This order will dispose of the following connected writ petitions:--
1. W.P. No.946/91. Syed Asghar Ali Shah v . Chief Commissioner , I.C.T ., Islamabad etc.
2. W.P. No-947/91. Malik Mumtaz v- Chief Commissioner , I.C.T ., Islamabad, etc.
3. W.P. No.948/91. Mst. Zubaida Begum v- Chief Commissioner ICT ., Islamabad, etc.
4. W.P. No.949/91. Abdul Razzaq v . Chief Commissioner , ICT Islamabad, etc.
5. W.P. No.950/91. Muhammad Anwar v . Chief Commissioner ICT , Islamabad etc.
6. W.P. No.951/91. Mushtaq Ahmad v . Chief Commissioner ICT ., Islamabad etc.
7. W.P. No.952/91. Col. (Retd.) Muhammad Akhtar v . Chi Commissioner , ICT., Islamabad, etc.
8. W.P. No.953/91. Lt .-Col. Muhammad Anwar Khan v . Chi Commissioner , ICT., Islamabad, etc.
9. W.P. No.954/91. Ghazanfar Ali Butt v . Chief Commission ICT ., Islamabad etc. 10.W.P. No.955/91. Tariq Masood v . Chief Commissioner , ICT, Islamabad etc.
11. W.P. No.956/91. Asfandyar Khan v . Chief Commissioner , ICT, Islamabad etc. 12.W.P. No.961/91. Habib-ur-Rehman Kiani v . Chief Commissioner , Islamabad and others. Ch. Anwar Muhammad Khan and 6 others v . The Director of Industries Mineral Development and others.
13.W.P. No.968/91. Col. (Retd.) Inayat Ellahi v . Chief Commissioner , Islamabad, etc. 14.W.P. No.1066/91. .Col. (Retd.) Inayat Ellahi v . Chief Commissioner , Islamabad, etc. 15.W.P. No.1068/91. Malik Muhammad Zariat v . Chief Commissioner , Islamabad etc. 16.W.P. No.1070/91. Parvez Akhtar v . Chief Commissioner , Islamabad etc.
17. W.P. No.1071/91. Malik Muhammad Zariat v . Chief Commissioner , ICT., Islamabad etc. 18.W.P. No.1072/91. Syed Asghar Ali Shah v . Chief Commissioner , I.C.T ., Islamabad etc.
2. The petitioners in all these writ petitions were granted leases by the respondents, for quarrying of lime stone from different blocks of Margallah Valley, which is situated within the territorial limits of Islamabad Capital Territory, in accordance with the provisions of Pakistan Mining Concession Rules, 1960, which have been adopted by the I.C.T. Administration vide President's Order No.18 of 1980. In pursuance of the order of grant 'of leases, passed under Rules 47 and 52 of the Rules, lease agreements were executed between the parties. The agreement executed between petitioner No.1 in W.P. No.968/91 and the respondents, is reproduced as under:----- No.M-IGT-Limestone Lease (SEM-13)/82/135, Government of Pakistan, Directorate of Industries, and Mineral Development, Islamabad Capital Territory ISLAMABAD.
Dated Islamabad, the 20-9-1982.
To M/s. Amanat Stone Crusher, South East Marghalla Valley, District Islamabad.
Subject: Mining Lease for Lime Stone over an area of 3.53 Acres of land situated near Marghalla Valley District, Islamabad.
BLOCK NO. SEM-13.
Dear Sir, I am to refer to your application dated 25-9-1982 and to state that the licensing authority is hereby pleased to grant you a mining lease cited as subject for a further period of Ten (10) years with effect from 1-7-1982 on the following terms and conditions:
1. That you will deposit Rs.4,400 under head of A/C stamped below towards royalty with a progressive increase of 10% annually.
2. That you will, in the first instance, deposit royalty for two years i.e. Rs.9,240 and the remaining instalments should be paid in the following manner:--- 2nd instalment for Rs.4,840 on 13-7-1984.
3rd instalment for Rs.5,324 on 13-7-1985.
4th instalment for Rs.5,857 on 13-7-1986.
5th instalment for Rs.6,443 on 13-7-1987.
6th instalment for Rs.7,088 on 13-7-1988.
7th instalment for Rs.7,797 on 13-7-1989.
8th instalment for Rs.8,577 on 13-7-1990.
9th instalment For Rs.9,435 on 13-7-1991.
3. In case of your failure to pay the annual instalment within prescribed time the Licensing Authority shall reserve the right to determine the lease and stip without giving any notice and the outstanding dues shall be recovered as arrears of land revenue. No claim for compensation whatsoever on this account will be entertained.
4. That you will also pay Rs.1,800 per year towards excise duty under head of A/C stamped below. The first of such instalments will in the first instance be deposited for two years i.e. Rs.3,600.
5. That you will erect and maintain at all times boundary pillars each having a height not less than two feet and diameter at the base not less than two feet at every corner of the area as per attached plan and survey details given below :-- SURVEY SHEET NO. 43/C/14 PointEastingsNorthings A. 187.41 636 B. 180 170.66 C. 90 100 D. 360 170.66 270 100
(6) That the lease will be governed by the Pakistan Mining Concession Rules, 1960 as adopted by Islamabad Capital Territory Administration. Also the lease will be renewable through negotiations after the expiry of the existing lease period.
