Khalid Hameed & another Vs Government of Kyber Pakhtunkhwa & four others

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

Qumciot Oepartmenil

WP No. 811-A/2018.

Khalid Hameed & another.

Petitioner(s)

Versu,r.

Government of Khyber Pakhtunkhwa &four others.

Respondent(s)

For Petitioner(s): Mr. Taimour Afzal Khan, Advocate For Respondent: Qazi Muhammad Asif, AAG.

Date of hearing 06.12.2023.

DGMEN

MUHAMMAD IJAZ KHAN. J. Throu gh this single judgment we intend to decide this (WP No.811-A/2018) as well as connected petition I i.e WP No. 994-A/2018 title: Muhammad Kaleem & others-Vs- of

Khvber Pakhtunkhwa and others, as in these petitions common questions of law and facts V are involved.

2 Precisely, the facts of the case are that the petitioners are owner in possession of the properties fully mentioned in para No. 1 of

the writ petitions, however, the respondents have started the process of making the blocks of petitioners' property as well as for auctioning of the lease hold rights for extracting of minor minerals available on the aforesaid properties of petitioners by inviting applications from the registered contractors by making publications in local newspaper, which their action has offended the rights of the petitioners therefore, they have approached to this Court for the following prayer:

(a)The action process i.e putting of petitioners property in plot/block No.l Parhinna to Baffa may kindly be quashed being wrong, illegal, malafide, unconstitutional, void, without lawful authorily and against the natural justice.

(b)The respondents may kindly

be restrained fro* auctioning the pelitioners property mentioned in para No. I of the petition for lease hold rights to someone else.

(c)That, respondents may ;) kindly be directed to remove petitioners property i.e. block No. I fro* their auction list of minor mineral.

(d)The respondents may kindly

be restrained fro* damaging lhe property, changing the nature, to

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restrain fro* creating hurdles in utiliz at ion of pe t it ioner s pr oper Q.

a J When the instant petitions were taken up for hearing, respondents were directed to submit their parawise cotnments, which they have accordingly submitted, where-under, their stance is that they have acted within the parameter of the law and that they have not infringed any right of the petitioner.

4 Arguments of leamed counsel for petitioners as well as learned AAG appearing on behalf of the official respondents were heard in considerable detail and record perused with their able assistance.

5 We have heard the arguments of both the parties and perused the appended record as well as the law on the subject and it was noted that the crux of the plea of the petitioners was that since they are the recorded owners of the -v subject properties in the revenue record and that they.are also in possession of the same, therefore, petitioner are entitled to utilize and enjoy the "minor mineral" embedded in their land and that respondents have no right whatsoever either to assert themselves as

owners of these minor minerals and to make blocks of the petitioners' properties and to carry out the auction of these minor minerals, horvever, such plea of the petitioners go a long way to affi'ont and defeat many provisions of the relevant law on the subject as section 49 of The Land Revenue Act and section 2-A of The Mtnes and Minerals Act, 2017 (hereinafter is to be referre d as The Act of 2017) have mandated that all mines and minerals shall be the property of the govenlment and the government shall have every right of their enjoyment. In this case too, the petitioners are owners of the land which is having the mines and minerals, therefbre, the aforesaid section 49 of T.he Land Revenue Act and section 2-A of The Mines and Minerals Act, 2017 being relevant for the present controversy are re-produced herein for ready reference:-

,ry 49 Riehts of ment mlnes an minerals Notwithstanding anything to the

contrary in any other lct**, or in any order or decree of Court or other authority, or in any rule of custom or usage, or in any contract, inslrttment, deed or other document, all mines and minerals shall be and shall alwqts be

dgeraed-to have been the property of Err Government, and Government shall have all powers necessaryt -fbr the proper enjo:tment o.f its rights thereto. Rishts of Government in mines and minerals.

Explanation.-- For the purposes of this section, "Governmenl", in relation to nuclear energ/, mineral oil and natural gas, shall mean the Central Government, and in relation lo other mines and minerals, the Government o/.

West Pakistan.

2-L. Ownership of minerals:

Notwithstanding anything to the contrary contained in any other lqw, or in any order or decree of Court or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document, all mines and minerals shall be and shall always be deemed to have been the ptopcrty pf Governmenl. and Government shall have all oowers necessaryt Jbr the proper e\iqtment ql its right thereto. "

The aforesaid provisions of both the laws are verbatim copy of each other and are non- obstante clauses as well, which un-mistakenly o7 mandates that the ownership of all the mines and minerals shall be the ownership of the government and shall be deemed to have been the ownership of the government and as such, the govemment has every power and right for

enjoyment of these mines and minerals and thus, as per the law of the land the govemment is owner of the said mines and minerals and thus, the plea of the petitioners that they are the owner of the embedded minor minerals is surely and obviously misconceived on the touchstone of aforesaid clear mandate of law.

