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Petitioner: Muhammad Asif VS Respondent: Superintendent of Police and others
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Muhammad Asif vs Superintendent of Police and others Case No.: Writ Petition No. 45138 of 2019 Date of Judgment:2019-10-10 Reported As: PLD 2020 Lahore 137, 2019 LHC 3688 Result: petition disposed of
Judgment TARIQ SALEEM SHEIKH, J. - The Petitioner has set up a brick kiln at Kasur Road By-pass near Raiwind (District Lahore) and is doing business under the name and style of Ch. Pervaiz Bricks Company. According to him, he has converted it to Zigzag technology which is environment friendly. He has purchased a piece of land near Raja Jang, District Kasur, from which he digs the earth and transports it to his kiln for use as raw material for making bricks. His grievance is that the SHO, Police Station City Raiwind (Respondent No.3), has unlawfully stopped transportation of earth to his brick kiln which has brought his business to a halt. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), he prays that a writ of prohibition be issued against Respondent No.3 restraining him from interfering in his lawful business. 2. This Court summoned Respondent No.3 who submitted that the impugned action had been taken on the instructions of the Deputy Director , Mines & Minerals, Lahore Region, and placed on record copies of his letters dated 12.6.2019 and 13.6.2019 which he had addressed to him in this regard. Keeping in view the sensitivity of the issue involved, this Court issued notices to the Government of the Punjab, the Deputy Director , Mines & Minerals, Lahore Region, the Environment Protection Department and the Human Rights Department of the Province. It also appointed Mr . Sheraz Zaka, Advocate, as amicus curiae . 3. The learned counsel for the Petitioner , Mr. Fiaz Ahmad Ranjha, Advocate, contended that the Petitioner was engaged in a lawful business and was using soil from his own land for manufacturing of bricks which was neither prohibited by any law currently in force nor required any licence under the Punjab Mining Concession Rules, 2002 (the "Rules"). He further contended that the other brick kiln owners were using the same raw material but no action had been taken against them and only the Petitioner had been singled out. He maintained that the action of Respondent No.3 smacked of malice and was violative of the fundamental rights guaranteed to him under Articles 4, 18, 24 & 25 of the Constitution.
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4. On the other hand, the learned Assistant Advocate General submitted that under Section 49 of the Punjab Land Revenue Act, 1967, all mines and minerals, irrespective of the fact whether the land was owned by the government or a private individual, were the property of the government and their excavation was regulated by law. He maintained that the Petitioner was excavating and transporting Bhassar/Ghassar for manufacturing of bricks which was a "minor mineral" within the meaning of clause (xxiv) of Rule 2. Since he was not holding valid licence/lease therefor , the impugned action of Respondent No.3 was justified and this petition was liable to be dismissed. 5. Mr. Irfan Nazir , Director General, Environmental Protection Agency (EPA), assisted by Mr. Muhammad Nawaz Manik, Director (Law), agreed with the learned Assistant Advocate General that excavation of Bhassar/Ghassar required mining lease under Part-IV of the Rules. However , he added that the EPA had no issue with the Petitioner at present inasmuch as he had converted to Zigzag technology to control carbon emissions as per directions of the Hon'ble Supreme Court of Pakistan. 6. Barrister Saeed Nasir conceded that soil was not covered by the definition of "minor minerals" given in the Rules. Nevertheless, he submitted that it was the basic/primary unit of ecosystem which was essential for growing crops, conservation of biodiversity , combating desertification and degradation of land and, last but not least, controlling climate change. He further submitted that according to the studies of the World Bank and other international agencies Pakistan' s renewable and non-renewable natural resources were depleting fast which was threatening her food security . He added that soil, more particularly the land' s topsoil, was a valuable natural resource. We should take immediate measures to conserve it and regulate its excavation and use. 7. Mr. Sheraz Zaka, Advocate, the learned amicus curiae , submitted that in Pakistan bricks are primarily produced from brick earth which normally consists of 60-70% silica sand and 30-40% clay. The brick earth is mined from the surface of the earth and is collected at a point, mixed with water , moulded into the desired shape and then dried and fired. According to him, the question as to what were the constituents of the brick earth that the Petitioner was excavating and transporting to his kiln and whether it was a minor mineral as defined in the Rules and thus required licensing and control could not be determined without factual inquiry . Inasmuch as this Court could not undertake such inquiry in these procee dings, this petition was not maintainabl e and the Petitioner should be directed to avail alternate remedy provided by law . 