KASHMIR MINING AND DEVELOPMENT WORKS, MUZAFFARABAD vs AZAD

SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the order of the High Court dated 13-1-1997, whereby the writ petition filed by the appellant, herein, was dismissed.

2. The brief facts of the case are.That a prospecting licence of marble stone of the area known as Chunj Gali, Tehsil and District Muzaffarabad, was issued in favour of respondent No.6 on 26-5-1996.

The appellant filed a writ petition in the High Court challenging the aforesaid licence issued in favour of respondent No.6 on the ground that the same was issued in violation of rules on the subject and the application of the appellant for the licence was rejected on the grounds which are not recognised by the relevant law. The writ petition was dismissed by the High Court.

3. We have heard the arguments and perused the record. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellant, has argued that the High Court .Has not appreciated the point raised before it that the Committee which declined to recommend the issuance of the licence to the appellant, was not properly constituted; he has argued that previous Committee was constituted in pursuance of the Rules framed under section 2 of the Regulation of Mines and Oil Fields and Mineral Development (Federal Control) Act, 1948 (hereinafter shall be called as Act of 1948), whereas the question of issuance of license to the appellant was governed by the provisions contained in the Act known as Azad Jammu and Kashmir Mines Act, 1977 (hereinafter shall be referred as Mines Act, 1977). The learned counsel has argued that the Committee constituted under the Rules framed under the Act of 1948 was not competent to perform the functions after the promulgation of the Mines Act, 1977. The learned counsel has further argued that he raised this point in the High Cod1-t but no finding has been given on the same. The learned counsel has also argued that respondent No.6 was not a State Subject and as such he had to file a declaration under the Mines Act, 1977 to the effect that he would not indulge in any subversive activities prejudicial to the security of the State.

4. In reply, Raja Shiraz Kayani, Advocate-General, has controverted the arguments advanced by the learned counsel for the appellant. He has argued that the appellant did not challenge the constitution of the Licensing Committee in the memorandum of writ petition filed in the High Court an4ot even during the course of his arguments there. He has argued that he has not filed any affidavit in support of the assertion that he had pressed the aforesaid point during the course of arguments but the same was not considered. The learned Advocate-- General has further argued that even if it is assumed that any such point was argued in the High Court that would not help the case of the appellant because under the provisions of General Clauses Act, until and unless the Rules are framed under the subsequent statute, the Rules framed under the repealed statute shall continue to hold the ground. The learned counsel has maintained that it is on the record that the appellant applied for issuance of five licences, out of which three were issued to him on the recommendations of the said Committee. Thus, the learned counsel for the respondents has contended that the appellant purposely did not take the stand in the High Court that the Committee in question was not properly constituted. So far as the question of filing the declaration by respondent No.6 was concerned, the learned counsel has argued that the point of the non-filing of the declaration was not raised in the writ petition and even otherwise, this would not render the licence issued to the respondent as invalid.

5.We have given due consideration to the arguments raised at the Bar. It may be stated that the competency of the Committee was not challenged in the memorandum of writ petition in the High Court, rather a perusal of the memorandum of writ petition filed in the High Court would reveal that the case of the appellant in the High Court was that the said Committee refused to issue the licence to him on the ground that the appellant was previously issued mining licenses for two successive terms but he showed no progress. The stand of the appellant was that he could not show progress in extraction work because the facility of road and bridges was not provided to him.

It may be observed that there was no such agreement between the appellant and the respondents that any such facility would be provided to him. It appears that the appellant has varied his case, if not in the High Court, at least, in this Court by challenging the onstitution of the Committee. It is on the record that the appellant was issued licences for the extraction of marble for the previous two successive terms by the same Committee which refused him to issue the said licence for the term in question, besides, the Committee issued three licences to the appellant for other works while rejecting his application for the extraction of marble. Thus, on the one hand the appellant benefited from the Committee and accepted its competency but on the other hand he challenged its jurisdiction with regard tol A the licence for extraction of marble. It is well-settled principle of law of writs (On appeal from the order of the High Court dated 3. 4997 in Writ Petition No. 134 of 1996).

Azad Jammu and Kashmir Interim Constitution Act (VIll of 1974)--- ----S. 44---Constitutional petition---Grant of relief---Conduct of petitioner----Effect---Party which does not come to the Court with clean hands by following the policy of hide and seek is not entitled to the discretionary relief in exercise of Constitutional jurisdiction.

Abid Hussain Jafri v. Azad Government 1993 SCR 105 and Bashir Ahmad v. Additional Custodian of Evacuee Property 1993 SCR 159 ref.

Raja Muhammad Hanif Khan, Advocate for Appellant. Raja Shiraz Kayani, Advocate-General for Respondent Nos and 2 Date of hearing: 4th June, 1997.