(7) That the quarry operations shall also be subject to all provisions of the Mines Act, 1923 and rules and regulations made thereunder as amended from time to time and you will comply with all instructions issued by the Chief Inspector of Mines in this respect.
(8) That you will pay and discharge all taxes, rates, assessments and impositions whatsoever being in the nature of public demands which may be made by the Government of Pakistan, Islamabad Capital Development Territory Administration, from time to time.
(9) That you will quarry limestone in such a manner as not to interfere with the working of other minerals by any other party in the same area or any mineral in the adjacent area and shall allow existing and future licensees or lease holders of any land which is comprised in and or adjoins or is reached by the land held under the lease, all reasonable facilities of access thereto.
(10) That you will not carry out any quarrying operations within 100 yards from any railway, reservoir, mosque, canal road, WAPDA High tension line and any other public works or buildings or inhabited site on or near the said lands, except with the previous permission in writing of the Licensing Authority.
(11) That you will at all times undertake to identify and keep harmless the Government and every officer of the Government against all actions, costs, charges, claims and demands which may be made or brought by any third party in relations to or in connection with any matter or thing done or purported to be done by the lessee in carrying out mining operations in the leased area.
(12) That if the area or any part thereof lies in the reserved or protected forest, you will abide by the instructions of the Forest Authorities as required under the said Rules and also observe such conditions as the Government of Pakistan, Islamabad Capital Territory Administration, may, from time to time, by general or special order, prescribe. Before commencement of the work within the reserved forest areas you shall give 30 days' notice to the concerned Divisional Forest Officer of the intention to commence operations.
(13) That you will pay surface rent and compensation for private owned land or the lands managed by a Government Department (e.g. Forest Department) direct to the land owners or the Department concerned at the rate mutually agreed upon and in default of any agreement at such rates as may be determined by the Licensing Authority.
(14) That if at any time during the currency of the lease, the Government is of the opinion that mining operations tend directly or indirectly or are likely to prejudicially affect the Salt Mines Deposits or Oil Deposits in or around the area held by you the lease will be determined without any compensation being paid to you.
However, the auction money, if any, paid in advance for the remaining period of the lease will be refunded.
(15) That in case it is found that the area or any part thereof was not free and was granted to you by inadvertence you will release the same unconditionally as and when required to do so and will have no claim to any compensation except for proportionate refund of auction money for the remaining period.
(16) That you will vacate possession of the leased area on the expiry of the lease period forthwith without awaiting any instructions from this office in this regard.
(17) That if the subject lease is acceptable to you on the above terms and conditions you will convey your acceptance to this Directorate in writing within fifteen days of the date of issue of this letter and in no case you will start quarrying of limestone from the area before conveying of the said acceptance.
(18) The grant of this lease will be without prejudice to the right of Government to recover dues from you if any arising out of extraction of stones done by you in the past."
It may be mentioned here that the lease agreements executed between other petitioners and the respondents are identical to the aforementioned agreement in all material respects, except with the difference of lease period, amount of royalty and instalments, etc. The petitioners hence started quarrying limestones in pursuance of the leases granted to them after having made necessary investment and installed requisite machinery at the lease sites. The leases referred to above were to be terminated either on the expiry of lease period if not extended at the discretion of the respondents or at any time earlier thereto by termination/revocation in accordance with the terms of the lease agreements as per provisions of rule 24 read with clause 72 of Schedule II to the Rules which provide the power and procedure of revocation of leases in question. The aforementioned clause 72 as well as rule 24 are reproduced as under:--- CLAUSE-72.--If, and whenever the rents and royalties ,reserved by this lease or any part thereof shall be in arrears for the space of six calendar months next after any of the days whereon the same ought to have been paid, or if there shall be any violation of the undertaking given in accordance with sub-rule (6) of rule 9 of the Pakistan Mining Concession Rules, 1960, or any breach or non-observance by the lessee of any of the terms and conditions of this lease or if the lessee shall become bankrupt or make or enter into any arrangement or composition with his creditors, or if, where the lessee is a Company, a Receiver shall be appointed or the Company shall enter into liquidation whether compulsory or voluntary (except a voluntary liquidation of a sovent company for the purpose of reconstruction) or if the lessee shall fail to perform and observe the terms and conditions of any Development Scheme prepared in accordance with the provisions of clause 62 (Unit development) of this Schedule then and in any such case the President may forfeit, in whole or in part, the security deposit made by the lessee under rule 25 of the Pakistan Mining Concession Rules, 1960, any/or revoke this lease and thereupon the same and all the rights hereby granted shall cease and determine but subject nevertheless and without prejudice to any obligation or liability imposed by or incurred under the terms and conditions of this lease: Provided always that save as to the non-- payment of rents or royalties the aforesaid power shall not be exercisable unless and until notice has been given to the lessee specifying the particular breach complained of and if the breach is capable of remedy, requiring the lessee to remedy the breach, and in any case, requiring the lessee to make compensation in money for the breach, and the lessee fails. Within three months thereafter, to remedy the breach if it is capable of remedy, and to make reasonable compensation in money to the satisfaction of the President for the breach.
Rule 24: -The prospecting licence and mining lease shall be in the form set out in Parts I and II respectively of the Second Schedule hereto and shall include such additional clauses relating to ancillary matters as the Central Government may deem fit to insert. Subject to satisfactory compliance with the terms and conditions of the licence, the holder of a licence shall have the right to receive a mining lease in the form set out in Part II of the Second Schedule which may be in force on the day previous to that on which the licence was issued."
