M/S Fazal Fertilizer (Pvt) Ltd Vs Government of KP, Through Secretary Mines & Mineral Development Department, Civil Secretariat, Peshawar and others

PESHAWAR HIGH COURI, PESHAWAR

(Constitutional Jurisdiction)

W.P, o.60i6*Pl 2026

M/S Fozot Fertilizer (M) Unlted Through fts Authorized Representotive.

t3.

Government ol KPK, Through lts Seuetory Mines ond Mlneral Development Depofiment, Civll Secretoriat, Peshawar ond others.

Petitloner(s) by: M/s Muhammad Muazzam Butt and Remsha Robin, Advocates.

Respondent(sl by: Mr. Muhammad Furqan, AAG, for the officials of Provincial Government along with Mr' Umair Jamal, Advocate Legal Advisor and Muhammad lsrar, Deputy Director, Mines &Minerals Department. Barrister lbrahim Khan Afridi and Lawageen Khan, Advocates for Respondent No. 4.

Research Asslttance: Mazhar Ali Khan, Research Officer.

Dates of hearlnS: 28.08.2025

JUDGMENT

S.M. ATTI OUE H.cl.-

l. This judgment intends to resolve the constitutional challenge mounted by the petitioner, M/s Fazal Fertilizer (Pvt.) Limited, under Article 199 of the Constitution of the lslamic Republic of Pakistan, 1973 (Constitution). The petitioner assails the legality, validity, and jurisdictional competence of the consolidated Judgment and Order dated 02.04.2026 (impugned iudgment) passed by the Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal, Peshawar (Appellate Tribunal) in Appeal No. 2285-ADl2026' By virtue of that impugned decision, the learned Appellate Tribunal affirmed the decision of the Licensing Authority / Mineral Titles Committee (Respondent No. 2) dated 05.03'2026, which rejected the petitioner's objections and permitted the private respondent No' 4, M/S Grand Exploration & Mining Company (Pvt.) Limited, to match the 1l

petitioner's highest bid of Rs. 2,750,000,000/- (Rupees Two Billion Seven Hundred Fifty Million only). Consequently, respondent No' 4 was granted the Mining Lease for the mineral "Rock Phosphate" over an area of 518.20 acres near Village Lagarban (Kalu-Di-Bandi), District Abbottabad, by exercising the statutory Right of First Refusal (ROFR) under Section 62 of the Khyber Pakhtunkhwa Mines and Minerals Act, 2o!7 (2oL7 Actl.

2, The factual matrix spawning the present controversy is that a Mining Lease for "Rock Phosphate" over 618'20 acres (Block-D) near Village Lagarban, District Abbottabad, was originally granted through public auction on 17.06.2009 to M/s Pak Arab Fertilizers (Pvt.) Limited against a bid of Rs. 210 Million under the repealed Mining Concession Rules, 2005 (2(Xr5 Rules), valid for ten years up to 11.08.2019. Following litigation regarding operational suspensions, the Appellate Tribunal extended the lease term by three years up to 18.09.2025 against payment of Rs. 53 Million, subject to the explicit condition that no further renewal would be granted'

3.On tO.Og.2O24, the previous lessee applied for assignment of its leasehold interest to private respondent No' 4, M/S Grand Exploration & Mining Company (PW.) Limited, which was approved by the Mineral Titles Committee (MTC) under Section 24 of the 2017 Act on 21.01.2025' An Assignment Letter was accordingly issued on :r9.03.2025, valid strictly until the expiry of the parent lease on 18.09.2025. Upon expiry the area reverted to the State and was re- advertised for open public auction via Auction Notice No' 50 dated 23.01.2026 with a reserve price of Rs. 735 Million, incorporating condition No. 16 which preserved the Right of First Refusal (ROFR) under Section 62 for the ex-lessee.

4.At the open auction held on 23'02'2026, nine bidders participated, including the petitioner and respondent No' 4' The petitioner emerged as the highest bidder at Rs' 2,750,000'000/- (Rupees Two Billion Seven Hundred Fifty Million only)' Overriding the

resolved on 05'03'2025 to offer the petitione/s objections, the MTC 62 at the matched bid of Rs' 4 under Section lease to respondent No'

2'T5Billion,whichrespondentNo.4acceptedandpaidtherequired preferred Aggrieved thereof' the petitioner down payment and taxes' vide before the Appellate Tribunal' which was dismissed appeal 02.04.2026, prompting the instant consolidated judgment dated Dissatisfied with this decision' the constitutional writ petition' Court under its constitutional petitioner has approached this jurisdiction.