8. Arguments heard. Record perused. 9. Section 49 of the Punjab Land Revenue Act, 1967, makes a clear distinction between land and minerals. The land can be owned by the government or a private individual or a juristic body but all mines and minerals therein always belong to the government and are its property. It stipulates: 49. Rights of Government in mines and minerals. - Notwithstanding anything to the contrary in any other law, 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 property of Government, and Government shall have all powers necessary for the proper enjoyment of its rights thereto. 10. In foreign jurisdictions as well similar laws have been enacted but the legislatures generally avoid a comprehensive definition of the term "mineral". In this view of the matter, courts have held that it has a contextual connotation and has no fixed meaning. In Glasgow Corpn. v. Farie [(1888) 13 AC 657], Lord Halsbury, L.C. said: "There is no doubt that more accurate scientific investigation of the substances of the earth and different modes of extracting them have contributed to rende r the sense of the word "mineral' less certain than when it originally was used in relation to mining operations. I should think that there could be no doub t that the word 'minerals' in old times meant the substances got by mining, and I think mining in old times meant subterranean excavation. I doubt whether in the present state of the authorities it is accurate to say that in every deed or in every statute the word 'minerals' has acquired a meaning of its own independently of any question as to the manner in which the minerals themselves are gotten." 11. The House of Lords in North British Railway Co. v. Budhill Coal and Sandstone Co. [1910 AC 116 (HL)] was concerned with the question whether sandstone or freestone is included in the minerals excepted by Section 70 of
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the Railways Clauses Consolidation (Scotland) Act of 1845. Lord Loreburn, L.C. considered a number of decisions, including the one mentioned above, and observed: "It is not possible to extract any uniform standard. The same is true of the opinions expressed by different learned Judges. A variety of tests have been propounded, which are discussed by Lord Gorell. I agree with him both in his enumeration and in his criticism. Is the substance in common parlance a mineral? Is it so considered by geologists? Is it a substance of any peculiar value? No one principle has been accepted, and every principle appears to have its friends." 12. In Northern Pacific Railway Co. v. John A. Soderberg [188 US 526 (23. S.Ct 365, 47 L. Ed. 575) (1903)] , Supreme Court of the United States ruled: "The word 'mineral' is used in so many senses, dependent upon the context, that the ordinary definitions of the dictionary throw but little light upon its signification in a given case. Thus, the scien tific division of all matter into the animal, vegetable, or mineral kingdom would be absurd as applied to a grant of lands, since all lands belong to the mineral kingdom, and therefore could not be excepted from the grant without being destructive or it. Upon the other hand, a definition which would confine it to the precious metals 'gold and silver ' would so limit its application as to destroy at once half the value of the exception. Equally subversive of the grant would be the definition of minerals found in the Century Dictionary as: 'any constituent of the earth' s crust;' and that of Bainbridge on Mines: 'All the substances that now form, or which once formed, a part of the solid body of the earth.' Nor do we approximate much more closely to the meaning of the word by treating minerals as substances which are 'mined', as distinguished from those which are 'quarr ied', since many valuable deposits of gold, copper , iron, and coal lie upon or near the surface of the earth, and some of the most valuable building stone, such, for instance, as the Caen stone in France, is excavated from mines running far beneath the surface. This distinction between underground mines and open workings was expressly repudiated in Midland Railway Co. v. Haunchwood Brick & Tile Co., (1882) 20 Ch Div 552 and in Hext v . Gill, (1872) 7 Ch APP 699 : (1881-73) All England Reporter Rep 388." 