1. ' AMANULLAH KHAN C J.---Facts relevant for disposal of instant petition are that; petitioners Moulana Abdul Haq Baloch, Yousaf Masti Khan and Ehsanullah Vaqas; claim to be a Former MPA, MNA, Jamat-e-Islami, Secretary General, National Workers' Party and MPA Punjab Assembly/Member, Jamat-e-Islami Political Party, respectively in such capacity, have filed instant petition, in the larger interest of public, to ensure that the mineral resources of copper and gold deposits, explored in the area of Reko, Diq situated in District Chagai of the Province of Balochistsan, are not plundered and looted by the Authorities, who have control over them. It is their case that, Province of Balochistan is rich in mineral resources, which exclusively belongs to the people and the Provincial and Federal Governments, are just Custodian/Trustees of the said Wealth. It is stated that, Reko Diq area (earlier known as `Koh-e-Dalil in District Chagai, is rich in copper and gold Deposits, which have been discovered by the Geological Survey of Pakistan and that a News Article appeared in Daily 'Business Recorder' of 22nd July, 2006, which revealed that a meeting between the Federal Minister for Petroleum and Natural Resources and the Chief Executive and Chairman of respondents 4 and 5, was held and that in said meeting, the respondents 4 and 5 showed their interest to make investment, with the intention to explore and extract 250,000 tons of copper and substantial amount of associated gold from the said area. After going through the said News Item, the petitioners as per their case, started probing in the matter, regarding mining of copper and gold in the Reko Diq area and initially they were of the view that huge and substantial work must have already been done in the Reko Dig area in the last 14 years when the said area was handed over to the respondent No,8 for exploration, but now they have come to know that no real work has been done and that, all transactions in respect of exploration and production of copper and gold with foreign companies are contaminated with illegalities. On the strength of news item, published in Daily 'The News' on May 26th 2004, it is further the case of petitioners that, transactions with foreign companies were carried out in a clandestine and illegal manner, whereby deposits of huge mineral resources, have been handed over to respondents, without taking into consideration the interest, of the people of Balochistan and that, initially the area was leased out to respondent No,8 without observing the Rules and Regulations, covering the subject of exploration of mineral resources and its mining and thus; after going through its news item, they tried their best to lay hand on the relevant documents and during this process they came to know that, an agreement was executed by the Government of Balochistan with the Australian based Company (respondent No,8). They could not be able to get any other information from official, sources. However, through other sources i,e, Websites, they have come to know that, Balochistan Development Authority (in short "BDA") had entered into an Agreement known as "Chagai Hills Exploration Joint Venture Agreement" (herein. After referred to as "CHEJVA") with respondent No,8,- entitling respondent No,8 and BDA to have profit share in the production of minerals at the ratio of 75% and 25% respectively.
2. According to the petitioner, they could not be able to lay hands on this agreement executed on 29th July, 1993. It is the plea of petitioners that leasing of such area to respondent No,8 through CHEJVA was in violation of various provisions of Balochistan Mining Concession Rules, 1970 (hereinafter referred as "1970 BNC Rules"). From the Websites it was further revealed to them that, respondent No,8 has further assigned the Reko Diq area to respondent No,4. Petitioners have further pointed out that though respondent No,8 by virtue of CHEJVA was committed to spend an amount of U.S. $ 130 Million for H4 (Starter) Project (a part of deposits of copper and gold in Reko Diq), but had only spent U.S.$7.00. Million and after exploration has assigned H4 Project to respondent No,4, which is a newly-established Company, having no experience in the field of mining. It is-the contention of petitioners that since 1993 no substantial work has been carried out that only respondent-Companies are sniffing around Reko Diq, without doing anything towards the Project. It is their case that, assignment made in favour of respondent No, 4 was through good office of respondent No,6, who also made huge money in this deal. It has been pointed out that, respondents Nos.5 and 7 had acquired the entire share holdings of respondent No,4 at the ratio of 50:50. It is also the contention of petitioners that, 1970 BMC Rules were repealed and new Rules known as "Balochistan Mineral Rules, 2002 (hereinafter referred as "2002 BMC Rules") were framed by the Government of Balochistan under the influence of respondent-Companies, to make out a way for legalizing the illegal acts. Besides the Reko Diq area has also been illegally declared as Export Promotion Zone (in short "EPZ"), just to benefit the respondents. In a nutshell; the grievance of the petitioners seems to be that execution of CHEJVA, is in violation of 1970 BMC Rules and since 1993 no significant work has been done and the Foreign Companies are only sniffing around deposits of Reko Diq and making money, without any practical work, thus following relief has been sought :-- "Under the circumstances, it is respectfully prayed that this honourable court may be pleased to declare that all transactions, starting from and based upon the CHJV of 1992-93, including each grant of a license or other concession to any of the respondents and every transfer of interest in Reko Diq leading up to the latest acquisition (whether contemplated or completed) of respondent No,4, by respondents Nos.5 and of respondent No,4's interest in Reko Diq by Respondent No,5 and 7, are illegal, ultra vires, unconstitutional and mala fides and liable to be set aside. This honourable court may be pleased as a consequence, to order that interests in Reko Diq be disposed of strictly in accordance with the applicable law, rules and policy and after inviting bids.
3. ' Any other relief including orders for appropriate inquiries and investigations and recovery of fortunes amassed by the respondents in the subject deals may also be kindly granted."
4. ' As observed above, the entire petition was basically filed on the strength of News item of the Daily "The News" dated May 26th, 2004, so in order to understand the real controversy notices were issued to the respondents, who filed their respective replies supported by numerous documents, which will be discussed at a later stage, but before that, we would like to streamline the factual position and background of entire scenario.
5. ' History reveals that copper and gold are being mined and converted into metal since ancient times. The scientific research proved that, deposits of copper and gold are lying along Tethyan Magmatic Arc which extends from Eastern Europe through Turkey, Iran, Balochistan and across the Himalayas. To Myanmar. The Pakistan section of the Tethyan Arc is known locally as the Chagai Arc. The- Gazetteer of Balochistan, published in 1906, reveals that during the field visit of 1898-1901, for the first time, Mr. E. Vrendernburg, Deputy Superintendent of the Geological Survey of India first documented copper staining at the site known as sulfide Valley in which the Saindak mine is located in the words; "Ores of copper, lead, and iron, and some other minerals of commercial value, such as sulpher-gokurt, sulphate of lime and -sulphate of alumina-phulmak have been met within several localities." He on the basis of his study opined that "the physical drawbacks of the region, the absence of fuel and the difficulty of obtaining labour make it improbable that any satisfactory return could be obtained under existing conditions." The presence of copper deposits was later re- confirmed by the Geological Survey of Pakistan during field mapping in 1962, but as regards the Reko Diq area, there has never been any discovery of copper-gold. However, being an area located on Tethyan Arc there were prospects of copper-gold deposits but no steps were taken for discovery of any deposits. One of its major reasons might be that, without putting large risk capital investment, one could not discover or prove such mineral deposits. On International level, many companies with huge capitals, have .Been established, who are doing the risky business of exploration, and Governments of developing countries, have entered into Agreements with them for exploring the metal deposits, by investing huge amount at their own risk and cost, and on exploration, would be entitled for mining at agreed ratios of profit. For the first time in 1993, BHP, Minerals International Exploration Inc. A Corporation registered in the State of Delaware United States of America, (in short "BHP") i,e, respondent No,8, showed interest in the exploration of copper-gold and other associated minerals in an area of about 8000 Sq. Km in Chagai District. This resulted in execution of CHEJVA on 29th July, 1993, between the BHP and the Government of Balochistan. By virtue of this agreement, the Government of Balochistan without spending a single penny was entitled to have 25% profit on the extraction and production of the minerals. After execution of CHEJVA, BHP commenced with the exploration work, spent huge amount in carrying out in collecting samples, carrying out chemical analysis, by drilling in the said area. The initial work narrowed down the area to 1000 Sq. Km and ultimately on the basis of sampling and mapping Reko Diq was identified as an area containing huge reserves of copper and gold in 1995. To evaluate the reserves, 20,000 meters drilling was carried out in different sites of Reko Diq by BHP resulting in discoveries of copper-gold deposits. On 4th March, 2000 Addendum No,I to CHEJVA was made, whereby BDA was appointed as an Agent of the Government of Balochistan in the matter of Joint Venture. In 2000, after the BHP identified H-4 Reko Diq Prospect, the same was not found to be of much large size by the BHP, as it being a big Company mainly focusing on major mining, therefore, it firstly offered its.75% share to the Government of Balochistan, having first preferential right, and on refusal of Government of 13alochistan, due to lack of resources, NOC was obtained by BHP, for transferring its share to any other Company, capable of making huge investment and thereafter on 28th June, 2000, in view of the provisions of CHEJVA, sold its share of 75% to respondent No,4, an Australian Company in the name and style of Tethyan Copper Company (in short "TCC") with a provision of claw back right in case of a major find. TCC thereafter commenced with the further exploration by spending huge amount in the process of drilling, collection of samples and carrying out tests. On 28th April, 2006, respondent No,5- Antofagasta PLC, a Company from Chile purchased the entire shareholding of respondent No,4, and thereafter indirectly transferred 50% shares to respondent No,7 Barrick Gold Corporation, (in short "BCE") a Company based in Canada, including acquisition of respondent No,8's claw-back right. The two Companies are said to have an international recognition in the field of mining copper and gold and already carrying out major mining explorations in different countries of the world. It is said that TCC after becoming 75% share holder in Reko Diq, commenced with operational works and made drilling of 60,000 meters and further committed to make drilling of another 90,000 meters till mid of 2008; this being the factual background of Reko Diq area.