On 24-4-1991, Prime Minister of Pakistan issued a directive to the Chairman, C.DA. To the effect that the licences granted for quarrying of stones, etc. Should be immediately terminated for the purposes of preservation of the environmental conditions of Islamabad as well as the National Park. The aforementioned directive is reproduced as under:--- "PRIME MINISTER DIRECTIVE ON PRESERVATION OF THE MAR ALLAH HILLS NATIONAL PARK. ISLAMABAD I have received disturbing reports that the Margallah Hills, National Park, Islamabad established by the Federal Government on 18th April, 1980 under Islamabad Wildlife Ordinance, 1979 has been exposed to activities which are prejudicial to its preservation as a National Park and are environmentally hazardous for Islamabad.
(2)It is imperative that immediate steps be taken to stop further deterioration of the , physical, biological, historical and cultural resources of the National Park and to manage its natural ecosystems on a scientific basis for the benefit of the present and future generations. Accordingly I direct that:--- (i)CDA should physically and clearly demarcate the boundaries of the National Park and strictly enforce the laws for preservation of the National Park.
(ii)- CDA should immediately initiate steps to terminate all licences granted for quarrying of stones for aggregate and should ban such activity within the limits of the National Park. To meet the demand for aggregate suitable alternate sites should be located outside the National Park giving due consideration to the .Environmental impact.
(iii)The Government of Punjab may be approached for similar steps for the quarries near Taxila falling in the jurisdiction of Punjab Government.
(iv) Ministry of Industries, Finance and Cabinet Division should also work out the feasibility of relocating stone quarry area of Fecto Cement Factory out of the Margallah Hills National Park.
(v)CDA should prepare a plan for village population management to protect the acquired areas of the Capital from encroachment. The possibilities of relocating small villages situated within the National Park may also be examined and rehabilitated in Model Villages outside the National Park. To discourage expansion of any unauthorised habitations within the National Park, all public sector agencies must refrain from providing power, communications and other services.
(vi)The unauthorised construction of new houses in the catchment area of Rawal Lake poses a very serious threat to the Rawal Lake and Dam by increasing sillation and pollution of drinking water reservoirs. Land use in contravention of the master plan of Islamabad must not be permitted. In future plans for Islamabad, the environmental impact must be a key consideration. Haphazard development in the immediate neighbourhood of Islamabad territory will have severe environmental effects for the Federal Capital. CDA may submit a comprehensive report on all aspects of these problems within a fortnight.
(vii) CDA may take up with the Governments of N: W.F.P. And Punjab the possibility of integrating in the National Park the areas adjoining Margallah Hills National Park, which fall in N: W.F.P. And Punjab. Meanwhile, action should immediately be taken up to prevent any construction and development in these areas which cause degradation of the National Park.
(viii) Ministry of Food and Agriculture should expedite preparation of a scientific Management plan of the Margallah Hills National Park with the help of appropriate competent agencies. Assistance from international agencies and friendly countries may also be sought if necessary.
3. Cabinet Secretary will coordinate and ensure speedy implementation of directives and will submit a progress report through Mr. Roedad Khan. Advisor to the Prime Minister."
(Sd.)
(NAWAZ SHARIF)
Prime Minister.
No. JS 91 IMP)! PMDIR! /113/91. Dated 20th April 1991 On receipt of the aforementioned directive vide order, dated 19-8-1991 the leases granted to the petitioners in all the writ petitions were revoked, by the respondents. This order was passed without issuance of a show- cause notice to the petitioners-lessees and without giving them opportunity of being heard The order is contained and communicated through a printed stereo-type letter, wherein except the change of the names of the lessees and number and dates of the lease granting letters, all other entries are same. The order/letter, dated 19-8-1991 and passed in respect of petitioner No.1, is reproduced as under:--- "GOVERNMENT OF PAKISTAN DIRECTORATE OF INDUSTRIES AND MINERAL DEVELOPMENT, ICT, ISLAMABAD NO.DDI&MD/ICT/LL-(SEM-13) Islamabad, the 19-8-1991 To M/s. Amanat Stone Crusher, South East Margalla Valley, Islamabad.
Subject: STONE CRUSHER IN THE MARGALLA HILLS /RANGES In order to maintain environment of the area and to save Margalla Hills/Ranges from damage being caused by blasting to extract crushing stone, the Federal Government has, as a matter of policy, directed Islamabad Capital Territory Administration to stop such operations forthwith.
2.The Islamabad Capital Territory Administration has therefore decided to revoke the Mining Lease for Lime Stone given to you vide this Office Letter No. ML-ICT-LL(SEM-13)/82-1335, dated 20-9-1982 in public interest.
3.You are, therefore, advised to stop forthwith any blasting/mining operation, stone crushing and arrange removal of your machinery, material from the site failing which the Leasing Authority would seize, retain the stone crusher machine, equipment, material etc. And remove, sell or dispose it of in such a manner the leasing Authority shall think fit without being liable to pay any expenses incurred in connection with such retention, removal, sale or disposal.
(Sd.)
(MAJOR (RETD.) AURANGZEB), DIRECTOR, INDUSTRIES AND MINERAL DEVELOPMENT, ICT ISLAMABAD.