petitioner assailed the

5.The learned counsel for the No' 4 held no live contending that respondent impugned decisions by prace, as its rease had when the auction took or subsisting minerar titre leaving it a mere ex-lessee' They already expired on 18'09'2025' under the repealed 2005 submitted that the parent lease originated that the 2019 which contained no right of first refusal' and Rules, further amendment cannot appry retrospectivery. They statutory greater Section 24' an assignee cannot acquire argued that under lessee under the principle ol nemo dot quod rights than the original no since the original lease was non-renewable' non habet, and period' Lastly' could pass for the truncated six-month preferential right of that Schedule lX strictly bars the renewal they maintained by voluntarily participating as a bidder in phosphate leases, and that and waived its respondent No' 4 elected its remedy the open auction, right of first refusal' and Assistant Advocate General

6.ln response' the learned that the 2017 Act is a complete counsel for respondent No' 4 argued 105 transforms past leases under Section code whose deeming clause carrying all statutory benefits' including the into valid mineral titles Section 62' They submitted that an approved right of first refusal under into the legal shoes of the lessee 24 steps fully assignee under Section protections' They with identical statutory as a successor-in-interest so occur after lease expiry' emphasized that public auctions inherently moment of auction would render requiring a live lease at the exact l3l

Section 62 redundant. Finally, they asserted that exercising the right of first refusal results in a fresh grant at matched market price ratherthan a renewal, and that participating in the auction to determine the highest bid is a necessary statutory step that does not constitute a waiver.

7.Having carefully perused the record, analyzed the relevant statutory provisions, and heard the elaborate arguments of the learned counsel, this court find that the entire legal dispute revolves around two primary, high-level points for determination, which are framed as follow:

il, Whether, by operation of the statutory deeming fictions under Section 105 of the Aca ol 2017, a lease granted under the repealed Rules of 2005 is legally transformed into a 'mineral title' so as to entitle its approved assignee under Section 24 to claim the statutory Right of First Refusal under Section 62 of the Act?

iil. whether the statutory prohibltlon agalnst lease renewal under Schedule lX, or the prlor title holder/s voluntary partic'pation as a bidder in a public auction, operates to extinguish the Right of First Refusal under Section 62 of the 2017 Act?

8.Before embarking on the statutory analysis, this Court must firmly outline the limits of this Court's constitutional jurisdiction

under Article 199 of the Constitution. lt is a foundational principle of constitutional and administrative law that this court, while exercising its power of judicial review, does not sit as a Court of Appeal over the decisionsofspecialized,statutoryquasi-judicialtribunals.ThisCourt is not called upon to re-weigh the evidence or substitute our own opinion for that of the Appellate Tribunal merely because a different view is possible. The scope of constitutional review is strictly limited todeterminingwhetherthetribuna|hasactedwithoutjurisdiction, exceeded its lawful authority, or committed a patent illegality,

perversity, or error of law that strikes at the very root of its decision- by making power. Where a competent tribunal has been established the legislature to deal with specialized technical matters' such as

mineral rights under the 2017 Act, and has interpreted the statutory

provisions in a reasonable and legally permissible manner, the constitutional court must show deference to that specialized expertise. Reference may be made to Choirmon, Nab v. Muhammod llsmon IPLD 2018 SC 281; Amlad Khon v, Muhommod lrshod lDeceasedl (2020 SCMR 2!551i Ghulom Ahmod Qureshi v. Commissioner CDA' tslomobad (2021 CLC 1014 lslamabad); & Muhommad Hdmovun v.

Mem Boord of (f997 CLC 363 Peshawar). lt is only when the tribunal's decision is shown to be ultra vires the parent Act, or infected with gross perversity, that this Court will interfere. Therefore, this Court must test the impugned tribunal decision on these rigorous standards.

9.To resolve this foundational question, this Court must first examine the Preamble, the overall statutory scheme, and the repeal- and-saving mechanics of the 2017 Act. The Preamble of the 2017 Act makes it clear that the statute was enacted to provide a modern, transparent, and comprehensive legal framework for the regulation, management, and orderly development of the mineral sector in the Province. As affirmed in the judgment of this Court in Ghulom Rasool v. rv Mi &M ls DeDortment (2026 PHC 4769) Passed in W.P. No. 1233-P of 2026, the 2017 Act constitutes a "complete code regutoting the gront, renewo!, tronsfer, conversion and adminisffation of minerol titles within the province." lt completely displaced and repealed the fragmented, pre-existing legislative and regulatory regimes, establishing a unified administration under the MTC and the Minerals lnvestment Facilitation Authority' The petitione/s primary

contention is that because the original Rock Phosphate mining lease was granted in 2OO9 under the repealed 2005 Rules, it remains forever governed by the limitations of that repealed regime and cannot transcend those claim the newly created, substantive benefit

of the Right of First Refusal under section 52 of the 2017 Act' To evaluate this, Section 105 of the 2Ot7 Act, which deals with Repeal

and Savings is of utmost significance' Section 105 stipulate:

and Oil

105.Repeal and saving.-- (1) The Regulation of Mines

field and Mineral Development (Government Control) Act, 1948 (XXIV of 1948) is repealed to the e)cent of Mines and Mineral Development in the Province of the Khyber Pakhtunkhwa.

