SYED MUHAMMAD ATTIQUE SHAH, J.---The petitioner through the instant writ petition has sought to invoke the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and prayed that:-- "It is, therefore, most humbly prayed that on acceptance of instant writ petition, the prospecting license/lease cancellation order dated 17.5.2013 and the order dated 27.7.2016 of respondent No,4 may please be set-aside by declaring them illegal and without lawful authority and the prospecting license of the petitioner may please be restored any other relief which this Honourable Court deems proper according to the circumstances of the case may please also be granted."
2. Brief facts leading to the present petition are that the petitioner is engaged in the business of Mines and Mineral Development Project and is pursing his lawful pursuit in this Province; that the petitioner after discovering phosphate in village Kakul applied for the prospecting license for phosphate over an area of 110.6 acres near village Kakul (Gali Behn) District Abbottabad; that the respondent No,2 reduced the area to 40.942 acres and granted the license vide allotment letter dated 19.7.2010; that after completion of the above mentioned formalities the respondents issued work order to the petitioner on 04.8.2010; that after issuing of work order the petitioner negotiated with the landowners of the licensed area and successfully succeeded in resolving the issues of surface rent with them; that the petitioner started necessary mining activities in the said area and invested huge amount for the purchase and installation of machinery for mining and construction of approach road; that respondent No,2 without issuing any notice to the petitioner sent the summary of cancellation of license to respondent No,2 without providing any opportunity of hearing to the petitioner, hence the petitioner being aggrieved of the above mentioned order, preferred appeal before respondent No, 4, who fixed the said appeal for hearing on 27.7.2016 and on that date the respondent No,4 heard partial arguments and adjourned the said appeal for further arguments; that the petitioner was shocked when he received the judgment dated 27.7.2016 of respondent No,4 through post at his residential address, hence he filed the instant writ petition.
3. On 25.11.2016, the respondents were directed by this Court to submit their written comments, which they accordingly submitted, and denied the averments of the writ petition.
4. Learned counsel for petitioner vehemently argued that the prospecting license cancellation order dated 17.5.3013 and appeal rejection order dated 27.7.2016 of respondent No,4 are totally illegal based on malice and mala fide. He further contended that no opportunity of hearing whatsoever has been provided to the petitioner before the cancellation of prospecting license, therefore, the petitioner has been condemned unheard, which action of the respondents is violative of his fundamental rights guaranteed under the Constitution.
5. Learned Additional Advocate General representing respondents strongly controverted the submissions of the learned counsel for the petitioner and stated that time and again the petitioner has been warned regarding illegal mining. Moreover, show cause notice has also been issued to the petitioner but he failed to comply with the directions of the respondents/department. Learned Assistant Advocate General has further argued that no prior notice is required before passing any order or cancellation of the lease agreement under the Mining Concession Rules, 2005 and has fully supported the impugned cancellation order dated 17.5.2013 and order dated 27.7.2016 of respondent No,4, and strongly urged that no illegality or irregularity has been committed by the respondents in the case of the petitioner.
6. Arguments of learned counsel for petitioner and Assistant Advocate General heard and record perused with their valuable assistance.
7. Perusal of the record reveals that respondents have not provided any opportunity of hearing to the petitioner before cancellation of his mining license. However, the learned Assistant Advocate General was specifically asked by this Court regarding issuance of notice to the petitioner prior to cancellation order dated 17.5.2013 vide order sheet dated 18.4.2017, but he could not produce any such notice rather he once again strongly relied on- the said cancelation order and fully defended the same. However, he referred to letter No,1054/MDW/ AD/PL-Phosphate (69)2007 dated 24.5.2012, but on the other hand, the petitioner denied to have received any such letter. Moreover, the same has not been mentioned in the impugned cancellation order/letter dated 17.05.2012. Both the letter dated 24.5.2012 and cancellation order dated 17.5.2012, speaks a lot, but at present this Court restrains itself from giving any finding on the same, lest it may not prejudice the case of either party.
8. Be that as it may by now it is an established principle of law that nobody can be condemned unheard and no act or action which is detrimental against the right and interest of a person/persons can be passed without giving him prior notice and opportunity of hearing. The record of the case further transpires that the respondents have not treated the petitioner fairly and justly. However, as earlier stated that at present, this Court would not discuss the merits of the case which may not prejudice the case of either party. However, the argument of learned Assistant Advocate General does not hold ground that no prior notice is required for the cancellation of license under the Mining Concession Rules, 2005 because even if statutory law or rule does not provide a right and opportunity of hearing before passing any action/order which is detrimental to the rights of a person/persons still it would be deemed that such right is available to the person/persons aggrieved, which cannot be taken away from him/them on the ground that the authority under the law is not obliged to give him/them prior notice. The principle of natural justice "audi alterm partem" is to be read into every statute regardless of that whether or not the same is contemplated in a statute/instrument governing proceedings. Wisdom is derived from the judgment of apex Court reported in 2002 SCM R 1034, wherein it is held that:- "We have considered the arguments so advanced by both the sides in this behalf it may be noted that in the judicial history of our country as well as in those countries where identical/ corresponding system of administration of justice is in vogue the principle enshrined in the maxim audi alterm partem has been made applicable expressly or impliedly in every instrument governing the proceedings which may be statutory or otherwise and if its absence is conspicuous by not making it a part of the instrument governing the proceedings. Though the principle of audi alterm partem is not universally accepted principle but emphasis on its application has always been made on those proceedings where adverse action is being contemplated to be taken against the person/persons who have at least a right to defend such action or during course of time they have acquired a right to negate allegations on basis of which an action adversely affecting their interest is being taken."
9. In the light of the above discussion, this Court reached at the conclusion that the cancellation order dated 17.5.2013 is illegal, unlawful, perverse and arbitrary, therefore, the same is set aside. The order dated 27.7.2016 passed by respondent No,4 is also declared illegal and the same is also set aside. However, respondents are at liberty to proceed against the petitioner strictly in accordance with law, if he has committed any illegality or violated the provisions of the Mining Concession Rules, 2005, while providing him full opportunity of hearing in accordance with the principle of natural justice.