13. In Bhagwan Dass v. State of U.P. and others [(1976) 3 SCC 784], it was argued that since sand and gravel were deposited on the surface of the land they could not be called minerals. Repelling the contention Y.V. Chandrachud, J. wrote: "...It is in the first place wrong to assume that mines and minerals must always be sub-soil and that there can be no minerals on the surface of the earth. Such an assumption is contrary to informe d experience. In any case, the definition of 'mining operations' and 'mino r minerals' in Section 3(d) and (e) of the Act of 1957 and Rules 2(5) and (7) of the Rules of 1963 shows that minerals need not be subterranean and that mining operations cover every operation undertaken for the purpose of 'winning' any minor mineral. 'Winning' does not imply a hazardous or perilous activity. The word simply means 'extracting a mineral' and is used generally to indicate any activity by which a mineral is secured. 'Extracting' in turn, means, drawing out or obtaining. A tooth is 'extracted' as much as is fruit juice and as much as a mineral. Only that the effort varies from tooth to tooth, from fruit to fruit and from mineral to mineral." The above view was reiterated in Banarsi Dass Chadha and Bros. v. Lt. Governor , Delhi Admn. [(1978) 4 SCC 11], and V.P. Pithupitchai v. Govt. of T.N. [(2003) 9 SCC 534] and Som Datt Builders Limited v. Union of India [(2010) 1 SCC 31 1]. 14. In Punjab, the Regulation of Mines and Oil-fields and Mineral Development (Government Control) Act, 1948 (XXIV of 1948), and the Punjab Mining Concession Rules, 2002 (the "Rules"), are relevant to the issue under discussion. Clause (xxvi) of Rule 2 defines the term "mineral" as: "mineral" means all surface and sub-surface natural deposits of ores and metals and other metallic and non- metallic substances, including naturally occurring aqueous solutions containing more than 1% mineral salt in solution, but does not include - (i) nuclear substances; (ii) mineral oil; and (iii) natural gas;
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15. The Rules, however , make a distinction between (major) minerals and minor minerals. Clause (xxiv) of Rule 2 defines the latter as under: (xxiv) "minor minerals" means ordinary sand, sand stone, silt stone, slate stone and gravel and may include any other mineral so declared by the Government, On the other hand, "ordinary sand" is defined in clause (xxxi) of Rule 2 as follows: (xxxi) "ordinary sand" means fluviatile deposit of minute fragments resulting from wearing down of pre- dominantly siliceous rocks mainly ranging from 5 microns to 2 millimeters in size including clays and silty sand containing more than 30% sand particles commonly known as "Bhassar/Ghassar" but does not include silica sand suitable for glass making. 16. In Muhammad Iqbal Khan and others v. Collector , Mansehra and others (PLD 2004 SC 659), the Hon'ble Supreme Court of Pakistan while considering somewhat similar definitions in the North-W est Frontier Province (Minor Minerals) Mining Concession Rules, 1971 (which were also framed under Act XXIV of 1948, ibid) held that it was "abundantly clear" that minor minerals constituted a distinct category and were altogether different from the minerals. 17. While we are still on the definitions we need to note that Rule 2 names only some of the minerals that are to be reckoned as "minor minerals" and authorizes the Government to add to that list. Clay and silty sand (when it contains more than 30% sand particles commonly known as Bassar/Ghassar but excluding silica sand suitable for glass making) are covered by the said definition. However , brick earth has neither been declared a minor mineral by the legislature nor by the Government under its delegated authority . It is distingu ishable from clay and silty sand and none of them should be considered as a sub-set thereof. Clay is a soft, loose, earthy material with a grain size of less than four micrometers. It forms as a result of weathering and erosion of rocks containing the mineral group feldspar over vast spans of time. During weathering, the feldspar content is altered by hydrolysis (reaction with water) to form clay minerals such as kaolinites and smectites. Geologic clay deposits are mostly composed of phyllosillicate minerals containing variable amounts of water trapped in the mineral structure. Clays are plastic due to particle size and geometry as well as water content and become hard, brittle and non-plastic upon drying or firing. Depending on the soil's content in which it is found, clay can appear in various colours from white to dull grey or brown to deep orange-red. In contrast, silts which are fine-grained soils that do not include clay minerals and tend to have larger particle sizes than clays. 18. India makes a distinction between "ordinary earth" used for filling or levelling purposes in construction of embankments, roads, railways and buildings, and "brick earth" used for brick making, and has notified both of them as minor minerals and has subjected them to regulatory regime. 