(2)Notwithstandinr the aforesaid repeal' anvthins done. action ta ken- rules made. and notifi n or order issued under the aforesaid Act. shall' so far as it is not tnconsts with the Drovisio ns of this Act. be to have bee done. taken. made or issued. under this Act- and shall have accordinelv.

(3)For removal of doubts, it is hereby provided that all proceedings pending immediately before the commencement of this Act, before any Court shall be examined by the concerned Court in accordance with the provisions of this Act.

(4)Any appeal pending immediately before the commencement of this Act, before the Appellate Authority constituted under the repealed Act or any rules in this behalf, shall be considered in accordance with the provisions of this Act, by the Appellate Authority empowered under this Act.

(5)Any application for the grant, conversion, assignment, amendment, surrender, renewal or cancellation of license or lease, as the case may be, pending before Licensing Authority, under the repealed Act or rules in this behalf, shall be considered by the Licensing Authority in accordance with the provisions of this Act. Further the licenses !ranted the reoealed Khvber Pa nkhwa Mininc Concession Ru les 2005 shall be considered to have been rranted for such oeriod as determined under this Act from the date of issuance of allotment letter.

(6)No suit, prosecution or other legal proceedings whatever shall lie against any officer or official for anything which is done or intended to be done in good faith under this Act.

10.Examination of the above provisions reveals that the legislature has deliberately employed a highly powerful and well- recognized drafting device: the statutory deeming fiction' lt is a settled canon of statutory construction across common law jurisdictions that a deeming clause creates a statutory legal fiction' When the legislature commands a court to treat an imaginary or historical state of affairs as real, the court is bound to give the fiction judiciary to its full, logical, and natural effect. lt is not open to the allow its imagination to boggle when it comes to the inevitable consequences and corollaries of that legal fiction' The United Kingdom's House of Lords in Eost End Dwellinos Co' Ltd' v' Finsburv Borouoh Council [1952] AC 109, elaborated this principle as:

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"lf you ore bidden to treot on imoginory stote of olfoirs os reol, you must olso imogine os reol the consequences and incidents which, if the putotive stote of oJfahs hod in foct existed, must inevitably hove flowed from or occomponied it... The stotute soys thot you must imagine o ceftoin stote of offoirs; it does not soy thot having done so, you must couse or permit your imoginotion to boggle when it comes to the inevitable corollories oI thot stote of ofIoirs."

11.Similarly, the Supreme Court of Canada in R. v. Verrette [1978t 2 s.c.R.838,845, defined the deeming clause as:

"o deeming provision stotutory Iiction; os o rule it implicitly odmits thot o thing is not whot it is deemed to be but decrees thot for some particulot purpose it sholl be token os if it were thotthing otthough it is not or there is doubt as to whether it is."

t2. ln our jurisdiction this principle is well recognized in the jurisprudence developed by the superior courts. The High Court of West Pakistan in Shoukot Ali v. Settle nt ond Reh tion Commissioner, Lahore (P L D 1965 Lah. tt45) held:

"The Couft in looking ot the deeming clouse hos to give effect to the reol scope ofthe tegol fiction without ony preiudice. lnthe within first instonce, the Court hos got to determine the limits which ond the purposes to which the Legisloture hos creoted the fiction. This hos to hos to be deemed by reference to the words used in the stotute creating the fiction ond full effect must be given to their notural meoning unless by doing the very purpose if creoting the fiction is defeoted. We hove to consider the prohibits fiction ond not the focts. ln doing so, unless the context the necessory consequences ond incidents which noturally flow os corollories from the Iiction ore to be recognised ond corried to their logicol conclusions,"

13.The Lahore High Court in Noor Muhommod Khon v' Boord of Revenue (PtD 1976 Lahore 1061), expounded that when the law real' the commands the Court to treat an imaginary state of affairs as court must look at the fiction and not the actual facts' The Court observed while referring to Shoukot Ali lsupra) held as follow:

"8. I hove olreody deolt with the history of the legislotion ond powers on the- the purpose behind the Provisions conferring the Booird of Revenue or the Offrcers authorised by it in this beholf purpose to movi for conslidotion of on entire; estote os olso the of the legol frction creoted in section 4 thot such motion sholl be the ieemed-tobe consensus of oll the lond owners in fovour oJ consolidotion. tn view of this cleor provision oI low it is not poss ibte to took ot the specific dissent of the lond owner to consolidoti on,7n ct- os ld in ukot Ali v. S leme &

itotion Lohore Loh. 445 hove to r the fiction ond not the fdcts", We co nnot ollow our tmool otion to bodole it comes to the inevitable hot full effect connot be aiven to the Drovisions of sections 3 and 4 of the nonce. This I be doino vio to theh I udoe The corollorv which noturollv flows from the fidion ond should be recognised ond corried to its logical conclusion is thot in view of the consent of the lond owners to the consolidotion no question orises of giving ony notice oJ the intended motion for consolidotion to be mode in Annexure 'F"'

L4. The above principle, often referred to as the "Rule of lnevitable Corollaries," was subsequently re-affirmed by the Supreme Court in plethora of cases ol Muhammod Mubeen'us'Solom v' Federation of Pokiston (PLD 2006 SC 6021i Sved Muddosar Shoh Termlzi v' Peshawar Hioh Court (2021 SCMR ll6li & Dr. Abdul Nabi v' Executive Officer, Cantonment Bodrd, Quetto (2023 SCMR 1267)' The case law referred above establishes that when the legislature enacts a deeming fiction, it implicitly admits that a thing is not what it is deemed to be, but decrees that for some particular purpose it shall be taken as if it were that thing, although in reality it is not' Moreover, when the law commands the Court to treat an imaginary state of affairs as real, the Court must look strictly at the fiction and shut its eyes to the actual historical facts.

15.Applying this celebrated principle to the transition from the 2005 Rules to lhe 2Ot7 Act, Section 105(2) acts as a statutory granted bridge. lt commands that the 2009 lease, although historically granted under the repealed 2005 Rules, must be treated as if it were and existed under the 2Ot7 Ad.. To permit the Court's imagination to "boggle" by holding that the lease exists under the 2017 Act for the purpose of keeping it alive and extracting royalties, but does not exist under the 2017 Act for the purpose of enjoying its statutory benefits

(such as Section 52), would violate the very essence of the deeming Shoh fiction. As held in East End Dwellings Co' Ltd' and Syed Muddosor Termizi lsupral, a statutory deeming fiction must be carried to its

and absolute logical end. Therefore, by operation of Section 105(2) (5), the 2OO9 lease was statutory-merged into the modern regulatory

scheme. lt became, for all intents and purposes of law, a "mineral title" under Section 2(y) of the 2017 Act, carrying with it the entire bundle of modern statutory rights, obligations, and privileges created by the new Act. The petitione/s argument that the ROFR cannot apply because it did not exist under the repealed 2005 Rules is legally fallacious and is hereby rejected.

16.Having established that the lease is a valid "mineral title" under the 2Ot7 Act, this Court must now address the status of respondent No. 4 as an approved assignee. The petitioner contends that respondent No.4, as a mere assignee for a limited terminal period of six months, cannot claim a preferential right like ROFR under Section 62. lt is argued that under the nemo dot quod non hobet (one cannot give, one does not have) principle, the assignee could not inherit greater rights than the original lessee, and since the original lease was non-renewable, no ROFR could pass. To resolve this, the legal nature of an assignment and the definition of an 'assignee' under both the repealed and active statutory frameworks must be examined.

Under the repealed 2005 Rules, the term "assignee" was explicitly defined under Rule 2(iil as "o person, o firm or o Company to whom o mining lease is ossigned, tronsferred or mortgoged or to whom an exploration license is tronsferred subiect to evoluation ond

proving of o mineral resources/deposits, but no transfer of on explorotion license sholl be permissible before completion of two yeors of the issuance ol the license;" ln contrast, the 2017 Act' in deliberately omits a separate standalone definition of "assignee" the its Section 2 definitions. lnstead, the legislature has integrated conceptofassignmentdirectlyintothedefinitionalarchitectureof is defined as title holders. Under Section 2(r) of the 2O]-7 Ac't,"lessee" "o person to whom o mining leose is gronted under this Act ond includes their successors-in-interest'" Similarly, Section 2(t) defines defining "licensee" as including successors-in-interest' By deliberately "lessee" and "licensee" to include successors-in-interest' and

omitting a separate definition for "assignee," the 2017 Act establishes a complete statutory fusion: a lawful, approved assignee is not a secondary, subordinate category of entity, but is a full successor-in- interest who is legislatively assimilated into the status of the "lessee" or "holder" itself.

17, This structural drafting shift is crucial when analyzing the rights and liabilities of an assignee under the statutory framework.