6. ' After service of notice, all the respondents filed their separate counter-affidavits. Respondents Nos.1, 2, 4, 5, 6, 7 and 8, besides contesting the petition on merits, also raised preliminary legal objections, which are summed up as below:--
(i) The petitioners have no locus standi to file instant petition, as they do not fall under the definition of an 'aggrieved person' in terms of Article 199 of the Constitution of Islamic Republic of Pakistan.
(ii) As petitioners are seeking setting aside of the acts, orders, decisions and transactions which took place way back in 199293, therefore, the petition is hit by the principles of laches.
(iii) As in the Hierarchy of 1970 BNC Rules and 2002 BNC Rules, an alternate remedy is available to peititoners, therefore, instant writ petition is not maintainable.
(iv) As petition involves intricate and disputed questions of facts, which are not dealt with in writ jurisdiction, therefore, petition deserves dismissal.
(v) The petitioners cannot question the past and closed transaction after a long period of 13 years, therefore, relief as sought cannot be granted to.
(vi) Respondent No,6 is not a necessary party, as no relief has been claimed against him.
(vii) The petitioners have not approached with clean hands; and (viii)Petitioners have no prima facie case or any cause of action accrued in their favour.
7. ' Respondents Nos.1 and 2 i,e, the Government of Balochistan through Secretary, Industries and BDA, have filed a detailed reply, stating therein that, BDA, with the prior approval of the Government of Balochistan signed a Joint Venture Agreement with BHP for the exploration of gold and Associated Minerals in District Chagai on 29th July, 1993, where it Was agreed that 25% share shall belong to the BDA and 75% share to the BHP. While repudiating the contention that the agreement was in violation of 1970 BMC Rules, it was stated that the Government has rightly executed CHEJVA with respondent No,8. In this regard, Rules were relaxed by the Government. While giving the factual background of the case, it was averred that CHEJVA was executed by BDA with the prior approval of the Government and thereafter the BHP carried out reconnaissance up to 1999 and reported millions of tons of copper-gold in Reko Diq from two areas (projects), i,e, supergene (H4/Tanjeel Project) and Hypogene (Western extension). It was further stated that, BHP was granted ten Prospecting Licences, out of which, nine PL's were surrendered and one PL of Reko Diq was retained.
8. After implementation of the National Mineral Policy, 1970 BMC Rules were replaced and 2002 BMC Rules were enacted, Exploration Licence No,5 was granted to the Joint Venture for Reko Diq area for three years, which was further renewed for a period of three years up to February, 2008. However, it was agreed between the Government of Balochistan and BHP for change in the CHEJVA and Government of Balochistan issued Addendum No,1 in March, 2000, whereby BDA was appointed as an Agent of the Government of Balochistan. On 28th June; 2000, BHP brought in an Australian Company, Mincor Resources NL/Tethyan Copper Company to reply it with the later under certain terms and conditions mentioned in the option agreement, but since the Government of Blaochistan had the first right to purchase therefore offer was made to the Government of Balochistan, which was refused, due to heavy risk investment to be made on the exploration and allowed BHP to transfer its interest to TCC. On transfer of interest, TCC carried out extensive exploration activities at Reko Diq on the supergene deposit (H4/Tanmjeel Project) and reported 167 million ton of copper at an average grade of 0.7% copper. It contains 1.1 MT of copper metal (2.9 billion pounds of copper metal). On basis of same, TCC planned to produce 45000 tones copper per annum. It was further stated that TCC is also involved in detailed exploration work on H4 project and has reported an estimated resource of about one billion tones at an average grade of 0.58% copper 0.28% gold containing 7.1 million tones of copper metals (15.6 billion pounds) and 10.9 million ounces of gold. It was further stated that, Antofagasta of Chile and BGC have purchased the shares of TCC and after acquiring the shares both respondents 5 and 7 have started a very huge advanced drilling and exploration programme at Reko Diq with an estimated budget of US$:30 million for eighteen months programme ending December, 2007. It was further stated that, petitioners belong to Political parties and the petition is politically motivated with a view to serve ulterior motive and as far the interest of the people of Balochisstan is concerned, that stands fully secured, as the agreement in no way can be termed adverse to their interest, rather share on higher side has been fixed, which is also unprecedented. The petition has been filed without proper study on the subject of exploration of minerals.
9. ' Respondent No,3 also denied the contents of the petition and stated that mining exploration exclusively falls within the domain of Provincial Government and Federal Government has unnecessarily been made party and that CHEJVA has been arrived at between Government of Balochistan and BHP, with which the respondent No,3, has nothing to do.
10. ' Respondent No,4, averred that the petition is frivolous and without any lawful basis. Regarding main grievance of the petitioners that nothing has been done at the site, the same was denied and it was stated that Reko Diq area was initially discovered in 1996-97 by respondent No,8, after field mapping, collection of samples for analysis and satellite image interpretation. It was stated that over 5,000 samples were collected by respondent No,8 and over 35,000 chemical analysis were performed to measure the concentration of various metals in order to identify anomalous areas for further investigation. It was further stated that after getting the area, the respondent No,4 commenced with the operations and carried out 60,000 meters of drilling and would further carry out another 90,000 meters of drilling till mid of 2008, whereas 170 employees and contractors are employed at the site, who have been accommodated in a modern Camp, who are working day and night. TCC also disputed the averment made in the petition that, initially the Geological Survey of Pakistan discovered the copper-gold deposits, by stating that in fact no drilling was ever made by the GSP and entire discovery has been initially mad by the respondent No,8 and subsequently of respondent No,4. It was also denied that respond= No,4 is a newly-established Company having no experience in the field' of exploration and mining. It was explained that, before starting mining, exploration is the first stage, wherein they have to carry out survey and drilling work to confirm the deposits, which by itself is a time consuming work. Allegation of loot and plunder was categorically denied. It was further stated that without the efforts of respondent No,8, no one would have known about the deposits of copper-gold, lying in the remotest area of Balochistan, which lacks infrastructure. It was further stated that declaring of Reko Diq as 'Export Promotion Zone (in short "EPZ), is beneficial to the province of Balochistan, as due to the same the Government of Balochistan, will be making more money from the Project. It was also pointed out that even the `Saindak Project' has been declared EPZ, but no hue and cry was made in respect of same. It was also stated that, at the time of assignment by the respondent No,8, it was agreed that the respondent No,8 will have a claw back right in case of major find, however the said right of respondent No,8 was terminated against an amount of U.S.$:60 Million, out which $19 Million was paid to the Government of Pakistan as withholding tax, on the said transaction. Respondent No,4, further stated that 1.7 Km airstrip at Reko Diq is expected to commence in 2007 and further 330 people staff and contractors will be working. According to the respondent, Data collection and development option studies are continuing whereafter feasibility studies will commence on the most economic option. After feasibility reports, it would be determined when and where the mine will be constructed. It was also pointed out that respondent is recruiting local people and on account of their having low level of literacy and skills the respondent is also imparting education and trainings. Contents of the petition were further denied on the ground that it is based on a 'News Item' appeared in Daily Newspaper "The News" on 26th May, 2004, but they said report was denied and contradicted by the same Newspaper in its Publication dated 1st June, 2004. It was also stated that petitioners cavalier attitude towards one of the country's most significant foreign investment project displays a complete lack of knowledge and sensitivity and betrays a lack of interest for the welfare of the people of Balochistan in particular and of Pakistan in general.
