' FAZLUR REHMAN KHAN. J.--- By this writ petition, Muhammad Ayub Khan Tanoli. Advocate, now dead and represented by his L.Rs, calls into question the order, dated 17-5-2003 of the Secretary Industries and Minerals Development, Government of N.-W.F.P. Peshawar, whereby appeal of the petitioner against the cancellation of his mining lease of soap stone by Director-General, Industries and Mineral Development, Government of N.-W.F.P. Peshawar, was rejected.
2. While giving the background of the case, the petitioner in the writ petition has stated that the petitioner was granted a mining lease for excavation of soap stone over an area of 62.47 Acres of land, situated in Village Chalhattar (Sherwan), Tehsil and District Abbottabad, by Director-General, Mineral Development, Peshawar, (respondent No,2 herein) and a proper lease deed was executed on 13-5-1997. Feeling aggrieved of the grant, M/s Feroz Mining Corporation, Abbottabad, (respondent No,4), filed an appeal and respondent No,1 on the basis of a previous order, dated 6- 2-1986, in Appeal No,SO.IV(IND.) 22-24/85 cancelled the lease vide order, dated 14-3-1991 in Appeal No,SO.IV(IND) 22-23/85. The petitioner challenged the order of respondent No,I by way of a writ petition and this Court also by an order, dated 11-12-1997 confirmed the order of respondent No, 1.
The petitioner then filed special leave to appeal and the Honourable Supreme Court of Pakistan set aside both the orders and remanded the case to the respondent No,1 with the following observations:-- "After hearing Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Addl. A.-G. N.-W.F.P., we are of the view that question of legality of the letters issued in favour of the appellant is to be examined in the light of the orders passed in 1986 directing that entire area should be divided into four blocks and put to auction. In this view of the matter, we remand the case to Secretary Industries to the Government of N.-W.F.P. With direction that he shall decide the aforesaid question and also the legality of the letters issued in favour of the appellant within a period of two months positively. Till then status quo shall be maintained."
3. After remand and hearing the parties, respondent No,1 passed the following order on 17-5-2003:- - "After hearing all the parties, perusal of record and keeping in view opinion of the Law Department, decision of the Peshawar High Court on writ petition of Muhammad Ayub Tanoli, similar decision of the learned Court on Writ Petition No, 182 of 1991 and the provision of the N.-W.F.P. Mining Concession Rules, 1976, it is concluded that there was no order issued in favour of appellant except allotment letter and work order which were against the order passed on 6-2-1986. These orders (allotment, work order) found issued illegally and in violation of the earlier orders of this Appellate Court, dated 6-2-1986. Which was fully covered under rule 46 of the N.-W.F.P. Mining Concession Rules, 1976, therefore, the order of the Appellate Authority, dated 14-3-1991 regarding cancellation of lease of the appellant and reservation of area for open auction is upheld as there seems no legal flaw in that decision."
Now through the present writ petition the petitioner has challenged the above orders of respondent No,l.
4. We have heard Mr. Abdul Rehman Qadir, learned counsel for the petitioner, Qari Abdul Rashid, the learned D.A.-G. For respondents Nos.l to 3 and Qazi Muhammad Shehryar, Advocate for respondent No,4 and have also perused the record.
5. In support of the writ petition, the learned counsel for the petitioner contended that the lease was granted to the petitioner strictly in accordance with rule 46 of the N.-W.F.P. Mining Concession Rules, 1976 (hereinafter called the Rules) and the order, dated 6-2-1986 of respondent No,l being executive in nature cannot override the statutory provision, as such, both the orders, dated 19-3- 1991 and 17-5-2003, based on it, are wrong and illegal; that on the summary dated 11-1988 to the Chief Minister, N.-W.F.P, respondent No,l declared that the lease is justified and valid which operates as Estoppel by promise and overruled the earlier order, dated 6-2-1986. In support of his this contention, he placed reliance on (1) 1988 M LD 374 and (2) 1998 M LD 17 and that after the execution of the lease deed, work order was issued to the petitioner, in pursuance of which, he took over the possession of the leased area, did sufficient work of excavation of soap stone, as such, a valuable right accrued to the petitioner and on the Rule of locus Poenitentiae, the lease could not be cancelled. In support of his this argument the learned counsel for the petitioner placed reliance on
(1) 1988 M LD 374, (2) 1991 SCM R 2293, (3) 1998 M LD 1128 and (4) 2003 SGMR 1128.