The provisions of section 24 of the 2Ot7 Act dealing with assignment now read as:

24, Assignment.-- A holder of a mineral title except reconnaissance license is allowed to assign [the area under the mineral titlel or any part thereof;

i. with the approval of the Licensing Authority;

ii. if prospecting exploration or mining operations in the area have been carried out successfully; and iii. if the area is clear of all encumbrances.

Section 24 of the 2Ot7 Acr, which governs assignments completely answers the contention of the petitioner' Section 24 explicitly permits the holder of a mineral title to assign the area under the mineral title with the prior approval of the Licensing Authority' lt also provides that a holder of a mineral title is allowed to assign the area under the title with the approval of the Licensing Authority, provided the operations have been carried out successfully and the area is clear of all encumbrances Once the Licensing Authority (the furC) formaily approves an assignment, the assignee does not merely hold a private subcontractual right. Rather, a complete statutory substitution occurs. Under the Act, the assignee is clothed with the entire bundle of rights and privileges conferred upon a lessee under Section 17, which includes the exclusive right to carry out mining 17(h)' operations, enter and occupy land, and critically, under Section the right to apply for renewal or participate in statutory continuity mechanisms. The record shows that the assignment in favour of

respondent No. 4 was formally approved by the MTC in its meeting heldon2L.OL.2O2SunderAgendaltemNo'TT,atterfulfillingall

statutory conditions, including the clearance of outstanding dues and successful operations. ln law, there is a fundamental and crucial distinction between a private contract and a statutory assignment approved by a public regulatory body. Reference may be made to the cases of HaDib- ur-Rehman Unar v. Government of Sindh (PtD 2qr4 Slndh 7281; Alruort SuDDott Services v. Airaort Monooer. Quaid-e-Azom lnternotionol Nrport. Kordchi (1998 scMR 22681;Ghozi Fobrlcs tnternationol Ltd, v, Federation of Pakiston (2023 CLC 3241; Province of Pokiston v. (PLD 1960 Sindh 9O8l; Hobibulloh Enerov Limlhd v. WAPDA throuah Chairmon (PLD 2014 sc 47).

Correspondingly, the assignee is simultaneously saddled with the entire weight of statutory liabilities. These are not diluted by the fact of the assignment. Under Section 19 of the Act, the assignee is bound by all working obligations, environmental protection measures, and local employment directives. The assignee remains liable for any unscientific mining or negligence under Section 46, for environmental non-compliance under Section 47, and for pollution cleanup costs under Section 98. This reciprocal statutory scheme of absolute rights and heavy public liabilities makes it legally impossible to argue that an approved assignee is a "second-class" tenant. The legislature has bound the assignee to the same rigorous compliance standards and liabilities as the original grantee; it would be a gross violation of statutory reciprocity to deny them the corresponding protective benefits of the Act, such as the Right of First Refusal under Section 62.

18.The language of Section 24 is clear and well explanatory, explicitly authorizing the assignment of mineral titles subject to the conditions prescribed therein. lt is a settled principle of interpretation that when the language of a statute is plain and unambiguous, there is no room for intendment, and the courts must give effect to the words as expressed by the legislature. Reliance is placed on Hoii Nasir Meh v.M lmran (PtD 2010 SC 1089); ,(hvber

Pokhtunkhwo v. lntizar All ond others (2023 SCMR 4721i Bonk of Americo, Notional Trust & Savinos Associotlon v. Messrs Sood Comoonv Ltd (1988 MLD 228s1; Multan Electric Powet Co. lMEPCol v. Commissionet.

lnlond Revenue lWHfl. ol Tox Officer. Multan (2016 PrD 2s67); Mirou Forest oonv and otherc v. Azad Koshmlr Govemment dnd others (PLD 1979 Azad J&K 61). Consequently, there is no legal or statutory basis to create a "sub-class" of disadvantaged mineral titles where assignees are deprived of the protections granted to original holders. Stripping a lawful assignee of their status as a "holde/' for the purposes of Section 62 would render the assignment provisions of Section 24 redundant and commercially unworkable. Such an interpretation would stifle the commercial transferability of concessions, paralyze secondary market investments, and fundamentally defeat the legislative objective of encouraging and facilitating investment in the mineral sector. The petitione/s reliance on the nemo dat quod non hobet principle is completely misplaced in the context of an approved statutory assignment. While a private pa rty cannot assign a greater interest than it possesses, the legislature possesses the absolute authority to attach new statutory privileges to an existing status. When Section 105(2) and (5) deemed the 2009 lease to exist under the 2077 Act, it attached the newly created ROFR under Section 62 to that "mineral title"' Since Section 2(r) and Section 24 of the Act permit the complete substitution of the holder by a lawful successor-in-interest, respondent No. 4, upon the approval of the assignment on 19.03.2025, became the sole and exclusive "holder of the mineral tit/e" immediately before the auction. lt did not inherit a mere personal contract from Pak Arab; it stepped into a statutory status that carried the ROFR. Consequently, Point No' I is determined in the affirmotive, in favour of the respondents and against the petitioner.

