' The petitioner holds the lease for mining of coal over an area of 239 acres near Village Nita, Tehsil Chakwal for a period of 20 years up to 18-5-2001. The lease was granted to the petitioner in terms of Rule 47 of Pakistan Mining Concession Rules, 1960.
2. The petitioner and M/s. K.S. Mining Corporation, a firm consisting of two partners namely Malik Muhammad Shafi and Lutful Manan, submitted a joint application before the licensing authority on 19-10-1989 for assignment of lease tab M/s. K.S. Mining Corporation under Rule 19 of the Punjab Mining Concession Rules, 1986. Differences arose between the parties and the petitioner and Lutful Manan one of the partner of M/s. K.S Mining Corporation submitted the application on 31-10-1989 before the licensing authority to withdraw earlier application submitted by them. Respondent No,2 however, requested the licensing authority to assign the lease subsisting in favour of the petitioner to his firm but the authority by order dated 14-7-1990 dismissed the application made in this behalf by respondent No,2. Appeal submitted by respondent was also dismissed on 27-6-1991. Thereafter, Malik Muhammad Shafi petitioned the Punjab Minister of Industries who by order dated 15-7-1991 directed re-examination of the matter. Pursuant to this order the Secretary Industries Punjab by order dated 22-10-1991 remanded the, case for de novo proceedings to be taken by the licensing authority. In the second round the licensing authority despite opposition of the petitioner assigned the lease to respondent No,2 by order dated 12-1-1992. The appeal filed by the petitioner was also dismissed by the Secretary Industries by order dated 3-1-1995. Both these orders whereby lease subsisting in favour of the petitioner stands assigned to respondent No,2 have been assailed through the present writ petition.
3. Learned counsel for the petitioner submitted that application for assignment of lease was submitted by the petitioner who admittedly was the lessee, and Lutful Manan and Malik Muhammad Shafi on 19-10-1989 but before the Licensing Authority could pass any order on it, the petitioner as well as Lutuful Manan withdrew the application 12 days later and in this view of the matter, the Licensing Authority rejected the application, the appeal filed by contesting respondent was also -dismissed and thereafter there was no application on behalf of the assignor before the Licensing Authority (LA.) and hence orders dated 3-1-1995 and 12-1-1992 are totally unlawful orders.
It was contended that after the rejection of application by the Licensing Authority by order dated 14-7-1990, the appeal submitted by Malik Muhammad Shafi was also dismissed on 27-6-1991 and these orders were not susceptible of review or re-opening. Learned counsel also submitted that the partnership between Lutuful Manan and Malik Muhammad Shafi was a partnership-at-will and under section 43 of the Partnership Act, the partnership could be dissolved at any time and that Lutuful Manan had given necessary notices to Malik Muhammad Shafi and the Registrar of Firms and the firm stood dissolved and that the lower functionaries had taken an incorrect view of the law on the subject. It was further contended that the firm M/s. KS. Mining Corporation lacked the requisite qualifications in terms of Notification No,M.D.D.E.V.- C.D.N.I (9) /90 dated 16-8-1990 inasmuch as the entire capital of the firm was only Rs,30,000 against required Rs,3 lacs and lease was given to respondent contrary to rules and policy of the Department. It was then submitted that after rejection of appeal filed by the respondent, the matter was re-opened under the orders of the Provincial Minister who was not competent under the relevant Rules to have done so and hence entire proceedings thereafter are unlawful. Reliance was placed on Ahmed Khan v. Member (Consolidation), Board of Revenue, Punjab (PLD 1990 SC 1070), and Chohan Flying Coach v.
Regional Transport Authority, etc. (1993 CLC 1853). It was lastly submitted that assignment of lease was based on extraneous considerations and was motivated and having been made in violation of the law and the rules was liable to be set aside.
4. Learned counsel for Malik Muhammad Shafi submitted that contract between M/s. RA. Malik & Company and M/s. K.S. Mining Corporation stood completed when a joint request in writing was made to the Licensing Authority, and thereafter application submitted by M/s. RA. Malik and one of the erstwhile partners of M/s. K.S Mining Corporation had no value in the eyes of the law. It was contended that when on 19-10-1989 application in writing was submitted, the contract was completed and leasehold rights passed on to M/s. K.S. Mining and thereafter, no third person had any right to say that since firm stood dissolved, assignment could not be made in favour of M/s. KS.
