PESHAWAR: The Peshawar High Court on Wednesday admitted to hearing a petition of the provincial government against the assuming of jurisdiction by the civil and district courts in mines and minerals related issues in the province amid claims of a legal bar on it.

A bench consisting of Justice Lal Jan Khattak and Justice Ishtiaq Ibrahim issued the order after preliminary hearing of thepetition jointly filed by themineral development secretary and director-general requesting the court to stop thedistrict judiciary from hearing thecases related to mines and minerals.

The bench ordered the fixing of the petition for hearing after a fortnight.

The petitioners challenged around 75 cases pending with 30 district and civil courts across the province requesting the court to terminate those judicial proceedings as they’re related to matters falling in the exclusive jurisdiction of quasi-judicial hierarchy created under the KP Mines and Mineral Act, 2017.

Petitioner wants lower judiciary stopped from hearing mine and mineral cases

They requested the court to declare that the civil and district courts functioning within the territorial limits of the province have no jurisdiction to take cognisance of disputes or issue interim orders in respect of matters falling in the exclusive domain of different statutory bodies created under that law.

The provincial government was represented by additional advocate general Aamir Farooq, while Barrister Asadul Mulk appeared for the mining department.

The AAG said the KP Mines and Minerals Act, 2017, provided a ‘robust quasi-judicial hierarchy’ for the resolution and determination of all sorts of rights, liabilities, duties, obligations, and interests in the minerals sector, namely the Mineral Investment Facilitation Authority, Mineral Titles Committee, District Mining Liaison Committee, District Surface Rent Committee, Jalsa-i-Aam, dispute resolution committee and the appellate authority.

He added that through Section 102(6) of that law, the jurisdiction of all civil and district courts had been ‘ousted’ in respect of all matters, which might be adjudicated by the appellate authority.

Mr Farooq said notwithstanding the ‘ouster’ clause, a multitude of civil and district courts throughout KP had effectively assumed jurisdiction, and on scores of occasions issued injunctions in respect of mining licenses and leases, leading to a quagmire and practical interference with the statutory functions of the minerals department causing losses of billions of rupees to the exchequer.

Barrister Asadul Mulksaid in view of sub-sections (d) and (i) of Section 56 of the Specific Relief Act 1877, a stay order could not be issued against the government, especially by civil courts when an alternate hierarchy for the determination of rights existed.

He also said Section 26 (2) of the Code of Civil Procedure (Amendment) Act, 2020, cast a duty on all civil and district courts to satisfy themselves on the issue of jurisdiction before granting stay orders but the subordinate judiciary paid the mandatory legal provision no heed.

“An excess has been committed by the subordinate courts in around 75 cases,” he said.

Barrister Asad referred to Article 203 of the Constitution and said the high court had to exercise its supervisory jurisdiction when there was a systematic and repetitive miscarriage of justice, or abuse of the process of the law by the subordinate courts, which was so in the case.

He said while the minerals department readily filed applications under Order VII Rule IX of the CPC for the return of the plaints, the lower courts kept such applications pending for months before deciding them.

Published in Dawn, September 22nd, 2022