19.To address the second point, this Court must first analyze the nature, scope, and application ofthe Right of First Refusal (ROFR) under Section 62 of the 2Ot7 Acl, and apply the rules of statutory

interpretation to Section 62 and Section 24. The proviso to Section 52 of the Act, introduced via legislative amendment in 2019, reads as follows:

62, Auction of area with proven mineral reserves.'- The cancelled areas containing proven mineral reserves, and the areas having economic mineral reserves proved as a result of studies carried out at the public expense or areas the Licensing Authority may consider appropriate for auction, may lease out such areas through open auctions on prescribed terms and conditions; and in case of non-auction in [three] consecutive efforts or not fetching reasonable bids in [three] consecutive auctions [", the reserve price shallbe reduced and the process of auction shall be repeated on the reduced rate. ln case of no success, the area shall be granted through negotiation on the terms and conditions as deemed appropriate by the Licensing Authority''1.

["Provided that the areas for minerals as specified in serial number (2) of schedule lx of this Act shall be re- auctioned after expiry of lease period on the condition that the person holdim the area under mineral tltle before auction shall have the flrst riqht of refusal ln accordance with the bid amount offered bv the hlshest bidder throush issuance of offer letter on the orescribed terms and conditions, ln case of failure to comply with the terms and conditions of offer letter the same shall be withdrawn and the highest bidder shall be issued offer letter on prescribed terms and conditions."

20.The petitioner/s primary literalist argument is that since the private respondent's lease expired on 18'09.2025, and the auction took place on 23.02.2026, the private respondent was not "holding" the area under any valid mineral title at the time of the auction' The petitioner argues that the use of the present participle "holding" requires a presently subsisting, live lease at the exact moment of the auction, and since the lease had already expired, the private respondent was merely an "ex-lessee" and thus disqualified' This hyper-literalist construction must be rejected, as it runs counter to themostelementaryrulesofstatutoryinterpretation.ltisasettled canon of statutory construction, as enunciated by the Hon'ble Supreme Court in M lslomabod Electic Suaolv comoonv Limited ITESCO)v,fheAppelloteTrlbunollnlondRevenue(2o23SCMR1515l;Sved M hid oh v, Federal t ndt (2017 scMR 1218); & Khan

(1977 SCMR 371), that a statute must be construed in a manner that

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avoids absurdity, prevents statutory redundancy, and advances the true legislative intent.

21.ln the practical and legal reality of mineral concession management, a public auction for a fresh grant is almost always conducted after the previous lease term has expired by efflux of time.

There is inevitably a temporal and administrative gap between the expiry ofthe old lease, the physical reversion ofthe area to the State, the publication of the fresh auction notice, and the conduct of the public auction. lf this Court were to adopt the petitione/s literalist interpretation, holding that the very "expiry" of the lease term instantly and completely divested the prior holder of its status as a "person holding the oreo before ouction", then no prior lessee could ever qualify for the Right of First Refusal. The statutory provision would be rendered an absolute dead letter, a self-contradictory absurdity, and an empty, un-executable promise. The legislature is never presumed to write redundant or un-executable clauses into a statute. Neither are the courts permitted to read something into a statute that would render its existing provisions redundant; instead, they are bound to give full and meaningful effect to every provision of the enactment to preserve its operational integrity.

22, To fully appreciate the mechanics of this interpretive exercise, it is necessary to expound upon the modern theory of purposive interpretation, which has attained universal jurisprudential acceptance. Reference may be made to Dilowor Hussoin v. Province of Slndh IPLD 2O16 SC 5t4l; lndependent News Pop

Etc v. The Fed Of Pokiston etc (PtD 2017 Lahore 289); New lndio Assuronce Ltd. v. Nusli Nevllle Wodlo and Anolher (2008) 3 SCC279;

