Mir Hadad Vs Govt: of KPK through Chief Secretary, Peshawar and others

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR.

JUDICIAL DEPARTMENT.

JUDGMENT

Writ Petition No.2313-P/2023 with IR. Date of hearing 19.11.2025.

Mir Hadad Vs Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others.

Petitioner (s) by: Nemo for the petitioner Mir Hadad, Mr. Shumail Ahmad Butt Advocate, for the petitioner in W.P. 2315.

Respondent(s) by: Mr. Taimur Haider AAG.

WIQAR AHMAD, J:-. Through this single judgment, this Court intends to decide instant writ petition, along with connected Writ Petition No. 2315- P/2023 and Review Petition No. 61-P/2023 in W.P.

No. 5661-P/2020, as well as Review Petition No. 62- P/2023 in W.P. No. 117-P/2022, as all these matters involve common questions of law and fact.

2.The petitioners in the instant writ petition as well as in the connected Writ Petition No. 2315- P/2023, Review Petitions (filed in W.P. No. 117- P/2022 and W.P. No. 5661-P/2020) stand on a substantially similar factual and legal footing. All these

cases are arising out of the cancellation or obstruction of long-standing mining leases on the basis of the subsequently provided statutory protection surrounding the Terrali archaeological site. Petitioner Mir Hadad, a permanent resident of Habib Dad Banda, Sawaldher, Mardan, was initially granted a prospecting licence over 49.88 acres near Village Sawaldher, which, was subsequently converted into a limestone mining lease on 24-08-2017 and, after renewal, same would have remained valid until 2043. He asserts to have invested significant sums in developing the lease area, including the construction of access roads, installation of crushing machinery, payment of electricity-connection charges, and obtaining a crushing licence from the Directorate of Industries and Commerce on 16-03- 2018 after due inspection. However, on 26-11-2021 the respondents abruptly halted all mining operations within one kilometre of the Terrali archaeological site, purportedly on the basis of a report dated 21-09-2020, and the Mineral Title Committee subsequently cancelled the petitioner’s lease on 16-12-2021. His statutory appeal before the Secretary, Mines and Minerals Department, remains undecided. An earlier writ petition (W.P. No. 117-P/2022) was dismissed ex

parte on 18-01-2022 without affording him an opportunity of hearing, whereupon he filed a review petition which is pending adjudication before us.

3.A similar grievance is raised by petitioner M/s Wisal & Company, a mining concern operating near Village Shakar Tangi, District Mardan, whose multiple limestone mining leases, validated by the Mineral Title Committee in its meeting dated 10-02- 2018 through Agenda Items 38, 41 and 43, were lawfully extended for periods ranging between 2003– 2033 and 2007–2037. After fulfilling legal requirements, depositing dues, hiring trained labour and commencing mining operations, the petitioner statedly constructed access routes for transportation of extracted minerals. Yet on 15-09-2020, the respondents imposed Section 144 Cr.P.C. for two months, suspending all activities on the pretext of the presence of the Terrali antiquities site. Repeated requests for withdrawal of the restriction were ignored, compelling the petitioner to file W.P. No. 5661- P/2020, which too was dismissed on 22-03-2023 without notice or hearing, prompting a review petition that is also pending. Both the dismissals proceeded on the ground that mining operations must be prohibited

within one kilometre of the archaeological site, relying on a notification issued under Section 70 of the Khyber Pakhtunkhwa Antiquities Act, 2016 (“Antiquities Act”).

During the pendency of these proceedings, under the amended Section 70 of the Antiquities Act, the Provincial Government through a Gazette Notification No. SO (M)4-60/2012/2858-66 dated 19.07.2022 published on 26.07.2022 (“impugned notification”), enhanced the protected radius surrounding the Terrali site from 500 feet to one kilometre. The petitioners contend that this notification, issued long after the grant and validation of their vested mining rights, has been applied retrospectively to their detriment. They maintain that the cancellation orders were issued without notice, without assigning reasons, and in violation of statutory protections under the Khyber Pakhtunkhwa Mines and Minerals Act, 2017 (“Mines Act”), as well as the constitutional guarantees of fair treatment. They further argue that the Antiquities Act, being general in nature, cannot override the special and self-contained regime governing mining activities under the Mines

Act. These crucial legal and factual aspects could not be presented in the earlier writ petitions due to their ex parte disposal, rendering the impugned judgments liable to review.

