Ali Bahadar Vs Deputy Commissioner, District Mohmand (Ghalanai) and other

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P. No.5028-P/2025 Ali Bahadar Vs.

Deputy Commissioner, District Mohmand (Ghalanai) and others

Date of hearing 07.09.2026 For Petitioner(s): M/s Amin Ur Rehman & Danish Khan Afridi Advocates.

For Respondent(s): Mr. Javed Khan AAG for the official respondents along with M/s Aamir Javed & Jehanzeb Mahsud Advocates.

JUDGMENT

WIQAR AHMAD, J. Instant petition has been filed by petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayers:

“It is, therefore, most respectfully prayed that upon acceptance of this writ petition, this Hon’ble court may graciously be pleased:

To Declare, that any proceedings initiated by Respondent No.1 or its subordinate officials; Whether under the Dispute Resolution Committee (DRC), the District Mining Liaison Committee, or any other Proceedings under the guise of settlement of dispute regarding the lawfully allotted mining area in favour of the Petitioner, are void ab initio and without any legal effect, particularly in view of the fact that the dispute between the parties has already been conclusively adjudicated and has attained finality. Any other relief which is not specifically asked for may also be granted in favour of the Petitioner and against the Respondents”.

2.It is case of the petitioner that the subject mining area, measuring about 80 acres and situated at Wouli Shah Lowy Nower (Spin Drang Opposite), Ambar, District Mohmand, was handed over to him by the concerned tribal elders through a Qaumi Muahida for a period of 35 years. Said arrangement was statedly verified and attested by the then Political Administration. On the basis thereof, the competent mining authorities processed the petitioner’s case and granted him a Prospecting License for nephrite on 15.12.2016 for a period of two years, followed by permission to commence mining operations with effect from 22.12.2016. According to petitioner, he also developed an access road and mobilized machinery at the site; however, his mining activities were obstructed by private respondents, compelling him to approach the concerned administrative and mining authorities. The dispute thereafter remained the subject of proceedings before the erstwhile Political Administration and the jirga constituted by it. Subsequently, on 09.10.2018, the dispute was decided in favour of the petitioner by the Assistant Political Agent, Baizi.

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An appeal preferred against said decision was thereafter remanded by the learned Additional District Judge-II, Mohmand, on 12.07.2019, for adjudication afresh by a competent civil court.

Consequently, respondent No.4 instituted Civil Suit No.01/01 of 2020 before learned Civil Judge-I, Mohmand. During said proceedings, petitioner filed an application under Order VII Rule 11 CPC, questioning the maintainability of the suit, which was accepted vide order dated 05.10.2020. The petitioner asserts that said order was not assailed by respondent No.4 and, therefore, attained finality. The immediate cause for filing the instant petition arose when respondent No.4 subsequently submitted an application dated 19.05.2025 before respondent No.1 concerning same dispute, whereupon the petitioner was summoned to participate in proceedings before a Dispute Resolution Committee (DRC). According to petitioner, the nature and legal basis of such proceedings were not disclosed to him and the already adjudicated dispute could not lawfully be reopened through the DRC, the District Mining Liaison Committee, or any other administrative forum. Feeling aggrieved, W.P. No.5028-P/2025

petitioner has invoked constitutional jurisdiction of this Court through instant writ petition.

3.Respondents have been summoned who have filed their para wise comments. They have stated that petitioner was granted a Prospecting License for nephrite in 2016, which was subsequently validated and later converted into a Mining Lease vide letter dated 09.10.2024, valid up to 21.12.2051. It is further stated that the conversion was made in accordance with the applicable law and after completion of the requisite formalities. Respondent No.1, Deputy Commissioner, Mohmand, has denied the allegation that the then Political Agent had withheld the Jirga proceedings, stating that no material has been produced in support thereof.

It is further stated that the Dispute Resolution Committee is a lawful forum for resolution of disputes relating to mines and minerals and that its proceedings are stopped where the matter is taken before a superior Court.