The orders of the cancellation of the leases granted to the petitioners dated 19-8-1991 have been challenged through all these constitutional petitions. The writ petitions were admitted to regular hearing at various times and the stay orders were granted during the pendency of the writ petitions in all the cases, therefore, the petitioners continued working at sites, leases whereof had been granted to them and have also been paying royalty to the respondents. During the pendency of the writ petitions, the lease period of some of the petitioners as originally fixed has since expired, which leases are the subject-matter of W.P. Nos. 949/91, 961/91, 968/91, 1070/91 and 1072/91 on the dates shown in the following Chart:--- S.NO. WYNO. NAME OF PETITIONERS BLOCK NO. LEASE PERIOD 1.949/91Mr. Abdul Raaaq MV-28 expired on 24-4- 1993.
2.961/91 Mr. Habib-ur-Rehman Kiani. MV-29 expired on 24-4- 1993.
3.968/91(i) Ch. Anwar Muhammad Khan and six othersSEM-13 expired on 12-2- 1992 (ii) Mr. M. Sohail Rana SEM-11 expired on 16-5- 1992.
(iii) Modern Stone Crusher SEM-3 expired on 15-4- 1992.
(iv) Mr. Muhammad Afzal SEM-8 expired on 14-2- 1992.
(v) Mr. Muhammad Jamshed Ahmed SEM-9 expired on 16-5- 1992.
(vi) Mr. Muhammad Khalid Mehmood SEM-10 expired on 16-5- 1992.
(vii) Mr. Muhammad Saleem Khan SEM-2 expired on 16-5-1992.
4.1070/91Malik Muhammad Zariat MV-1 expired on 9-5-1993 5.1072/91Malik Muhammad Zariat MV-2 expired on 1-12- 1992.
The lease periods of those leases which are subject-matter of rest of the other writ petitions has not expired as yet and will expire on the dates indicated in the following Chart:---- S.NO. W.P.NO.NAME OF PETITIONERS BLOCK NO LEASE PERIOD
1. 946/91Syed Asghar Ali ShahMP-9 Valid up to 17-6- 1994.
2.947/91 Malik Mumtaz MV-44 Valid up to 13-3- 1994.
3.948/91 Mst. Zubaida Begum MV-42 Valid up to 13-3- 1996.
4.950/91 Mr. Muhammad Anwar MV-41 Valid up to 13-3- 1996.
5.951/91 Mr. Mushtaq Ahmed MV-43 Valid up to 13-3- 1996, 6.952/91 Col.(R) M. Akhtar MP-9-C Valid up to 28-7- 1995.
7.953/91 Lt: Col. (R) M. Anwar MP-9-B Valid up to 20-5- 1995.
8.954/91 Mr. Ghazanfar Ali Butt MP-9-A Valid up to 20-5- 1995.
9.955/91 Mr. Tariq Masud MV-45 Valid up to 13-3- 1995.
10.956/91 Mr. Asfand Yar Yiani MV-40 Valid up to 13-3- 1996.
11.1068/91Col. (R) Inayat Ellahi MV-27 Valid up to 12-12- 1994.
12.1066/91Col. (R) Inayat Ellahi MV-9 Valid up to 2-12- 1994.
13.1071/91 Mr. Pervaiz Akhtar MV-30 Valid up to 22-10-1994 3.M/s. Mirza Anwar Baig; Dr. G.S. Khan, Malik Mukhtar Hussain and Mujeeb-ur-Rehman Kiani, Advocates have appeared on behalf of the petitioners whereas Mr. Mansoor Ahmad, Advocate has appeared on behalf of the respondents in all the writ petitions. Mirza Anwar Baig, learned counsel for the petitioners in W.Ps. Nos. 946 to 956 of 1991 has contended that the impugned order of cancellation of the leases in question is illegal and without a lawful authority as per following grounds:-- (i)that the impugned orders have been passed without issuance of a show-cause notice to the petitioners and giving them opportunity of being heard, hence the same being violative of statutory provisions of clause 72 of Schedule II are void ab initio.
In support of his contention learned counsel has relied upon cases of Anjuman-e-Ahmadia, Sargodha v. The Deputy Commissioner, Sargodha and another PLD 1966 Supreme Court 639, Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division; Lahore and 2 others PLD 1971 SC 61 and Malik Meraj Khalid v. The Islamic Republic of Pakistan and another PLD 1988 Lah. 325; (ii)that the leases in question could only have been terminated after the expiry of the lease period as originally fixed or by revocation thereof in terms of the lease agreement between the parties and in accordance with the provisions of clause 72 of Schedule II which provides that the lease could only be terminated prior to the expiry of the lease period if certain conditions of lease are violated and as admittedly in this case the leases in question have not been cancelled on the ground of violation of the conditions of the lease agreement, the respondents had no lawful authority to cancel the same for extraneous considerations; (iii)that the impugned orders have been passed on the directive of the Prime Minister of Pakistan and therefore having not been passed in independent exercise of jurisdiction by the respondents are a nullity in the eyes of law.
Reliance has been placed by the learned counsel on cases of Syed Fayyaz Hussain Qadri, Advocate v. The Administrator, Lahore Municipal Corporation, Lahore and 4 others PLD 1972 Lah. 316 and Ahmad Khan v.