11. ' Respondent. No,5 besides taking legal objection, as referred above, challenged the contents of the petition on merits. It was stated that respondents Nos.5 and 7 have acquired the shares of respondent No,4, against an amount of U.S. $:260 Million (including the acquisition of respondent No,8's claw-back right). It was pointed out that respondents Nos.5 and 7 are the largest Exploration Companies in the field of copper and gold respectively and are managing the mining of minerals in different projects around .That world. After acquiring the respondent No,4, they spend huge amount and made available technical expertise and experience, which resulted in the success of Reko Diq Project. It was averred that the petition is not based on facts rather it has been filed on the basis of Press Report of 26th May, 2004, 'which subsequently has been denied by the same Newspaper. It was stated that the petitioner seems to have never visited the site and therefore, averments made in the petition are without any authenticity.
12. ' Respondent No,6 besides taking preliminary objection to the petition, stated that he remained the Director of Tethyan Copper Company Pakistan (Private) Limited, for a limited period when it was wholly owned subsidiary of TCC, and now he is no more the Director of said Company with effect from 30th June, 2006. It was further stated that he is no more the Director of the Company and has been made party with ulterior motives just to malign him and he has nothing to do with the respondent No,4. It was further stated that the allegations made are totally false, frivolous, vexatious, misconceived and unsubstantial in facts and law. It was pointed out by respondent No,6 that on similar set of allegations a petition filed by petitioner No,3, before the Hon'ble Supreme Court of Pakistan for declaring the grant of concession in respect of Rhodo 2 as illegal was dismissed vide Judgment dated 26th May, 2005.
13. ' Respondent No,7 in reply to the stay application of petitioner, adopted the contents of the counter-affidavit filed by respondent No,5, in addition to summarizing the stature of its Company, being World's preeminent gold mining Company in terms of market capitalization, annual gold production and gold reserves, based in Canada and doing 26 operating mining works in North America, South America, Australia and Africa with over 20,000 employees (including joint venture personnel).
14. ' Respondent No,8 has also filed a detailed counter-affidavit, challenging the petition on legal and factual grounds. It was stated that ever since the CHEJVA was arrived at, the exploration work was started. It was stated that CHEJVA was rightly executed by the Provincial Government as under Article 142(c) read with Article 137 of the Constitution, the Government possesses the legislative and executive authority to deal with and govern all matters relating to exploration and exploitation of minerals. It was further stated that 1970 BMC Rules were competently relaxed, keeping in view the provisions of Article 172(1) and 173 of the Constitution and in this behalf duly Notification dated 20th January, 1994 was issued. It was pointed out that GSP never discovered the deposits and it was the respondent who after making huge investment, was able to prove the deposits in Reko Diq. It was also pointed out that permission to carry out exploration work was competently granted to the respondent No,4 by the Government of Balochistan. Regarding the factum of work being carried out it was stated that from 1993 to 1995, satellite imagery and its interpretations, Bulk Leach Extractable Gold (BLEG) sampling programme on over 13000 square kilometers and 6000 rock samples were carried out. On the basis of aforementioned data, 20 different areas were identified, which were then reduced to 10 and ultimately after more detailed Rock Chip Sampling and Mapping, Reko Diq was identified to have copper-gold reserves. Thereafter 10 Prospecting licences covering an area of 1000 square kilometers were applied which were granted on 8th December, 1996 and on basis of such licences further mapping and exploration work was undertaken and in 1997 first phase drilling was completed at Reko Diq and five other areas. Out of ten licences nine were relinquished and only one PL-4 was retained which was amalgamated with PL-14 granted on 21st February, 2000 and covered the area of Reko Diq. In 2000 the respondent No,8 assigned its rights to TCC. It was also stated that CHEJVA has been executed in the best interest of the people , of Balochistan as the Government of Balochistan has 25% 'free carried interest' without any investment or resource, in addition to royalty and such rate of percentage is not even available under the 1970 BMC Rules or 2002 BMC Rules.
15. ' We have heard at length, Mr. Abid Hassan Minto, learned counsel for petitioner, Mr. Salahuddin Mengal, learned Advocate General for respondent No,1, Mr. H. Shakil Ahmed, learned counsel for respondent No,2, Ch. Mumtaz Yousaf, learned Standing Counsel for respondent No,3, Qazi Faez Isa, learned Counsel for respondent No,4, Mr. Sajid Zahid, learned counsel assisted by Messrs Muhammad Chinoy and Abdul Rehman Jamali, Advocates for respondents 5 and 7, Mr. M. Zafar, learned counsel for respondent No,6 and Mr. Abdul Hafiz Pirzada, learned counsel assisted by Mr. Sikandar Bashir Mohmond, Advocate for respondent No,8.
16. ' At the outset learned counsel for petitioner, stated that if respondents give an undertaking that no further assignment/transfer will take place as had earlier taken place between respondents Nos.8 and 4 and further if a fixed time is given as to when the mining work will start, he will not press the petition. On. Such statement, learned counsel for respondents showed their own reservations and stated that, they will argue the matter, on completion of the arguments of learned counsel for petitioner.
17. ' Mr. Abid Hassan Minto, learned counsel, while meeting with the legal objections raised in the counter-affidavits filed by respondents, responded that, as far as the locus standi of petitioners is concerned, they have their no personal axe to grind or any personal interest, and as this petition has been filed in the larger interest of the people which fully comes within the ambit of 'public interest litigation' therefore, questions of locus standi and laches would not come in the Way of petitioners. To support his view-point he referred to Regulation of Mines and Oil-Fields and Mineral Development (Government Control) Act, 1948, and stated that the very preamble of this Act shows that, it has been made in 'public interest' and since the 1970 BMC Rules have been framed on the strength of this Act, therefore, Acts adverse to the interest of public, when challenged would fall under the definition of 'public interest litigation' and being so, the petitioners cannot be knocked out, merely on technical grounds, such as locus standi or laches. On merits, learned Counsel pointed out that lot of time has passed since execution of CHEJVA but no substantial work has been carried out and respondent No,8, after doing some preliminary work, has sold his interest to respondent No,4, which is against the Rules an so far nothing has been shown towards the actual and practical mining at the site. According to learned counsel CHEJVA was executed in violation of 1970 BMC Rules and as regards the plea of respondent No,8 that 1970 BMC Rules were relaxed by the Government in exercise of its Rule-98, no such Notification to this affect has been placed on record. It was further contended by learned counsel that, BDA had no business to enter into CHEJVA and it was only the Government of Balochistan to have entered into such an Agreement. Learned Counsel prayed that since all transactions were carried out in violation of the Rules and detriment to the interest of Government and the people of Balochistan, therefore, CHEJVA may be declared unlawful and further bids may be called from new Companies and after auction the area be assigned to new Bidders for exploration in the best interest of the people of Balochistan. In support of his contentions, learned Counsel, relied on PLD 1969 SC 223 (Mian Fazal Din v. Lahore Improvement Trust, Lahore and another), PLD 1970 Dacca 85 (Dr. A.N.M. Mahmood v. The Syndicate of the University of Dacca and others), PLD 1982 Karachi 889 (Sultan Mawjee and others v.
18. Federation of Pakistan Chamber of Commerce and Industry, Karachi and 3 others), 2004 CLC 1353 (Ardeshir Cowasjee and 11 others v. Sindh Province and others), 2000 YLR 2724 (Philips Electrical Industries of Pakistan Ltd. v. Pakistan and others), PLD 2006 SC 394, Moulvi Iqbal Haider v. Capital Development Authority and others), PLD 2006 SC 697 (Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization Islamabad and others), 1992 CLC 2065 (Province of Punjab through Collector Faisalabad and 8 others v. Muhammad Yaqoob) and 1999 SCMR 2883 (Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others).
19. ' Mr. Sajid Zahid, learned Counsel, after explaining that respondents 5 and 7 have equal share of 50% each in respondent No,4, argued that in the entire petition it has been alleged that, transactions have been carried out in violation of 1970 BMC Rules, but not a single violation has been highlighted in the pleadings. Learned Counsel elaborated that on the repeal. Of 1970 BMC Rules and enactment of 2002 BMC Rules, Exploration Licences Nos.5, 6 and 8 have been validly and lawfully granted. On the question of 'locus standi' learned Counsel stated that petitioners do not fall within the definition of an 'aggrieved person' as envisaged under Article 199 of the Constitution.
