IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal by leave of the Court is directed against judgment dated 27th April, 2000 passed by Peshawar High Court, Peshawar whereby Writ Petition No,12 of 1997 filed by appellant has been dismissed.
2. Precisely stating facts of the case are that appellants instituted a Constitution petition before the Peshawar High Court under Article 199 of the Constitution of Islamic Republic of Pakistan seeking declaration that they are owners of landed property entered into Khasra Nos.1, 2 136, 225, 226 and 227 and official respondents have no right or power to auction the leasehold rights for the purpose of extracting minerals i,e, Bajri or stones, etc. Learned High Court after taking into consideration the respective claims put forward by both the parties dismissed the petition, as such, instant proceedings have been filed.
3. Learned counsel for the appellants contended that they are owners of the property, therefore, have got a right for extracting minor minerals there from without the intervention of the then Deputy Commissioner of District. To substantiate his pleas, he has relied upon Rule 3(2) of North- West Frontier Province (Minor Minerals) Mining Concession Rules, 1971 as according to him, since in the lands belonging to them, no deposits of minerals are available, therefore, appellants have got an independent right to extract sand, stone, etc., from their lands. He also stated that learned High Court has fallen into error in applying provisions of section 49 of the West Pakistan Land Revenue Act to facts of the instant case for the purpose of grant of compensation to land owners whose property is being used to extract minor minerals.
4. Learned Additional Advocate General conversely contended that according to Rules, 1971 read with North West Frontier Province Mining Concession Rules, 1971, mines and minerals both are owned by the respective Governments, therefore, appellants except claiming compensation for surface of the land or compensation in terms of rule 14 of the Mining Concession Rules, 1971 cannot be allowed to extract minerals from the land owned by them. Accordingly, the learned High Court has rightly held that appellants are not entitled to relief claimed by them in writ petition.
5. We have heard parties' learned counsel and have also gone through relevant provisions of the law. It is to be noted that Rules 1971 have been promulgated under the provisions of the Regulation of Mines and Oil Fields and Mineral Development (Government Control) Act, 1948. According to its rule 2(e), "Minor Mineral" means ordinary sand, stone aggregate (Bajri) and ordinary stone other than limestone and marble; whereas according to rule 2(h) of Rules 1976, "mineral" means all surface and sub-surface natural deposits of ores and metals and other metallic and non-metallic substances but shall not include radioactive minerals necessary for the generation of nuclear energy, mineral oil, natural gas, except minor minerals that is ordinary sand, bajri, gravel, etc. In view of both these provisions pertaining to definition, it is abundantly clear that as far as minor, minerals are concerned, they are altogether different from the minerals. Rules, 3, 5, 6 of Rules 1971 have laid down following procedure for the purpose of grant of lease of minor minerals:-- "3. Grant of lease.--(1) No mining lease for any minor mineral shall be granted otherwise than in accordance with these rules.
(2) A mining lease in respect of any minor mineral shall be granted by the Collector of the District in which the minor mineral is found or situated only in respect of lands in which the mines and minerals are the property of Government"
5. Procedure to lease out minor minerals.---(1) The Collector shall, for the purpose of general information, cause a Sched to be prepared and maintained of the area or areas in the District where minor minerals are situated and shall also cause tentative programme to be formulated and maintained in his Office for auction and grant of lease of such minerals.
(2) The Collector shall demarcate the area to be leased out in the following manner:--
(a) At every angle or corner of each boundary line or as near thereto as is practicable, he shall cause to be erected per or small pillars of solid material which shall not be less than 2 feet above the surface of the ground and in no case less than three inches in diameter; and
(b) If the pegs or pillars as aforesaid are not available, he shall cause mounds of earth to be built at such angle or corner, each having a height of not less than two feet and a diameter at the bases of not less than two feet.
6. Grant of lease through public notice.--(1) For the general information of the public, the Collector shall, through a public notice, notify at least one month prior to the date of actual auction.-
(i) the details of the area in respect of which the lease is proposed to be granted; (ii). The details of the auction programme, specifying the date, time and the place where the auction is to take place;
(iii) The terms and conditions of the auction and the proposed lease;
(iv) Reserve price of the lease to be auctioned.
2. The Collector may also notify the retail price per ton of the minor mineral at which the lessee shall supply the same to the consumers at the site of the excavations.
Explanation.--While fixing the retail price of a minor mineral, the Collector shall take into consideration the probable excavation cost of the mineral and the other dues which will be payable by the lessee."
The cumulative effect of above rules would be that the Collector of the District would have control over the grant of leasehold rights in respect of minor minerals situated in such an area where the mines and the minerals being the property of the Government are lying deposited but if there are no mines or the minerals as per the definition of rule 2(h) of Rules 1971, the owner of the land can extract the minor minerals on his own from the land belonging to him and such minor minerals are not required to be put to auction for purpose of granting of the leasehold rights. However, if for any reason the leasehold rights of extracting minor minerals have been granted to a third party in auction then for that purpose the owner of the land would be entitled for compensation uncle rule 14 of Rules 1971. As far as section 49 of Land Revenue Act is concerned, its provisions are not attracted in the cases pertaining to minor minerals as its plain and ordinary language deals in respect of the rights of Government in mines and minerals. This liberal interpretation of rules 3, 5, 6 and 14 has to be adopted in order to safeguard the interest of the owners of the land having the deposits of minor minerals because if besides them a third party succeeds to acquire leasehold right in an auction to extract the minor minerals from their land, it would cause multiple administrative problems for both the sides and owners of the land would be deprived to utilize the benefits of the land owned by them. However, it is made clear that where in the landed property other than owned by the individual as per the Revenue Record, the Collectors of the respective District shall grant the leasehold rights of minor minerals by adhering strictly to the procedure laid down in the rules of 1971. Thus for the foregoing reasons, appeal is allowed and the declaration and the relief as sought for in WP No,12 of 1997 is granted with the observations made herein above. No order as to costs.