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Civil Suit; No. 335 of 1967, decided on 21st May 1968.

S.6 read with Pakistan Mining Concession Rules, 1960, r. 3‑Mining lease‑Can be granted by Provincial Government‑Such Govern ment an "appropriate Government" in regard to Act XXIV of 1948.‑Central Adaptation of Laws Order (1 of 1964).

O. XXXIX, rr, 1 do 2 Temporary injunction‑Balance of convenience‑Lessee granted quarrying lease for S years but not undertakings operation for 2 years‑‑Another Government agency granted lease in meantime and such authority not permitting original lessee to carry out operations‑Suit by original lessee for declaration and permanent injunction restraining Government from interfering with his rights‑Contention that Government by having in meantime started operations on large scale, balance of convenience lay in favour of not granting such injunction‑Original lessee having made out prima facie case for his right to quarrying and his right expected to come to end before decision of suit, balance of convenience, held, lay in favour of granting temporary injunc tion.

Naimuddin for Plaintiffs.

S. A. Nusrat for Respondents.

This is an application under Order XXXIX, rules 1 , and 2, C. P. C. filed by the plaintiffs M/s. Associated Mining Corporation against the Secretary of the Defence Co‑operative Housing Society and the Society itself and two others, namely the Province of West Pakistan and Pakistan, who have only been formally joined. The suit is for declaration and permanent injunction.

The plaintiffs were granted by the Directorate of Mineral Development, Government of West Pakistan, a mining lease for quarrying ordinary stones over an area of 322.53 acres of land situated in Ghizri, District Karachi, on 29‑10‑65 for a period of 5 years. The terms and conditions of the grant are contained in the letter of the Provincial Government dated 29‑10‑65 which is Annexure‑A to the plaintiff. On 17‑6‑66 the plaintiffs were granted work order to start mining operation by virtue of which they got the power to start operations. It is the case of the plaintiff that when they attempted to do sq they were not permitted by the defendant No. 1 because it is claimed that this land and some more has been granted by the Central Government to the Defence Co‑operative Housing Society. On 2nd February 1967 the plaintiffs wrote to the first defendant assuring him that they will abide by all the terms and conditions contained in the lease, specially, clause 14 for payment of surface rent and compensation. It was also stated that the plaintiffs will offer full co‑operation with the defendants in carrying out the operations and that the defendants' right will be safeguarded. No reply to this letter was given by the first defendant, namely 'the Secretary of the Society and the plaintiffs therefore, served a notice under section 70 of the West Pakistan Co‑operative Societies Act. There was no reply to this notice and the plaintiffs were, therefore, constrained to file this suit on 2‑11-66 along with the application for temporary injunction with which I am now dealing.

It is the case of the plaintiffs that their lease being for a limited period they are suffering irreparable loss by the inter ference of the first defendant in their operations and they are being deprived of the benefits of the lease completely. It was, there fore, prayed that the first two defendants be restrained from interfering with the quarrying operations of the plaintiffs over the land leased to them and which is described in Annexure A/1 by letters A, B, C and D.

Mr. Nusrat appearing for the first two defendants has opposed this application firstly, on the ground that in so far as the sanction of the Central Government has not been obtained in regard 'to this lease the plaintiffs have acquired no right under it. It was next contended that the plaintiffs themselves not hav ing started the operation for about 2 years and the defendant Society having started its development operations at a large scale in respect of this area it would be against the balance of convenience to grant a temporary injunction.

With regard to the first point the argument was based upon rule 3 of the Pakistan Mining Concession Rules, 1960. This rule provides that except with the previous sanction of the Central Government no licence to prospect for minerals and no lease of mines and minerals shall be granted, otherwise than in accordance with these Rules. The argument that even if the Provincial Government now has the control of the subject, the sanction of the Central Government would still be required under this rule seems to be misconceived. This rule merely provides that any‑licence otherwise than in accordance with these rules could not be granted except with the previous sanction. In this case it is not contended that the grant of the lease to the plaintiff is otherwise than in accordance with these rules. However .a further point was taken that notwithstanding the fact that mining with regard to matters other than natural gas and oil had become a provincial subject under the new Constitution there was no power in the Provincial Government to grant a licence because the afore said rules had not been adapted by them, and unless this was done the power must still remain with the Central Government. This point, however, was not pressed when it was found that an adaptation had taken place under the President's Order No. 1 of 1964 (Central Adaptation of Laws Order of 1964), in which the definition of "appropriate Government" in regard to Act XXIV of 1948 was to be the Provincial Government.

It was next contended that in so far as this land belonged to the Central Government, namely the Defence Ministry, it was exempt from the operation of Act XXLV of 1948 and the Rules of 1960. I have not been referred to any provisions of law from which such an exemption could be deduced. The whole scheme of the Act and the Rules is to permit the Government to grant permission for mining operations and further to make provision to compensate the owner. The Central Government or for that matter the Defence Co‑operative Housing Society would be entitled to compensation and indeed this was promised in the plaintiffs' letter dated 2nd February 1967. The first point raised by Mr. Nusrat must, therefore, be repelled.

With regard to the question of balance of convenience I may point out that in the course of the hearing of this application on an earlier date it was suggested by Mr. Naimuddin appearing for the plaintiffs that the plaintiffs might be given a chance to carry out their operations in a' very limited area of about 20 acres and that this was not likely to injure the defendants at all. Indeed, it was urged by Mr. Naimuddin that the land allotted to the second defendant was not the same as the one in respect of which the lease had been granted to the plaintiffs. This, however, was strongly repudiated by Mr. Nusrat. With regard to the suggestion to permit the plaintiffs to carry out the operations on a limited scale Mr. Nusrat took time to consult his client and after doing' so reported that the first two defendants were not agreeable to this proposal. A next proposal was then made that the second defendant might furnish security in the sum of Rs. 1,00,000 to compensate the plaintiffs in case the suit was decreed. It was suggested that if such a security was furnished the temporary injunction prayed for will not be granted but if the plaintiffs were to succeed they should be granted monetary compensation. Mr. Nusrat again took time and after consulting his client has reported today that they are not agree able to do so. In view of what has been said I am afraid there is no force whatever in the contention of the first two defendants that the balance of convenience is against the grant of temporary injunction. The plaintiffs' right to quarry would come to an and before this suit is decided. Prima facie they have made out a case with regard to their right of caring out the operation to which they are entitled under the lease.

I, therefore, grant a temporary injunction to the plaintiffs against the first two defendants restraining them from interfering with the mining and quarrying operations of the plaintiffs. I would, however, add a small qualification. The plaintiffs shall not disturb the works such as the laying of sewerage line which has already been done by the said defendants. The plaintiffs shall also in the first instance only collect the stones from the surface. With regard to the digging of the pits they shall limit their operation to an area of 20 acres which the plaintiffs had themselves suggested at the hearing. This 20 acres is the total area which may not be in one place.

S. A. H. Petition accepted.

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