20. Learned Counsel pointed out that standing of petitioner No,1 is only that he is member of a National Party MMA, petitioner No,2 resides in Sindh and is Secretary of National Workers' Party, therefore cannot represent the people of Balochsistan, and petitioner No,3 is a MPA of Punjab Province therefore he too cannot represent the interests of the people of Balochistan. According to learned Counsel, they have no legal nexus or any other relevance to the Mining Industry and 'public interest litigation' does not give, a general untrammeled right, to indulge in frivolous litigation.
21. ' In support of his contention, learned Counsel placed reliance on PLD 1980 Quetta 55 (Sardar Sawal Khan v. Gul Baran Coal Company Quetta and another) PLD 1961 SC 192, (Islamic Republic of Pakistan v. Muhammad Saeed) PLD 1967 Lah 184, (Muhammad Ismail v. Mirza Gul Chiragh and others), PLD 1992 Kar 54 (Muntizma Committee, AlMustafa Colony (Regd.) Karachi .And three others v. Director Katchi Abadies, Sindh and 5 others), 1995 MLD 966 (Pervez Iqbal Rana v. Pakistan Agricultural Storage and Services Corporation through Managing Director and 3 others) and 1994 CLC 2318 (Muhammad Nawaz Sharif v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Islamabad and 8 others. On the Issue of "locus standi" learned counsel also referred to the judgment of Hon'ble Supreme dated 26th May, 2005, passed in similar type of case as the one in hand, filed by petitioner No,3, pertaining to discovery of natural gas in "Safed Koh Block". On the point of "laches" learned counsel argued that petition is barred by laches.
22. The original agreement was executed way back in 1993, where BDA was appointed as agent of Government of Balochistan vide Addendum dated 4th March, 2000, therefore, the petitioners have challenged the same after lapse of 13 years, during which period, huge investment has been made.
23. On this point reliance was placed on 2004 SCMR 400. Learned counsel next contended that petition is based on factual controversy and disputed facts will require evidence and this Court in exercise of its extraordinary constitutional jurisdiction, cannot enter into such factual controversies. To support his this view-point, he referred to 1997 CLC 562 (Messrs Ittehad Cement Industries Ltd. v.
24. Government of Balochistan through Secretary Industry, Quetta and 4 others, PLD 2001 SC 415 (Secretary to the Government of Punjab Forest Department, Punjab Lahore through Divisional Forest Officers v. Ghulam Nabi and 3 others, 1984 SCMR 377 (Mst. Musharofa Begum v. Syed Nayyar Hussian and others and 1982 SCMR 497 (Messrs Bakhsh Textile Mills Ltd. v. Pakistan and others.
25. Learned counsel also asserted that, 1970 BMC Rules and 2002 BMC Rules, pro ides equal and efficacious remedy in shape of appeal to the petitioners, therefore, instant petition is otherwise not maintainable. He in this behalf referred to 2004 SCMR 400 (Farzand Raza Naqvi and 5 others v.
26. Muhammad Din through legal heirs, and others PLD 1991 SC 102 (Chief Administrator of Auqaf v.
27. Muhammad Ramzan and others and PLD 1967 Dacca 6 (Haji Mojakkir Ali v. Regional Transport Authority, Sylhet and others).
28. ' Mr. Abdul Hafeez Pirzada, learned counsel for respondent No,8, apart from arguing on the legal points as to the maintainability of petition, contended that ever since the execution of CHEJVA, by the Government of Balochistan, in purported exercise of authority vested in it under Articles 142(c) read with Article 137 and Articles 172(1) and 173 of the Constitution, the respondent No,8 had spent a huge amount over the exploration of copper and gold deposits, and thus being a past and closed transaction cannot be re-opened. It was next contended that, CHEJVA was legally executed between BDA acting as Agent of the Government of Balochistan and respondent No,8 and the 1970 BMC Rules provides authority to the Government to relax the Rules and after relaxing the Rules, the CHEJVA was arrived at between the parties. Learned counsel also argued that petitioners have an alternate and efficacious remedy therefore, instant petition is not maintainable. As regards merits, learned counsel pointed out that it is a case of contractual obligations between the parties, which has no nexus with the 'public interest litigation'. He further asserted that entire petition is based on an information appeared in daily newspaper "The News" dated 26th May, 2004, which was subsequently denied by the same newspaper in its Publication of 1st June, 2004. Learned counsel also stressed that, since petitioners have not approached this Court with clean hands, therefore, they are not entitled for any discretionary and equitable relief. Lastly learned counsel while referring to the prayer clause of petition, where it has been prayed that all transactions be declared null and void and fresh bids be invited by auctioning the area, pointed out that under the mining schemes, the areas are not put to auction as minerals are always hidden and licences are granted to only those, who had carried out exploration.
29. ' Qazi Faez Isa, learned counsel for respondent No,4, while adopting the arguments of learned counsel for respondents regarding the legal objections, on the basis of documents filed along with the counter-affidavits, elaborated the work carried out by respondent No,4, and to be done till mid of 2008.Learned counsel pointed out that respondents were granted nine Exploration licences and they have given up most of the licences and have retained only one licence and further stated that, after exploration and giving up of certain areas by the respondent No,4 new Investors have applied which shows that it was only due to the efforts of respondents Nos.8 and 4 that, copper and gold deposits have been discovered and had the respondent No,8 not started the exploration work, no one would have known about the deposits of copper and gold. Learned counsel also argued that since the respondent No,4 has invested huge amount therefore, he would be keen to recover the same and thus the contention of learned counsel Mr. Abid Hassain Minto that, after lapse of long time nothing has been done at the site, is not correct. With the assistance of a local Geologist, learned counsel demonstrated through pictures that intensive exercise of exploration has been carried out before starting the mining operation of extracting copper and gold.
30. ' Mr. H. Shakeel Ahmed, while adopting the arguments of learned counsel for respondents reiterated that relicf sought in the petition cannot be granted after lapse of about 14 years whereby much exercise has been done and lot of amount has been spent initially by the respondent No,8 and then by respondent No,4, proving huge deposits of copper and gold existing in the area and in case such relief is granted the entire exercise will come to an end.
31. ' Mr. Salahuddin Mengal, learned Advocate-General, while supporting the arguments of learned counsel for respondents, stated that Government of Balochistan has rightly entered into CHEJVA and it is in the best interest of the people of Balochistan that this Project should continue and in case, it is stopped, it would not be in th4 interest of the people of Balochistan and further stated that business of exploring and mining is risky business involving huge amounts and modern technology, and the Government of Balochistan had no resources to explore the minerals, thus CHEJVA was rightly arrived at with the BHP and thereafter the area was assigned to respondent No,4, who has spent a huge amount in exploration.
32. Before dilating upon the contentions of learned counsel for parties, it may be observed that if petitions under Article 199 of the Constitution, claimed to have been filed in the larger interest of public and questions of public importance are involved bringing it within the purview of 'public interest litigation'; then the petitioners invoking the jurisdiction of the court in such like petitions need not show their locus standi in the strict juristic sense, though question of 'locus standi' may be a hurdle, but not in a strict legal sense, and to overcome such a hurdle, the person has to show that the matter pertains to public interest litigation and he has an interest in the performance of a public duty, if performed accordingly, the public at large would suffer. Thus, in such a case, the question of locus standi would be interpreted liberally. But the condition precedent for forming such a view is that, petitioner has to show that the case falls within the ambit of 'public interest litigation' and thereafter only the other legal aspects will be given a liberal interpretation. "Public Interest Litigation" has been exhaustively dealt with by the Superior Courts. It has been observed that; whether a petition falls under the ambit of 'public interest litigation' the courts have to see that a person approaching the court is acting bona fide and not for any personal gain or private motive or political motivation or other oblique consideration, or to earn cheap popularity and to maintain the petition, one has to show the genuine and visible public wrong/injury.
33. ' The learned counsel for petitioners throughout the hearing, argued with vehemence that the petition has been filed in the larger interest of the people of Balochistan and it is a case falling under the ambit of 'Public interest litigation'; therefore, the legal objections raised by learned counsel for respondents may be ignored by giving liberal interpretation; this being a moot question going to the root of the 'case, we would like to first deal with this question, by slightly touching the merits of the case, regarding the question of 'public importance' with reference to the execution of CHEJVA, transfer of shares by the Foreign Companies, exploration work done so far at the site, evaluation of interest of the people of Balochistan in CHEJVA and other collateral aspects.
