Messrs. Waqas Enterprises Vs Government of Khyber Pakhtunkhwa through Secretary Minerals Develpment Department etc

JUDGMENT SHEET

IN THB PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

WP No.1662-N2022

Messrs. Waqas Enterprises

Versus

Government of Khyber Pakhtunkhwa through Secretary Minerals Development Department etc

JUDGMENT

For petitioner: Mr. Kamran Gul Advocate. For respondents: M/s Tahir Hussain Luehmani and Asshar Khan Kundi, Advocates.

For respondents: Sved Asif Jalal. A.A.G.

Date of hearing: 09.08.2023

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Dr. Khurshid lqbal, J.-

1.The subject constitutional petitions originated from the grant of mining lease for k phosphate in District Abbottabad. The Director General Mines and Minerals (DG M&M), Khyber Pakhtunkhwa, published an Auction Notice for phosphate in three villages Tarnawai, Banda Pir Khan and Chura Gali, situated in the .l-r.:.. suburbs of Abbottabad city, scheduled for 1710212021 at 10.00 am. Aman Khan (petitioner in Writ Petition # 412; to be referred as "Aman's petition" ventured to participate in the process,

stating that he fulfilled all relevant formalities, but failed to win a lease. His main grievance (per paragraph 5 of his petition) is that neither the auction was carried out, nor was he intimated about the fate of his application. The DG M&M also floated an Expression of Interest (Unsolicited ProposallEOl) that appeared on its webpage on 0111212022. The EOI stated that a firm by its name NflS Orangzeb Mining Corporation has submitted an unsolicited Joint Venture proposal on profit sharing basis over an area of 1324.00 acres near village Jabbar at profit sharing of the Government/Department to the tune of Rs. 550/- per ton. The EOI spelt out other relevant terms conditions and called for better proposals by interested organizations. Those need not be stated here. Ms. Waqas Enterprises (petitioner in WP # 1662; to be referred as "Waqas' petition") challenged the EOI, contendingthat it got knowledge on 1411212022, submitted an application, offered the highest bid, but the respondent-Department refused even to receive his application (paragraph 6 of the petition). Both the petitioners sought the indulgence of this court in its constitutional

jurisdiction to set aside the auction notice and the joint venture proposal in favour of M/s Aurangzeb Mining (respondent # 5 in Aman's petition and added respondent 1n Waqas' petition). The factual and legal questions involved, the geographical area,the kind of mine and the respondents in both the petitions are one and the same. Thus, we propose to decide them by this single opinion.

2.As indicated above, in Waqas's petition, IWS Aurangzeb (private respondent) was not arrayed as a party. The aforesaid firm thus moved an application which was allowed. The respondent-Department submitted its para-wise comments in Waqas' petition at which learned counsel for the petitioner expressed his satisfaction. Another point worth noting is that today, while the parties were about to open the case, one Mr. Uzair Nasir, resident of Abbottabad's Tarnawal village, stood up and stated that he wants to be made as a party to Waqas' petition. His application was procured from the office

3.We heard Advocate Kamran Gul, appearing for the petitioners in both the petitions,

Advocate Tahir l{ussain Lughmani, appearing for the private respondent, and Syed Asif Jalal, learned Addl. AG, for the respondent- Department. We perused the record of both the petrtrons.

4, We would consider Aman's petition first, being prior in time. In paragraph 4 of his petition, Aman Khan has stated that after issuance of the auction notice, "he applied for participation and fulfilled all codal formalities."

However he didn't annex a copy of the application on the prescribed form through which he sought to apply for his participation.

Aman Khan prayed for setting aside what he termed "the impugned act of the respondents- [Department] by not considering [his] application" and canceling the joint venture of the private respondent. Section 2l of the KP Mines and Minerals Act, 2017 (Act 2017), deals with the form of application and procedure of its submission. It reads as under:

21.Applications for mineral titles, documents to be annexed and security deposit.--- (1) An application for a mineral title, other than minor mineral, shall be in the

manner set out by the Licensing Authority and shall be accompanied by documents listed in relevant portion of Schedule-Il.

(2)Applicant shall obtain online Token No. from the Department Website in accordance with details available ori the Website of the Department and the application shall be processed funher in accordance with rules.

(3)A separate application shall be made in respect of each area and for each mineral.

(4)Every applicant shall deposit, in respect of the mineral title applied for, a security at the rate and in the form notified by 1[Licensing Authority], provided that, if a license is converted into a lease, the security so deposited shall be adjusted towards security for the lease.

(5)The information contained in the application or furnished to the Licensing Authority in pursuance of an application for a mineral title, other than that incorporated in the register of applications shall be treated as confidential by the Licensing Authority.

