This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question the order dated 3-5-1995 passed by respondent No.1 whereby the revision of the petitioner was dismissed and the order dated 29-9-1994 passed by respondent No.2 was affirmed, resultantly, the petitioner was not allowed to lift the loose stones from the foot of the hillock situate near the Sangla Hill which he claims to have separated from the hill during the validity period of mining lease granted to him by the Industries Department.
2. It appears that the petitioner was granted a mining lease to excavate ordinary stone from an area of 4.9 acres situate near Sangla Hill against bid money of Rs.20,000 for a period of 2 years vide work order dated 9-4-1980. According to the petitioner he excavated the good amount of stones which was collected at the foot of the hillock but before the same could be lifted from the site, the mining lease in favour of the petitioner was cancelled by the respondents on the ground that the site has been declared to be a historical area as according to them Alexander the Great had fought battle near this area. Being aggrieved of the cancellation of mining lease the petitioner filed a civil suit in the Civil Court at Sheikhupura but the same was dismissed whereafter the petitioner filed a writ petition (W.P. No.3297/94) in this Court which was disposed of by my learned brother Muhammad Arif, J., vide his Lordship's order dated 27-3-1994 with the direction that the respondent authorities/Secretary, Industries and Mineral Development shall dispose of the application of the petitioner, if filed, within two months of its submission, in accordance with law. In pursuance of that abovesaid order, the petitioner filed two applications before the Licensing Authority, Additional Director, Mineral Development and Secretary, Industries and Mineral Development wherein he sought permission to lift the excavated stones lying at the site. The licensing authority rejected the application of the petitioner while the Secretary, Industries and Mineral Development remanded the case to the Director of Industries Mineral Development/appellate authority for deciding the same afresh after allowing the parties reasonable opportunity of hearing as also inspection of the site. The Director of Industries and Mineral Development deputed Syed Zahid Hussain, Joint Director, Mineral Development to visit the site and submit his report. The said Director visited the area on 2- 6-1994 in the presence of Special Attorney of the petitioner and submitted his report on 7-6-1994 thereby reporting that stones are lying at the foot of the hillock but it cannot be ascertained precisely as to how many stones were exploited by the lessee/petitioner and how much was broken due to whether process. It was thereafter that the appeal of the petitioner was heard and dismissed by the appellate authority vide its order dated 29-9-1994. The petitioner filed a revision petition against the abovesaid order but that too was dismissed by respondent No. l vide his order dated 3-5-1995.
3. The abovesaid orders have been assailed in the present Constitutional petition.
4. Initially respondent No. l was called upon to submit a report as to why the application of the petitioner had not been disposed of in spite of the fact that respondent No.2 had already submitted his report in pursuance of the order passed by this Court. This order, as it appears, was passed at a time when the revision of the petitioner had already been disposed of by respondent No.1. In any case a law officer having entered appearance on Court's call was asked to obtain instructions from the Industries Department as also the view point of Archaeological Department so that the matter could be decided in the light thereof. The Archaeological Department has since submitted their report and a perusal thereof reveals that the hillock has been considered to be historical place and that necessary steps were being taken for the protection thereof. It was however, admitted that the formal notification thereby declaring the said place to be a place of antiquity has not been gazetted meaning thereby that the Department of Archaeology has neither declared the hillock as a place of antiquity nor taken the same as required under the law.
5. In the background aforementioned the learned counsel for the petitioner argued that the cancellation of lease in favour of the petitioner was no doubt challenged before the Civil Court but the suit in regard thereto having been dismissed, the petitioner did not press this issue any further but since the petitioner had already excavated stones which were lying at the foot of the hillock, therefore, he had a right to remove the same as according to the learned counsel for the petitioner the said stones were excavated during the time of subsistence of lease in his favour. It was also submitted that so far the place has not been declared to be a place of antiquity but then, be that as it may, it was submitted, that the excavated stones lying at the foot of the hillock cannot be treated as part of place of antiquity nor the same can be utilized for any good purpose except that it would go waste by lying at the foot of the hillock. It was also submitted that the petitioner having paid one-half of the bid money is at least entitled to lift the said stones lying at the foot of the hillock and in this behalf the learned counsel for the petitioner relied on the report of the officer who visited the site wherein it was reported that the stones of the quantity of about 40 trucks load available at the site.