Member (Consolidation), Board of Revenue, Punjab, Lahore and others PLD 1990 SC 1070; (iv)that in pursuance of the lease agreement the petitioners have preformed their part of the contract and have invested huge amounts at site, therefore as per principle of "promissory estoppel", the respondents have no lawful authority to cancel the leases in question on the ground that the cancellation is necessitated on environmental grounds which is not a term authorizing cancellation or revocation either in the agreement or in the rules and Schedule II.
Reliance is placed by the learned counsel on cases of Ch. Fazal Hussain v. Barkat Ali and 2 others 1989 SCMR 1901 and Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others PLD 1991 SC 546; (v)that the respondents have failed even to act in accordance with the directive issued by the Prime Minister of Pakistan according to which the action could only have been taken place if the lease sites were situate within the limits of National Park. According to the learned counsel the sites of the leases in question are situate outside the National Park and, therefore, the impugned orders could not have been passed by the respondents in, relation to the leases in question; (vi)that there are 3 other similar concerns which are still operating although their lease sites are situate within the territorial limits of National Park but leases in favour of those concerns have not been cancelled, and, therefore, the impugned orders being discriminatory in `nature and hence violative of the provisions of Articles 4, 18 & 25 of the Constitution of Islamic Republic of Pakistan, 1973, are void and hence a nullity in the eyes of law;
(vii) that the petitioners whose lease period has expired are entitled to continue as lessees as being "tenants holding over" under the provisions of Transfer of Property Act, as the Act applies to mining leases as well.
Reliance is placed on the cases of Commissioner of Income-tax Bihar and Orissa v. Kumar Kamaksha Narain Sikh AIR 1940 Patna 633 Raja Bahadur Kamakshya Narain Singh of Ramgarh v Commissioner of Income-tax.
Bihar and Orissa AIR 1943 Privy Council 153 Kumar Pashunati Nath Malia and another v Sri ankari Prosad Sin h Deo and others AIR 1957 Calcutta 128 and M t. Ehsan Ullah and 2 others v. Fozia and others (1993 CLC 1370).
4.Dr. G.S. Khan, learned counsel for the petitioners in Writ Petition No.968/91 has adopted the arguments advanced by Mirza Anwar Baig, Advocate and has further argued that the directive of the Prime Minister is addressed to C.DA. For termination of licences and not for termination of leases in question. Learned counsel explains that the licences are granted by the CDA under a different provision of law known as (Restriction on Removal of Stone) Regulation, 1965, and not the Pakistan Mining Concession Rules, 1960, therefore, the action taken by the respondents in relation to the leases in question is illegal and without a lawful authority. Learned counsel has further contended that at any rate the Prime Minister's directive does not authorize cancellation of the leases in question in an illegal manner. According to the learned counsel, the petitioners having applied for grant of extension in leases one year prior to the expiry of lease period, and the applications having not so far been decided, the petitioners whose lease period has even expired are entitled to continue as "lessees holding over" and they shall be governed under the provisions of Transfer of Property Act, and, hence cannot -be dispossessed unless and until they are ejected in accordance with law. Learned counsel further contends that paragraph 3 of the order which is reproduced below is patently illegal and without jurisdiction, inasmuch as, the respondents have no lawful authority to seize and retain the machinery, etc. "3.You are, therefore, advised to stop forthwith any blasting/mining operation, stone crushing and arrange removal of your machinery, material from the site failing which the Leasing Authority would seize, retain the stone crusher machine, equipment, material, etc.; and remove, sell or dispose it- of in such a manner the Leasing Authority shall think fit without being liable to pay any expenses incurred in connection with such retention, removal, sale or disposal."
Last contention of the learned counsel is that environmental pollution percentage in Islamabad is far below the internationally recognized standards and the impugned operations are not likely to cause much pollution during the subsisting lease periods, hence, the impugned direction and orders, even otherwise, are without any factual justification.
5.M/s. Malik Mukhtar Ahmad and Mujeeb-ur-Rehman Kiani, Advocates, have adopted the arguments addressed by the two learned counsel referred to above. Malik Mukhtar Hussain Advocate, has taken me through certain annexures to the writ petitions to contend that proceedings against other similar concerns have not been taken, hence, the treatment meted out to the petitioners is discriminatory as such the impugned order is illegal and without jurisdiction. Learned counsel has placed reliance on Rule 35 of the Mining Concession Rules, 1960 in support of the proposition that once a lessee applies for grant of extension, he is entitled to retain possession of the leased premises and therefore, the petitioners are entitled to continue to operate as lessees even after the expiry of the original lease period as the applications filed by the petitioners for grant of extension in the lease-periods have not been decided so far.
6. In reply to the arguments addressed by the learned counsel for the petitioners, Mr. Mansoor Ahmad, learned counsel for the respondents has raised a preliminary objection to the maintainability of W.Ps. Nos.
949/91, 961/91, 968/91, 1070/91 and 1072/91, the lease period whereof has since expired during the pendency of this litigation. It is contended that the original lease period having expired and having not been extended, the writ petitions stand fructified, hence, no relief can be granted to the petitioners in those writ petitions, even if the original order of cancellation of the leases in question is held to be illegal, therefore, said writ petitions may be dismissed as having fructified on this short ground.