Mining Corporation. It was submitted that orders dated 14-7-1990 and 27-6-1991 were set aside by the Secretary to the Government of Punjab in the Department of Industries and Mineral Development and this was not a case of reviewing earlier order. It was also submitted that the assignment was made by the petitioner after having.Obtained Rs,8 lacs from the assignee and now the petitioner wanted to usurp that money and that in this view of the matter, equitable relief should not be granted to the petitioner. Learned A.A.-G. Appearing for respondent No,1 supported the impugned order.
5. The operative part of the impugned order dated 3-1-1995 reads as under :-- "I have heard the arguments on both sides as well as the representative of the LA. And perused the record. The firm M/s. K.S. Mining Corporation still exist in the eyes of law until and unless it is not dissolved as per requirement of 'Firm's Partnership Act. Accordingly the assignment remains intact in the eyes of law which was correctly approved by the L.A. In favour of M/s. K.S. Mining Corporation vide his order dated 12-1-1992. Therefore, unless there is no subsequent development about the dissolution of the firm this question cannot be raised before this forum. The appeal of M/s. RA. Malik & Co. Is dismissed accordingly?
' Order dated 12-1-1992 is also coached in similar terms. A perusal of these orders would reveal that the Secretary and Director I & MD addressed themselves to resolving the question of existence or non-existence (dissolution) of the assignee Firm. They confined their treatment of subject to interpretation or applicability of section 30 or 43 of the Partnership Act which really was not the basic issue. The matter related to assignment of lease under Rule 19 of the Punjab Mining Concession Rules, 1986 and scope of or . Applicability of this provision needed adjudication which was not done at all. Rule 19 may be reproduced for reference:-- "R,9. A Licensee or Lessee shall not transfer any right or interest under the licence or the lease, nor part with the possession of the area or any part thereof without the previous consent in writing of the Licensing Authority."
A bare reading of the Rule would make it clear that it is only the Lessee who can assign the lease and a further rider provided by the rule is that before an assignment of lease can be made, the consent of Licensing Authority in writing A would be needed. Prospective assignee of a lease does not figure anywhere in the relevant rule. In the case in hand, admittedly, the petitioner was granted lease for mining coal for a period of 20 years up to 18-5-2001. The petitioner and a newly constituted Firm M/s. K.S. Mining Corporation entered into an oral agreement for assignment of the lease existing in favour of the petitioner. The terms of the agreement are not known but an application was made by the parties on 19-10-1989 for assignment of the lease to M/s. K.S. Mining Corporation. The application was signed by Rashid Ahmed Malik, sole proprietor of the petitioner firm, and by both the partners of M/s. K.S. Mining Corporation. Just 12 days later, the Lessee as well as one of the partners of the corporation withdrew the application for assignment. Thereafter, the prospective assignee made a request to Licensing Authority for assignment of lease which was turned down on 14-7-1990 on the ground that matter had become disputed. Appeal filed against this order was also dismissed on 27-6-1991. The matter was re-opened by the Secretary and notwithstanding the fact that no request on behalf of Lessee was pending, the LA. Assigned the lease to respondent No,2 on the ground that the Firm M/s. KS. Mining Corporation still existed as registered firm. The earlier orders passed in the matter were not considered for the law on the subject was adverted to. The Secretary I&MD adopted the same view without even trying to grasp the real issue which was: whether in the given facts and circumstances of the case where request of a Licence for assignment of his lease to another party is nonexistent, lease could have been assigned by the Authority of its own ? Since the relevant rule 19 envisages request of the Lessee/Licensee alone which is to be considered by the LA., the answer to the proposition would be "no". Existence or dissolution of the prospective assignee Firm had no essential nexus with the approval of assignment for that might be of interest to assignor or the various partners of the assignee firm should a dispute erupted regarding terms and conditions of the agreement or the rights and liabilities, inter se of the partners of that firm. The petitioner's case was not that it had assigned the lease to a firm consisting of two partners and that after withdrawal of one partner the assignment should be cancelled as the original firm had ceased to exist. The petitioner's case was that the proposal made by it was revoked by it before consent was granted by the LA. And the proposal had not taken effect till then which was sine qua non for completion of contract of assignment between the petitioner and respondent No,2. The provisions of rule 19 quoted above lend support to this view. Learned counsel for the respondent No,2 had convased the view that when the application was submitted on 19-10-1989, the contract between the parties stood completed and that thereafter application submitted on 31-10-1989 for withdrawal of earlier application was of no consequence. But this position would be contrary to provisions of Chapter I of the Contract Act, IX of 1872 as well as rule 19 of the Punjab Mining Concession Rules, 1986. A careful examination of the relevant provisions would lead to the inference that assignment of an existing lease could have been made by the original leaseholder alone after obtaining prior approval of the Licensing Authority and till receiving of assent in this behalf, contract between the assignor and the prospective assignee would not be completed. It would also follow that a lease could not be assigned at the request of a prospective assignee for such a , situation is not envisaged by the law.