4.Learned counsel for petitioner invited attention of this Court to the application initially filed by respondents No.4 to 6 before the Deputy Commissioner and contended that W.P. No.5028-P/2025

the Deputy Commissioner entertained said application and marked same to his subordinate for necessary action, as though he was the competent authority in matters relating to the grant of mineral titles. Learned counsel referred to sections 6 and 7 of the Khyber Pakhtunkhwa Mines and Minerals Act, 2017 (hereinafter referred to as the “Mines Act”) and contended that the competent authority in the matter was the Mineral Title Committee (hereinafter referred to as the “MTC”). He added that if any dispute was to be referred to the Dispute Resolution Committee (DRC) under paragraph 8 of Schedule VIII of the Mines Act, such referral was required to be made by the MTC and not by the Deputy Commissioner. He also produced a copy of the notice issued to the petitioner for participation in the proceedings before the DRC, initiated by the Deputy Commissioner, and contended that any subsequent proceedings conducted by the DRC would also be unlawful for want of a proper referral. Learned counsel representing respondent No.3, on the other hand, contended that the DRC was the appropriate forum for resolution of the dispute. Regarding the W.P. No.5028-P/2025

existence of the dispute, he referred to certain paragraphs of the writ petition as well as history of the earlier litigation and contended that a dispute had admittedly been existing between the petitioner and respondents No. 4 to 6, which was required to be resolved by the DRC. He also placed reliance on an earlier judgment of this Court, wherein the matter had been left for determination of the DRC, and contended that since the competent forum had taken cognizance of the matter, instant constitutional petition was not maintainable. Learned counsel for respondent No.4 also relied upon the judgment of this Court dated 10.07.2024 passed in Civil Revision No.824-P of 2023 and contended that this Court had held the DRC to be the appropriate forum for resolution of such disputes and, therefore, the civil suit was not maintainable. He added that, in the case in hand, the DRC, being the competent forum, had initiated proceedings and, therefore, instant writ petition was also not maintainable.

Learned Additional Advocate General adopted the arguments advanced by learned counsel for the respondents and opposed issuance of a writ in favour of the petitioner.

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5.We have heard arguments of learned counsel for the parties and perused the record.

6.Facts of the case, as unfolded before us, raise a new but important question, namely:

whether a Deputy Commissioner can, on his own, initiate proceedings and convene the Dispute Resolution Committee (DRC) for resolution of a mining dispute under Schedule VIII of the Mines Act? For determination of the question, it is necessary to examine the statutory scheme provided under the Mines Act. The Act was promulgated to regulate mines, minerals and mining activities in the Province of Khyber Pakhtunkhwa. Its preamble, inter alia, envisages development of the mineral sector through establishment of transparent administrative, management, legal and fiscal frameworks, and creation of an internationally competitive, stable, conducive and enabling environment for investment in the mineral sector. As regards the administrative structure contemplated under the Act, section 3 provides for establishment of the Mineral Investment Facilitation Authority; section 4 specifies its functions; while section 5 deals with its meetings, including mandatory W.P. No.5028-P/2025

quarterly meetings and the annual review meeting, besides providing for the matters required to be considered therein and preparation of the annual review report. Section 6 provides for establishment of the Mineral Titles Committee, whereas section 7 enumerates its functions. Both these provisions are of particular significance for resolution of the controversy before us and are, therefore, reproduced below for ready reference:

“6. Establishment of Mineral Titles Committee.---

(1)Soon after the commencement of this Act, Government shall, by notification in the official Gazattee, establish a committee to be known as the Khyber Pakhtunkhwa Mineral Titles Committee.

(2)The committee shall consist of- i. Director General, Mines and Minerals; (Chairperson).

(i-a) Additional Director General, Mines and Minerals; (Member)

ii. Deputy Secretary to Government, Law, Parliamentary Affairs and Human Rights Department; (Member)

iii. Deputy Secretary to Government, Forestry, Environment and Wildlife Department; (Member) iv. Chief Inspector of Mines of Khyber Pakhtunkhwa or his subordinate officer; (Member)

v. Commissioner Mines Khyber Pakhtunkhwa or his authorized officer; (Member) (v-a) Director Exploration; and (Member)

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vi. Director Licensing, Directorate General Mines and Minerals to be nominated by the Department. (Member cum- Secretary).

