MUHAMMAD EJAZ SWATI, J.---- The respondent No.4 (Director General Mines and Minerals Balochistan, Quetta) vide allotment letter dated 18th August, 2004 granted prospecting license for Marble over an area of 666.32 acres of land situated in Duzak Kaur Tehsil and District Chagi in favour of responden t No.3 (M/s Inamullah Marbles Mines). The above prospecting license was further converted into mining lease (ML) for a period of 20 years vide allotment letter dated 29th April, 2007.
2. It was the case of petitioner that on the request of respondent No.3, the said area i.e. 666.32 acres was assigned in favour of the petitioner vide letter dated 1 1th November , 201 1.
3. The instance of respondent No.2 (M/s Atta Marbles) was that he applied for grant of prospecting license (PL) situated at Mushki Chah. District Chagai and after completion of required process, an area of 455.06 acres under prospecting license for a period of 2 years was granted in his favour on 5th March 1999 and work order was also issued by the Director General Mines and Minerals Balochistan, Quetta in his favour on 11th March 1999. It was the case of respondent No.2 that his prospecting license was surrendered on the request made by someone on his back without hearing or confirming from him and from the allotted area in favour of respondent No.2 larger portion of the area was granted in favour of M/s. Inamullah Marbles Mines and small portion of 53.58 acres was allotted to M/s. Jamaldini Marbles by the Director Mineral Development, Quetta vide notification dated 10th October 2000.
4. On appeal filed by the respondent No.2 the appellate authority vide order date 3rd November , 2008 set-aside the notification dated 10th October 2000 and further directed that the Director Mines and Minerals Development Department Balochistan, Quetta to issue revised maps after deducting the restore d area of respondent No.2, but the official respondent No.4 instead of restoring whole area i.e. 455.06 acres offered small portion i.e. 53.58 acres.
The respondent No.2 also filed review application in respect of order dated 3rd November , 2008, but the said application was rejected for non-prosecution by the appellate authority vide order dated 31st December , 2011, against which respondent No.2 filed a C.P . No.104 of 2012 before this Court.
5. The record of the case further reveals that vide notification dated 24th February , 2014, the respondent No.4 cancelled the ML of the respondent No.3 and in view of the above cancellation, the respondent No:2 had not pressed C.P . No.104 of 2012, which was dismissed as withdrawn by this Court vide order dated 16th June, 2014.
6. The petitioner challenged the notifica tion dated 24th February , 2014 issued by Director General Mines and Minerals Balochistan, Quetta by way of filing appeal before the respondent No.1, which was allowed on 17th June, 2014. The respondent No.2 filed C.P No.492 of 2014 and with the consent of both the parties the order dated 17th June, 2014 was set-aside and case was remanded to appellate authority to decide the case on merits after hearing the parties. The appellate authority after hearing the parties vide order dated 24th October , 2018 (impugned order) while restoring full area of 455.06 acres in favour of respondent No.2 and remanded the case to Mines Committee for assigning the mining rights to the petitioner after deduction of the area of respondent No.2 from the petitioner's area.
7. Learned counsel for the petitioner from the very outset contended that the appel late authority the then Secretary Mines and Minerals Development Department i.e. Mr. Saleh Muhammad Baloch was transferred from Secretary Mines and Minerals Development Department to Secretary Transport Department against existing vacancy vide notification dated 24th October , 2018 by Secretary , Government of Balochistan Services and General Admn: Department, Quetta, therefore, the impugned order is Coram-non-judice; that the respondent No.2 had also challenged the area in question by way of filing appeal, which was decided by the appellate authority on 3rd November , 2008 and his review application was also dismissed and said orders had attained finality , therefore, there was no occasion for the appellate authority to pass any order in this respect; that allotted area in favour of the petitioner was cancelled merely on the ground that No Objection Certificate (NOC) issued by the Deputy Commissioner was cancelled, whereas, Deputy Commissioner had no authority to cancel the NOC in respect of PL.
8. Learned AAG assisted by the learned counsel for the respondents contended that the impugned order is based on proper appreciation of documents, therefore, the same is liable to be sustained. .9. We have heard the learned counsel for the parties and perused the record. The impugned order has been passed on 24th April, 2018 by the appellate authority under Balochistan Mineral Rules, 2002 i.e. Secretary Department of Mines and Minerals Government of Balochistan and the then Secre tary was Mr. Saleh Muhammad Baloch (the then secretary). According to the notification dated 24th October , 2018 he was transferred from Secretary Mines and Minerals Developments Department to Secretary Transport Department against existing vacancy with immediate effect. The power and authority of the Court/presiding officer to hear and decide the matter has direct nexus with his power to act in that capacity , where a presiding officer concluded the hearing of matter and written a judgment before his transfer , he can decide the matter before his transfer and before relinquishing the charge, as provided under Rule 2 of Order XX Civil Procedure Code (C.P.C.), which enables successors judge to pronounce his judgment which had been written by his predecessor . However , in case, to proceed, or hear the matter on the date of his transfer and decide the same, the order would not be legally sustainable. In case Muhammad Rafiq and others v. Mst. Murad Begum and others (PLD 1964 SC 446), the Hon'ble Supreme Court of Pakistan observed as under: "The cases, therefore, in which judgmen ts written by a person after transfer or on leave, were held to be valid, would not be sufficient authority for the view that a judgment written by a Judge who had ceased to hold his office would also be immune from exception. Such a view has potentialities of great mischief and if by reasonable construction of the statutory provision it could be avoided, the result would most probably be in conformity with the intention of the Legislature. I am, therefore, disposed to think that the narrower construction of Order XX, Rule 2, C.P.C. should be adopted and it should be held that a Judge who has become functus officio, after being relieved of his office, should not be allowed to have anything to do with the judicial work of the Court over which he previously presided."
In case Gee Corporation of Pakistan and another v. Sh. Abdul Haq and another (1990 SCMR 1581 ), the Hon'ble Supreme Court of Pakistan observed as under:- "The contention of the learned counsel for the appellant that the noting recorded by the ex-Reader of Mr. Justice Mushtaq Hussain did not clearly show that the judgment was actually written by Mr. Justice Mustaq Hussain on or after 2-6-1980, when he was elevated to this Court, requires some examination. In these circumstances, without going into the merits of this case or giving any finding which may prejudice the case of either party , we would remand the Miscellaneous Application C.M. No.1424 of 1983 filed by the respondent to the High Court, so that the same can be decided afresh after notice to the parties and hearing their arguments. In remand proceedings, both the parties shall have adequate opportunity to present their legal submissions, which they have done before us, but which we think should first be dealt with by the High Court when deciding afresh this miscellaneous application."
10. In the instant case the then Secretary Mines and Minerals Development Department i.e. Mr. Saleh Muhammad Baloch was performing as appellate autho rity and had to adjudicate the matter , as such, he was transferred on 24th October , 2018, but he still heard the case and decided the same on 24th October , 2018. In such situation he should not have heard it because of his transfer having been ordered "with immediate ef fect" on 24th October , 2018. In view of the above, Constitutional Petition No.1308 of 2018 is partly allowed order dated 24th October , 2018 passed by Secretary Mines and Minerals Development Department, Government of Balochistan, Quetta (the appellate authority) is set-aside. The appeal before the appellate authority be deemed to be pending and the respondent No.1 is directed to decide the same possibly within the two months after hearing both the parties in accordance with law .