Thus, the petitioners, having been deprived of an opportunity of hearing and left remediless by the combined effect of the cancellation orders, statutory amendments and ex parte judgments, have approached this Court through the instant and connected petitions to challenge the validity, applicability and consequences of the impugned notifications and departmental actions, all of which arise from the same common matrix of facts and law.

4.Arguments heard and record gone through.

5.The core contention of the petitioners rests on two principal objections: first, that the rights accrued to them under the Mines Act, being a special statutory regime, cannot be unsettled or overridden by a law of general application; and second, that once lawful possession of the mining area has been handed over to the petitioners, the respondents are precluded from retrospectively annulling such vested rights through the impugned notification.

6.Before proceeding further, it is essential to appreciate the statutory landscape within which the present controversy arises, for both the Antiquities Act and the Mines Act are specialised regulatory enactments operating within their respective fields, each guided by a distinct legislative purpose. The Antiquities Act is a protective statute, enacted to safeguard archaeological sites and cultural heritage through preventive regulatory measures, including restrictions on activities that may endanger or impair antiquities, an intention clearly reflected in provisions such as Sections 15 and 17 concerning the declaration and protection of antiquities, and more specifically in Section 70 regulating mining and quarrying in their vicinity.

7.The Mines Act, on the other hand,

establishes a comprehensive framework for the management, conservation and development of mineral resources, subjecting all mining operations to statutory oversight, conditions, and limitations imposed by the Government in the public interest. Its scheme recognises that mineral rights are neither absolute nor immune from regulatory control, and that leases are granted subject to law, public policy, and

such restrictions as may be imposed under other applicable statutes. Read harmoniously, these enactments reveal that mining activity cannot be insulated from broader regulatory considerations, particularly those pertaining to archaeological preservation, nor can a mining lease be construed to confer an unfettered or overriding entitlement to operate irrespective of subsequent statutory measures.

It is in this statutory context that the petitioners’ claims must be examined, and it is against this backdrop that the Court proceeds to evaluate the legality of the impugned actions.

8.We shall proceed now to examine the first contention of the petitioners. It is a settled principle of statutory interpretation that where two enactments operate in parallel fields, the Court must strive to harmonise them in a manner that gives effect to both, rather than permitting one to defeat the other—ut res magis valeat quam pereat. Reference may be made to Zafar Iqbal and others v. Bashir Ahmad and others (PLD 1989 Lahore 152). Even where an apparent conflict arises between two special statutes, the law favours a construction that allows each to function within its own sphere unless a clear and irreconcilable

inconsistency is demonstrated. On the other hand, it is a settled principle of law that where a general and a special enactment operate in respect of the same subject-matter, the special statute shall prevail.

Similarly, where a statute contains both general and special provisions, the special provisions shall override the general ones. Reliance is placed on The State v.

Syed Ali Baqar Naqvi and others (2014 SCMR 671).

Likewise, where two special enactments govern the same field, the statute later in time shall ordinarily have precedence. Reference may be made to Syed Mushahid Shah v. Federal Investment Agency and others (2017 SCMR 1218). There is yet another settled canon of statutory interpretation that where two special enactments each contain provisions giving overriding effect to their respective schemes, the Court must examine the object and policy underlying both statutes, along with the clear legislative intent discernible from the language employed in the relevant provisions. Reliance is placed on Sui Northern Gas Pipeline Limited through General Manager v.

Director (Legal) President Secretariat (Public) and 2 others (PLD 2018 SC 51); Employees Provident Fund Commissioner v. O. L. of Esskay

Pharmaceuticals Limited (AIR 2012 SC 11) and Shri Ramah Narain v. The Simla Banking and Industrial Co., Ltd. (1956 SCR 603). In the case of Syed Mushahid Shah (supra), the Honorable Supreme Court laid the following principles:

“(i) If the provisions of a later Act are so inconsistent with those of an earlier Act that both cannot stand together, the earlier stands impliedly repealed by the later. This principle is based on the maxim leges posteriores priores contrarias abrogant. In other words, it means that the latest expression of the will of the Legislature must prevail. This, of course, is subject to the condition contained in the next principle. That is: if the prior enactment is special and the subsequent enactment is general, the earlier special Legislation will not be, indirectly, repealed, altered or derogated from merely by force of the general words of the later statute, without any indication of a particular strong intention to do so.