7.Functions of the committee.--- a. Grant, convert, assign, amend, surrender, cancel the mineral titles and renew mining leases for the purpose of clause (d) of sub-section (1) of section 9 and for clause (b) of sub-section (2) of section 9;

b. Lay down process and procedure for award of licenses and mining leases; c. Supervise and regulate mining operations in the province through specific or general written instruments authorizing officers to perform functions and exercise powers on behalf of the Licensing Authority;

d. Oversee enforcement of laws, rules and regulations relating to mines and minerals in the province;

e. Exercise supervision and oversight over mining activities in the province; f. Review and determine the rates of fee for application 1[...];

g. Publish periodical mineral enforcement gazette; and h. Assist the Authority in performance of its functions under this Act.

(3)The Committee may delegate any of its functions to the Committee members or any officer.

(4)The quorum of meeting shall be half of its members and all the decisions shall be taken by majority of votes.

7.It is important to note that the authority to grant, convert, assign, amend, surrender and cancel mineral titles, as well as to renew mining leases, has been vested in the Mineral Titles Committee. Similarly, powers relating to the process and procedure for award of licenses and mining leases, supervision, regulation of mining W.P. No.5028-P/2025

operations in the Province, enforcement of the relevant laws, rules and regulations, as well as oversight of mining activities, have specifically been entrusted to the Mineral Titles Committee.

There is no dispute that these powers are to be exercised by the Mineral Titles Committee. The appellate jurisdiction of the Mineral Appellate Tribunal under section 102-A of the Mines Act has also been provided. Since the dispute before us relates to an area falling within the erstwhile Federally Administered Tribal Areas, the mechanism embodied in Schedule VIII of the Mines Act would apply to the extent specifically provided therein. In this context, section 1 of the Mines Act, which deals with the extent and application of the Act, is also reproduced below for ready reference:

1.Short title, extent and commencement.

(1)This Act may be called the Khyber Pakhtunkhwa [Mines and Minerals] Act, 2017.

(2)It shall extend to whole of the Province of the Khyber Pakhtunkhwa [, except merged districts and sub-divisions where mineral resources shall be regulated in accordance with the special provisions contained in Schedule-VIII of this Act for a maximum period of ten years.

Exemption: - The provisions of Part-VII of this Act shall not be applicable to the merged districts and sub-divisions for a period of five years.]

(3)It shall come into force with effect from 3rd January, 2017.

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Provided that all orders made, proceedings taken, acts and action done, rules made or Notifications issued by the Authority, [Appellate Tribunal], Licensing Authority or its authorized officers, which were made, taken or done by the Authority, [Appellate Tribunal], Licensing Authority or its authorized officers in exercise of the powers derived or conferred from or under the Khyber Pakhtunkhwa Minerals Sector Governance Act, 2016 (Khyber Pakhtunkhwa, Act 1 of 2017), Khyber Pakhtunkhwa Minerals Titles (large and small scale mining) Governance Rules 2017, Khyber Pakhtunkhwa Minerals Auction Rules 2017, Khyber Pakhtunkhwa Minor Minerals Permit Rules 2017, Khyber Pakhtunkhwa Royalty Auction Rules 2017 and Khyber Pakhtunkhwa Enforcement Rules 2017 shall continue to remain enforced under this Act and shall have effect accordingly.

8.It is evident from the provision relating to the extent, application and commencement of the Act that, in the merged districts and sub- divisions, mineral resources are to be regulated in accordance with the special provisions contained in Schedule VIII for a maximum period of ten years. Thus, for the purpose of present controversy, provisions of Schedule VIII, inserted through Act No. XLVI of 2019, would govern the matter to the extent specifically provided therein. Although the Act came into force on 03.01.2017 and Schedule VIII was subsequently inserted in 2019, the legislative intent was clear that, in respect of the mechanism specifically provided therein, the provisions of Schedule VIII were intended to have overriding effect. The scheme embodied in Schedule VIII, however, is not exhaustive.

