Tuesday October 04, 2022

Stay orders in minerals’ cases: PHC admits petition against district judges

By Bureau report
September 22, 2022

PESHAWAR: The Peshawar High Court (PHC) on Wednesday admitted a petition filed by the Khyber Pakhtunkhwa government against 30 senior civil and district judges in the province.

In a strange move, the KP government approached the high court invoking Article 199 and 203 of the Constitution. It asked the court to prevent the district judiciary from issuing stay orders in cases related to mines and minerals.

A divisional bench comprising Justice Lal Jan Khattak and Justice Ishtiaq Ibrahim heard preliminary arguments in the case.

Additional Advocate General Amir Farooq represented the provincial government while Barrister Asad-ul-Mulk appeared for the Mining Department.

It was argued that the provincial legislature promulgated the Khyber Pakhtunkhwa Mines and Minerals Act 2017 five years ago that provided a robust quasi-judicial hierarchy for the resolution of all rights, liabilities, duties, obligations, and interests in the minerals sector.

It was pointed out that sub-section (6) of Section 102 of the ibid Act was a clear clause which categorically ousted the jurisdiction of all civil and district courts in respect of all matters which may be adjudicated upon by the appellate authority.

Barrister Asad-ul-Mulk said that Article 111 and 112 (1)(a) of the Qanun-e-Shahadat Order 1984 made it obligatory for all judges to take notice of the law. He argued that in view of sub-section (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 pointed out that sub-section (2) of Section 26 of the Code of Civil Procedure Amendment Act 2020 cast a duty upon all civil and district courts to determine the issue of jurisdiction before granting injunctions, but the subordinate judiciary paid no heed to the mandatory legal provision and referred to the high court the record of 75 cases where excesses had been committed. The case was adjourned for two weeks.