(ii)A general later law does not abrogate, by mere implication, an earlier particular or special law which deals with a special object or a special class of objects. This principle is based on the maxim generalia specialibus non derogant. But when a general Act is incorporated into a special one, the provisions of the latter would prevail over any of the former with which they are inconsistent. If one statute enacts something in general terms, and afterwards another statute is passed on the same subject, which, although expressed in affirmative language, introduces special conditions and restrictions, the subsequent statute will usually be considered as repealing by implication the former, for "affirmative statutes introductive of a new law do imply a negative". However, if a subsequent statute merely creates an exception from the operation of a previous statute, the previous statute is not necessarily repealed.

(iii)When the later of two general enactments is couched in negative terms or in such affirmative terms which unequivocally involve negative which proves fatal to the earlier enactment, the earlier one is impliedly repealed.

(iv)When the two statutes are expressed in negative terms, they may be affirmative inter se and may not be contradictory to each other;

though the effect of both may be that they are negative as regards a third statue 'at which both of them may have made some inroads'. When seen in this light, an apparent conflict of two statutes is found as without any reality. Because they (sic) objects may be different and both may be parallel; and each may be restricted to its own particular subject or locality.

(v)If the co-existence of the two inconsistent statutes would be destructive of the object for which the later was passed, the earlier would be deemed to have been repealed.

(vi)In so far as the Penal Acts are concerned, if a later statute again describes an offence created by a former one, and provides a different punishment, creates a new jurisdiction and remedy and varies the procedure modifying the manner or changing the forum of trial or appeal, the earlier statute is impliedly repealed by the later unless, of course, both of them can exist in parallel application to different localities, subjects or objects.

(vii)When the words are clear and capable to proper operation, the revocation or alteration of a statute by construction is not permissible. The Legislature is normally not presumed to have intended to keep two contradictory enactments on the statute-book with the intention of repealing the one with the other, without expressing an intention to do so. Such an intention cannot be imputed to the Legislature without some strong reasons and unless it is inevitable. Before adopting the last-mentioned course, it is necessary for the Courts to exhaust all possible and reasonable constructions which offer an escape from repeal by implication.

(viii)All other consideration being equal, if the inconsistency, in spite of applying all general principles of interpretation of statutes, cannot be resolved, a statute more beneficial in remedy or method of taking action will override the statute which is not so beneficial.”

9.The Supreme Court of India in Solidaire India Ltd v. Fairgrowth Financial Services Ltd. and others [(2001) 3 SCC 71] also cited by the worthy Islamabad High Court in Messrs Federal Bank for Cooperatives, Islamabad v. Commissioner of Income

Tax, Companies Zone, Islamabad (2021 PTD 1203 Islamabad), noted that:

“Where there are two special statutes which contain non-obstante clauses the later statute must prevail. This is because at the time of enactment of the later statute, the Legislature was aware of the earlier legislation and its non- obstante clause. If the Legislature still confers the later enactment with a nonobstante clause it means that the Legislature wanted that enactment to prevail. If the Legislature does not want the later enactment to prevail then it could and would provide in the later enactment that the provisions of the earlier enactment continue to apply.” (Underlining is ours)

10.Having surveyed the governing principles of statutory interpretation and the relative positioning of special enactments, the controversy now turns upon the statutory scheme itself. The starting point of this inquiry must necessarily be Section 96 of the Mines Act, which embodies a clear legislative command limiting the scope of rights flowing from a mineral title. The provision reads as under:

“96. Compliance with other laws.—Nothing in this Act shall be construed as authorizing the holder of a mineral title to do anything-

(a)which the holder is prohibited from doing under any law for the time being in force; or (b) otherwise than in accordance with any such law regulating the doing of that thing, and for that purpose obtaining any approval, permission or other document required under any such law.” (Underlining is ours) This provision admits of no ambiguity. It expressly subordinates the exercise of mining rights to all other laws for the time being in force and makes

compliance with coexisting statutory regimes a condition precedent to lawful mining activity. The Mines Act itself, therefore, negates any claim that rights accruing under a mining lease are absolute, vested, or immune from subsequent or parallel regulatory intervention.

11.Read in this light, the petitioners’ contention that the Mines Act constitutes an exclusive and insulated regime is fundamentally misconceived. Far from asserting supremacy, the Act consciously incorporates a doctrine of statutory subordination, recognising that mining operations remain subject to prohibitions, restrictions, and regulatory controls imposed under other enactments operating in allied or overlapping fields. The legislative intent is thus to ensure regulatory harmony, not statutory isolation.

