Amin-ur-Rehman Yousafzai and Fida Gul for Petitioner.

Amir Javed, Advocate General Khyber Pakhtunkhwa, Barrister Muhammad Yaseen Raza Khan, Addl: Advocate General and Barrister Asad-ul-Mulk alongwith Aftab Khan, Assistant Director (Litigation), Mines and Minerals Departments, Khyber Pakhtunkhwa for Respondents.

Date of hearing 06^th June, 2023.

JUDGMENT

Ijaz Anwar, J. This writ petition is filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:-

“It is, therefore, most humbly prayed that on acceptance of this writ petition, this Hon’ble Court may be pleased to declare that the Khyber Pakhtunkhwa Mines & Minerals Appellate Tribunal Rules, 2022 and subsequent Notification dated 30.08.2022 is illegal, ultra-vires, unconstitutional, void ab-initio, malafide, arbitrary and strike the same down in the best interest of justice and equity.

Any other relief, not specifically prayed for and deemed appropriate to this Hon’ble Court in circumstances of the case, may also be granted”.

2.    In   the   instant writ petition, the Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal Rules, 2022 (hereinafter to be referred as “the Rules”) and pursuant to “the Rules”, the Notification issued dated 30.08.2022 is questioned on the ground that it being illegal, unconstitutional and offends the mandatory provisions of the Khyber Pakhtunkhwa Mines and Minerals Act, 2017 (hereinafter to be referred as “the Act”).

3.    Comments were called from the respondents who furnished the same, wherein, they opposed the issuance of desired writ asked for by the petitioners.

4.    Learned counsel representing the petitioners contended that Rule 5 of “the Rules” regarding ‘decision by majority’ is unreasonable as in case, an appeal is decided by the Chairman and one of the Members only and there is difference of opinions between them, the decision of the Appellate Tribunal shall be expressed in the terms of the opinion of the Chairman is against the accepted principles governing cases to be decided by more than one Judges/ Members. He further argued that in “the Act”, Section 2(b) has defined ‘Authority’, which means “the Khyber Pakhtunkhwa Minerals Investment Facilitation Authority”. The constitution of the ‘Authority’ is provided under Section 3 of “the Act” which, besides other members, also provides the Secretary to Government, Minerals Development Department as Member, while in view of the recent amendment, Appellate Tribunal has been constituted by addition of Section 2(a) in “the Act” and that the composition of the Appellate Tribunal as provided in Rule 3 of “the Rules” in which the Secretary to Government, Minerals Development Department is designated as Chairman, is violative of the principle that the matter is dealt with departmentally by the same authority and then in the appellate forum too, he has to decide the same as Chairman. He is, thus, of the view that by allowing to include the Secretary to Government, Minerals Development Department as Chairman and also then given predominant role in decision making, would be abused and would amount to misuse of the authority. He placed reliance of the case titled “Farrukh Raza Sheikh Vs. The Appellate Tribunal Inland Revenue and others (2022 SCMR 1787)”.

5.    On the other hand, the learned Advocate General, representing the official respondents alongwith learned counsel for respondent No.3, contended that the constitution of the Appellate Tribunal through the amendment is infact aimed to provide a departmental remedy to the aggrieved persons and it is a quasi-judicial body. He further argued that the petitioners are not aggrieved persons within the meaning of law, because, the matter in hand has never arisen out of any of the orders of the Appellate Tribunal, whereby, in any manner, the petitioners are prejudiced.  He further contended that a law cannot be struck down merely on the ground that it is unreasonable, simply because, it would be abused. He further argued that vires of law cannot be questioned in a pro-bono petition. He next contended that “the rules” are, in no manner, in conflict with “the Act”; as such, the petitioners have no case. He placed reliance on the cases titled  “Executive  District  Officer (Revenue),   District Khushab at Jauharabad and others Vs. Iiaz Hussain and another (2012 PLC (C.S.) 917), Rida Fatima VS. Pakistan Medical Commission and others (PLD 2022 Lahore 197), Commissioner Inland Revenue, Lahore Vs. Coca Cola Pakistan Limited, Lahore (2022 PTD 1400), Jameel Sweets Vs. Federation of Pakistan and others (2020 PTD 752), Fazal Mehmood Baig Vs. University of Azad Jammu and Kashmir through Vice Chancellor and others (PLD 2017 SC     (AJ&K)   50), Dr.  Suhail Abbas Khan Vs.  Punjab Province through Chief Secretary (1996 MLD 1078)”.

6.    Arguments heard and record perused.

7.    The powers of judicial review of a legislative action or an order passed or notification issued under the delegated legislation can be questioned if the same is ultra-vires to the Constitution, law or otherwise unreasonable. In the case titled “Farrukh Raza Sheikh Vs.  The  Appellate Tribunal Inland Revenue and others (2022 SCMR 1787)”, it is held as under:-

“Rules made under an Act or Ordinance—Subservient to the parent Act/Ordinance—Rules being subordinate or delegated legislation, are framed under the authority of the parent statute, and are therefore subservient to the primary legislation—Rules cannot contradict, override or add to the clear provisions of the parent statute—Rules are to carry out the purposes of the parent statute and cannot offend, oppose or be inconsistent with the provisions of the parent statute—Any rule, to the extent of any inconsistency with the parent statute is, therefore, ultra vires of the parent statute”.

