuclear substances, oilfield and gas fields and development of such substances, minerals and gas the Central Government and in relation to other mines and minerals development, the Provincial Government. He has also referred to Section 4 of the Act to argue that the Act and the Rules will prevail- if there is any inconsistency with other enactments. He points out that pursuant to powers available to, the Government under Section 2 the Provincial Governments have notified rules from time to time. The Government of NWFP promulgated rules in 1976, which are subject-matter of the judgment cited by other side reported as PLD 2004 SC 659. He points out that the aforesaid judgment is not applicable to the facts and circumstances of the present case having been rendered on the basis of a different set of rules and different facts and circumstances.
15. It is submitted that the Punjab Minor Mineral Concession Rules, 1990 define minor minerals to mean ordinary sand, ordinary stone, lime stone and gravel used as a building material and any other mineral so declared by the Government. There is no denial of the fact that where minor minerals are concerned, the same are undoubtedly owned by Government of Punjab and cannot be excavated/used without authorization.
16. The learned Law Officer further submits that -the owner of landed property is only entitled to use the surface. However, any minerals excavated from the said land belong to the Provincial Government under the law as well as the rules. Such minerals which include ordinary/siate stone cannot be used/utilized for any purpose without the permission and/or payment for the same to the Government of Punjab. It is pointed out that admittedly ordinary/slate stone was excavated during construction of the water channel, which was utilized by the petitioner for the purpose of construction of the bed of the water channel in addition to construction of road and other ancillary works. He, therefore, submits that the petitioner was required to pay for use of the said stone in accordance with rates notified by the Government. He further submits that the petitioners applied for and obtained a lease from the respondents, which shows that they understood the position that no excavation could be undertaken without a lease which constituted admission on the part of the petitioners of the fact that the minerals excavated from the site belonged to the Government of Punjab and should have been paid for.
17. As far as the argument of the learned counsel for the petitioner that the charges were calculated without any criteria to measure the amount of the minerals excavated or its value, the learned Law Officer submits that the said criteria is already available in the rules. The petitioners were associated with the process of calculation using their own records for the purpose of calculation of the quantity of stone excavated and used and the calculations have been made on the basis of said criteria. He further points out that the calculations have not been challenged by the petitioners before any forum.
18. I have heard the learned counsels for the parties and gone through the record.
19. The questions requiring determination by this Court are whether ordinary/slate stone falls within the definition of minor mineral. Who owns such minerals and if the minor minerals in question are used without authorization, whether the Provincial Government can recover their price.
20. As a general rule all mines and minerals are the property of the Government, notwithstanding the fact as to who, owns the surface area. Section 49 of the West Pakistan Land Revenue Act provides as follows:--
49. Right of Government in mines and minerals. - Notwithstanding 'anything to the contrary in any other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other documents, all mines and minerals shall be and shall always be deemed to have been the property of Government, and Government shall have all powers necessary for the proper enjoyment of its right thereto.
Explanation. - For the purpose of this section, "Government", in relation to unclear energy, mineral oil and natural gas, shall mean the Central Government, and in relation to other mines and minerals, the Government of West Pakistan."
The word "minor mineral" is defined in Rule 2 of the Punjab Minor Mineral Concession Rules, 1990 (Rules 1990) as follows:-- "Minor Minerals" means ordinary sand, ordinary stone, limestone and gravel used as a building material and may include any other mineral so declared by the Government."
21. The questions raised in this petition can also be answered with reference to the regulations of Miens and Oil Fields and Minerals Development (Government Control) Act, 1948. Section 2 of the Act empowers the "Appropriate Government" to frame rule. The term "Appropriate Government" has been defined in Section 6 to mean in relation to mines of nuclear substances, oil fields and gas fields and development of such substances, mineral oil and gas, the Central Government and in relation to other mines and mineral development, the Provincial Government. Section 4 of the Act provides that in case of inconsistency with other enactments the Act and the rules framed thereunder will prevail. In exercise of powers available to it under Section 2 of the Act the Government of Punjab has framed rules from time to time including the Punjab Minor Minerals and Concession Rules, 1990 and the Punjab Mining Concession Rules, 2002.
22. Rule 4 of the Rules, 1990 provides as follows:--
4. Mining of Minor minerals. -- There shall be no mining of minor minerals except under a lease granted in accordance with these rules: Provided that notwithstanding anything in these rules, a lease for minor minerals to a Government Department and for limestone to an industrial undertaking shall be governed under the Punjab Mining Concession Rules, 1986."
23. The subject of unauthorized mining is dealt with in Rule 32 of the Punjab Minor Mineral Concession Rules, 1990, which provides as follows:--
32. Unauthorized mining. -- (1) If any person carries out mining of minor minerals outside the area granted to him under 'a lease or in any area for which he has not obtained a lease or obstructs free access of a lessee_to the leased area or directly or indirectly tries to interfere with the mining operations by a lessee, he shall be liable, on conviction before the Magistrate of such class as the Government directs in this behalf, to a fine not exceeding Rs. 50,000/- or imprisonment for a term which may extend to three years or with both.
(2) Notwithstanding sub-rule (1), the Licensing Authority shall have the power to stop unauthorized work in such manner as it may deem fit and recover, in addition to the fine, the sale price of the mineral so excavated from the person responsible for such authorized work: Provided that before proceeding, the person shall be given a reasonable opportunity of being heard.
