SYED ARSHAD ALI, J.- Through this single judgment, we intent to dispose of the instant civil revision petition as well as the connected writ petition bearing No. 15 8-M of 2015 titled "Azam Khan & others vs Govt: of KPK & others" as in both the connected cases a common question of law are involved.
2. Essential facts leading to the institution of this civil revision are that Azam Khan and others, the plaintiffs/petitioners had filed a suit bearing No. 166/1 on 25.09.2013 against the defendants/respondents. It was averred in the plaint that the plaintiffs are the legal heirs of late Ameer Alam Khan, who formed a firm with two other partners vide partnership deed dated 16.12.1990, under the name and style of Ms. Ittefaq Mining Corporation. The Firm was registered, and a lease bearing No. MDW/BNR/ML-Marble (2)/91 of the demised property was obtained. On the death of their predecessor i.e. Ameer Alam Khan, the plaintiffs became owners of 1/4th share in the Firm. In the meanwhile, a dispute arose among the partners, which was resolved through compromise effected in civil suit No. 91/1-A on 26.10.2010. In view of the aforesaid compromise, the plaintiffs were granted 114th share in the demised area bearing survey Nos. 1232, 3012, 3132, 3186, 3187 to 3195, 3211 ,3212 ,3951, 3952 ,3954 ,3979 ,5385 ,5616 ,5617 ,5869,5870 to 5877, total area measuring 5,564 kanals & 19 marlas situated within the local limits of village Torwarsak Buner. The portion of the demised area belonging to the defendants is adjacent to the demised area granted to the plaintiffs. However, the defendants despite compromise are interfering in the demised area granted to the plaintiffs by violating/ encroaching the demarcated boundaries, hence, the plaintiffs have instituted the present suit.
3. On being noticed, the defendants appeared and contested the suit by filing their written statement. From divergent pleadings of the parties, the learned trial Court has framed as many as 10 issues including the issue of jurisdiction. However, on 07.04.2014 the respondents filed an application under Order VII Rule 11 C.P.C for rejection of the plaint claiming therein that the matter is governed under the Khyber Pakhtunkhwa Mining Concession Rules 2005 ("Rules") where the jurisdiction of the civil Court is barred. The present petitioners contested the said application by filing their written statement.
4. On 19.04.2014 the present petitioners filed an application for withdrawal of the suit with permission to file a fresh one for the reason that a fresh demarcation of the demised premises was conducted by the Mining Department, hence, they want to challenge the same.
5. The learned trial Court vide order dated 05.05.2014 accepted the application of the defendants/respondents and the suit of the plaintiffs was dismissed, however, it was left open for the plaintiffs to approach the appropriate forum. Whereas the application of the plaintiffs/petitioners for withdrawal of the suit with permission to file a fresh one was rejected.
6. The said order of the trial Court was assailed by the present petitioners before the learned appellate Court. The learned Additional District Judge-II/Izafi Zila Qazi Buner at Dagger vide detailed order dated 16.02.2015 modified the order of the trial Court by ordering return of the plaint to them under Order VII Rule 10 C.P.C for presentation before the appropriate forum. The said order of the learned appellate Court has been assailed in this revision petition.
7. Facts leading to the institution of the connected writ petition are that on 16.9.2014 the present plaintiffs/petitioners had yet filed another suit against the defendants including the Mining Department. It was averred in the plaint that the plaintiffs are the legal heirs of late Ameer Alam Khan, who formed a firm with two other partners vide partnership deed dated 16.12.1990, under the name and style of Ms. Ittefaq Mining Corporation.
The Firm was registered, and a lease bearing No. MDW/BNR/ML-Marble (2)/91 of the demised property was obtained. On the death of their predecessor i.e. Ameer Alam Khan, the plaintiffs became owners of 1/4th share in the Firm. In the meanwhile, a dispute arose among the partners, which was resolved through compromise effected in civil suit No. 91/1-A on 26.10.2010. In view of the aforesaid compromise, the plaintiffs were granted 1/4th share in the demised area bearing survey Nos. 1232, 3012, 3132, 3186, 3187 to 3195, 3211 ,3212 ,3951, 3952 ,3954 ,3979 ,5385 ,5616 ,5617 ,5869,5870 to 5877, total area measuring 5,564 kanals & 19 marlas situated within the local limits of village Torwarsak Buner. It was further averred in the plaint that the plaintiffs thereafter excavated marble and spent huge amount on the construction of road leading to the demised area. The defendant No. 4 had started encroachment in the demised area belonging to the plaintiffs. The said dispute was referred for adjudication to the Frontier Mine Owners Association KPK, which was decided in favour of the plaintiffs and thereby the defendant No. 4 was restrained from all sorts of interference in the demised area of plaintiffs, however, the said defendant No. 4 carried-out the illegal excavation. In such scenario, the plaintiffs were compelled to institute the above-referred suit.