7.Regarding other contentions raised by the learned counsel for the petitioners in relation to the legality of the order of cancellation of the leases in question, learned counsel has contended that the writ petitions arise out of alleged breach of contractual obligations and therefore are not maintainable in law and further that the leases in question having been cancelled, the only remedy available to the petitioners is to file civil suits for damages if they are entitled to under the law, this Court hence has no jurisdiction to install them as lessees against the wishes of the lessor by issuance of writ as prayed for. It is contended that although the leases have not been cancelled, after the issuance of a show-cause notice; on the ground of violation of the conditions of the lease agreements and in accordance with the provisions of clause 72 of the schedule, yet the impugned order of cancellation having been passed for public welfare no interference is called for in exercise of the discretionary Constitutional jurisdiction of this Court. Learned counsel contends that although the Prime Minister of Pakistan issued a directive yet the impugned orders have ,peen passed in judicious exercise of powers vested in the respondents, and, therefore, no exception can be taken thereto. Learned counsel has refuted the contentions raised by the learned counsel .For the petitioners that no action has been taken against the three stone crushers whose plants are situate within the territorial limits of National Park and 'has categorically stated that even their leases have been cancelled and although in the written statement this fact is not mentioned, yet the fact remains that the leases referred to above having been cancelled, it cannot be said that the petitioners are being treated discriminatory. According to the learned counsel, the sites in question do fall within the territorial limits of the National Park, therefore, they are covered by the directive issued by the Prime Minister and at any rate the factual controversy being not a subject fit for decision in these Constitutional petitions, the petitioners cannot get any relief on the basis of allegations to the effect that the lease sites in question are situate beyond the limits of National Park, as this question can only be determined after recording of detailed evidence which cannot be done in exercise of the writ jurisdiction of this Court. Regarding validity of paragraph 3 of the order, learned counsel contends that this portion is by way of penalty on refusal to obey the order of cancellation of the lease in question and being dependent upon the conduct of the petitioners themselves hence no grievance can be allowed to be raised against passing of the said portion of the order which will operate only due to the lapse on the part of the petitioners themselves, who will suffer the consequences only in case they fail to obey the order of cancellation of the leases in question, as no writ can be issued in favour of a wrong-doer. Learned counsel contends that the provisions of Transfer of Property Act are not applicable to Islamabad Territory, and, therefore, the concept of "Tenant Holding over" is not applicable to the facts of the case in hand and as such no relief can be granted to the petitioners in the aforementioned writ petitions as well. Regarding the applicability of the Prime Minister's directive to licences only, and independent exercise of power, learned counsel contends that the directive applies to all types of stone crushing activity within Islamabad territory and that action has been taken by the respondents against the petitioners whose lease sites are situate within the prohibited limits after proper inquiry in exercise of their jurisdiction after application of own independent mind. Hence, all the writ petitions are liable to be dismissed.
8.I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Admittedly, the lease period as originally fixed in all those cases which are the subject matters of Writ Petitions Nos. 949/91, 961/91, 968/91, 1070/91 and 1072/91, has already expired. The applications filed by the petitioners for grant of extension of time, have not been granted. The provisions of Rule 35 reproduced below and which have been relied upon by the learned counsel for the petitioners in support of their contention that in case a lessee applies for grant of extension, he is entitled to retain possession of the lease site as of right: Rule 35: -The licensee having before the expiry of a prospecting licence applied for a mining lease shall have the right to renewal of the prospecting licence until the mining lease applied for has been granted or refused." do not deal with the mining leases. It protects the rights of a mining licensee to retain possession of the site till the time his application for grant of mining lease has either been granted or refused. This rule hence has nothing to do with the application filed by the sitting lessees seeking renewal or grant of extension in lease period. The relevant rule which deals with renewal of the lease, is Rule 52, which is reproduced as under:--- "Rule 52: -The initial term of a mining lease shall not exceed thirty years but the lease shall contain a clause permitting renewal at the discretion of the Central Government for a further period not exceeding 30 years, on an yearly and surface rent not exceeding twice the originally yearly and surface rent respectively, the royalty payable being that which may on the day next following that on which the original lease determined, be in force."
A bare persual of the above rule clearly shows that grant of renewal of lease is in the discretion of the competent authorities and no sitting lessee has a vested right to ask for extension to renewal of his existing lease not to speak of continuing as a lessee without the lease being extended by an express order. The provisions of Rule 52 read with clause 58 of Second Schedule, Part II give unfettered discretion to the authorities to renew a mining lease or the application as held by the Hon'ble Supreme Court in case of Ch. Fateh Muhammad v. Director of Industries, Punjab and others C.P.S.L.A. No.157 of 1979. In case of Malik Imtiaz Ahmad v. Province of Punjab and others (W.P. No.2334 of 1973), it has been held by this Court that renewal of a mining lease under Rule 52 is not a matter of right but purely a matter of discretion of the Government.