34. ' Learned counsel for petitioners argued that there is no provision under the 1970 BMC Rules to enter into a Joint Venture Agreement and allowing the parties to assign its share to any third party and despite lapse of 13 years no positive result has been achieved and further on the strength of CHEJVA, during the past 13 years the foreign Companies have been benefiting by assigning the shares and nothing has been done and further that, CHEJVA is in violation of rules 12, 30, and 31 of the 1970 BMC Rules whereby under rule-30, no prospecting Licence can be granted for a period less than one year or more than two years. Further under rule-31 the Licensing authority can renew the licences for a period not exceeding 12 months.
35. ' Mr. Abdul Hafiz Pirzada., learned counsel strenuously opposed the arguments and contended that, CHEJVA has been validly executed between BDA on behalf of the Government of Balochistan and respondent No,8 and stated that CHEJVA was executed in the year, 1993 which continued and further the assignments took place under the 2002 BMC Rules. Learned counsel argued that, since the minerals exclusively fall within the domain of Provincial Government, thus under Article 137 of the Constitution, the Provincial Government could enter into an agreement, thus CHEJVA was in accordance with the provisions of Constitution.
36. Adverting to the contention of learned counsel for petitioner that CHEJVA was in violation of 1970 BMC Rules, we are not convinced to subscribe to the said contention. It may be seen that Article 142(c) read with Article 137 of the Constitution, empowers the Provincial Government to deal with and govern all matters relating to exploration and exploitation of minerals. Further Article 173 of the Constitution empowers and authorizes the Provincial Government to acquire any property and to make contracts. It would be beneficial to refer to Article 173 of the Constitution, which reads as under:-- "Power to acquire property and to make contracts etc.--(1) The executive authority of the Federation and of a Province shall extend, subject to any Act of the appropriate Legislation, to the grant, sale disposition or mortgage of any property vested in, and to the purchase or acquisition of property on behalf of, the Federal Government or, as the case may be, the Provincial Government, and to the making of contracts.
37. (2)........
(3) All contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made in the name of the President or, as the case may be, the Government of the Province, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the President or Government by such person and in such manner as he may direct or authorize."
38. ' As far as the Authority of the Government of Balochistan is concerned, CHEJVA was rightly executed, as Article 173 of the Constitution empowers the Provincial Government to enter into such agreement and BDA has entered into the agreement as an Agent of the Government of Balochistan. Besides the Addendum No,1 was added to CHEJVA on 1st March, 2000 and Authorization letter was also issued by the then Governor, Balochistan, whereby. BDA was authorized to act as an Agent of the Government of Balochistan, which makes CHEJVA lawful. Next contention of learned counsel regarding violation of Rules, it is pertinent to mention here that rule 98 of 1970 BMC Rules, empowers the Government to relax the Rules. In this regard the Government of Balochistan had relaxed the Rules vide Notification dated 20th June, 1994, which reads as follows:-- ' No,S.O.(MR) 5-9/94.254-60. In exercise of the powers confirmed by rule 98 of Mining Concession Rules, 1970, the Government of Balochistan is pleased to grant the following relaxation as a special case in favour of BHP Company enabling the Company to carry out its exploration work without any complication:--
(1) Grant of Exploration Areas.
(2) Area available for prospecting licence. (3), Application for prospecting licence.
(4) Satisfaction of conditions attaching to prospecting licences.
(5) Exclusive right.
(6) Other Minerals.
(7) Government rights pre-emption acquisition merger, and taking control in national emergency.
(8) Assignments.
(9) Application for mining lease.
(10) Royalty.
(11) Penalties
(12) Employment and training.
(13) Mining lease."
39. ' From the perusal of same, it transpires that as a special case rules were relaxed. However, no illegality was pointed out regarding such relaxation, thus the contention of learned counsel that, CHEJVA was in violation of the Rules is repelled, as the Government has C exercised its powers strictly in accordance with the fourcorners of the Rules. It may not be out of place to mention here that the said Rules were repealed after enactment of 2002 BMC Rules and the Exploration licences Nos.5, 6 and 7 were issued in favour of respondent No,4 under the said enacted Rules, on the basis of which, huge investments were made. It may be noted here that 2002 BMC Rules were framed, after promulgation of Mineral Policy of 1995, wherein the Mining Rules of all the Provinces were re- framed. As far as the allegation that 2002 BMC Rules were framed under the influence of respondent No,4, there is nothing on record to prove the same. In this regard it is suffice to observe that mala fides could not be attributed to the Legislature, unless ultra vires to the Constitution. In this behalf, reliance is placed on PLD 1983 SC 457 (Fouji Foundation and another v. Shamimur Rehman). Relevant portion therefrom reads as under:-- "The High Court seems to have got over the repeal of these legislative instruments by holding that as they were enacted mala fide they are void and the first appellant acquired no right in the Mill from its inception. This assumption is wholly erroneous as no mala fides can be pleaded against a statute and for that reason it cannot be regarded as being void."
40. ' It is pertinent to mention here that in CHEJVA, it has been agreed upon that without spending a single penny the Government of Balochistan shall have 25% share in the profit in addition, to royalty, taxes etc. Whereas BHP would have 75% share in the profit, which has been now assigned to respondent No,4. The contention of learned counsel for respondents is not without substance that the interest of the people of Balochistan has been very much protected, as Government of Balochistan is alone holder of 25% share, without any recourse and without spending a single penny, which fact could not be denied. It may be observed that the Government of Balochistan has executed numerous Mining Agreements but in none of such agreement, she is a share-holder. Thus it can be held without hesitation that interest of the people of Balochistan is very well secure and once the production starts the Balochistan Government in addition to royalty will be entitled to 25% share, which will fetch huge amount of revenue for the Government of Balochistan. Thus it can be safely held that CHEJVA has been executed legally and the interest of the people of Balochistan has been very well taken care of.
41. ' It may be seen that after execution of CHEJVA, the respondent No,8 commenced with the exploration operation and from 1993 to 1995, over an area of 13000 Sq. Kilometers by carrying out satellite imagery and its interpretations, Bulk Leach Extractable Gold (BLEG) sampling programme, and on the strength of such data and exercise, identified 20 different areas and then reduced to ten and at last after more Rock Chip Sampling and Mapping, Reko Diq was identified to have copper-gold deposits. Thus the focused area of 13000 Sq. Kilometers was reduced to that of 1000 Sq. Kilometers. In 1997 First phase drilling was completed and ultimately after relinquishing nine licences one licence PL-4 was retained, which covered the area of Reko Diq. As BHP was permitted under the CHEJVA for assignment of share to respondent No,4 i,e, TCC with a provision of claw back right in case of major find, therefore, with the assent of the Government, the interest was sold to TCC, who has further invested huge amount and carried out extensive drilling and has employed 170 employees and contracts, besides constructing 1.7 Km Airstrip. Through pictures and Maps it has been shown that TCC carried out 60,000 meters of drilling and would further carry out another 90,000 meters drilling till mid of 2008. After the shares of TCC were acquired by respondents Nos.5 and 7, who are big International Companies, they further invested huge amount and provided TCC their technical expertise and experience. All this shows that effective and practical exploration work has been done at the site. Here it is significant to note that it is but natural that, once the respondents have invested huge amount, they would be very keen in recovery of the same, thus the question that no work has been done is baseless and the respondents are just sniffing around Reko Diq, which does not appeal to a prudent mind.
42. ' As regards the Exploration licences, the same were granted initially by relaxing 1970 BMC Rules and later under the 2002. BMC Rules, which fully provide an authority to the Government for grant of such licences, therefore, the plea that the licences have been granted in violation of the Rules is without any force and substance.
43. ' As far as the question of giving Reko Diq, the status of EPZ is concerned, it may be seen that similar status has been given to Saindak Project and declaring of said area as EPZ would be beneficial for the people of Balochistan, as it will increase its potential to make more money from the Project.
44. ' It is imperative to note that CHEJVA is not the sole agreement, which has been executed. In this regard an Agreement of Saindak Project was also executed, whereby the mining work has been handed over to Chinese Government. Similarly many licences have been issued to different Companies for exploration of other Minerals, such as Coal, Zinc etc. And areas have been leased out to different Companies and in such like cases the Government of Balochistan is only entitled to the Royalty on the extracted mineral. In the case in hand, this being first Agreement wherein without any recourse and investment of a single penny, the Government of Balochistan shall be entitled to 25% profit, in addition to royalty. It has been alleged that mineral wealth which belongs to the people of Balochistan has been plundered and looted on the basis of agreement, but not a single instance has been quoted about such loot and plunder. Besides we have gone through CHEJVA and the Addendum added to it, which do not suggest that, wealth has been looted. Thus, CHEJVA being an agreement between two parties, there is no question of public importance and further, in our considered view the interest of the people of Balochistan has been very well taken care of, by giving 25% profit to Government of Balochistan. It may be observed that general and untrammeled rights cannot be given to the people to file frivolous cases in the name of public interest litigation. In this behalf, reference may be made to AIR 2004 SC 280 (Ashok Kumar Pandey v. State of West Bengal and others). Relevant paras therefrom read as under:-- "12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approach the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives.
45. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold and in appropriate cases with exemplary costs.
13. The concept for public Interest Law set up by the Ford Foundation in USA defined the 'public interest litigation' in its report of Public Interest law USA 1876 as follows:-- "Public Interest law is the name that has recently been given to efforts to provide legal representation to previously unrepresented groups and interest. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such service to significant segments of the population and to significant interests. Such groups and interests includes the proper environmentalists, consumers, racial and ethnic minorities and others"
14. The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interest: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others: and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motive, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect.
15. Courts must do justice by promotion of good faith and prevent law from crafty invasions. Court must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good (see State of Maharashtra v.
46. Prabhu (1994 (2) SCC 481) and Andhra Pradesh State Financial Corporation v. Messrs GAR-Re- Rolling, Mills and another (AIR 1994 SC 2151). No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence 'to file misconceived and frivolous petitions (see Dr. B.K Subbarao. v. Mr. K. Parasaran ((1996) 7 JT 265). Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public."
47. ' Similar observations were made in PLD 1992 Karachi 54 (Muntizma Committee, Al-Mustafa Colony (Regd). Karachi and 3 others v. Director Katchi Abadies, Sindh and 5 others). Relevant paras.
48. Therefrom are also reproduced hereinbelow:-- "As we understand the phrase 'public interest litigation", it means nothing more than what it states namely it is a litigation in the interest of public. Public interest litigation is not that litigation, which is meant to satisfy the curiosity of the people, but it is litigation which is instituted with a desire that the court would be able to give effective relief to the whole or a section of the society. In the interest of administration of justice some of the old well-established procedural rules and practices have been altered Public interest litigation can now be initiated not only by filing formed petitions in Court but even by writing letters and telegrams.
49. ' Whenever the conscience of the Court is shocked, on account of action or inaction on the part of the Federation or Province, the Court will exercise its jurisdiction under Article 199 of the Constitution.
50. ' It is true that public interest litigation has come to stay as one of the species of litigation in which redress may be found from the Court of law. However, this does not confer a general and untrammeled right to indulge in frivolous litigation without any genuine cause of action and the necessity of seeking redress of some real grievance. Consequently while recognizing such litigation, Courts have taken care to add a word of caution that certain minimum conditions must be satisfied before the Courts shall lend assistance to such litigant asking for relief. The various factors which might stand in the way of entertaining such petitions were highlighted in para 17 by the Supreme Court of India in the case of S.P. Gupta and others v. President of India and others AIR 1982 SC 149 where it was observed as under:-- ..But we must hasten to make it clear that the individual who move the Court for judicial redress in cases of this kind must be acting bona fide with a view of vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be activised at the instance of such person and must reject his application at the threshold; whether it be in the form of a letter addressed to the Court or even in the form of a regular writ petition filed in-Court. We may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right to such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party....'
51. ' Accordingly a public interest litigation can be initiated for judicial redress for public injury by a person not personally hurt. This principle will not apply where an association or organization or a registered society seeks to enforce a personal right or private right of another, as distinguished from public injury."
52. It may be observed that though the petitioners claim to have filed this petition for the welfare and benefit of the people of Balochistan, needless to observe, none of them ever bothered to visit the site to see; what is the ground reality. It may not be out of place to point out that the Government of Balochistan has issued many licences for mining purpose to different persons and Companies for mining in different minerals, such as coal, chrome, marble etc., but the Government of Balochistan is not a share-holder in any of the mining lease, as in the case in hand. It is painfully noted that local people of most of the area, where mining has been carried out for years are deprived from basic necessities of life whereas the Government and the lease holders have made millions, perhaps the petitioners are not aware about the same or have closed their eyes to the said reality. Mr. Faez Essa, learned counsel for the respondent No,4, emphatically argued that about 200 local people have been employed, and the respondent No,4 is committed to establish a Mining Academy once the mining starts, besides roads and Airstrip have been constructed and jobs will be created and the Government of Balochistan shall get 25% share without any investment. Thus in view of the above discussion in our considered view the case does not fall within the purview of 'public interest litigation' as the interest of the people of the area even has been very well taken care of which could not be rebutted by the counsel for the petitioners and accordingly this contention is repelled.
53. ' Since it has been held that instant case does not fall within the ambit of 'public interest litigation' therefore, we would now proceed to decide the legal objections raised by the respondents.
54. ' The respondents had challenged the locus standi of petitioners and it was argued that petitioners have no locus standi to file the petition, as they have shown no personal grievance to justify the filing of petition and do not. Fall within the definition of an 'aggrieved person' as envisaged under Article 199 of the Constitution and have no legal nexus or any other relevance to the Mining Industry to indulge in such like frivolous litigation.
55. ' Answering the said legal objection, learned counsel for petitioners argued that since CHEJVA has been executed in violation of the 1970 BMC Rules and the petition has been filed by petitioners in the larger interest of public and Comes within the ambit of 'public interest litigation, therefore, question of locus standi may be ignored. In support of his contention learned counsel placed reliance on PLD 1969 SC 223, wherein regarding locus standi, following observations were made:-- ' It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
56. ' The other case-laws relied upon by learned counsel is similar.
57. ' In reply to the above contention, Mr. Abdul Hafiz Pirzada and other counsel argued that since the arrangement and grant of licence is legal and in accordance with the Constitution and 1970 BMC Rules, and all procedural requirements were complied with and as CHEJVA has been arrived between two competent parties therefore, petitioner cannot claim to be personally aggrieved from the same and since no illegalities have been committed thus petitioners not being 'aggrieved persons' have no locus standi to file the instant petition.
58. The case law referred to by learned counsel for petitioners regarding locus standi pertain to cases whether the applicant/petitioners had direct or indirect concern with the subject-matter of the case, whereas in the instant case the petitioners have no nexus or any concern with the Mining Industry. It may be observed here that they have not applied for Mining Licence of the said area.
59. Thus in strict sense, since the petitioners have only agitated the matter on the ground that. CHEJVA and Exploration licences are in violation of the Rules, thus in the larger interest of public, they have filed this petition, which contention has already been repelled, therefore, it is held that they do not come within the definition of an 'aggrieved person'. In this-regard reliance may be placed on PLD 1980 Quetta 55. In this case the petitioner who filed the petition had not applied for the Mining lease and his locus standi was challenged, as he was not an 'aggrieved person' and following observations were made:-- "The question as to who could be considered an 'aggrieved person' within the meaning of Article 98 of 1962 Constitution which is in pari material with Article 199 of the present Constitution was considered in the case of Muhammad Abdul Salam v. Chairman, East Pakistan Election Authority and others PLD 1961 Dacca 231 and it was held that a person invoking writ jurisdiction of the Court should at least be able to show that he had suffered a 'legal grievance' if not an actual grievance.
60. Such person, it was held, could be one who was deprived of some benefit or had suffered any disadvantage by the order sought to be challenged by him. Such is not the case here. We are therefore of the view that the petitioner was not an aggrieved person in any recognized sense of the term, and is, as such, incompetent to maintain this petition."
61. ' It was also argued by the learned counsel for respondents that any person asking for performance of statutory duties as in the case in hand, he has not shown that he had some particular grounds for claiming such performance. As far as the performance of statutory duty as agitated by petitioners is concerned, in this regard reference may be made to PLD 1961 SC 192 wherein following observations were made:-- "It is necessary in order to entitle a person to ask for the performance of any public duty by mandamus to show that he has some particular ground for claiming such performance, apart from the fact that he is interested in the performance of such a duty as a member of class of person, all of whom are equally interested therein. As observed in the case of The Queen v. The Guardians of the Lewisham Union (1897) I QB 498 at 501, the Courts have never claimed to exercise a general power to enforce the performance of statutory duties by public bodies on the application of anybody who chooses to apply but have always required that an applicant should have a legal and Specific right in him to enforce the performance of such duties."