8. On being noticed, the defendants/private respondents had filed an application under Order VII Rule 11 C.P.C for rejection of the plaint claiming therein that the jurisdiction of the Court is barred in view of the expressed provisions of the Rules. The said application was contested by the present plaintiffs/petitioners by filing their replication.
9. The learned trial Court vide order dated 30.09.2014 dismissed the said application. The order of the trial Court was assailed by the defendants/ private respondents before the learned District Judge Buner through civil revision bearing No. 20/CR of 2014. The said revision was entrusted for adjudication to the learned Additional District Judge-II/Izafi Zila Qazi Buner at Dagger, who vide order dated 16.02.2015 allowed the said revision and returned the plaint to the plaintiffs/petitioners for presentation of the same before the appropriate forum in view of the expressed provisions of the Rules. The said order of the learned revisional Court has been challenged before this Court through the writ petition in hand.
10. The learned counsels appearing on behalf of the petitioners in both the connected petitions have argued that the mine of present petitioners is not governed under the Rules, therefore, the bar of jurisdiction and the creation of special forum is not attracted to their case. They have further developed their arguments that although the Regulation of Mines and Oil Fields and Mineral Development (Government Control) Act, 1948 was extended to the Provincially Administered Tribal Areas (PATA) where the mine of the present petitioners is situated, however, under section 2 of the said Act only the Federal Government was empowered to frame Rules. The said Act was amended through President's Order No. 1 of 1964, whereby for the words "Federal Government", the "appropriate Government" was inserted and the President's Order No. 1 of 1964 was never extended to the PATA, therefore, the said law has no application to the Tribal Areas. They have further argued that if the aforesaid law is applicable to the Tribal Areas even then the matter agitated before the Court is not regulated under the Rules, therefore, the civil Court has the jurisdiction in the matter.
11. The learned counsels appearing on behalf of the private respondents assisted by learned Law Officer representing the official respondents have argued that the lease regarding the mining at the disputed premises was executed under the Rules. The said lease was also renewed under the Rules and the impugned demarcation was also conducted under the Rules by the Mining Authorities, therefore, the petitioners cannot be allowed to approbate and reprobate. They have further argued that from the impugned order no prejudice has been caused to the present petitioners because the matter is yet to be decided by the competent forum under the Rules.
12. Arguments heard and record of both the connected cases was perused.
13. It is the matter of record that the disputed lease was granted to M/S. Ittifaq Mining Corporation under the Rules by the Mining Department of the Khyber Pakhtunkhawa. Earlier, both the parties had filed an application for demarcation in respect of separation of their shares to the said Authority under the Rules and the record also reveals that the present petitioners have filed an appeal before the Worthy Secretary Government to the Khyber Pakhtunkhawa Mines & Minerals Development Department under Rule 183 of the Rules.
14. In this view of the matter, first we will address the legal objection raised by the petitioners. The Regulation of Mines and Oil Fields and Mineral Development (Government Control) Act, 1948 was promulgated on 8 January 1949 (hereinafter referred to the Act). According to section 2 of the Act the power to make the rules vest in the then Central Government. This Act was extended to the Provincially Administered Tribal Areas (PATA) then called Tribal/Special Areas through Notification bearing No. Leg. 16 (25)/56 dated 22.06.1956.
15. Under Article 225 of the Constitution of Republic of Pakistan 1962 certain laws were adapted which includes the Act with certain modifications, whereby the words "Central Government" was substituted by the "appropriate Government" and thus under section 6 the "appropriate Government" was defined as under:- "In this Act, "appropriate Government" means, 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 the other mines and mineral development, the Provincial Government."
The said amendment was for the obvious reasons that the Federal Government had only the authority to regulate those mines relating to nuclear substances, oil-fields and gas fields, whereas the other mines and mineral development was the provincial subject. Same is the position in our present Constitution i.e. "The Constitution of the Islamic Republic of Pakistan, 1973" ("Constitution"). Item Entry No. 18 of Part-1 and Item Entry No. 2 of Part-II of the Fourth Schedule of the Constitution relates to the mineral, which reads as under:-
18. Nuclear energy, including:-
(a) mineral resources necessary for the generation of nuclear energy;
(b) the production of nuclear fuels and the generation and use of nuclear energy , and
(c) ionizing radiations b. and
(d) boilers]
2. Mineral oil and natural gas; liquids and substances declared by Federal law to be dangerously inflammable.
Thus, the mineral other than provided in the aforesaid entries is the provincial subject in view of Article 142 sub- clause (c) of the Constitution. Hence, the arguments of learned counsels that it is only the Federal Government to make rules is misconceived because the Federal Government has no mandate to regulate mines other than as provided in the Federal Legislative List. Therefore, under section 49 of the West Pakistan Land Revenue Act, 1967 all such minerals and mines vest in the Government, which reads as under:-th
49. Rights of Government in mines and minerals.-- Notwithstanding anything to the contr ary in any other law, or in any order or decree of Court or other authority , or in any rule of custom or usage, or in any contract, instrument, deed or other document, 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 rights thereto.