Similar view has been taken in case of Dalmia Cement, Karachi v. State Cement, Lahore etc. (W.P. No.10370 of 1980). Similar position emerges from term No.6 of lease agreement. It is clear therefore that merely because the petitioners whose lease period has already expired have since applied for grant of renewal of their leases will not confer upon them either a right to get their leases renewed or to retain possession of demised premises and to continue quarry operations. The respondents having cancelled the leases, it shall be deemed that the request of the petitioners for grant of extension in the lease period also stands turned down. The concept of "tenant---holding over" as lessee as based on the provisions of Transfer of Property Act and enunciated in case of Mst. Ehsan Ullah and 2 others v. 'Fozia and others 1993 CLC 1370 is not applicable to the facts and circumstances of the case in hand. It is admitted that the provisions of Transfer of Property Act are not applicable to the Capital Territory of Islamabad and, therefore, the provisions thereof cannot be .Followed as statutory rules except in appropriate cases wherein the principles may be followed, which in the circumstances of the present case cannot be followed. Hence the law declared in cases relied upon by the learned counsel for the petitioners is inapplicable to the cases in hand and at any rate cannot be enforced through a writ petition. The petitioners in the above writ petitions whose lease period has expired have enjoyed their full r lease periods and they have no vested right to get extensions in the lease v periods or to get a relief from this Court entitling them to continue as lessees beyond lease period. In case of Muhammad Yaqoob v. Health Officer, Municipal Committee, Hyderabad and another (1973 SCMR 184), it has been held as under:--- "So far as the present petition is concerned, it must, in our opinion, fail, because, after the licence had expired by efflux of time, there could be no further question of continuing them or restraining the Municipal Committee from cancelling the same:"
In view of the above discussion and the law declared in the aforementioned case, no relief can be granted to the petitioners in W.Ps. Nos. 949/91, 961/91, 968/91, 1070/91 and 1072/91 and this Court shall not install them as lessees against the consent of the respondents.
9.So far as the legality of paragraph 3 of the order is concerned, I am of the view that the said portion of the order is quite lawful inasmuch as the same is to become operative in case the petitioners refuse to vacate the sites in question within the stipulated periods of time as their leases have already been cancelled. In case of Ch. Inayat Ullah v. Lyallpur Improvement Trust, Lyallpur and another 1977 SCMR 488 at pages 491-492, it has been held as under:--- "It is expressly stipulated under clause 3(ix) of the lease deed that the lessee shall at the end or sooner, on termination of the lease, leave the land and surrender it peaceably to the Trust and if so required by the Chairman of the Trust, to pull down and remove any structure erected by him together with any materials lying on the land within one month of the termination of the demise, all buildings and materials not so removed shall become the absolute property of the Trust. In this connection it is further laid down in clause 4(iii) thereof that on the termination of the lease, either on expiry of the term provided therein or for any other reason, the Trust shall not be bound to pay any sum whatsoever by way of price, compensation or damages to the lessee in respect of any improvements made on the land. From a combined reading of these two clauses in the lease deed it appears that ever since with the termination of this lease by efflux of time the property in the building has vested in the trust absolutely without any payment as compensation to the plaintiff-appellant for the improvement made on the land.
In this connection, the common Law of England is based on the maximum quickside plantature solo, solo cedit (whatever is fixed to the soil becomes part of it). In the leading case of Ramedan v. Dyson (1865) 49 HR 543;, it was, inter alia, observed by Lord Cranworth, L.C., that:--- For if a stranger builds on my land, knowing it to be mine, there is no principle of equity which would prevent my claiming the land, with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive making it inequitable is me to assert my legal right. It follows as a corollary from those or perhaps it would be more accurate to say it forms part of them, that if my tenant builds on land which he holds under me, he does not thereby, in the absence of special circumstances, acquire any right to prevent me from taking possession of the lands and buildings when the tenancy has determined. He knew the extent of his interest, and it was his folly to expend money upon a title which he knew would or might soon come to an end'."
In this connection before the Transfer of Property Act, 1882 was enacted, in the Full Bench case of Thakoor Chunder Poramanic v. Ramdhone Bhuttachargee 6 Suth W R 228 the Calcutta High Court observed:--- "We think that it should be laid down as a general rule that, if he who makes the improvement is not mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the land, the option of taking the building or allowing the removal of the material remaining which the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any Estate he may possess."
But afterwards in Narayan Das Shettry v. Jatindra Nath Boy Chowdhry and others ATR 1927 PC 135 Their Lordships of the Privy Council observed that the maxim which is found in England viz., quickside plantature solo, solo cedit has at the most only a limited application in India. There is nothing in the laws or customs of India, to show any traces of the existence of any absolute rule of law that whatever is affixed or built on the soil becomes a part of it and is subjected to the same rights of property as the soil itself.
In this connection section 108 of the Transfer of Property Act regulates the rights and liabilities of the lessors and lessees against one and another. In particular section 108(h) lays down that "in iii; absence of a contract" or local usage to the contrary, the lessee may, even after the determination of the lease remove at any time while he is in possession of the property leased but not afterwards all things which he has attached to the earth: provided he leaves the property in the state in which he received it. Similarly according to section 108(b) `in the absence of contract' or local usage to the contrary, the lessee must not without the lessor's consent, erect on the property any permanent structure, except for agricultural purposes. Under clause (q) of this section on the determination of the lease, the lessee is bound to put the lessor into possession of the property.
All these provisions in section 108 of the Transfer of Property Act are applicable only in the absence of contract or local usage to the contrary. Any express covenant in the lease-deed has the effect of overriding a covenant to the contrary implied under this section. In this view of the matter in the instant case the stipulation contained in lease-deed (Exh.D.1) discussed above must prevail and shall have effect, irrespective of section 108 of the Transfer of Property Act. As already discussed above, on the termination of this lease, the superstructure raised by the appellant has vested absolutely in the Trust. Thereby the building is deemed to be the property of the Trust. In this view of the matter under section 83(2-A) of the Municipal Administration' Ordinance, 1960 read with section 49 of the Punjab Town Improvement Act, the appellant was liable to ejectment from the premises in pursuance to the notice served on him. There is, therefore, no force in this appeal which is dismissed. But there is no order as to costs in the circumstances of the case."