62. ' Learned counsel for respondents further contended that since the agreement was executed between two parties in compliance of Rules and after promulgation of 2002 BMC Rules, licneces were issued, thus their interest being not more than that of general public and as such they cannot be said to be an 'aggrieved person'. In this regard reliance was placed on PLD 1967 Lahore 184, relevant para. Therefrom reads as under:-- "An exhaustive definition of the term 'aggrieved party' will not be attempted, but a party cannot be said to be aggrieved if his rights or interest are not adversely affected or if he suffers no loss -'r injury by a particular order. The petitioner cannot be said to have suffered in any way by the transfer of the premises to the respondents Nos. 1 and 2. In Reg. v. Nicholson, it was held that assuming certiorari to be the fitting remedy, as a matter of discretion, certiorari ought not to go firstly on the ground of delay and secondly because the applicants had not shown, as they should have shown, that they had peculiar grievance of their own, beyond some inconvenience suffered by them in common with the rest of the public. What is necessary, therefore, to prove for a party who comes to this Court is that he has a peculiar grievance of his own and not merely an inconvenience which he has suffered in common with rest of the public."
63. ' It was also argued by learned counsel for respondents that since the petitioners have sought judicial review of the agreement on administrative side, therefore, in such like case the petitioners have to show that they had direct interest in the act, which has been challenged. Admittedly the direct interest of petitioners is lacking in instant case. Reliance was placed on 1995 MLD 966, wherein it was held as follows:-- "I have considered the arguments addressed by the learned counsel for the parties, have perused the record and have also gone through the relevant case-law on the subject. In case of "Tariq Transport Co. Lahore (PLD 1958 SC(Pak.) 437) while deciding the question of locus standi of a person to invoke extraordinary jurisdiction of this Court, at pages 452, 454, 465 and 497 of the report, it has been held 'that it is basic principle that a person seeking judicial review of administrative or quasi judicial action must show that he has a direct personal interest in the act which he challenges before his prayer of review is entertained. He does not have standing to sue unless he is interested in and affected adversely by the decision of which he seeks review. His interest must be of a personal and not of an official nature."
64. ' The question regarding 'aggrieved person' and 'locus standi' was discussed in 1994 CLC 2322, where in following observations were made:-- "The first and foremost question which arises for determination in this Constitutional petition is whether the petitioner has locus standi to maintain the writ petition. Under Article 199 of the Constitution a petition can only be made by an aggrieved person. A person cannot be held to be an aggrieved person unless he had right in the performance of statutory functions by a person performing functions in connection with the affairs of the Federation or the Province in respect of any right which he may have in relation to the performance of the said functions."
65. In view of the above discussion, we are of the considered view that petitioners have no locus standi to file this petition and as they are not aggrieved persons, as laid down under Article 199 of the Constitution, therefore, the petition is not maintainable, on this score.
66. ' Adverting to the next contention of respondents that the petition is barred by laches in this regard learned counsel for petitioner contended that since it is a recurring cause of action therefore, petition is not barred by laches and further repeated his contention that since petition is a public interest litigation, therefore, no question of laches is involved, whereas Mr. Abdul Hafiz Pirzada, learned counsel contended that after a period of almost 13 years a vested right has been created and petitioners have come after such a long period and even the provisions of Limitation Act does not apply.
67. ' Considering the arguments of learned counsel for parties, it may be observed that first agreement was executed in the year, 1993, between BHP and the Government of Balochistan and thereafter BDA was appointed as an Agent to the Government of Balochistan vide Addendum No,1 to CHEJVA, with the concurrence of the then Governor and further work was assigned to respondent No,4 by respondent No,8, who is presently doing the exploration work and has spent a substantial amount on the exploration and it was respondent No,8 who after hectic efforts succeeded in discovering huge deposits of copper and gold and thereafter assigned its share to respondent No,4 who is now carrying out the work, whereby the CHEJVA as observed hereinabove was legally arrived at between the parties and a vested right has been created in their favour. It may be observed that equity support the vigilant and not the indolent. As far as the contention that it is a recurring cause of action and respondent No,4 was recently inducted is without substance. It may be observed that initially the agreement was executed in the year, 1993 on the basis of which exploration was made by respondent No,8 and after discovery of copper and gold deposits the work was assigned to respondent No,4 who with the passage of time has spent substantial amount of money and has paid about 19 million Dollars to 111:- Government of Pakistan towards taxes. It may be observed here that as per the contention of petitioners that they first received the information through news item dated 26-5-2004, but even then the petitioner did not act in time and waited for over two years to file the petition, without giving any cogent reasons. Besides the said News Article was also rebutted by the same Newspaper on 1-6-2004. It may be mentioned here that the conduct of petitioner in filing the petition after lapse of 13 years is not understandable, as to why they waited for such a long period and further it is their case that they have been trying to get information, which they could not get. It is strange to note that even during the entire proceedings none of the petitioners appeared on a single day and further it is astonishing to note that if the petitioners have concern regarding the loot and plunder of the wealth, lying hidden .In Reko Diq, even they never visited the site to ascertain the actual work done on the site. Thus in our considered view keeping in view the conduct of petitioner and delay in filing the petition, we are of the firm opinion that the petition is hopelessly barred by laches. In this behalf, we are fortified from the case law reported as 2004 SCMR 400, relevant para therefrom reads as under:-- "The dismissal of writ petition on the sole ground of laches depends upon the facts and circumstances of each case, but there can be no exception to the rule that the delay in seeking the remedy of appeal, review or revision beyond the period of limitation provided under the statute in absence of reasonable explanation, can not be condoned and in the same manner if the remedy of writ petition is not availed within reasonable time, the interference can be refused on the ground of laches. However, the laches cannot be equated with limitation and by itself is not a sufficient ground to non-suit a person if the equities are not against him and he has not been sleeping over his right or was not indolent. The question of laches in the writ petition is always considered in the light of the conduct of the person invoking the constitutional jurisdiction of the High Court and the degree of his negligence if any and that if by grant of relief being sought by him no injustice is caused to the opposite party, the constitutional petition should not be dismissed merely on the ground of laches without examining the dictates of justice. The laches in simplest form means failure of a person to do something which should have been done by him within a reasonable time and is not synonymous with delay alone but it can be worked out to the disadvantage to another person in the matter of his right. In suitable cases, the Court in its discretionary jurisdiction, subject to the offering of reasonable explanation, can condone the delay in filing an appeal, review or revision as the case may be and similarly, can also ignore the delay if any in filing the writ petition in the interest of justice."
68. Coming to the next contention of learned counsel for respondents that it is a 'past and closed' transaction, it may be noted that, CHEJVA was executed in the year, 1993, and further Addendum was added to the same with the approval of the then Governor under the 1970 BMC Rules. During this period, no objection whatsoever was ever raised by anyone from the public, moreso none appeared from said District Chagai, where Reko Diq is situated and it was very well within the knowledge of local people of the area regarding execution of CHEJVA and the work was started there, as per the own contention of respondents, local people have also been employed. After relaxation of the 1970 BMC Rules by the Government, everything was carried out in a lawful and legal manner and after 13 years, the petitioners have prayed to strike down the agreement and let everything be washed away. It may be noted that, as observed hereinabove, vested rights have been created and further the learned counsel could not point out any illegality or irregularity in the execution of agreement. Besides the agreement was executed under the 1970 BMC Rules and thereafter the licences were issued after the promulgation of 2002 BMC Rules, which are in accordance with law. The arguments of Mr. H. Shakeel Ahmed, learned counsel for BDA has substance that, at this stage, the relief sought cannot be granted after long period of 13 years, in respect of a past and closed transaction and further writ jurisdiction which is discretionary in nature, cannot be exercised in favour of indolent nor it can be exercised to .Perpetuate an illegality.
69. Hence it is held that being a past and closed transaction, it cannot be re-opened. In this regard, reference may be made to 1995 MLD 1016 (D.P. Edulji & Co.(Pvt,) Ltd. v. Government of Punjab and others).
70. ' It was strenuously argued by learned counsel for respondents that, petition is not maintainable, as alternate remedy is available to petitioner. It may be noted that we are unable to agree with the contention of learned counsel for petitioner that, since this being a question of public importance, therefore, question of alternate remedy may be ignored. It may be mentioned here that, petitioners could have challenged the issuance of Licences under the 2002 BMC Rules, but the petitioners have not chosen to approach the concerned Authority under the 2002 BMC Rules, wherein the alternate remedy is available for redressal of grievance, as agitated in the petition, is available. In this regard reference may be made to 2004 SCMR 400. Relevant para therefrom reads as under:-- "There is no cavil to the proposition that if the remedy of appeal is available to a party under the statute, without availing such statutory remedy the constitutional jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, cannot be invoked and the remedy of writ petition cannot be allowed to be availed as substitution of appeal. Following the above rule, the High Court undoubtedly in the normal circumstances, should not entertain the Constitutional petition if an alternate remedy, under the relevant statute is available to a party but this rule does not create bar of jurisdiction rather it regulars the constitutional jurisdiction of High Court and thus in exceptional circumstances the High Court may exercise its constitutional jurisdictional in a matter in which the statutory remedy of appeal or revision as the case may be.