6 As far as the rights of the land owners where minor minerals are embedded, the same too, has duly been attended by the legislatures while enacting The Act of 2017 as the words "land", "mines", "mineral", "mineral title" and "minor minerals" have been defined in section 2(m) (u) (*) (V) @b). The same being relevant are reproduced below:- Section 2("). "land" includes surface bearing any mineral, land beneath water and the sub-soil of land,'

Section 2(v). "mine" means any ,9 surface or underground excavation horizontal, inclined or vertical where any operation for the purpose of searching for or obtaining a mineral has been or is being carried ottl, and includes all works, machin.ery, tramway, ropeway ond siding, whether above or below ground, in or adjacent or belonging

lo or appurtenonl to a mine bul does not include the manufacttring or processing plant,'

Section 2(w). "mineral" "fo, the purpose of this Act, means all surfoce and subsurface nalural deposits of ores and metals and other metallic and nonmelallic subslances including naturallY occurring aqtrcous solutions containing more than one per cent mineral salt but does nol include radioactive materials, mineral oil and natural gas:

Section 2(y) "minerol title" means a license or lease /br large scale mining, small scale mining or minor minerals, as provided in Part-ll of lhe Act,'

Section 2(bb) "minoF minersls" means bajri, shingle, ordinary sand, gravel, and ordinary stones or an)) olher mineral notified by the Government as minor mineral.

The aforesaid definition of land would show that it would include any surface having a mineral irrespective of the fact that they may be "mines" or "mineral" or "minor mincrals" and thus if the legislature had any intention, they may have excluded the "private lands" having "minor mineral" from the operation ol this Act but they did not and thus, the plea of the

present petitioners that The Act of 2017 corild not be applied to the properties of petitioner having minor mineral is totally misconceived and mis-placed.

7 It is also relevant to mention here that the framers of The Act of 2017 were so clear qua the rights of owners of properties having minor minerals that they have inserted part-VII pertaining to special provisions regarding minor minerals, which parl of the Act is comprising of sections 78 to 85, however, section 78 (1X2)(3), section 81 (2) and section 83, being relevant for the present controversy are reproduced below

Sectio n 78: Minins of mtnor minerals. shape and size of the area. period of lease and mode of erant.--- (1) There shall be no mining of minor minerals except under lease granted in accordance with this Act or the rules made ,7 thereunder:

Provided that of a land may level the land or make excavation of mineral for or buildins 'es

mineral exlraction or marketing subject to prior apProval of the Director General

(2)The period of a lease shall be up to 3 [one yearJ granted on "as is, where is" basis through open auction 4 [or sealed tenders or e- biddingJ conducted by District Auction Commitlee.

(3)A lease shail be granled in respect of all minor mineral blocks in a district duly approved by lhe Distri.ct Auction Committee. I{owever, in case of non-attction of the whole district, the District Auction Committee on the approval of Licensing Authority, may auction minor mineral blocks of the district independently. The lease shall consist of those minor mineral blocks in the district that are approved by the Licensing Authority.

Section 81 Surface rent and land acquisition.-- (l) A les,see shall pay, for all Governrnent land which he may use or occupy superficially for the purpose of the operalions conducted under the lease, a sttrface rent assessed by the District Surface v Rent Committee.

(2)If the land belongs to a private lessee shall surface

rent to the owner of the land actually used or occupied superficially at such rate and in such manner as may be mutually agreed upon between the lessee and the land owner and in case of disagreement between them, at

such rate and in such monner as maY be determined by the District Surface Rent Committee.

Section 83. Compensation.--- A lessee shall pay such compensalion as mat- be assessed by lhe Licensing Authority in accordance wilh any luw for the time being in force /br such loss, which may be caused as a result of the operations carried out by him under the lease and shall indemnify the Licensing Aulhority or any fficer working on its behalf against all clairus which ruay be made by third parties in respecl of any such damage, injury or disturbance.