As paragraph 3 will be operative only if the petitioners do not vacate the premises and try to -remain in possession thereof illegally without any entitlement that the order contained in paragraph-3 will become operate, therefore in view of the above and the law declared in case of "Ch. Inayatullah" supra, it cannot be said that paragraph (3) of the order suffers from illegality and hence shall operate, if the original order of cancellation is upheld and is not complied with by the petitioners.
10.Argument of the learned counsel for the petitioners to the effect that the lease in question could not have been cancelled without issuance of a Show---cause notice and without giving an opportunity of being heard to the petitioners has substantial force. It is admitted position that the leases in questions have not been cancelled on the ground of violation of the conditions of lease. Provision of issuance of a notice prior to the passing of an order of revocation is provided in clause 72 of Second Schedule which is a part of the Mining Concession Rules, 1960 which are statutory in nature. It is an established legal proposition that without issuance of a notice if the same is required under the statute to be issued, an order passed is void ab initio and the illegality cannot be cured even by giving of subsequent hearing as held in the following cases:-
(1) Anjuman-e-Ahmediya, Sargodha v. Deputy Commissioner, Sargodha and another (PLD 1966 SC 639);
(2) Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others (PLD 1971 SC 61);
(3) Malik Meraj Khalid v. The Islamic Republic of Pakistan and another (PLD 1988 Lah. 325).
I am, therefore, of the view that the impugned orders of cancellation of the leases in questions could not have been passed without issuance of show-cause notice to the petitioners and giving them opportunity of being heard and also holding a factual inquiry after associating the petitioners in terms of the directive issued by the Prime Minister of Pakistan. The impugned orders of cancellation of the leases in question, therefore, are void ab initio and are liable to set aside on this short ground alone.
11.Argument of the learned counsel for the respondents to the effect that the writ petitions having arisen out of contractual obligations, hence no relief can be granted to the petitioners is misconceived. It is now well- established legal proposition that a person has a right to come to the Court in Constitutional jurisdiction for issuance of a direction to the public functionaries to act strictly in accordance with law in case the public functionaries have not E acted in accordance with the statute and have passed adverse orders even without issuing of a show-cause notice. Power of judicial review in such like cases is available to this Court even in cases where the grievance has arisen on account of violation of the contractual obligations. In case of "Anjuman-e--Ahmadiya, Sargodha" (supra) an order of cancellation of lease in violation of the statutory provisions on the subject without notice to Anjuman-e-Ahmadiya was set aside in exercise of the Constitutional jurisdiction of this Court and it was held that a writ can be issued in spite of availability of remedy of a civil suit or the arbitration proceedings. At page 649 of the report, it has been held as under:--- "It is, therefore, clear from the provisions contained in the statute and the conditions in the deed of conveyance that if there has been a valid grant then it cannot be cancelled in the manner in which the authorities have purported to do in the present case. The case was thus clearly one in which the appellant was complaining of non--performance of a public duty and asking for a direction that the authorities concerned should perform their public duty in accordance with law.
It was idle on the part of the authorities, therefore, to suggest that since arbitration has been provided for in the conditions set out in the deed of conveyance the appellant- should be denied the remedy under Article
98. It seems to us that it can with greater force be urged that in view of this arbitration clause it was the clear duty of the authorities to have the question, as to whether there had or had not been a valid grant in respect of the plot in dispute, decided by arbitration before purporting to cancel the same."
In case of "Malik Meraj Khalid" even pendency of a civil suit was held as not an adequate remedy where order of cancellation of the lease without notice was challenged through Constitutional petition as being illegally passed without issuance of prior show-cause notice. The writ petition was accepted and the order of cancellation was struck down. An order passed by public functionaries in flagrant violation of statute and not even in accord with basic norms of justice cannot be protected merely because it has been, passed for public if welfare. Consequently, I hold that the orders of cancellation of the lease in question are illegal and without a lawful authority having been passed without issuing of a prior show-cause notice to the petitioners.
12.Having held the orders of cancellation of leases in question to be illegal and void and that in certain cases lease period has already expired as an effective order can be passed whereby all the writ petitions can be disposed of in the fight of the above findings, hence in view of the above and the order which I propose to pass, I need not render decision on rest of the contentions raised by the learned counsel for the parties.
Resultantly, Writ Petitions Nos. 949/91, 961/91, 968/91, 1070/91 and 1072/91 mentioned at S.Nos.4, 12, 13, 16 and 18 are dismissed having fructified by efflux of time as no effective relief can be granted to the petitioners in these cases. Writ Petitions Nos. 946/91, 947/91, 948/91, 950 to 956 of 1991, 1066/91, 1068/91 and 1071/91 are accepted, and, the orders dated' 18-9-1991 cancelling the leases in question in these writ petitions are declared to be illegal and without a lawful authority as having been passed without issuance of a show--- cause notice and are set aside. This order, however, shall not debar the respondents to pass fresh orders in pursuance of the directive issued by the Prime Minister of Pakistan or otherwise in accordance with law after issuing show-cause notice and giving full opportunity of being heard to the lessees. The petitioners shall be at liberty to raise all amongst other objections in their defence, which have been raised during the course of these writ petitions and have been left undetermined. The parties are left to bear their own costs.