6. The learned A.A.-G. Appearing on behalf of the respondents, on the other hand, maintained that the excavated stones could be removed from the site within a period of six months of the termination of the lease as provided in Clause 76 of Part 9 of the Schedule attached to Pakistan Mining Concession Rules, 1960, which period is otherwise curtailed to one month under Rule 73(2) of Punjab Minors Mining Concession Rules, 1990. As for the order passed by this Court in W.P.
No.3297/94 it was submitted by the learned A.A.-G. That the only direction given in the said order was to the effect that the application of the petitioner be disposed of in accordance with law and that the same having been done the orders impugned in this writ petition could not be interfered with in the exercise of Constitutional jurisdiction of this Court particularly when the said orders are not shown to have been passed illegally or in excess of jurisdiction.
7. It is an admitted position of fact on the record that the petitioner was granted mining lease in the year 1980 for the purpose of excavating stones from the hillock situate near the Sangla Hill. It is not denied that during the currency of the said lease, the petitioner operated at the site and did excavate certain amount of stones from the hillock. Subsequently the cancellation of the lease was challenged by the petitioner but his suit was dismissed and the petitioner did not agitate the matter any further in so far as the cancellation of the lease itself is concerned. The present grouse of the petitioner is to the effect that he may be allowed to lift the stones already excavated by him so that he be compensated to some extent for the effort put in by him for the excavation of the stones. This request of the petitioner had been declined on the ground that after the passage of 14 long years it has not remained possible to ascertain or to know with exactitude as to whether the stones lying at the foot of the hillock are the same stones which were excavated by the petitioner or the same have rolled down to the foot of the hillock by weathering process. The findings recorded in this behalf by the licensing authority as also the revisional authority are not sustainable in the face of the report of Joint Director, Mineral Development who was directed to visit the site and submit his report wherein it had been clearly reported that 40 trucks of stones were separated from the hill through blasting and by hiring labour while the remaining through weathering.
Obviously the material evidence on the record has been ignored, therefore, it could not be successfully argued that it was not possible to know as to how much stones were separated through blasting or otherwise. It would be relevant to mention here that the report of the Joint Director is based on the principle of average basis of the measurements of heaps of stones lying at the site. Thus non-consideration of very important piece of evidence is enough to vitiate the findings recorded by the respondents. The other findings of the respondents that the petitioner did not complain at the initial stages that he was ever stopped by any relevant authorities to lift the stones from the site and that silence in that regard for good 14 years was enough to conclude that he had already lifted the stones is also not sustainable for the particular reason that it has been explained on the record that the petitioner initially challenged the cancellation of lease by way of civil suit and continued to pursue the same for a quite some time. The suit of the petitioner having been dismissed, the petitioner prayed for an alternative that he may be allowed to lift the stones already excavated by him. Even otherwise it is matter of record that the stones excavated by the petitioner are still lying at the foot of the hillock as is reported by the Joint Director (Mineral Development) i.e. An officer of the Mineral Development Wing of the Industries Department. Since the licensing authority as also the revisional authority has ignored a very important piece of evidence on the record while declining the prayer of the petitioner, therefore, the orders passed by them cannot be sustained.
8. It remains now to be decided as to how the petitioner would be allowed to lift the stones of the quantity of forty trucks load as the same are to be separated from the total heap of stones lying at the site. The only course open seems to be that it should be done in the presence of a representative of the Industries Department and that of the petitioner and total lot so separated should be lifted by the petitioner within a period of fortnight from the agreed appointed date. The petitioner would be allowed to lift the stones if he had paid the total amount of lease money.
9. For the reasons stated above the order dated 29-9-1994 passed by the Director, i.e. Appellate authority as also that of the Secretary, Industries and Mineral Development Department dated 3-5- 1995 are declared to be without lawful authority and of no legal effect. This petition is allowed in the terms noted above with no orders as to costs.