MOHAMMAD IBRAHIM KHAN, J:-This judgment shall dispose of W.P No.2477-P/20016 preferred by Zahir & 4 others Vs Government of Pakistan through Additional Chief Secretary FATA & 8 others and W.P No.3075- P-2016 submitted by Sartaj Khan Vs Government of Pakistan through Additional Chief Secretary FATA & 12 others. The reason that a commutual findings in both these writ petitions pertain to ownership rights and contract for Nephrite mines, situated in Kamangara (Inzari) Tehsil Ambar Mohmand Agency invoking the Constitutional jurisdiction of this Court, petitioner Zahir Gul and 4 others are seeking the following prayers:- "A. That the lease granted to respondent No.9 (Sartaj Khan) may be declared as illegal and without lawful authority as petitioners being the owners of the Nephrite Mines are not party to the said lease therefore do not approve the same.
B. To declare that the property of the petitioners cannot be leased/transferred/given to any person against their will consent, and approval in the prescribed manner .
C. Direct respondents No.1 &2 to approve the unanimous JIRGA award and pass order accordingly in the pending dispute of the said mine D. Direct respondents No.1 to 8 not to harass the petitioner by pressurizing them to lease their property in favour of respondent No.9 (Sartaj Khan).
Any other order deemed just in the given facts and circumstances of the case may please be passed."
While imploring the same relief Sartaj Khan has come up for declaration that:- A. That the letter No.1514- 18/FDA/Min:/MCC/MDA/PL- Nephrite (24)/2015 dated 12.08.2016 issued by respondent No.5 whereby the leasing agreement prospecting license of Nephrite dated 21.01.2016 of the petitioner was suspended is without lawful authority and of no legal effect and that the petitioner may be allowed to continue with mining activities as per the lease agreement.
B. It is further prayed that letter No.1342-47/FDA/MCC/MDA/PL-Nephrite (24) dated 19.07.2016 issued by respondent No.5 asking for re-verification is patently malafide, motivated with ulterior consideration and therefore, be declared as without lawful authority and of no legal effect."
2. The grievance of the petitioner Zahir Gul and 4 others are that they being the leaders and representatives of Basai Kor of Kamangara Tehsil Ambar Mohmand Agency owned the Nephrite Mines situated in Kamangara (Inzari) Tehsil Ambar Mohmand Agency. This area has been declared as their ownership. The ownership claimed by the family known as Bachagan is ineffective against their rights, who also claimed ownership in Nephrite Mines in Kamangara. The publication meeting in favour of holding this precious Nephrite Mines belonging to Bachagan is to be declared against the law and facts and it shall be exclusively declared ownership of Basai Kor.
3. The grievance of petitioner Sartaj Khan is that he had applied for Nephrite through his application dated 09.01.2015 which was process in accordance with mineral rules. After scrutiny of all the various certificates including the certificate got verified from the local police and the certificate owned by the petitioner reflecting his financial position and after the required fee was deposited on issuance of the license and the matter before the Ijlas e-Aam, ownership was declared in his favour, but later on this license was suspended for no reason, hence he be entitled for the prayers as per his writ petition.
4. After hearing learned counsel for parties record was delved deep into.
5. At the very outset, the jurisdiction of the High Courts in relevant to tribal area became a hot issue. Learned counsel for petitioner relied upon PLD 2014 SC 174 (Mst: Rohaifa through her sons & another Vs Federation of Pakistan through Secretary, Ministry of Defence & 2 others), where this core issue had earlier been given favour in matter pertaining to the affairs in the tribal area. The jurisdiction has been held with the respective High Courts repelling the jurisdiction pertaining to the matter in question the Mineral Department KP through their counsel relied upon PLD 2010 SC 1066 (Rana Aftab Ahmad Khan Vs Muhammad Ajmal), PLD 2016 Balochistan 1 (Najeebullah & others Vs Director Nadra, Balochistan, Quetta & others), 2012 MLD 1830 (Haider Khan & 10 others Vs Additional Chief Secretary FATA & 4 others), and PLD 2001 SC 415 (Secretary to the Government of the Punjab, Vs Ghulam Nabi & 3 others).
It was the center of the arguments that the matter pertains to factual controversy, this Court have been resolved by the proper forum granting the license and once the same has been suspended and appeal should have been preferred under NWFP Mines Concession Rules, the High Court while sitting in writ jurisdiction could not resolve the controversy which requires recording of evidence.
6. Both the jurisdictional issues and the matter being outside of the constitutional authority of this Court is based on facts has been finally settled by the augus t Supreme Court of Pakistan in Civil Appeal No.1520 of 2015 Haji Alam Zeb & sons etc Vs Chief Engineer (FATA) Works and Services etc. Whether the declaration of ownership of Nephrite Mines by filing of representation petition in Mohmand Agency to be that of the owners of Basai Kor or else or it is out of contractual obligations and breach of contractual obligations would clothe the petitioner to enforce civil right through special forum, constituted for the redressal of such grievance under the provision of Section 8 of the Frontier Crimes Regulations, 1901, substituted by Regulations of 201 1 dated 25.08.201 1 which reads that:- Civil reference to the Council of Elders.--(1) where the Political Agent or the District Co-ordination Officer, as the case may be, is satisfied from any information that a civil dispute exists between the parties which is likely to cause breach of peace, he may, for the settlement thereof make an order in writing stating the grounds for his being so satisfied, refer the dispute within fifteen days to the Council of Elders, for findings in accordance with Rewaj who shall give its findings within ninety days on the issues in dispute after making necessary inquiry and hearing the parties and their witnesses.
(2) Where a reference to the Council of Elders is made under sub-section (1), the Political Agent or the District Co ordination Officer, as the case may be, shall nominate the Counc il of Elders. The names of the members so nominated be communicated to the parties, and any objection taken thereto by any of the parties, shall be recorded. The Political Agent or the District Co-ordination Officer, as the case may be, shall dispose of the objections, after hearing the parties and recording the reasons thereof, appoint the members of the council accordingly .
(3) The order of reference made under sub-section (1) shall state the issues in dispute on which the findings of Council of Elders is required.
(4) On receipt of the finding of the Council of Elders, the Political Agent or the District Co-ordination Officer, as the case may be, by recording his reasons may ,--
(a) Pass a decree in accordance with the findings of the majority of the Council of elders; or
(b) remand the case to the Council Elders for further inquiry and findings."
Therefore, these writ petitions are stands dismissed. If at all, any remedy for any civil right exists, they are directed to approach the proper forum under the above cited provision of law .