5.The mere assertion that Aman Khan submitted an application is not sufficient that he in fact applied for participation in the process of the auction. He didn't annex a copy of, as stated above, the impugned act of the respondent-Department. We are constrained to hold that he never made an

application in response to the advertisement the respondent-Department published.

6.We now proceed to discuss Waqas' petition A copy of a 3-page application titled: "Joint Venture Application Form (Unsolicited Proposal under section 10" was annexed with the petition. The application appears to be deficient in respect of certain important aspects, such as, a firm's profile with reference to its own as well as registration numbers with Security and Exchange Commission;

a financial profile relating bank statement for the last six months having closing balance of at least Rs. 10 and20 million;

a call deposits number with name of bank, amount and its date;

a incomplete details of mining machinery; and, a proof of experience in mining with number of years.

7.It was in this perspective that the respondent- Department in its comment in reply to paragraph # 5, set up the following plea:

Para-5 of the petition is incorrect. The petitioner did not approach for submission of his proposal/offer. Further if the petitioner had submitted form and annexed a copy of the same here with his writ petition, he should have annexed a copy of all the documents including receipt of application fee amounting to Rs.

v 1,00,000/- along with copy of CDR of Rs, 1,000,000/-.

8.In reply to paru-7, the respondent-Department asked that the petitioner may exhibit a copy of the application along with deposit slips of the fee/dues.

But the petitioner neither accepted the offer nor did he come up with a reply though rejoinder. The respondent-Department also stated in its comments that the petitioner has never been granted any mineral title.

9, Mr. Kamran Gul argued that as per the requirements section 10 of the Act 2017, firstly, the joint venture's EOI advertisement was not published in one major English and one major Urdu newspaper; and secondly, Waqas Enterprises offered a bid of Rs. 1100/- as against Rs. 1300/-per ton of the private respondent. Section 10 reads as under:

10.Exemption.--- Notwithstanding, anything contained in this Act, the Mineral Title Committee with the approval of the Authority, ndy grant license and mining lease for any such period, for any fun-granted] area under any terms and conditions, to such public [or private] organization, as deemed appropriate in public interest:

Provided that on the initiative of Government, or where a proposal is received from any public or private organization, for the grant of mining rights of any area on the basis of profit sharing with Government, (a) the Mineral Titles Committee shall cause a tender in one major English and one major Urdu daily newspaper and (b) invite bids for maximum share in profit with Government from amongst relevant competing public or private organizations. (c) The maximum rate of profit, so quoted by any relevant organization in response to such advertisement shall become a reference value, against which the Mineral Titles Committee may grant mining rights to any organization of its choice under this section notwithstanding anything contained in any other law for the time being in force:

Provided further that where the tender has been invited by Department on the proposal received from a public or private organization under the preceding proviso, the Mineral Titles Committee shall give first right of refusal, in accordance with the reference value as determined in the preceding proviso, to such an organization:

Provided also that where the tender has been invited on the initiative of Government, the Mineral Titles Committee shall grant mining rights to that public or private organization who has quoted

maximum rate of profit within the perioci prescribed in the advertisement [numbering supplied; footnotes omittedl.

10.As far the publication of advertisement goes, the respondent-Department responded that the provision was duly complied with. In support, it placed on the record, copies of as many as 4 newspapers, yiz., the Express Tribune, New York;

and the Urdu dailies, the AAJ, Subh and Bayan. As regards, the bid, the provision candidly states the maximum profit. The record reflects that the private respondent offered Rs. 1300/-, which is obviously maximum as against Rs. 1100/- offered by the petitioner. It needs no mention that the maximum profit offered by an organization in response to the % advertisement shall be treated as a "reference value." While the Waqas Enterprises failed to prove that it had actually submitted its application, if its submission of application presumed, even then the profit it offered was lesser than the private respondent offered.

11.Learned counsel for the petitioners submitted that "proven mineral" couldn't be granted through joint venture, but through open advertisement. He referred to Section 62 of the Act 2017. Perusal of

the aforesaid provision rerreals that there is nothing about joint venture. It provides a process for auction of three kinds of areas: cancelled areas containing proven minerals; the areas having economic mineral reserves proved as a result of studies carried out at public expense, or areas the Licensing Authority may consider appropriate for auction. It lays down a procedure the Authority may adopt in case of non- auction. The phrase "proven minerals" has not been defined in the Act, 2017. We found various definitions of the phrase on several websites. For the sake of brevity, we would refer to the definition offered by the Canadian Institute of Mining (CIM), Metallurgy and Petroleum in a Report prepared by its Standing Committee on Reserve Definitions. It reads as under:

A Proven Mineral Reserve is the economically mineable part of a Measured Mineral Resource [...] The term should be restricted to that part of the deposit where production planning is taking place and for which any variation in the estimate would not significantly affect the potential economic viability of the deposit.