UBS AG v,Co ss loners for Het Malestts Revenue dnd Customs [20161 UKsc 13; Quebec lAftomev Generoll v, 9747-0732 Qu6bec inc, [2020] 3 scR 426. Under this doctrine, as masterfully articulated by the eminent jurist Aharon Barak in his famous work "Purposive lnterpretotion in Low," the judicial task in interpreting statutory texts is not to treat legal language as an isolated, self-referential end in t14l

itself, but to construe the text as a dynamic instrument through which the law pursues its intended ends within a constitutional democrary [Aharon Barck, Purposive tntetpretation in Low, trans, Sari Bashi (Princeton Universlty Press, 20051 pp. 88-90.1. Barak explains purposive interpretation as a comprehensive and disciplined approach in which the court must select, from among the legally available semantic meanings of a text, the one that best realizes the underlying purpose of the statute, while strictly maintaining fidelity to the institutional limits of adjudication. ln this analytical framework, "purpose" is not reduced to a psychological inquiry into a drafter's mind, but is a legal construction that integrates two distinct elements: first, the subjective purpose, which reflects the actual intent of the text's creator gathered from preparatory materials and statutory context; and second, the objective purpose, which comprises the values, goals, policies, and functions that the legal system expects the text to actualize in a democracy [Pp. 87-88]. Purposive interpretation operates within the strict outer limits of the enacted words, since "interpretotion ends ot the point ot which longuoge ends" and judges cannot legislate, but within that semantic range, the court must exercise its structured discretion to prefer the meaning that preserves systemic coherence, functional integrity, and constitutional harmony lPp. 16, 181.

23.When Barak's purposive framework is related to the instant case, the interpretation ofthe proviso to Section 62 ofthe Act must be guided by both the subjective intent of the Provincial Assembly and the objective policy values of the regulatory scheme.

Subjectively, the legislative intent behind the 2019 amendment, which introduced the Right of First Refusal for rock phosphate was to protect heavy capital investments, preserve existing mining and processing infrastructure, and secure operational continuity by allowing immediate past operators a fair opportunity to continue their work under updated market rates. Objectively, the 2017 Act seeks to establish a transparent, competitive fiscal environment that

maximizes provincial revenue while nurturing a stable business environment to encourage domestic and foreign investment. The semantic range ofthe phrase " person holding the area under minerol title before ouction" easily accommodates the meaning of the immediate past incumbent, whose lease term has just expired prior to the re-auction process. To restrict "holding" to a presently active, unexpired lease at the exact moment of the auction would destroy the objective purpose of the statute, paralyzing investments and causing abrupt disruptions in the mining sector, while simultaneously defeating the subjective intent of the legislature. lt is therefore the judicial duty of this Court to select the interpretation that avoids this commercial and systemic rupture.

24.Therefore, applying the rule of purposive interpretation as expounded above, the phrase "person holding the oreo under minerol title before auction" must be interpreted to mean the immediate past incumbent of the mining lease prior to its expiry and reversion to the State. This construction perfectly harmonizes the statutory language with the administrative reality of auctions, giving the proviso its full and intended operational effect. Furthermore, the rules of interpretation governing parallel and apparently conflicting provisions within the same statute needs to be addressed too. lt is a settled principle of statutory interpretation, famously expressed in the maxim ut res mogis voleot quom pereat lthat a thing may rather have effectthan be destroyed), that where multiple provisions appear to be in tension, the Court must adopt a construction that harmonizes them and permits each to function within its own sphere. Reference may be made to Federotion of Pokiston throuoh Secretorv Ministrv of Comm ns. lslo v. Shu Shorif (2023 SCMR t29l; Hoii Nosir Meh Mion M (PLD 2o1O SC lo8gli Beoum Sham hor v. The East Pok lston Provincial Assemblv (PLD 1965 SC ]r2Ol; Faztut Quoder Chowdhrv v. Muhammod Abdul Haoue IPLD 1963 SC 4861i A,M. Khdn Leahori v. Government of Poklston (PLD 1967 lah, 2271; Yusuf Ali v. Provlnce of Eost Pakiston (PLD 1958 Dacca 138) & Zofar lobal v. Bashir Ahmod (PLD 1989 Lahore 152). t16l

25.The petitioner heavily relies upon Schedule lX, Serial No.

2 of the Act which governs Rock Phosphate and prescribes a tenure of ten years "with no further renewal". The petitioner argues that the grant of ROFR to respondent No. 4 is a violation of this non-renewal bar, creating a perpetual commercial monopoly over State-owned mineral resources. This argument rests upon a fundamental, conceptual confusion between a "renewal" and a 'fresh grant through competitive market matching." A "renewal" is an administrative extension of an existing lease term, granted unilaterally to the incumbent lessee without exposing the concession to public competition. lt merely extends the old contract, often freezing the previous rates and preventing the State from discovering the true, current market value of the resource. Conversely, the Right of First Refusal under Section 62 operates on a completely different legal and economic plane: First, the lease is allowed to expire, and the area completely reverts to the State. Second, the area is subjected to a wide, open, and transparent public auction, allowing maximum market competition. Third, the competitive market forces determine the true, current value ofthe resource, as reflected in the highest bid (which rose from Rs. 210 Million in 2009 to Rs. 2.75 Billion in 2026).