6. Before entering upon the merits of the arguments of the learned counsel for the petitioner, it is pertinent to point out here that the "Porian Wali" tunnel earlier agitated by the petitioner as a separate leased area, after the latest survey report dated 28-9-1998 conducted in the presence of the parties is no more a bone of contention between the parties and so far as the first argument of the learned counsel for the petitioner that the order, dated 6-2-1986 of respondent No,1 is wrong and illegal, is without force. Perusal of the record shows that this order was the subject-matter of previous litigation and upheld right upto this Court and even maintained by the Honourable Supreme Court of Pakistan in the order dated 24-3-2003 and now it is too late in the day for the petitioner to challenge the same in the present petition. The first argument of the learned counsel for the petitioner is, therefore, rejected.
7. As far as the second argument of the learned counsel for the petitioner that in the summary dated 29-11-1988 submitted to the Chief Minister, respondent No,1 has declared the lease of the petitioner, as justified and valid which amounts to Promissory estoppel is concerned, it would be appropriate here to reproduce below the contents of letter No,2148 dated 15-3-1995 written to the petitioner by the Joint Director (Mineral Development):-- Registered ' No,2148MDW/HA/ML-Soapstone(25)/87-HQ, Government of N.-W.F.P. Directorate of Industries/Commerce and Mineral ' Development (Mineral Development Wing, Khyber Road.
' Dated Peshawar the 15-3-1995.
' To ' Mr. Muhammad Ayub Khan Tanoli, ' S/o Haji Bahadur Khan, resident of Bateel (Sherwan), Tehsil and District Abbottabad.
' Subject: Grant of mining lease for Soapstone over an area of 60 acres Village Chelether/Sherwan District Abbottabad.
' Reference your application dated 14-3-1995 regarding the subject noted above.
' Your reply to the show-cause notice was sent to the Provincial Government on 21-9-1988 for obtaining views/comments thereon of the Law Department.
"The advice of Law Department indicates that the area granted through negotiations to you was valid and correct. Further lease granted and the lease deed executed cannot be cancelled one sided as it comes under the preview of the Contract Act, until breach of the terms and conditions of lease is committed."
' Subsequently, the Chief Minister, N.-W.F.P. However, passed the following orders communicated to the Directorate vide letter No,SO.1V(IND)APPELA(22)/84/13587 dated 21-12-1988.
"The lease may be restored but in future the policy of auction of leases should be strictly followed."
' Since the mining lease granted to you was not cancelled., therefore, the orders of the Chief Minister regarding restoration of lease were not required to be communicated. The lease however, stands cancelled as per orders of the Appellate Authority (Secretary to Government of N.-W.F.P.
Peshawar) now subjudice before the High Court at Abbottabad in your writ petition.
(Sd.) Muhammad Akbar Khan Gandapur ' Joint Director (Mineral Dev.),
8. Perusal of the record indicates that the order, dated 15-12-1988 of the Chief Minister restoring the lease was never communicated to the petitioner and it was on 15-3-1995, on which date, it was communicated and that too in the context of the order, dated 6-2-1986 of respondent No,1 . No doubt, the principle of Promissory estoppel is that where one party had ,made to the other party a clear and unequivocal promise intending to create a legal relationship or effected a A legal relationship to arose in future that promise would be binding on the party making it (1998 MLD 374) but here as observed earlier this promise has never been communicated to the petitioner, creating any right or interest in favour of the petitioner. Moreover, this Court earlier in paras. 19 and 2Q of its.Judgment in W.P. No,24 of 1991, dated 11-12-1997, held:- "19. The petitioner notwithstanding the fact that there was an order in field passed by the competent authority on 6-2-1986, according to which the area of 225 Acres of land was to be divided into 4 viable blocks/units and was ordered to be put to auction, resorted to a method not akin to the issuance of allotment under the rules i,e, by intervention of the Administrative Authority and, his lease was restored by the then Chief Minister, who does not appear any where in -the rules to be authority to pass any such order. Admittedly, as the lease deed executed on 13-5-1987 would show that the petitioner was M.P.A. At that time and the lease has been attested by two other witnesses who were also M.P.As. And that there was political influence and circumstances created, when the lease deed was executed, and later restored by the Chief Minister vide order, dated 15-12- 1988.