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Despite providing for the exclusion by use of the expression “except merged districts” in section 1(2) of the Mines Act, Schedule VIII cannot be read in isolation from the remaining provisions of the Act. This is evident from the fact that Schedule VIII does not establish separate authorities for grant or refusal of mineral titles, nor does it provide for a separate Mineral Titles Committee, appellate forum, or other authorities required for performance of the core functions contemplated under the Act. Had the legislature intended to exclude the application of the remaining provisions of the Mines Act altogether, it would have provided a complete and independent statutory framework for the merged districts, including separate authorities for grant and refusal of mineral titles, policy formulation, appellate remedies, and the rights and liabilities arising out of mineral titles. No such scheme has been provided. Significantly, paragraph 15 of Schedule VIII itself provides that matters relating to mineral titles not specifically dealt in the Schedule, would be governed by the remaining provisions of the Act.

The expression “except merged districts” occurring in section 1(2), therefore, cannot be W.P. No.5028-P/2025

construed as excluding the operation of the entire Mines Act, 2017, in the merged districts.

On a harmonious construction, it can safely be construed that the provisions specifically contained in Schedule VIII shall have primacy in respect of mines and minerals in the merged districts and sub-divisions; however, in matters not specifically provided therein, remaining provisions of the Act shall continue to apply.

Since Schedule VIII does not separately provide for an authority competent to grant mineral titles, powers conferred upon the Mineral Titles Committee under section 7 of the Act would continue to operate, so far the mechanism is not inconsistent with any specific provision of Schedule VIII. Ordinarily, a Schedule is to be read as part of, and in aid of, the substantive provisions of the enactment; however, having regard to the special dispensation created for the merged districts and clear intention of the legislature in employing the connotation in section 1(2) (as discussed above), the provisions of Schedule VIII shall prevail over the other provisions of the Act, but only to the extent specifically provided therein.

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9.Coming back to the question for

determination in the case in hand, we may refer to paragraphs 8 and 9 of Schedule VIII of the Mines Act, which provide as follows:

“8. In case any dispute arises between the stakeholders of mineral bearing area after the grant of mineral title, the matter shall be referred to a Dispute Resolution Committee for submission of its recommendations to the Mineral Titles Committee for consideration. The Committee shall consist of the following, namely:

(a)Concerned Deputy Commissioner, (Chairman) (b) A representative of the local mining association nominated by the Licensing Authority; (Member) (c) A prominent elder of the locality nominated by the Licensing Authority; (Member) and (d) Assistant Director Mineral concerned. (Member- cum-Secretary)

9.The Dispute Resolution Committee shall also recommend resolution of inter-tribal land disputes, facilitate demarcation and division of land between the sub-sections and clans as per their traditional Rewaj and settled principles of due shares. The matter may be deliberated upon by two such committees if the dispute arises between two tribal districts. The Committee or Committees may seek help of any relevant Department of Government exercise of their duties”.

Paragraph 9 of the Schedule would be relevant to the case in hand, as the dispute is neither an inter-tribal land dispute nor does it relate to demarcation or division of land between sub-sections or clans. Rather, it is an individual dispute wherein three of the private respondents, i.e. respondents Nos.4 to 6, have been disputing the grant of a Prospecting License, and subsequently a Mining Lease, in favour of petitioner. The nature of the dispute is also such that respondents No.4 to 6 did not W.P. No.5028-P/2025

chose to file any representation before the MTC or an appeal before the Mineral Appellate Tribunal established under section 102-A of the Mines Act, and instead approached the Deputy Commissioner, Ghalanai, District Mohmand, by filing an application before him directly. There had also been earlier litigation between the parties under the legal dispensation prevailing in the erstwhile FATA; however, such proceedings remained inconclusive and the matter ultimately landed before the civil Court.

The plaint filed by respondents No.4 to 6 was eventually rejected by learned Civil Judge-I, Mohmand, under Order VII Rule 11, CPC, vide order dated 05.10.2020. The controversy before us, arises out of the application filed by said private respondents before respondent No.1 on 19.05.2025. It was admitted at the Bar that the Deputy Commissioner had also convened a meeting of the Dispute Resolution Committee for resolution of the dispute. These facts bring us to the principal legal question as to whether a Deputy Commissioner can, on his own, initiate proceedings in respect of a mineral title duly granted by the Mineral Titles Committee, without the matter having been referred to the W.P. No.5028-P/2025