19. Reverting to the case in hand, the Petitioner claims that he has purchased a piece of land near Raja Jang, District Kasur , from which he digs earth and transports it to his kiln in Raiwind, District Lahore, for making bricks but on the instructions of the Deputy Director , Mines and Minerals, Respondent No.3 has started stopping his vehicles on the pretext that they carry Bassar/Ghassar . Indubitably the onus was on the Petitioner to prove his contention but he has not produced any material on record in this regard. He has not even filed any document regarding his ownership of the alleged land in Raja Jang. In the circumstances, the matter requires factual inquiry which cannot be undertaken by this Court in these proceedings. Reliance is placed on Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another (2005 SCMR 37) in which the Hon'ble Supreme Court of Pakistan held: "Superior Courts should not involve themselves into a thorough probe or in-depth investigation of disputed questions of fact which necessitate taking of evidence. In-depth investigation can conveniently and appropriately be done by the forums available in the hiera rchy. Constitutional jurisdiction is primarily meant to provide expeditious and efficacious remedy in a case where illegality , impropriety and flagrant violation of law regarding action of the authority is apparent and can be established without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts. Controversial questions cannot be decided by High Court in exercise of powers as conferred upon it under Article 199 of the Constitution." 20. In view of the above, the Petitioner is directed to seek his remedy before the appropriate forum.E1] E2] [3] [4]
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21. Earth has immense resources which are necessary to sustain human life. There is always a tension between those who would circumscribe these riche s to private use and those who would carefully allot them to satisfy needs of the public-at-large. However , it is always thought that some of these resources are so important for human existence that they should be held in common and stewarded by the government. 22. The ancient laws of Byzantine Emperor Justinian contained the concept of res communis which has come to be known as the Public Trust Doctrine. It implied that certain properties such as air, running water , the sea and the sea shores were common property shared by all the citizens. The title to these essenti al resources vested in the State in trust for the benefit of the general public. The State was thus bound to protect them for their uninterrupted use. In England, this concept was reflected in the common law and paragraph-5 of Magna Carta. In 1225 King John was forced to revoke his cronies' exclusive fishing and hunting rights because they violated the public' s right to access these common properties. Thereafter , in 1865, the House of Lords applied the concept of public trust in the case of Gann v. Free Fishers of Whitstable [11 E.R. 1305 (1865) = 11 H.L. Cas. 192] holding that the bed of all navigable rivers where the tide flows, and all estuaries or arms of the sea, is vested in the Crown whose ownership is for the benefit of the subjects and cannot be used in any manner so as to derogate from, or interfere with the right of navigation which belongs by law to the subject of realm. In America, the Public Trust Doctrine was applied for the first time by the New Jersey state court in Arnold v. Mundy [6 N.J.L. 1, 53 (1821)] and then by the Supreme Court of the United States in Martin v. Waddell, 41 U.S. 367 (1842) . However , the seminal American case is Illinois Central Railroad v. Illinois , 146 U.S. 387 (1892) . Illinois wanted to give Chicago' s entire lakeshore to a private railway company . The Supreme Court held that it could not do so as the lake and the ground were protected by "a title held in trust for the people of the state so that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein free from obstruction or interference of private parties." David Takacs notices three elements of vital significance in this decision: "(i) the sovereign holds certain resources in trust for the common good; (ii) the public has some kind of right to protection of these resources; and (iii) while democracy may seem subverted when a court overrules the acts of elected officials, such judicial acts in fact serve democracy by preserving rights invested in all the people." 