12.Against this backdrop, turning now to Section 70 of the Antiquities Act (also a special enactment) which is of utmost significance for the purpose of the present matter. The provision is prefaced with a non-obstante clause “Notwithstanding anything contained in any other law for the time being in force”, thereby expressly conferring overriding

effect upon the restrictions it contemplates. For facility of reference, Section 70 is reproduced below:

70.Regulation of mining, quarrying, etc.---(1) Notwithstanding anything contained in any other law for the time being enforce, if [Secretary] is of the opinion that for the purpose of protecting or preserving any immovable antiquity it is necessary to prohibit or restrict, within such area as may be specified therein, mining, quarrying, excavating, blasting and other operations of alike nature, or the movement of heavy vehicles, may by notification in the official Gazette, prohibit or restrict all such actions except under and in accordance with the terms of a license granted by the Director and rules, if any made in this behalf.

(2)Any owner or occupant of land, who sustains any loss by reason of any prohibition or restriction by a notification under sub-section (1), shall be paid reasonable compensation for such loss in consultation with the Advisory Committee.

(3)Whoever contravenes the provisions of sub- section (1), shall be punishable with imprisonment for a term, which may extend to five years, or with fine upto rupees twenty-five hundred thousand, or with both.

13.The language of Section 70 is both prohibitory and mandatory. It authorises the Government to impose absolute or conditional prohibitions on mining and allied activities in the vicinity of protected antiquities and reinforces such prohibition through penal consequences. It is a settled principle of law as enunciated by the Supreme Court of India in Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur (AIR 1965 SC 895) later reaffirmed in Securities and Exchange Board of India and Ors.

vs. Gaurav Varshney and Ors. (2016 INSC 535), that

prohibitory and negative expressions, particularly when supported by penalties, signify that the legislature intended complete abstention from the forbidden act, leaving no scope for contractual or administrative relaxation. Such provisions admit of no dilution through executive action, contractual arrangements, or prior permissions.

14.The significance of the compensation mechanism under sub-section (2) cannot be understated. By expressly providing compensation as the statutory remedy for losses occasioned by prohibitory notifications, the Legislature has unequivocally signaled that existing interests, including mining leases must yield to the overriding objective of heritage protection, with compensation being the sole relief contemplated. This statutory design reinforces the conclusion that mining rights are privileges subject to regulation, not indefeasible proprietary entitlements.

15.When the statutory schemes of the Mines Act and the Antiquities Act are examined in juxtaposition, it becomes evident that the two enactments, though both special in character, operate in distinct yet intersecting fields. The Mines Act is

primarily concerned with the regulation, development, and orderly exploitation of mineral resources, whereas the Antiquities Act is directed towards the preservation and protection of immovable antiquities and archaeological heritage. The apparent overlap arises only to the extent that mining activity may, in a given factual context, impinge upon areas protected under the latter statute. In such a situation, the task of the Court is not to accord supremacy to one statute at the expense of the other, but to ascertain whether the Legislature intended one regulatory regime to yield to the other in defined circumstances. This intention must be gathered not from isolated provisions, but from the scheme, language, and object of the enactments read as a whole. Section 96 of the Mines Act is of critical importance in this regard, for it expressly conditions the exercise of mining rights upon compliance with “any law for the time being in force.” By incorporating this clause, the Legislature has consciously acknowledged that mining operations may be subject to restrictions imposed under other statutory frameworks pursuing different public purposes.

16.The Antiquities Act, on the other hand, addresses a specific and compelling public interest,

namely the protection of archaeological and cultural heritage, which the Legislature has deemed worthy of heightened statutory protection. Section 70 of the said Act, by employing a non-obstante clause, makes it explicit that where mining or allied activities pose a threat to immovable antiquities, the regulatory measures prescribed thereunder shall operate notwithstanding anything contained in any other law.

The use of such overriding language is neither casual nor incidental; rather, it reflects a deliberate legislative choice to accord primacy to heritage preservation in situations of competing statutory claims.

17.When these provisions are read together, no real inconsistency emerges. The Mines Act, far from asserting exclusivity, defers to other applicable laws, while the Antiquities Act, within its limited and defined sphere, asserts overriding control to safeguard antiquities. This statutory arrangement is entirely consistent with the settled principles governing the interpretation of special enactments, particularly where both statutes serve distinct public purposes and one of the enactments contains an express overriding clause.

Accordingly, the first contention of the petitioners that the Mines Act, by virtue of being a special regime,

excludes the operation of the Antiquities Act, cannot be accepted, as it runs contrary to the plain statutory text and the legislative intent manifested therein.