71. Was available but could not be availed."
72. Coming to the contention of learned counsel Mr. Sajid Zahid that, factual controversy is involved in the petition, thus this Court while exercising jurisdiction under Article 199 would not interfere in the same, as it requires evidence and the learned counsel vehemently argued that since the petition is replete with factual controversy and disputed facts, therefore, this court will not exercise jurisdiction to decide factual controversy. Learned counsel in support of his contention stated that, all the allegations/averments made by the petitioners have been strongly disputed in counter-affidavits.
73. During the arguments, learned counsel demonstrated through the contents of petition and counter-affidavits, that factual controversies have been specially denied. For instance in para. 3 and 7(i) of the petition, it has been alleged that the Geological Survey of Pakistan discovered copper and gold in Reko Diq in 1972, whereas all the respondents have denied and stated that copper and gold in Reko Diq was discovered in the year, 1996-97. Respondent No,4 has denied this version in paras. 6, 13 and 18 of the counter-affidavit, whereas respondent No,8 has denied the same in para. 11.3 of counter-affidavit and respondent No,5 denied in para. 3 of counter-affidavit.
74. ' It may be noted that main source of information for filing the petition is the News Item dated 26th May, 2004, and the contents of the same were specially disputed by all the respondents in addition to pointing out that the said News was rebutted by the same Newspaper in its publication dated 1st June, 2004. The main grievance in the petition was that no actual work has been done at the site, which was strongly disputed by the respondents and it was stated that respondents Nos.8 and 4 have made huge investment. This assertion has been rebutted in paras 11.5 and 11.7 of respondent No,8 counter-affidavit and in para 6 and 16 of respondents Nos.4 and 5 counter-affidavits. As observed hereinabove, that before filing the petition the petitioners even did not care to visit the site to find; whether any work has been carried out and if so to what extent and similarly such allegations made in the petition were also denied by the respondents in their counter-affidavits.
75. We need not go into further details, regarding factual controversy, thus it can be held without any hesitation that factual controversies are involved in the petition, therefore, this Court while dealing the case under Article 199 of the Constitution, should refrain from going into the same. In this behalf reference may be made to 1984 SCMR 377, 1982 SCMR 497, 1997 CLC 562 and PLD 2001 SC 415. Thus while exercising jurisdiction under Article 199 of the Constitution, the courts do not act as a 'Court of Facts' and cannot substitute their own findings.
76. ' Coming to the last contention of learned counsel Qazi Faez lsa that, lot of work has been done by spending huge amount by the respondent No,4 and in this behalf, learned counsel also explained the reasons; as to why such a long period has been consumed in exploration work. It may be mentioned here that Balochistan though is rich in mineral, but the minerals deposits especially the one i,e, copper and gold found in Reko Diq, are lying in a very remote area of the Province, where there is no infrastructure. It takes a lot of time to start mining in such an area, as before starting the work, infrastructure has to be built. In this regard it would be appropriate to refer to the report of UNDP regarding the mineral deposits in the Province. Relevant portion therefrom reads as under:-- "Minerals are believed to be the significant wealth of Balochistan. However this resource has not been fully exploited. It contributes only about 3% of the GDP and employs a small percentage of labour force. The total value of annual production of minerals is Rs:3.4 billion out of which 3.1 billion comes from natural gas alone. This sector has remained under developed because of inadequate resources provided for detailed survey of the potential, lack of physical infrastructure and insecurity to the private sector. Mineral and natural resource of a country require multiphase costly exploration programs. Mining Industry is a complex, complicated, heterogeneous, requires long gestation period, risky and capital intensive. Hence every effort should be made to strengthen this important Industry."
77. "Balochistan has geologic setting favourable for exploration. Evaluation and utilization of varied type of mineral deposits (table 6). It has many showings/prospects of copper porphyry deposit which is being developed by Saindak Metals (Pvt. Limited, presently operated by Chinese (MRDL) & Riko-Diq (explored & evaluated by Australian firm TCC), about 30 porphyry type copper/gold prospects have been identified in Chagai District. Among these Koh-e-Dalil, Dasht-e-Kain, Mashkichah, Tallarak, Kabulkel, etc. Have been explored to some extent. Beside copper/gold deposits, Chagai Island arc is also favourable for hosting iron lead zinc, sulpher and dimensional stones etc."
78. "Primitive, deficient and wasteful mining practices, poor infrastructure & lack of will, non-availability of financial resources, tribal system leading to poor and deteriorating law and order situation, difficult terrain, remote location, non-availability of technical manpower, partial implementation of National Mineral Policy 1995 and poor 'information dissemination are the major constraints and bottleneck in the development of mining culture and mineral based industry in Balochistan. The investor wants to keep his investment safe, and until the Government of Balochistan adopts a clear-cut investor's friendly policy, provides security, motivates tribal chief to maintain law and order .In their .Areas and consistency of its policy, private investors are shy in investing in Balochistan. There is a need that the same yardstick be adopted by the Government for local investors and foreign investors, so that local investors feel security of their investment in Balochistan."
79. ' Now in this background, learned Counsel Qazi Faez Isa stated that, after spending a considerable amount such discovery was made. It may be observed here that it was due to the efforts of respondent No,8 that minerals were discovered, whereas the same would remain hidden for unknown time and the people of Balochistan would not be deriving any benefits. It may also be observed here that if the Project is developed into Mining, the Province of Balochistan will receive royalty in addition to 25% profit and additionally as the area has been declared EPZ, this would further benefit the Government of Balochistan, as it would bring in lot of revenue and though the petitioner has taken an exception, but Saindak Project has also been declared as EPZ and further the main grievance of the petitioner is that after execution of the Agreement no substantial work has been done. In the counter-affidavits filed by respondents it has been mentioned that huge amount has been spent and lot of drilling and other works relating to exploration have been carried out. In as much as while transferring the area by respondent No,8 to respondent No,4, a hugs. Amount has been paid to the Government of Pakistan in the context of taxes. It has been pointed out by respondent No,4 that 60,000 meters of drilling has been undertaken in EL-5 and another 80,000 meters of drilling has been committed till the middle of 2008, and 170 employees and contractors have been employed and accommodated in a modern Camp, besides doing construction of 1.7 km airstrip at Reko Diq. Learned counsel Qazi Faez Isa, demonstrated the carrying out of such work through pictures and Maps, which were not rebutted. Thus we are not inclined to agree with the learned counsel for petitioner that since the time of execution of the agreement, no work has been carried out.
80. ' As observed hereinabove that the petition is based merely on a News Item, which was soon rebutted by the same Newspaper. Since the counter-affidavits filed by respondents have not been disputed by other side thus the inference would be that, same have been admitted and further it may not be out of place to mention here that, since so much amount has been spent initially by respondent No,8 and then by the respondent No,4, therefore, it is but natural that respondent No,4 would be keen in doing the mining at the earliest. Since exploratith is a time consuming work, .Which involves drilling, collection of samples and tests, thus mining cannot be started over a night and further Exploration licences have been issued to the respondents and renewed up to 2008, on the evaluation of work being carried out by them at the site. Thus it can be safely concluded that, lot has been done and efforts have been made to start the mining, which of course is a slow and time consuming process. It may be mentioned here that even the areas after exploration, abandoned by the respondent No,4, the new Investors have applied for the same, thus it cannot be said that mineral wealth of the people have been looted and plundered.
81. ' In the petition, it was prayed that CHEJVA may be cancelled and the entire work may be put to auction. Suffice it to observe that mining areas are not put to auction. Mining licences are issued at different stages, as it is a risky business and after exploration by a party when the area is proved, then it becomes his vested right to do mining. In this behalf, much has been done by respondents, which would be beneficial to the people of Balochistan in coming years.
82. ' In view of the above discussion, we see no merits in the petition, which is accordingly dismissed, leaving the parties to bear their own costs.
83. ' Before parting with the judgment, we would like to place our thanks and gratitude to the learned counsel tor parties, for their valuable assistance.