23. The Public Trust Doctrine borrows its basic construct and some of its tenets (though not all) from the private trust law. Like the latter it involves three elements: a trustee, a beneficiary and trust property. Here, the trust property consists of natural resources. The government is their trustee and must manage them subject to fiduciary duties for the benefit of both present and future generations who are the beneficiaries of the public trust. As in the private trust context, the trustee of the public trust must adhere to both substantive and procedural duties. The former includes: (i) the duty of protection; (ii) the duty against waste; (iii) the duty to maximize the value of trust resources; (iv) the duty to restore trust resources when damaged; and (v) the duty against privatizing trust resources. On the other hand, procedural duties are: (i) the duty of loyalty; (ii) the duty to supervise agents; (iii) the duty of good faith and reasonable care; (iv) the duty of precaution; and (v) the duty to furnish information to beneficiaries (accounting). 24. In 1970, Joseph L. Sax, Professor of Law, University of Michigan gave a new impetus to the Public Trust Doctrine in natural resource law. He argued that certain resources have great importance to the people as a whole and it would be unjustified to make them a subject of private ownership. According to him, the government is obligated to preserve and hold them in trust for the general public so that they may enjoy them. "The Public Trust Doctrine charges the State with a two-fold duty: the duty to protect the res against substantial impairment, and the duty to repair if any damage is caused to it. Public trust obligations impose three types of restrictions on governmental authority: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for fair cash equivalent; and, third, the property must be maintained for particular types of uses." Sax wrote: "If any analysis in this article makes sens e, it is clear that the judicial techniques developed in public trust cases need not be limited either to these few conventional interests or to questions of disposition of public properties. Public trust problems are found whenever governmental regulation comes into question, and they occur in a wide range of situations in which diffused public interests need protection against tightly organized groups with clear and immediate goals. Thus, it seems that the delicate mixture of procedural and substantive protections which the[5] [6] [7]
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courts have applied in conventional public trust cases would be equally applicable and equally appropriate in controversies involving air pollution, the dissemination of pesticides, the location of rights of way for utilities, and strip mining of wetland filling on private lands in a state where governmental permits are required." 25. Sax further said that public trust obligations were separate and distinct from (and, in fact, go beyond) the State' s duty to enact laws and regulations that purport to manage the res. Moreover , these duties were active, not merely passive. It was not sufficient that laws and regulations were passed: they must actually work to protect the trust resources. Every citizen has the right to question government decisions and hold the authorities accountable for their treatment of these resources. David Takacs opines that Sax's notion of Public Trust Doctrine articulates a philosophy where public interests in the environment do and should trump private interests. 26. Meanwhile, the Public Trust Doctrine continued to be applied in the United States. However , the jurisprudence on this doctrine was further expanded by Natural Audubon Society v. Superior Court, [658 P.2d 709 (Cal. 1983)], commonly referred to as the Mono Lake Case. The plaintiffs alleged that the City of Los Angeles Department of Water and Power was violating the Public Trust Doctrine by diverting huge amounts of water from the lake's tributary streams that fed the lake which caused environmental damage. The Department took the defence that the diversions were allowable as it held permits therefor from the state. The California Supreme Court ruled that "the state as sovereign retains continuing supervisory control over its navigable waters and the lands beneath those waters. No party has a vested right to appropriate water in a manner harmful to the interests protected by the public trust ... once the state has approved an appropriation, the public trust imposes a duty of continuing supervision over the taking and use of the appropriated water. In exercising its sovereign power to allocate water resources in the public interest, the state is not confined by past allocation decisions which may be incorrect in the light of current knowledge or inconsistent with current needs ... accordingly it may reconsider those decisions even though they were made after due consideration of their effect on the public trust." 27. The Public Trust Doctrine is a part of the international environmental law since the Stockholm Declaration, 1972. Reference may be made to Principles 2 and 3 of the said Declaration which read as under: Principle 2 The natural resources of the earth, including the air, water , land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. Principle 3 The capacity of the earth to produce vital…
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