Malik Isreal Vs Appellate Tribunal, Mines & Minerals, Peshawar

.[udgmemt Sheet

[F{ THM PMSHAWAM. H[Gffi COURT,

PESHAWAR.

"{u&rc[Ar.r]Ep/ft fr i$fE'M,

JUDGMEI{T

W rit Fetitiom }lo.387 &-W 12fi22.

Date of heaning 25.05.2023.

Malilc lsnael Vs Appellate Tribunal Mimes & Mimerals, Feshawan & others"

Petitioner (s) by: M/s Muhamrnad Asghan Khan Kundi & Naveed Akhtar -A.dvocates.

Respondent(s) hy: llUs Shamrsut Haq Advocate and Saqib Raza A-AG.

w[0 AR "&H&{AD. J:-. Through this petition under Article 199 of the Constitution of Islarnic Republic of Fakistan 1973, petitioner Malik Israel has challenged the irnpugned order dated 07.A9"2A22 passed by learned ,A.ppellate Tribunal Ivlines & lvlinerals Peshawar, whereby appeal of respondent No'7 against the order dated 03.02.2022 of l-icensing Authority/ Mineral Titles Conxnittee, Peshawar was allowed.

2 As per contents of instant petition, petitioner had been granted Prospecting tr-icense for rnarble over an area of 205 acres near village Ziatat District hzlohmand in

the year 2008, with consent of looal community namely Said Khan Kor. Subsequently it was converted into Mining Lease over reduced area of 200 acres vide office order dated 17.06.2021. trn the year 2A16, petitioner intended to assign/transfer 38.71 out of his 200 acres lease in favour of one Jan Wali (respondent No.7) being in close terrns with him. After fulfilling codal formalities, respondent No.7 was granted lease over 47.83 acres instead of 38"71 acres.

Aggrieved frorn sarne, petitioner and local comrnunity known as "Said Khan Kor" subrniued application before Deputy Commissioner, District Mohmand (respondent No.b) to prevent grant of Mining lease to respondent No'7, which was rnarked to Tehsildar Safi for inquiry and verification. He subrnitted his report dated 26.12.2019, concluding therein that Qoum Ssid Kkan Kor was unwilling to make any agreement with respondent No.7 for grant of Mining Lease in their area' \t had also been mentir:ned therein that petitinner was reluctant/unwilling to give NOC to respondent No.7 regarding assignment process. Iv{eanwhile, petitioner also submitted application on 25.07.2019 before Director General, Mines & Minerals, Feshawar (respondent No.3) for withdrawal and cancellation of assignrnent and NOC in favour of

respondent No.7" It wps rnarked to Additional Assistant Comrnissioner Safi, who submified his report dated 13.L2"2021, expressing apprehension that in case of assigning lease in favour of respondent No.7, against will/consent of owners/Qoufilrn, it would lead to law and order situation as well as unending disputes. On L4"05.2020 respondent No.7 entered into agreement with 44 persons af Qourn Said Khan Kor while remaining people of Qoum Said Khan Kor executed agreements with one Arifullah and F{aji Gulsher. The case of part assignment in favour of respondent 1ilo.7 was placed before respondent No.4ilicensing AuthorityAvlineral Titles Cornmittee (hereinafter referred to as IvITC) in its meeting dated 03.02.2A22, whereby it was decided to refer the case to Dispute R.esolution Comrnittee (hereinafter referred to as DRC) constituted under the Khyber Pakhtunkhwa Mines and Minerals .dct 2AL7, for looking into rnatter and submitting its recommendations, who submitted recornmendations/ report. Against decision dated 03.02.2022, respondent No.7 preferred appeal under Section 102i 102-,4. of the Khyber Fakhtunkhwa Mines & N{inerals Aet 2017 (hereinafter referred to as Act 20lV), before Mines and Minerals Appellate Tribunal, Peshawar

(respondent No.l), which was allowed vide judgment dated 07.09.2022, thereby granting Prospecting License to respondent No.7 over 47.83 acres of area earlier granted to petitioner. Aggrieved ftom same, petitioner has filed instant Constitutional petition.