24. It is common ground between the parties that the ordinary/slate stone excavated by the petitioners falls within the definition of "minor minerals". It is not denied that the said stone was excavated and used by the petitioners. The argument of the learned counsel for the petitioners that the petitioners do not require a lease in view of the fact that the land in question had been acquired for a public purpose, has not impressed me. While it is evident that the petitioners owned the surface area for all intents and purposes, the minerals excavated continued to belong to the Provincial Government which is entitled to recover the value of its property. Further, by applying for and receiving a lease, the petitioners admitted the ownership of the Provincial Government of any minerals to be excavated and cannot be heard to say at this stage that they are not under any obligation to pay for the same.
25. It has not been denied by the petitioners that the stone was excavated and the said stone was used for the purpose of construction of the bed of the water channel, in addition to other infrastructure including construction of diversion of railway line, construction of platform for the mixing plant, protection of river banks at Haro River near Qaziabad District Attock etc. Since all the minerals including ordinary/slate stone are the property of the Provincial Government under the law, it is only just and fair that the petitioners should pay its fair price. The whole system for grant of license for mining/excavation of minerals, whether minor or major is based on the fact that minerals wherever located, belong to the Government and can be excavated only after getting a mining lease on the terms and conditions agreed between the parties.
26. The acquisition of land by WAPDA did not confer on it any right on minerals contained in the land in `question. Had the minerals not been used, the same would have remained the property of the respondents, who would have been within their rights to sell the same in the open market .. By the same token, had the stone not been excavated, the petitioners would have had to purchase stone or other material for construction of the bed of the channel and other ancillary works. The fact that they did not purchase stone and other material for the said purpose and utilized the stone which falls within the definition of minor mineral excavated from the land which stone admittedly belonged to the Government, furnishes reasonable justification for the Government of Punjab to claim its price.
27. The learned counsel for the petitioner has also referred to Rules 27 and 31 of the Punjab Minor Minerals Concession Rules, 1990. Rule 31 thereof relates to a situation where an area is held under a lease and is required at any time for public purpose. The said rule obligates the lessee to release such area as may be required by the Government of Punjab for this purpose and in such case the bid money can be reduced proportionately, The said rule has no relevance to the facts and circumstances of the present case. Likewise, the learned counsel has relied on Rule 27 ibid which prohibits mining operations upto any point within a distance of 100 meters from any railway line, water reservoir, power line and other public work etc. The learned counsel for the petitioner has submitted that since mining lease could not have been granted within a distance of 100 meters from the water channel of the Project of the petitioners, the claim of the respondents that they have suffered loss on account of use of the excavated material by the petitioners is without logical basis.
28. I am afraid the argument made by the learned counsel for the petitioner is misconceived.
Further, Rule 27 has no relevance in the matter. The material question before this Court is whether the petitioners could have used the minor minerals for their Project without paying for the same on the basis of the fact that the land had been acquired by them. As already held, the land may belong to the petitioner No. 1 pursuant to the acquisition undertaken by it, the minerals excavated from the said land belonged to the Provincial Government and could not have been used without payment for the same.
29. The learned counsel for the petitioners has also placed reliance on a judgment of the Honourable Supreme Court of Pakistan rendered in the case of Muhammad Iqbal Khan and others Vs. Collector, Mansehra and others (PLD 2004 S.C.. 659). I have carefully gone through the judgment of the apex Court and find that the same is not helpful to the case of the petitioners having been rendered under a different set of facts and circumstances. Through the said judgment the Honourable Supreme Court of Pakistan had directed that a liberal interpretation of Rules 3, 5, 6 and 14 of the North-West Frontier Province (Minor Minerals) Mining Concession Rules, 1971, should be adopted in order to safeguard the interests of private owners of land for the reason that in case a third party succeeded in acquiring lease-hold rights in an auction to extract minor minerals from the lands owned by private parties, it would cause multiple administrative problems for both sides and owners of land will be deprived of its utilization and benefits.
30. In the instant case, the relevant rules are the Punjab Mining Concession Rules, 2002 and the Punjab Minor Minerals Concession Rules, 1990. The land in question is admittedly not private property. Further, there is no apprehension that the mining rights on the land in question will be given to third parties. The aforesaid judgment cited by the learned counsel for the petitioners is distinguishable and is not applicable to, the facts and circumstances of the' instant case.
31. As far as reference by the learned counsel for the petitioners to Article 165 of the Constitution of Islamic Republic of Pakistan is concerned, the said Article is not attracted to the facts and circumstances of the present case.
Article 165 deals with exemption of public property from taxation. The claim raised by the Department is not in the nature of taxation but by way of recovery of the price of minor minerals owned by the Government of Punjab which were admittedly used for the Project of the petitioners.
Consequently, reliance on Article 165 ibid is misconceived.
32. The learned counsel for the petitioners has not seriously contested the calculation of the amount of stone excavated and its value which already stands deposited with the Civil Court pursuant to orders passed by this Court. Even otherwise, the petitioners were associated with the process of calculation of the quantum and value of the stone used. Further, the petitioners have not challenged the criteria, or the methodology used and the calculations made by the Department before any forum. Therefore, this Court does not consider it necessary to examine that aspect of the matter. In addition, the said factual inquiry has already been undertaken by three subordinate forums and it is neither advisable nor appropriate for this Court to undertake such factual enquiry in exercise of its Constitutional jurisdiction.
33. The learned counsel for the petitioners has not been able to convince me that the order passed by the Secretary, Mines and Minerals, Government of Punjab, suffers from any illegality, perversity or jurisdictional error. The order in question is well-reasoned, founded on correct application of the relevant provisions of the law and the rules and warrants no interference by this Court in exercise of its Extra-Ordinary Constitutional Jurisdiction.
34. For reasons recorded above, this petition fails. It is accordingly dismissed.