The facts briefly stated are that Muhammad Khalil, petitioner, was granted lease for excavation of ordinary stones in respect of area measuring 7.81 acres situated in Block No.12 at Chakki Pehari, Chiniot for a period. Of two years through an open auction. The period was to commence from the date of issuance of Work Order which was duly issued on 18-8-1985 and so the lease was to expire on 17-8-1987.
2. The case of the petitioner is that along with the Work Order, a wrong map was issued due to which the petitioner could not commence operations for almost one and a half years. It -was asserted that after hectic efforts and persuasion, the authorities issued on 1-1-1987 the correct site map. The petitioner then started work in the lease area. It was further asserted that an application was submitted to the Chairman Zila Council, Jhang for extension of the lease for a period of two years from 1-1-1987 onwards with the pleas that the petitioner could not start work in the lease area due to supply of wrong map and that the petitioner was also estopped unauthorisedly from conducting the mining operations by the ,field staff. This application was recommended by one of the members of Zilla Council and the then Acting Chairman agreeing with the said recommendation, granted on 1-10-1987 extension for a period of one year and six months. Another application dated 30-10-1987 was again submitted by the petitioner to the Chairman Zilla Council, Jhang who vide order dated 1-11-1987 agreeing with the earlier order passed by the Acting Chairman directed that interference in the work of the petitioner be avoided. The respondent- department being unaware of the order of extension obtained from the Chairman Zilla Council auctioned the lease on 20-12-1987 as according to them, first lease in favour of the petitioner had expired. The highest bid offered, however, has not yet been finally confirmed due to the litigation initiated by the petitioner in different Courts.
3. The respondent-department on receiving the order of extension passed by the Chairman Zilla Council filed an appeal before the Secretary, Government of Punjab Industrial and Mineral Development. This appeal was accepted by the Secretary vide order dated 17-2-1988. The petitioner while the aforesaid appeal had not yet been decided, filed a constitution petition (W.P.5937/1987) but the same was disposed of as premature. The order dated 17-2-1988 of the Secretary was then challenged by filing the present Constitutional petition.
4. 1 have heard the learned counsel for the parties and have also gone through the record. Learned counsel for the petitioner submitted that the order of the Secretary is illegal as the appeal filed before him was barred by time and that in any case the appeal was incompetent as the Government has no right to file an appeal to challenge the order passed by the Chairman. Learned Additional Advocate-General in reply submitted that the appeal was not barred by time as time has not been prescribed in the Notification dated 4-8-1980 for filing an appeal. This Notification provides procedure for the grant of lease for minor minerals. i.e. Ordinary sand, ordinary stone etc. Including the right of appeal. It was argued that the appeal available under Para.3(k) of the Notification can be availed of by the Government as well. It was further contended that the basic order passed by the Chairman is without jurisdiction as the Chairman cannot legally grant extension in exercise of powers vesting in the Chairman under Para 3(f) of the Notification without providing an opportunity of hearing to the department. Lastly, it was argued that lease obtained by the petitioner was only for a period of two years but he has worked the lease for more than three years.
5. Before considering the respective submissions, it will be appropriate to notice the civil litigation instituted by the petitioner against the respondent-department. The Work Order was issued on 18- 8-1985 and the petitioner filed a suit in the Civil Court on 30-10-1985. This suit was got dismissed as withdrawn on 6-11-1986. 8e then filed another suit which was dismissed under Order IX Rule 8, C.P.C.
On 5-11-1987. In the meanwhile the department served a Demand Notice and the petitioner rushed to challenge the same in the Civil Court by filing the third suit which was also dismissed as withdrawn on 29-7-1987. It will be recalled that on expiry of the lease period, respondent- department had auctioned the lease. This auction was challenged by the petitioner by filing yet another suit on 6-10-1987. The petitioner was successful in obtaining ad interim injunction but when the same was not confirmed and the application for the temporary injunction was dismissed on 3- 11-1987, the suit was abandoned and was so dismissed. The petitioner thereafter filed the previous petition (W.P.5937/1987) in December, 1987 which was dismissed as premature on 3-2-1988.
6. The respondent-department gave the aforenoted details of civil suits filed to show that the petitioner has been working in the lease area since the date of issuance of Work Order under the garb and protection of injunction orders obtained by instituting one or the other suit from time to time. The position emerging from the aforenoted facts could not be controverted by the learned counsel for the petitioner. It is, therefore, apparent that the petitioner has worked in the lease area for a period of almost three years as against normal lease period of two years and as such is not entitled to seek relief by invoking discretionary Constitutional jurisdiction.
7.Even on merits, the petitioner has no case. The plea, that the appeal filed by the department before the Secretary to the Government of Punjab, Industrial and Mineral Development was barred by time and was even otherwise incompetent, is based on Rule 98 o B the Punjab Mining Concession Rules, 1986. Under this Rule a period of 30 days has been provided for filing an appeal by a person aggrieved by the order of the licensing authority. It will be noted, that the appeal was filed against the order of Chairman, Zilla Council. The lease in question was granted under Notification dated 4-8-1980 issued by the Punjab Government. This Notification vide Para.3(f) confers powers on the Chairman Zilla Council to extend the lease period and also provides for an appeal against the order of the Chairman vide Para. 3(k). It was not the case of the petitioner that the Notification dated 4-8-1980 stands superseded by the Punjab Mining and Concession Rules 1986. If the said Notification dated 4-8-1980 is considered to be not holding the field then the order of extension passed by the Chairman, Zilla Council will be rendered without jurisdiction and hence void. If it is conceded that the power to extend the lease was subsisting then no valid objection can be raised to the filing of appeal by the respondent-department against the said order by invoking Para.3(k) of the said Notification. It will, therefore, be seen that the argument of the learned counsel for the petitioner is self-defeating. Be that as it may, no relief can be sought by the petitioner. In Constitutional jurisdiction as to uphold the order passed by the Chairman Zilla Council would result in perpetuating the void order. The Chairman Zilla Council passed the order without affording an opportunity of hearing to the department. The order passed by him was thus violative of principles of natural justice and hence illegal.
8. For the reasons given above, I am not persuaded to interfere in exercise of Constitutional jurisdiction. This Constitutional petition, therefore, fails and is dismissed with costs.