Similarly, in the Suo Motu Case No.13 of 2009 (PLD 2011 SC 619), the Hon’ble Supreme Court of Pakistan has held as follows:-

“Rules and regulations—Rule-making body cannot frame rules in conflict with, or in derogation of the substantive provisions of the law or statute, under which the rules are framed—Rules cannot go beyond the scope of the Act—No rule can be made which is inconsistent with the parent statute, whereas, no regulation can be made inconsistent with the parent statute or the rules made thereunder and the provisions of these rules or regulations, as the case may be, to the extent of their inconsistency with.  the parent statute or the rules shall be inoperative”.

Similar view was also expressed in the Suo Moto Case No.11 of 2011 (PLD 2014 SC 389), wherein, the apex Court held as under:-

“Rules/Regulations inconsistent with or made in derogation of substantive provisions of the law or statute— Legality—Rulemaking body cannot frame rules in conflict with or in derogation of the substantive provisions of the law or statute, under which the rules  are framed— Rules cannot go beyond the scope of the Act— No rule can be made which is inconsistent with the parent statute, whereas, no regulation can be framed which is inconsistent with the parent statute or the rules made thereunder and the provisions of these rules or regulations, as the case may be, to the extent of such inconsistency with the parent statute or rules shall be void and inoperative”.

8.    Thus, in order to strike down “the Rules”, it is to be demonstrated firstly that the Rulemaking Body cannot frame rules or the rules are in conflict or in derogation of the substantive provisions of law or statute under which the rules are framed, meaning thereby that “the rules” cannot go beyond the scope of “the Act”. “The Act” was gazette notified on 15.11.2017. In the original “Act”, under Section 102, right of appeal was provided before the Appellate Authority. In terms of Section 2(a) of “the Act”, “Appellate Authority” has been defined as follows:-

“Appellate Authority” means the Secretary to Government, Minerals Development Department, to hear appeals against the orders of Licensing Authority in relation to Small Scale, large Scale Mining and Minor Minerals”;

9.    It was through the Khyber Pakhtunkhwa Minerals Sector Governance (Amendment) Act, 2019 (Khyber Pakhtunkhwa Act No.XLVI of 2019) that the Appellate Tribunal was established and Section 102A was inserted in “the Act”. The word ‘Appellate Authority’ was substituted with the word ‘Appellate Tribunal’, similarly, the definition of ‘Appellate Authority’ was also substituted. Section 102A(2) of “the Act” provides that “the Appellate Tribunal shall consist of a Chairman  and such members as may be prescribed”; similarly, Section 103 of “the Act” empowers the Government to make rules by notification in the official gazette for carrying out the purposes of “the Act”. Pursuant to Section 103 of “the Act”, “the Rules” were notified. Rule 3 of “the Rules” provides for the composition of the Appellate Tribunal as follows:-

“Composition of Appellate Tribunal.–The Appellate,      Tribunal shall consist of

(a)   Secretary to Government, Chairman Mineral Development Department;

(b)   A representative of Law  Member Department not below the rank of BPS-19; and

(c)   A technical person having Member expertise in mines and minerals to be nominated by the Chairman from time to time.

10.  Thus, the appellate forum was converted into an Appellate Tribunal, previously, the appeal which was heard by the Secretary as ‘Appellate Authority’, has now been made further judicious by constituting Appellate Tribunal consisting of Chairman and two Members. The objection regarding the fact  that  since  the  Secretary  of Government,  Minerals Development Department has multifarious functions under “the Act”, how can he be “Appellate Authority”, is no ground to discard “the Rules”, because, prior to the Amendment Act, 2019, it was only the Secretary to Government, Minerals Development Department who has to hear appeals as an `Appellate Authority’, albeit, the vires of “the Act” have never been  questioned  before this  Court;  besides,  there  is  no provision in “the Act” which was violated in any manner while framing “the Rules” pertaining to the composition of the Appellate Tribunal. The objection that the Chairman having dominant position, as such, the Secretary to Government, Minerals Development Department should not act as a Chairman and thereby such power can be misused, is no ground to declare “the Rules” as unreasonable, merely because, such powers can be misused.

11.  Rule 5 of “the Rules” clearly stipulates that the decision of the Appellate Tribunal shall be by majority; similarly, in cases where the Chairman and one member are hearing an appeal and there is difference of opinions between them, in such case, the decision of the Chairman would be preferred. Such powers though an exception to the general principle governing judicial powers of a bench, however, as stated above, the Appellate Tribunal, so constituted, is merely provision of a departmental remedy within the Department, besides, so far no such occasion has ever arisen, wherein, any difference of opinion is occurred. Needless to mention here that all such decisions rendered by the Appellate Tribunal can be questioned in the writ jurisdiction of the High Court and presently, the objection, so raised on “the Rules”, seems to be merely academic. We, however, left this question open and as and when such eventuality occurs, it will be decided in accordance with law.

12.  The delegated legislation can be declared as illegal only where if it is established that it is repugnant to any settled and well established principle of statue or result of excessive delegation, however, it cannot be struck down merely on the ground that it is malafide or unreasonable and that there are strong presumptions that it can be misused. Reference can be made to the cases titled, “Muhammad Amin Muhammad Bashir Limited Vs. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others (2015 SCMR 630), Suo Motu Case No.11 of 2011 (PLD 2014 SC 389), Jameel Sweets Vs. Federation of Pakistan and others (2020 PTD 752)”.

13.  The provision pertaining to the composition of the Appellate Tribunal and subsequent notification issued by the Government to this effect does not, in any manner, offend the provisions of the parent statute nor is otherwise unreasonable. Reference can be made to the case titled “Fauii Foundation and another Vs.  Shamimur Rehman (PLD 1983 SC 457)”.

14.  For the reasons stated above, we find no merit in the instant writ petition. It is accordingly dismissed.

Petition dismissed