16. Even otherwise, as stated above, the petitioners obtained lease of the demised premises under the Rules, he applied to the Mining Authority for demarcation under the Rules and has filed even an appeal under the Rules against the said demarcation which is still pending, therefore, the petitioners cannot be allowed to approbate and reprobate.
17. Moving on further to the merit of the case, the petitioners as well as the respondents are in possession of the demised premises pursuant to execution of proper lease deed with the respondents/government. However, in essence, the grievance of the petitioners is against the demarcation conducted by the respondents regarding the demised premises. Even the claim of compensation is also based on the demarcation of the demised premises.
Under Rule 146 of the Rules, the Licensing Authority has the jurisdiction to demarcate the demised premises. The said rule is reproduced as under for ready reference:-
146. Demarcation of area.---(1) A licensee or a lessee shall, within sixty days of the issue of the license or a lease, cause the granted area to be demarcated on ground according to the survey data and submit a certificate on the prescribed form signed by a Registered Surveyor of having carried out the said boundary demarcation.
(2) On receipt of the certificate referred in sub-rule (1), the Licensing Authority may cause boundary demarcation to be checked and corrected on payment of fee to be notified by Government.
(3) A licensee or a lessee may get his area demarcated officially, after paying such fee as may be notified by the Licensing Authority from time to time.
(4) A licensee or a lessee shall not commence prospecting or milting operations unless he has submitted the demarcation certificate to the Licensing Authority and it has been approved.
(5) A boundary dispute in respect of the licensed or leased area, shall be referred to the Licensing Authority whose decision shall be final.
It has been specifically provided in Rule 183 of the Rules that if a person is aggrieved by an order of the Licensing Authority passed under the Rules, he may, within thirty days of the communication of the impugned order , prefer an appeal to Government and the said decision of the Government on such appeal shall be final. In the present case, it is also available on record that the present petitioners have also approached the Worthy Secretary Government to the Khyber Pakhtunkhawa Mines & Minerals Development Department under Rule 183 of the Rules impugning therein the demarcation proceedings, against which they have filed the present suit.
Therefore, the impugned order of the revisional Court for return of the plaint to the plaintiffs/petitioners is in accordance with law because efficacious remedy in form of appeal under Rule 183 of the Rules is not only available to the petitioners but they have already availed the same.
18. No doubt, the civil Court is the Court of ultimate jurisdiction, however, if a litigant has an appropriate remedy before a special Court/ then resort to institution of a civil suit in such circumstances is not permissible.
In this regard, reliance can be placed on the judgment of august Supreme Court of Pakistan titled "Evacuee Trust Property Board and Others V/S Mst. Sakina Bibi and others" reported as 2007 SCMR 262, wherein it was held:- "Civil Court assuming jurisdiction in spite of exclusive bar contained under provisions of special law. Order and judgment of Civil Court would be without lawful authority or void."
This view further reflects in the judgment of the Hon'ble Lahore High Court cited as "Hakam and others V/S Tassadaa Hussain Shah" (PLD 2007 Lahore 261) wherein it was observed:-Under S.9 of C.P.C., Civil Courts were Courts of ultimate jurisdiction to try all suits of civil nature, excepting suits for which their cognizance was either expressly or impliedly barred. Civil Courts were Courts of plenary and ultimate jurisdiction in dispute between parties pertaining to civil nature and ouster of their jurisdiction was not to be lightly inferred or assumed as a matter of course. Only express- provision in any law/statute could debar and take away jurisdiction of Civil Court and such provision was to be strictly construed and applied leaving no room for doubt that jurisdiction of Civil Court had been ousted. Ouster of jurisdiction of Civil Court was applicable where claimed on basis of implication. Such implication was to be founded and adjudged on the touchstone that forum or tribunal created by special law had been conferred with exclusive jurisdiction to try matter of specific civil nature. Section 172 of West Pakistan Land Revenue Act, 1967 and S.25 of Displaced Persons (Land Settlement) Act, 1958, expressly and unambiguously commanded that jurisdiction of Civil Courts was barred to take cognizance of matters which under said special laws had been conferred upon special forums. Para 27 of M.L.R. No.64 also fell within category of express bar of jurisdiction of Civil Court. West Pakistan Urban Rent Restriction Ordinance, 1959, barred jurisdiction of Civil Courts on rule of "implication" which did not contain any express provision for ouster of jurisdiction but under the said special law exclusive jurisdiction had been conferred upon Rent Controller to decide matters referred to in law regarding landlord and tenant about properties falling within purview of the Ordinance, 1959. For application of rule of implied bar, it had to be seen that where a special tribunal or a public body was created by or under authority of an Act of Legislature for purpose of determining rights which were creation of Act, then jurisdiction of that tribunal or of that body was exclusive and jurisdiction of Civil Court was barred."
19. In view of the above discussion, both these petitions having no merit, which are accordingly dismissed.