Proven Mineral Reserve estimates must be demonstrated to be economic, at the time of reporting, by at least a Pre-Feasibility Study. Within the CIM Definition Standards the term proved Mineral Reserve is an equivalent term

P*ge-11-of15

to a Frcven Mineral Reserve [https //mrmr. cim. o r gl medial 1 128 I ci m-definition-standards 20 I 4.pdf.

Accessed 10 & 1710812023).

12.In view of the above definitions, we find that the learned coun;el. has misconstrued the phrase proven mineral. .,.; \

13.We now to move examine other arguments of the learned counsels. First, the private respondent was not in possession of an NOC from the Ministry of Defence. In this respect, leamed counsel for the private respondent invited our attention to page- 10/R3 which is a cocy of the NOC issued in2011.

He, then, referred,to page-l21Pt3 which shows that the NOC was authenticated. Second, learned counsel for the petitioner and applicant Mr. Uzair Nazir argued that the 15 days time for grant of NOC is very less and, they added, rather indicate the respondent-Department was hands in glove with the private respondent. This argttment is either of no or little value for two reasons: firstly, they have not challenged the time of 15 days time. Secondly, Waqas Enterprise failed to prove its submission of application. When asked, the applicant also admitted at the bar that he didn't submit an application. Third, learned counsel for the private

respondent objected to the notice in the Waqas' petition (available at p.3l), stating it was addressed to someone else in some other matter

14.Finally, we would refer to the application of Mr. Uzair Nazir. As already discussed above in some details, the applicant admitted that he didn't submit an application. He also admitted being not in possession of an NOC. It was for this reason that he objected to the 15 days time for obtaining an NOC, a point we have already discussed with reasons. He also argued that if no applications were submitted in response to the advertisement, the respondent- Department should have issued fresh advertisement in view of section 62 of the Act 2017. Leaned AAG informed us that the area being situated within the limits of the area under the control of the armed forces, ordinarily organizations would avoid coming forward to participate in the process. Be that as it frdy, we are of the view that had the petitioners and the applicant been able to have submitted their applications in the prescribed manner with their duly acknowledgement by the respondent- Department, their cases would have been at better footing. Indeed, in the attending circumstances, they stand as strangers to the process of the granting of

J titles. In Aman's petition, the petitioner didn't show any application at all. Rather, as we have referred above, their assertion is that "they applied" for the lease, but placed on copy of the application. In Waqas' petition, the application though placed on the record, was not duly filled and the k.y requirements for the process, not fulfilled at all

15.The remedy under the writ jurisdiction is in the nature of equitable and extraordinary relief. A party claiming it must come to the court with cleans hands and do equity while seeking equity. In Electronics Ltd.

Pakistan throqgh Prime Minister and others (PLD 2020Islamabad 319), it was held:

29.A Court exercising equitable jurisdiction cannot overlook the conduct of a party. A petitioner's conduct can be taken into consideration in allowing or disallowing equitable relief in Constitutional jurisdiction. It has consistently been held that the jurisdiction of the Court to issue a writ of mandamus is equitable and therefore the Court, on being approached will, apart from other considerations, also look to the conduct of the party invoking its jurisdiction, and may refuse to grant relief unless the petitioner's conduct is free from blame. A party invoking the jurisdiction of this Court under Article

199 of the Constitution has to show that it was not unfair or inequitable in its dealings with the party against whom it was seeking relief. Its conduct should be fair and honest.

16.The aforesaid view was earlier taken in Muhammad Hussain Jq{fqfv v. Mary)am Bibi (1935 CLC 451 Lahore), $ted Shah v. Political Agent Bqjaur Agenq) and 03 others (1981 PLD 57 Peshawar) and Ahmad Khan and others v Custodian of Evacuee West Pakistan and others (1963 PLD 450 Karachi). In these cases, it was unequivocally observed that the High Court in exercise of constitutional jurisdiction is bound to proceed on the maxim "he who seeks equity must do equity". Recently, this view was reiterated in Mohammad Sajjad v. Secretary) Higher Education Azad Government of the State of Jammu and Kashmir Muza-{farabad and 4 others (2023 PLL

(CS)735 [High Court of AJ&KI), Shabraz Shabir v. District on cer le and

Secondary Education, Muzqffarabad (2023 PLL

(CS)718 High Court of Azad Kashmir) and Junaid Abbasi v. Azad Government qf the State qf Jammu and Kashmir (2023 PLD 116 High Court of Azad Kashmir).

17.As a corollary to the above discussion, we find no merit in these petitions. Both of them are, therefore, dismissed.

Announced

(Ghafoor Zaman) d[L-

JUDGE

(D.B)

Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Dr. Khurshid Iqbal