6. As noted above, the request for assignment of lease made by Malik Muhammad Shafi/ M/s. K.S Mining Corporation was turned down on 14-7-1990. The Corporation submitted an appeal before the Secretary which entrusted to Director, I & MD for disposal. Malik Muhammad Shafi despite being on notice did not appear before the Director and his appeal was dismissed on 27-6-1991. Malik Muhammad Shafi submitted a petition to the Minister for Industries, Punjab on 7-7-1991. The Minister issued the following direction on 15-7-1991: "Here is force in the arguments advanced by the applicant in his representation. Please examine the case in the light of above observations and report by 25th July, 1991, positively."
' The Secretary Industries by order dated 22-10-1991 remanded the case for de novo proceedings.
The copy of the order (Annexure E to the written statement filed by respondent No,1) does not show presence of any representative of M/s. RA. Malik & Company. After remand to Licensing Authority assigned the lease to M/s. K.S. Mining Corporation and the appeal filed by the petitioner was dismissed by the Secretary on 3-1-1995 which order have been assailed through the present petition. The first appeal filed by respondent No,2 was dismissed on 27-6-1991 and thereafter the Secretary/Appellate Authority could not have set that order aside as power of review is not possessed by the Appellate Authority. The matter admittedly was re-opened under the order of the Minister who, likewise was not vested with any power under the relevant rules to have issued the direction which he did on 15-7-1991. Obviously order dated 22-10-1991 was passed by Secretary in violation of the C law and on extraneous considerations and this order and orders passed subsequent thereto cannot be countenanced.
7. Notification No,MD/DEV-CDN-I (9) /90 dated 16-8-1990 prescribes the financial qualifications and policy for the grant of mining concessions for various minerals in the Province. The relevant part of the notifications reads as under :-- A. FINANCIAL QUALIFICATIONS: ' In accordance with rule 7 (e) of the Punjab Mining Concession Rules, 1986 the application shall furnish with his application the following evidence as to his financial worthiness:
1. COAL ROCK SALT AND MAJOR METALLIC MINERALS:
(i) Attested copies of the fixed deposits or Defence Saving Certificates NIT shares in the name of the applicant for Rs,5 lacs or statement of hank transaction for a period of 12 months (not older than a month on the date of filing of application) showing a minimum closing balance of Rs,5 lacs and reasonable number of transactions of the same amount during the year.
' Additional evidence of immovable property duly verified by the competent authority to the tune of Rs,15.00 lacs. In case, an applicant is unable to produce evidence of immovable property he may furnish additional evidence of his capacity to invest cash amount of Rs,15 lacs.
' According to the partnership deed the entire capital of the firm M/s. K.S. Mining Corporation was Rs,60,000 which was reduced to Rs,30,000 only, after dissolution of partnership between Malik Muhammad Shafi and Lutufal Manan. The respondent had claimed that his immovable property was worth Rs,8.37 lacs but that would not affect the financial position of the Firm which obviously lacked the requisite qualification for grant (or for assignment) of lease and the assignment was made in violation of the declared policy as well.
8. Learned counsel for respondent No,2 had urged that the petitioner had obtained Rs,8 lacs for assignment of the lease and now wanted to deprive the respondent of leasehold rights as well and that in these circumstances, the petitioner may not be granted relief in the equitable jurisdiction of this Court. Learned counsel for the petitioner had controverted this position. Since there is no material on record in support of the plea urged by the respondent, this aspect of the matter calls for no comments.
9. The impugned orders have been passed on extraneous considerations and emanated pursuant to political manoeuvring and have been passed by brushing the real controversy under the carpet and by ignoring the law and declared policy on the subject. Resultantly, the same are set aside as having been passed without lawful authority. The costs of the litigation shall be borne by the respondents.