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

The KP government peti­tioned the high court under Ar­ticles 199 and 203 of the Con­stitution, pleading with it to stop the district judiciaries from granting stay orders in cases in­volving mining and minerals.

Preliminary arguments in the case were heard by a division­al bench made up of Justice Laal Jaan Khattak and Justice Ishtiaq Ibrahim. AAG Amir Farooq ar­gued the case on behalf of the KP government, and Barrister Asad-ul-Mulk represented the Mining Department.

It was argued on behalf of the government that five years ago, the provincial legislature had promulgated the KP Mines and Minerals Act 2017, which 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, the Mineral Titles Committee, the District Mining Liaison Com­mittee, the District Surface Rent Committee, the Jalsa-e-Aam, the Dispute Resolution Committee and the Appellate Authority.

Moreover, it was pointed out that sub-section (6) of Section 102 of the ibid Act was a clear ouster clause, which categori­cally ousted the jurisdiction of all Civil and District Courts in respect of all matters that may be adjudicated upon by the Ap­pellate Authority. 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 a loss in billions to the exchequer.

Barrister Asad-ul-Mulk spec­ified that Articles 111 and 112 (1)(a) of the Qanun-e-Shaha­dat Order 1984 made it obliga­tory for all judges to take notice of the law. And given 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 also 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 satisfy themselves on the issue of jurisdiction before granting injunctions, but the subordinate judiciary paid the mandatory legal provision no heed and referred the high court to the record of 75 cases where excess had been committed.

Imploring the high court to in­terfere, Barrister Asad-ul-Mulk explained that the superviso­ry jurisdiction, contradistin­guished from appellate, writ, re­view or revisional jurisdiction of a high court over lower courts, was to be exercised when there was a systematic and repetitive miscarriage of justice, or abuse of the process of the law, which was so in the instant case.

After discussing the issues with the rest of the PHC judg­es, Justice Laal Jaan announced that a decision had been made for the chief justice of the Pesha­war High Court to issue a suita­ble administrative order within two weeks instructing Civil and District Judges not to grant stay orders in cases falling under the purview of the quasi-judicial hi­erarchy under the Khyber Pakh­tunkhwa Mines and Minerals Act.

The matter was put on hold for two weeks, during which the court stated that corrective action would be done and that the high court would save the government from needless and pointless litigation