DRC by the MTC. For determination of this question, paragraph 8 of Schedule VIII requires interpretation. Paragraph 8 provides that where a dispute arises between stakeholders of a mineral-bearing area after grant of a mineral title, the matter shall be referred to a Dispute Resolution Committee for submission of its recommendations to the Mineral Titles Committee for consideration. Said paragraph also provides for the composition of the DRC, with the concerned Deputy Commissioner as its Chairman, a representative of the local mining association nominated by the licensing authority, a prominent elder of the locality nominated by the licensing authority, and the concerned Assistant Director Minerals, who acts as Member as well as Secretary of the Committee. The DRC is, thus, a

recommendatory forum. It has no authority to grant, cancel or rescind a mineral title. It can only submit its recommendations to the MTC, whereafter the MTC may take an appropriate decision thereon in accordance with law.

Although paragraph 8 does not expressly specify the authority by whom the dispute is to be referred to the DRC, its language and the W.P. No.5028-P/2025

overall statutory scheme (as discussed above) indicate that such referral has to emanate from the MTC. When paragraph 8 of Schedule VIII is read together with section 7 of the Act, it becomes abundantly clear that grant and regulation of mineral titles fall within the domain of the MTC. Therefore, where a dispute arises between stakeholders of a mineral- bearing area after grant of a mineral title by the MTC, such dispute must, in the first instance, should be brought before the MTC. Likewise, if a person is aggrieved by the grant of a mineral title by the MTC, his objection cannot appropriately be entertained by the Deputy Commissioner independent of the MTC. The Deputy Commissioner cannot assume jurisdiction over a mineral title granted by the MTC merely on the basis of an application made directly to him. If a stakeholder claims that a mineral title has wrongly been granted by the MTC to another person, such grievance must be raised before the competent forum having authority over the mineral title. If the MTC considers it appropriate that the factual dispute requires examination by the DRC, it may refer the matter to the Committee, whereafter W.P. No.5028-P/2025

proceedings may be conducted by a duly convened DRC and its recommendations submitted back to the MTC for consideration.

Any other interpretation of paragraph 8 would disturb the statutory scheme of the Act, particularly the powers assigned to the MTC under section 7. The language of paragraph 8, read in harmony with section 7, therefore, requires a proper referral of the dispute to the DRC before the latter can assume cognizance of the matter. For these reasons, we find that the cognizance taken by the Deputy Commissioner, Ghalanai, District Mohmand, on the application dated 19.05.2025 filed by respondents No.4 to 6, was without lawful authority. Consequently, proceedings founded thereon, including the convening of the DRC without a proper referral by the Mineral Titles Committee, were also without lawful authority.

10.So far as the reliance placed by learned counsel for respondent No.4 on the judgment dated 10.07.2024, passed in Civil Revision No.824-P of 2023, is concerned, said judgment was rendered in a different set of facts. The controversy therein related to the maintainability of a civil suit before the learned W.P. No.5028-P/2025

civil Court, whereas the question regarding referral of a dispute to the DRC was neither raised nor determined. The observations recorded therein were, therefore, made in the context of the controversy involved in that case and do not advance the case of the private respondents. Likewise, in the other judgments relied upon by learned counsel for respondent No.3, although the matters had been referred to the DRC, the specific question arising for determination in the present case was neither raised nor answered. Those judgments, therefore, are also of no assistance to the respondents in the case in hand.

11.In light of what has been discussed above, instant writ petition is partially allowed to the extent that the action taken by the Deputy Commissioner, Mohmand, Ghalanai, on 19.05.2025, on the application filed by respondents No.4 to 6, is declared to be without lawful authority. Consequently, the convening of the DRC, without a proper referral by the MTC, was also without lawful authority and any proceedings conducted pursuant thereto shall have no legal effect. Having held so, we clarify that respondents No.4 to 6 shall be at liberty to W.P. No.5028-P/2025

raise their grievances before the MTC, which shall consider and decide same in accordance with law. The MTC may, if deemed appropriate, refer the matter to the Dispute Resolution Committee; however, such referral shall lie within the discretion of the MTC.

Announced

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(DB)Hon’ble Mr. Justice Wiqar Ahmad J. Hon’ble Ms. Justice Farah Jamshed J. *Atif Zafar JSS*

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