3 We have heard learned counsel for the parties and gone through available record.

4 Perulsal of record reveals that MTC was seized with dispute in case in hand and had not yet finally decided the rnatter when Mines and Minerals Appellate Tribunal (hereinafter referred to as Appellate Tribunal) entertained and allowed appeal f'lled by respondent No.7 without hearing petitioner. Last decision of MTC is also reproduced herein for ready ref,erence:- 'oTke Mtrueral Tttle Cornmittee in light af personal keartng dectded to ref,er tke case to tke Dispute Resolution Cammittee (DRC) constttwted wnder Section E(A) (awended) of tke trdkyher Fakktunkkws fu{ines and lV{tnerals Act 2017 ta laok tnto the rnatter &s per avatluhle record amd proeedwre in vogwe and swbrntt tts recommendations."

5 After report of DR"C, decision regarding allowing assignment or otherwise in favour of respondent

I

hio"7 was yet to be taken by MTC. Entertaining of appeal before decision of MTC was prernature. Section 102 of Act 2417, an appeal is provided against order of Licensing Authority i.e, MTC. When the Licensing Authority had not passed final order in the matter, appeal was not nraintainable under Section 102 of the Act2Al7" MTC had just referred the matter for resolution to DR.C and had not taken decision regarding grant or refusal of rnining title Appeal had clearly been filed at a premature stage.

5 Besides, the Appellate Tribunal entertained an appeal wherein petitioner, who had been Mineral Title Holder had not been arrayed as party. The appeal was even alXowed despite the fact that it had been brought to notice of Appellate Tribunal that petitioner had been the original Mineral Title hotrder, as the discussion in impugned order devolved around said fact. Rule 19 of the Khyber Pakhtunkhwa Mines and Minerals Appellate Trtrbunal2022 provides that any person likely to be adversely affected by any decision has to be arrayed as respondent and give due notice of appeal. Said Rule being relevant is also reproduced herein for ready reference:-

X9. Adding respondent--- Wkera it appeilrs to tke Appellate Tribunul at the

laearimg tkat any persnn, who is iwterested in the result af the appeal, has not been rnude a pilW iw tke appeal, the ,A,ppellate Trtbunal ruey cldjowrn the hearing t0 & furtker dste to be jixed by it and dtrect that swck person be made respondent."

7 It is strange that despite having knowledge of ttre above stated facts, leamed Appellate Tribunai elosed its eyes and the affected person i.e, existing rnineral title holder, could not be impleaded in appeal nor given any notice of pendency of such appeal. On both scores mentioned above, impugned judgment of Appellate Tribunal is not sustainable

I We also noted that in the decision of appeal names of, mernbers of Adludicating forum could not be found anywhere. Neither their names nor designations have been rnentioned, even alongwith signatures at the end. Hon'ble Suprerne Court of Pakistan has taken a serinus notice of suoh rnanner of issuing of orders by public authorities while giving its judgntent in case of '18-rov-fr-uce--o{$ind tr-a rtdplhcrsJcrsus Shehzad-Hussain Taluur" reported as 2022 SCMR. 439. Relevant observation in said judgnrent is also being reproduced herein for ready reference:-

'nWe flre also convinced that there is a need to pat d stop t0 tke us€ of the illwsive and elwsive lernn tke cornpetent autkarity witkowt dtscloswre af, the competent aatkority's designation and fi&rne.

Tkerefore, the governwents of, Siwdk (petittoner ,Mo. 1), tssluchistan, tr{hltber Fskhtankhws, Fwmjab, the Gotterntnent of Fakistano Registrars of tke Swprerne Court and all tr{iglt Courts, and throagh the R.egistrars af the X{tgk Cowrts all Dtstt"ict and ,Sessior?s cowrts, are reqwtred to tss ue requistte orders/directtons that they and their respecttve fanctio naries, s emi-government wnd statwtary orgwnizattons wkenever isswtmg notifications, orders, affice memorandwms, instrwcttons, letters and other eotnmuntcstions rnwst disclose tke desigwatian snd tke veawe of the persnn issuing tke same ta enswre tkat it is by one who is legwVy awthorized to da so, and whiek will enswre tkat swch p ers o n r ernains acco wntab le " " I We in the circumstances direct that Appellate Tribunal shall give full names of Chairman as well as mernbers alongwith their respective designations in future.

We also expect that Appellate Tribunal would comply with its own rules, particularly Rule 19 of Khyber Pakhtunkhwa I\4ines and lvlinerals Appellate Tribunal 2A22, before rendering decisions in aPPeals

I

11.In light of what has been discussed above, instant petition 1S allowed, impugned judgment dated 07.09"2A22 of Appellate Tribunal is set aside and rnatter is remanded to lVfineral Titles Committee with direction to decide the rnatter afresh

,4nwownced" {7

25.05"2AX.

GE

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