FAZAL SUBHAN, J. The instant writ petition under Article 199 of the Constitution is filed by the petitioner and praying as following:- "It is, therefore, submitted with profound respect that this Hon'ble Court may very graciously be pleased to; i. Direct the respondents to abide/implement the judgment of this Hon'ble Court rendered in writ petition numbered 2806-P/2022 dated 03.11.2022 in letter and spirit. ii. Declare the order dated 14.12.2022 as illegal, unlawful, and null and void on the rights of the petitioner. iii. Direct the respondents to treat the petitioner in accordance with law. iv. Grant any other relief, which is deemed appropriate in the circumstances by this Hon'ble Court."
2. Relevant facts constituting the background of this petition are that the respondents floated advertisement for auction of mining lease at District Karak and on the basis of highest bid, the petitioner was granted one-year lease for minor mineral over an area of 1756.312 acres near village Winki Siraj Khel vide work order No.1791-99 dated 22.4.2021. The petitioner after construction of approach road, started mining activities, when in the very inception of lease period, the Irrigation department planned and conveyed to the respondents about the construction of a water storage reservoir, asking the respondents to close the mining lease, resultantly the respondent No.5 through letter No. 4011/11-L dated 08.7.2021 addressed to the Executive Engineer Kohat Irrigation Division, asked for stoppage of mining activities. An appeal filed by the petitioner was allowed for an area of 1222 acres instead of 1756 acres. Due to reduction in the lease area and time consumed for construction of approach road, the petitioner filed another appeal but it was dismissed, whereafter he filed W.P No.2806-P/2022 before this court which was disposed of with the directions to the respondents for consideration of extension of specific period by the Licensing Authority under section 19A(3) of the Khyber Pakhtunkhwa (Mines and Mineral Governance) Act, 2017 or otherwise, for a valid reason. The matter was considered by the respondent No.3 but his application was dismissed without giving any convincing reason, hence petitioner filed appeal before the appellate authority which was dismissed on 22.3.2022. The petitioner filed contempt proceedings.
At the same time, having no other remedy he filed the instant writ petition.
3. On filing the writ petition, comments of respondents Nos. 2 and 3 which were duly submitted. We have heard arguments of learned counsel for petitioner and learned AAG for the respondents and have considered the available record.
4. There is no denial of the fact that petitioner being successful bidder was granted minor minerals mining lease of an area of 1756.312 acres near village Wanki Siraj Khel District Karak for one year, vide letter No.1791-99 dated 22.4.2021.
It is also an undeniable fact that after 3 months of the lease agreement, the Irrigation Department through its letter No. 303/11-L dated 01.7.2021, asked for closure of the leased mining activities, due to proposed construction of storage reservoir in the same area. Subsequent changes in the allotted area forced the petitioner to file an application to the respondent No.5 for inclusion of area but on refusal he filed appeal before the Appellate Authority but the area of under constructed dam was excluded, hence he petitioner filed Writ Petition No.2806-P/2022 which was disposed of with the directions for considering of his case under section 19A(3) of the Act.
5. We have found that the respondents have not given due consideration to the relevant provision contained in section 19A of the Act, which is very much clear and unambiguous. The relevant portion of the said provision is reproduced herein below for the sack of convenience: "19A. Force Majeure.--(1) Any failure on the part of the holder of a mineral title to fulfill any of the obligations or conditions under a mineral title, or to meet any requirement of this Act, shall not be treated as a breach of the holder's mineral title in so far as the failure arises from an act of war, hostility, insurrection, or an act of God, or from any other cause specified in the conditions of the mineral title as constituting force majeure.
(2) Where the holder of a mineral title fails to fulfill any of the terms and conditions of the mineral title as a result of the occurrence of any circumstances of a kind referred to in subsection (1), the holder shall forthwith give notice to the Licensing Authority, giving particulars of the failure and its causes.
(3) The Licensing Authority may, on application made to it by the holder of a mineral title referred to in subsection (2), who has been prevented from exercising any right under the mineral title conditions as determined by the Licensing Authority, extend the period for which the mineral title in question has been issued by such reasonable period as may be determined by the Licensing Authority."
From careful reading of subsection (1) of Section 19A of the Act, it is perceivable that failure of the lease holder to fulfill his obligations or conditions of lease, if such failure occurs due to force majeure i.e. the act of war, hostility, insurrection or an act of God or from any other cause specified in the conditions of the mineral title shall not be treated as breach of mineral title.
6. Force majeure as per black law Dictionary means; "Force majeure (fors mazhar)(law French a superior force") (1883) An event or effect that can be neither nor controlled. The term includes both acts of nature (e.g. flood and hurricanes) an act of people (e.g. riots, strikes, and wars)."
Thus "force majeure", would mean an element or factor unforeseen and beyond the control of a party to the agreement, and therefore, would not only include those circumstances which are specifically mentioned in the agreement but also those factors which occur suddenly, unexpectedly and beyond perceptions. This aspect of the phrase "force majeure" was elaborated in the case of Messrs Sadat Business Group Limited v. Federation of Pakistan through Secretary and another, reported in 2013 CLD 1451 (Sindh) with reference taken from the book "Supreme Court on words and phrases "by Mr. Justice M.L Singhal, as following: "With reference to its history. The expression "force majeure. is not a mere French version of the Latin expression "vis- major". It is undoubtedly a term of wider import. Difficulties have arisen in the past as to what could legitimately be included in "force majeure". Judges have agreed that strikes, breakdown of machinery which, though normally not included in "vis major" are included in "force majeure". Where reference is made to "force majeure", the intention is to save the performing party from the consequences of anything over which he has no control. This is the widest meaning that can be given to "force majeure", and even if this be the meaning, it is obvious that the condition about "force majeure" in the agreement was not vague. The use of the word "usual" makes all the difference, and the meaning of the condition may be made certain by evidence about a force majeure clause, which was contemplation of parties." , The phrase "Force majeure" has also been the subject of consideration in the case of Abdul Waheed v. Additional District Judge and others, PLD 2021 Lahore 453, wherein it is held that "force majeure" refers to events beyond the control of the parties which prevent one or both of them from performing their contractual obligations.
7. From the above elaborations, we are of the considered view that after awarding of lease agreement for an area of 1756.312 acres for full one year, the petitioner was entitled to carry out the mining activities in the entire allotted area, however, his rights to the full use of the area was obliterated and decimated by limiting his excavation/mining activities to only 1220 acres and damage to approach road in which case he was entitled for extension of period for mining under section 19A(3) of the Act. It is also to be mentioned that in case of reduction of leased area, the authority could have reduced the lease amount proportionately for doing substantial justice but the respondents continued to receive the monthly leased amount at the same rate, thereby putting the petitioner at a disadvantage situation. This court while disposing off the earlier writ petition of the petitioner made specific reference to the said provision, providing future cause of action to the respondents for considering the matter for reasonable extension of period, however, they have failed to comply the clear, distinct and unambiguous observations passed by this court.
8. In this view of the matter, we are of the considered view that due to reduction of leased area, the petitioner was not treated in accordance with law, hence we allow this petition and direct the respondents to extend the lease period of petitioner for eight (8) months for the mineral mining of the 1220 acres of area reduced from 1756.312 acres earlier allotted to him.