18.Reverting now to the second contention advanced on behalf of the petitioners namely, that the impugned notifications could not lawfully operate to their prejudice on account of their alleged pre-existing mining rights, it becomes necessary to examine the issue through the prism of the doctrine of locus poenitentiae, as recognised and consistently applied in our jurisprudence. The doctrine of locus poenitentiae, embedded in section 21 of the General Clauses Act, 1897, postulates that an authority which is competent to pass an order is, in the absence of a statutory bar, equally competent to vary, amend, rescind, or withdraw the same. This principle has been affirmed repeatedly, inter alia, in Government of the Punjab v.

Muhammad Imran (2019 SCMR 643) and

Muhammad Ismail v. Chief Settlement Commissioner (2020 CLC 48 Lahore). However, the exercise of such power is neither absolute nor unqualified. It is circumscribed by well-recognised limitations, the most significant of which arises where, in pursuance of the

order sought to be withdrawn, a vested right has accrued in favour of a party.

19.The jurisprudence on the subject draws a clear distinction between expectations, permissions, or concessions, on the one hand, and vested or accrued rights, on the other. While the former may be withdrawn or revisited in exercise of locus poenitentiae, the latter enjoy protection, subject to statutory exceptions, once decisive steps have been taken and the order has been acted upon. This principle stands lucidly articulated in Government of Sindh v.

Karachi Gymkhana (2021 YLR 1 Sindh), where it was held that although an authority passing order could withdraw and rescind the same but the same should be legally justified. Similarly, this Court in Asmatullah Khan v. Government of Khyber Pakhtunkhwa (2023 PLC(CS) 743), it was reiterated that once an order has been acted upon and the beneficiary has altered his position, the authority is denuded of the power to rescind the same.

20.Equally well settled, however, is the counter-principle that no vested right can be claimed on the basis of an order which is illegal, void, or passed without lawful authority. In such

circumstances, even the taking of decisive steps does not clothe the beneficiary with an enforceable right.

The Supreme Court, in Muhammad Imran case (supra), made it abundantly clear that benefits flowing from an illegal order cannot be protected merely because the order remained operative for a certain period, unless the illegality is attributable to fraud, misrepresentation, or concealment. The same principle was echoed in Raja Zahoor Ahmed v. CDA (2022 PLD 22 Islamabad), wherein it was observed that any superstructure of rights or expectations built upon an illegal foundation must collapse with the withdrawal of the underlying order.

21.Tested on the anvil of these settled principles, the petitioners’ claim of vested rights does not withstand scrutiny. It is an admitted position that pursuant to the judgments under review, particularly Writ Petition No. 5661-P/2020, the respondent department cancelled the mining leases of the petitioners through letters dated 16.12.2021. These cancellations were not the product of an independent executive whim, but were carried out in express compliance with binding judicial directions.

Consequently, by the time the impugned notification

dated 19.07.2022 (published on 26.07.2022) came into force, the petitioners were no longer holders of a valid mining lease or licence. In such circumstances, the invocation of the doctrine of locus poenitentiae by the petitioners is misconceived. The doctrine operates to restrain the withdrawal of lawful orders that have ripened into vested rights; it does not operate to resurrect rights that had already ceased to exist by operation of law or by judicial mandate.

22.Thus, even assuming arguendo that the petitioners once enjoyed mining rights under valid leases, such rights stood extinguished upon cancellation in December 2021. The impugned notification did not divest the petitioners of any subsisting right, nor did it recall or rescind any operative grant in their favour. In the absence of a valid licence at the relevant time, no vested right within the meaning recognised by the jurisprudence on locus poenitentiae can be said to have existed. The second contention of the petitioners, therefore, fails on its own premise. The doctrine of locus poenitentiae, far from advancing their case, requires the decisive distinction between subsisting vested rights and rights that have already been lawfully terminated. Where no

valid right survives, no question of its unlawful withdrawal can arise.

23.Consequently, the writ petitions as well as the review petitions are dismissed, with the observation that the petitioners, if so advised, may pursue the remedy of compensation before the competent authority strictly in accordance with Section 70(2) of the Antiquities Act.

Announced.

--sd-- Senior Puisne Judge

--sd--

JUDGE

“A.Qayum PS” DB) Hon’ble Mr. Justice Ijaz Anwar & Mr. Justice Wiqar Ahmad.