Fourth, the prior incumbent is merely given a case-specific statutory privilege to match that highest competitive market bid.

26, lf the prior incumbent exercises the ROFR, it is granted a fresh lease at the matched, highly competitive market rate. The public exchequer is not deprived of a single rupee; it receives the absolute maximum market value for its mineral wealth. At the same time, the province avoids the abrupt disruption of an active, ca pital-intensive mining operation, protecting existing physical infrastructure and local employment. This is, by no stretch of legal or economic imagination, a "renewal". lt is a fresh grant at matched market value. The statutory prohibition of "no further renewal" under Schedule lX remains completely intacu respondent No. 4 was not granted any renewal. lt was granted a fresh lease under Section 62 at the matched rate of Rs.

2.75 Billion. Consequently, there is no conflict between Section 62 and Schedule lX, and the rule of harmonious construction is fully satisfied.

27.Finally, this Court must evaluate the petitioner's argument regarding the contradictory position of the respondent No' 4 The petitioner contends that respondent No' 4, by actively participating as a competing bidder in the open auction, had elected its remedy and waived its right to claim the ROFR' This argument completely misunderstands the sequential mechanism of Section 62' The ROFR is not an independent, floating right that exists in a vacuum' By its very definition, it is a right to match the highest bid offered

can only during the auction proceedings. The highest competitive bid public be determined through the conduct of a valid, completed auction. lf the prior holder is forbidden from participating in the the entire bidding, or if its participation is held to operate as a waiver' participation in statutory design would collapse. The prior holder's the auction is entirely consistent with the statutory scheme' lt allows the mineral's the prior holderto participate in the market discovery of is granted to value. lf it succeeds in securing the highest bid, the lease it directly as the highest bidder' lf another party (such as the petitioner) outbids it, the prior holde/s statutory ROFR is triggered' allowing itto match that highest bid' There seems no inconsistency or contradiction in this process. The doctrine of election only applies

remedies' where a party has two mutually exclusive and inconsistent part of a single' Here, the right to bid and the right to match are did not waive integrated statutory sequence. The private respondent its right; its right to match only matured after the petitioner emerged

as the highest bidder at the conclusion of the auction on23'02'2O26' controrio non est Therefore, the invocation of the maxim ollegons be sustained' Point No' ll oudiendus is legally misplaced and cannot against the petitioner and is, therefore, determined in lhe negative'

in favour of the resPondents'

this 28, Having resolved the core points for determination'

Court now turns to evaluate the overall merits of the petition. The petitioner/s entire case is built upon the premise that the extension of the ROFR to respondent No. 4 constitutes a "hostile discrimination,, and violates its fundamental rights under Article 18 (Freedom of Trade) and Article 25 (Equality of Citizens) of the Constitution. This premise is fundamentally flawed. Article 18 guarantees the right to enter any lawful profession or trade, but explicitly subjects this right to "regulotion of ony trode or profession by o licensing system" and the carrying on of any trade by the Federal Government or Provincial Government. lt is well-settled that no citizen has an absolute, vested, or indefeasible right to be granted a public concession, such as a mining lease over State-owned mineral resources. Public concessions are statutory privileges, and their allocation is strictly subject to the regulatory regime established by the legislature. ln the present case, the petitioner participated in the public auction with full, constructive, and actual knowledge of the statutory provisions, including Condition No. 16 of the Auction Notice, which explicitly preserved the ROFR of the prior title holder. The petitioner knew, or ought to have known, that emerging as the highest bidder did not automatically secure the lease, but merely established the "benchmark value" which the prior holder had the statutory right to match. Having voluntarily entered the auction process under these clearly defined statutory rules, and having failed to outmatch the statutory privilege of the private respondent, the petitioner cannot now turn around and claim that the operation of those very rules violates its fundamental rights or legitimate expectations. There is no discrimination under Article 25, as the classification of "prior title holders" is a reasonable and intelligible classification founded upon a rational nexus with the legislative objective, namely, protecting investments, ensuring operational continuity, and maximizing public revenue. Consequently, the petitioner has failed to make out any case of jurisdictional error or violation of fundamental rights, and the petition is devoid of any legal merit.

29.For what has been discussed and having found no jurisdictional error, patent illegality, perversity, or infirmity in the impugned Judgment and Order dated 02.04.2025 passed by the learned Tribunal, Peshawar, the instant petition being completely devoid of merit, is hereby DISMISSED. There shall be no order as to costs.

JUDGE

Date of Announcement

28.O8.2026

(SB)Hon'ble ChiefJu(ice S.M. Attique Shah

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