20. The restoration of the cancelled lease made in a manner, not in accordance with the rules will be a nullity and as such we hold that the allotment order made on 12-5-1987 and the lease agreement executed on 13-5-1987 were illegal and void and could not have created any legal right."
8-A. In the case reported in PLD 1991 SC 546, the Honourable Supreme Court of Pakistan has laid down the following principles of Promissory estoppel:-- "The doctrine of Promissory estoppel is subject to the following limitations:-- "(1) The doctrine of Promissory estoppel cannot be invoked against the Legislature or the laws framed by it because the Legislature cannot make a representation.
(2) Promissory estoppel cannot be invoked for directing the doing of the thing which was against law when the representation was made or the promise held out.
(3) No agency or authority can be held bound by a promise or representation not lawfully extended or given.
(4) The doctrine of Promissory estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it and
(5) The party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise."
' We have no reason to differ with the earlier views of the Court as reproduced earlier and on the principles laid down by Honourable Supreme Court of Pakistan, as reproduced above, this argument is without force and is hereby rejected.
9. So far as the third argument of the learned counsel for the petitioner that on the basis of the Rule of locus poenitentiae, (the power of rescission till a decisive step is taken), the lease could not be cancelled is concerned, there is plethora of case-law including the ones cited at the bar that if an authority can make an order that authority can also amend, vary or rescind it but on the basis of the Rule of locus poenitentiae that power could not be exercised once a decisive step is taken, by virtue of which, valuable rights accrue to the opposite party. However, we are of the considered view that such an order if obtained by fraud or would be the result of a mistake or misrepresentation that order would be outside the scope of this Rule. In support of this proposition, we have laid our hands on a decision of a Full Bench of the Nagpur High Court reported in AIR 1938 Nag. 513, wherein his Lordship Viviah Bose, J. Speaking for the Bench observed:-- "It is not necessary for me to decide here whether Government has any, and if so what, power to cancel an order or remission of sentence apart from fraud or mistake. There may be a locus poenitentiae, but if there is, then clearly there must come a point beyond which it cannot be exercised. I am clear that in no case (fraud and mistake, excepted, though even there consideration of public policy may intervene; I say nothing about that) can that point be placed later than the date on which the prisoner is due for release under an uncancelled order of remission. I do not say it cannot be placed earlier. I need not decide that, but I am clear that in no case can it be placed later."
10. If, on the basis of the above authority, the Rule of locus poenitentiae cannot be extended to an order obtained by fraud or would be the result of mistake, we have no reason to believe that why such Rule shall be extended to a void order, passed without lawful authority and would be the result of political influence, as in the present case, the allotment, dated 12-5-1987 was void, being passed without lawful authority and was the result of political influence, the Rule of locus poenitentiae could not be extended to it. Moreover, there is a plethora of case-law that a void order creating no right, title or interest needs not to be challenged, recalled or set aside. In this connection reference could be made to some of the authorities reported in (1) PLD 1956 FC 46, (2)
PLD 1959 PC 108, (3) PLD 1964 SC 97, (4) PLD 1970 SC 439, (5) PLD 1975 Kar. 495, (6) PLD 1975 Lah. 859, and (7) PLD 1976 SC 208.
11. Besides, now it is well-settled law that in order to seek,, the discretionary relief under Article 199 of the Constitution, the petitioner has to come to the Court with clean hands but in the present case, in spite of the fact that the petitioner knew that the order, dated '6-2-1986 was in the field, exercising his political influence, obtained the allotment order, dated 12-5-1986 and lease deed, dated 13-5-1987 in his favour, which are without lawful authority and void, as such, the petitioner has not come to the Court with clean hands and not entitled to the relief prayed for.
12. Accordingly, this writ petition, being without merits fails and is hereby rejected.
Petition rejected.