The aforesaid provisions of The Act d2017 are so clear and unambiguous that they hardly leave any doubt or uncertainty that the mining of the "minor rninerals" could only be carried out under a lease which is to be granted for a period of one year and that an owner of the land may excavate minor mineral for agriculture or building purpose only but such owner of the .fi land oould not excavate such minor minerals for commercial purposes. fhe aforesaid provision fu(her stipulate that if minor minerals are ernbedded in land which are owned by a private person then the lessee shall

pay the surface rent to the owner of the land at such rate as mutually agreed upon between the lessee and the land owner and in case of a disagreement qua such rate than at the rate as determined by the District Surface Rent Committee. Similarly, an affectee of mining operation shall also be compensated for any other loss or damage which may cause due to the result of such operation. In view of the above mandate of law the respondents or the lessee, as the case may be, shall be bound to compensate the petitioner and it is expected that all the provisions of law pertaining to the rights of the land owners/petitioners shall be fully observed and implemented in their true letter and spirit

8 During the course of arguments the learned counsel for the petitioners relied upon the judgment of the Apex Court titled L Muhammad Iqbal and ers-Vs- tI/ Collector, Manseh ra and others reported as PLD 2OO4 SC 659. however this judgment of the Apex Court is totally distinguishable and thus is not applicable to the facts and circumstances of this case, as this judgment has

been delivered on the basis of The Khyber Pqkhtunkhwa Miner Mineral Mining

Concession Rules 197l, which though distinctly defines "Minor mineral" and "Mineral" under Rule 2 (e) & (h) but with only exception that the aforesaid Rules of 1971, "minor minerals" have been excluded from "minerals" whereas in The Act of 2017 "Minor minerals" has also been included in the "mineral" as spelling out of the definition of minerals provided under section 2 (*) of The Act 2017.In view of the above distinguishing features in the Rules of l97l and in The Act of 2017, the aforesaid judgment of the Apex Court is of no benefit for the petitioners.

9 During the course of arguments, learned counsel for petitioners made much emphasis to the effect that since they are owners of the subject property which is embedded with "minor minerals", therefore, they are entitled to utilize and enjoy the same, however, as discussed hereinabove, that the language of The Act, 2017 out rightly speaks contrary to the aforesaid plea of the petitioners, as it has specifically been

provided that all the "minor minerals" whether available on the property owned by the government or private person, would be the ownership of provincial govemment, and it is the provincial government who will enjoy every right with respect to the same and it could dispose of the same through a proper lease, whereas, private owner(s) could rttilize the "minor mineral" for agricultural or building purpose but he/they could not utilize the same for the commercial purpose and thus, the aforesaid plea of petitioners could not be appreciated in their favour as against the clear language of The Act, 2077, as it is settled since long that if the language of the statute and intention of the legislatures is clear and unambiguous, then the Court of law could neither add nor omit something in the said statute, and it would attach the same meaning as spelling out from the same. In the case title:

of Khvber Pakhtunkh wa-Vs- Intizar Ali and others reported as 2023 SCMR 472 it was held that when meaning of a statute is clear and plain language of statute requires no other interpretation then

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intention of Legislature conveyed through such language has to be given full affect Plain words must be expounded in their natural and ordinary sense. Intention of the Legislature is primarily to be gathered from language used and attention has to be paid to what has been said and not to that what has not been said. Similarly, in case of Haroon- ur-Rushid- Vs- Luhore velooment

Authoritv and others, reported as 2016 SCMR 931. it was held that it is settled position in law that while interpreting the law or any provision of any statute all efforts are made by the Court to save the statute by applying various tools of interpretation one of the rule of harmonious construction being rule of reading down and rule of severance. Rule of reading down, a statutory provision means that a statutory provision is generally read and .& or toned or narrowed down, aPPlYing restrictive meaning in its application. Rule of severance means to trim down or slice away invalid portion which is otherwise generally considered to be part of statute or provision, purpose is to save as much as to bring the

statute or provision within the ambit of constitution and law as declared by the superior Courts and to protect it from being declared ultra vires or unconstitutional as a whole. Likewise, in case titled Mumtaz Hussain- Dr. Nasir Khan d others reported as 2010 SCMR 1254 it was held that if words of Statute are themselves clear and unambiguous, no more is necessary to expound those words in their natural and ordinary sense, the words themselves in such a case best declare the intentions of Legislature. Objects made reasons of a Statute is to be looked into as an extrinsic aid to find out legislative intent only when the meaning of Statute by its ordinary language is obscure or ambiguous. If words used in a Statute are clear and unambiguous and Statute itself describes intention of .f Legislature then in such case, it would not be permissible for court to interpret Statute by examining object and reasons of Statute'

10.In view of the above discussion and exposition of law on the subject, this (WP No' Slt-A/2015) as well as connected writ petition

(WP No.994-A/2018) titled Muhammad Kaleem Khan & others-Vs-Government qf

Kh)tber Pakhtunkhwa and others, being bereft

of any merits, are accordingly dismissed.

Announced.

Tbhir PS

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Hon'ble Juslicc Kdmran Hqot Miankhel & Hon'ble Justice Muhammad ljaz Khan