1. 'MUNIB AHMED KHAN, J.--- Upon perusal of the contents of this constitutional petition, it transpires that privatization or non-privatization is the main issue as the petitioners' union of Lakhra Thermal Power Plant (hereinafter referred to as "the Plant"), which is being run by Lakhra Power Generation Company Limited (hereinafter referred to as "the Company"), has urged that the plant has been privatized contrary to the provisions of Privatization Commission Ordinance LII of 2000 (hereinafter referred to as "the Ordinance) and that the privatization program is contrary to the provisions of Articles 9, 18 and 154 of. The Constitution and is also not transparent. On the other hand the plea of respondents is that the plant has not been privatized but has been leased out for a specific period on the terms and conditions mentioned in the lease document, therefore, neither the privatization law is involved, nor any Article of the Constitution has been violated.
2. ' According to the petitioners, they are representative of union having 466 members and being representative of its employees aimed to secure fair condition for its members in all respect. It has been stated that the respondents have taken upon to privatize the company and keeping in view Articles 153 and 154 of the Constitution, which are alive after 2003, the permission from the Counsel of Common Interest ("CCI") is a constitutional requirement but despite the fact that for the last many years, the matter of privatization was under consideration but no guideline has been provided by. CCI. It has been submitted that in such a situation, the respondents, to change the situation, have embarked upon to lease out the plant for 20 years instead of privatizing while employees were not taken into confidence, notwithstanding the fact that their future is attached to the plant and under the given circumstances a notice under section 24 of the I.R.O., 2002 was given to the respondents to solve the dispute but no response was given, therefore, this petition.
3. ' The petitioners have urged that there is an improvement in the plant, therefore, privatization is contrary to the interest of plant as it is Asia's biggest coal power plant and a national asset, therefore, any deal in this respect should be in accordance with law and transparent otherwise it will be contrary to the public interest. It has been requested that leasing of the plant be declared illegal as it being process of privatization could not be carried out without the directions and supervision of CCI.
4. ' Separate parawise comments has been filed by the respondent No,1 while the respondents Nos.2, 3, 4 and 5 have joined together and respondent No,6 has also adopted independent course by filing its comments. In the comments, the background of Thermal Power Plant has been given and it has been contended that the plant was not privatized but has been leased out for a specific purpose. They have filed several annexures to show that according to the Privatization Commission itself the plant was not being privatized, therefore, no permission was needed from it. Giving the plant's history of privatization it has been stated that, in September, 1993 CCI approved the privatization of WAPDA Thermal Plant/Company along with Lakhra Coal Development Company, which is owned by the Government of Sindh but the Sindh Privatization Commission was not able to take steps in this respect in several years it could not be materialized due to low expected offer as well as other difficulties and at the last referred back the matter by showing its inability by letter, dated 29-6-2006. It has been submitted that keeping in view the public interest as well as continued loses it was directed by the Prime Minister to make arrangement for rehabilitation and operation of the plant and for that purpose it may be leased out to the technical expert. This step was in the interest of the plant/company as the position of the plant was dilapidated and in such a situation good price was not expected and that the plant has not been privatized but was leased out hence Privatization Ordinance was not attracted. It has also been submitted that the petitioners' union was also taken into confidence and offered to take up the plant to run it but it was not in a position and regretted, the letter of union dated 29-4-2003 has been referred in this respect. The gist coming out from the replies of all the respondents is that although once it was intended that the plant/company to be privatized but it was not feasible as its condition was very bad and some improvement was needed by rehabilitation to get reasonable amount and in that spirit the matter was taken up and after proper advertisement some companies were shortlisted and after all the respondent No,6 was found to be competent. The respondents have referred advertisement and lease documents in this respect and have pointed out that the lease agreement was in most beneficial as not only the working capacity of the plant was to be improved from 30 MWs to 84 MWs while the plant at the moment having a capacity of 115 MWs was only working for 20 to 30 MWs and besides increase in capacity, rental income in millions was also agreed by the Lessee with investment of Crore of Rupees with further concession in the rate of electricity and it was all in the interest of company as well as country.
5. ' Mr. Abdul Mujeeb Pirzada, learned counsel for the petitioners have vehemently argued that all intentions of the respondents is to privatize the plant and nothing else. He has referred the advertisement appeared in some newspaper dated 26-7-2003 and has argued that the advertisement itself shows that the matter was considered for privatization by the Federal Government but to dodge that process and to facilitate some blue eyes persons a short-cut has been adopted to jump all the legal requirements and that the lease which has been offered through this advertisement, is nothing but privatization as the plant and machinery is being transferred at throwaway price like Steel Mill, notwithstanding the fact that the petitioners' union was ready to acquire and to run that plant. He has also referred to section 2(i) of the Ordinance, 2000 and stated that the meaning of privatization is given in that Ordinance which include the transfer of whole or part of industry directly or indirectly, therefore, the respondent cannot be allowed to circumvent the factual position by terming the privatization as a lease and that even the lease is to be dealt with under that Ordinance as by virtue of section 42 of the said Ordinance, its overriding status has been retained, therefore, the respondents are even not entitled to take any benefit under any law or including the WAPDA Act, 1958. He submits that since the matter pertaining to generation of electricity, therefore, falls within Part-II of the Federal Legislative List and required importance in terms of the Constitution is to be provided. He has referred the case of Steel Mill reported in PLD 2006 SC 697 to show that the Honourable Supreme Court had interfered in the process of privatization which was not transparent or in the public interest, therefore, the matter of plant in question is also to be dealt with keeping in view its national importance and all this show that the intention of the respondent was to privatize the plant. Learned counsel has referred the letter of WAPDA dated 22-5-2003 written to General Secretary of petitioner as well as letter dated 12-4-2003 written to the latter by Chairman WAPDA followed by reminder and reply of the petitioner to Chairman WAPDA dated 29-4-2003. He argued that these correspondences disclose the intention of respondent to privatize. He submits that it was mala fide on the part of the respondent with intention to avoid CCI, it termed privatization as a lease. He has further submitted that the correspondence shows that once Province of Sindh was interested in privatization but it remanded back the matter to the Centre. He further argued that the power under the WAPDA Act to privatize any of its project on its own has no legal sanctity as the Privatization Ordinance is a later statute in 2000 and that any order on the part of the respondent was required to be specific and clear keeping in view of section 24 of the General Clauses Act and the issue involved was of the greater national importance.
6. ' On the other hand, Mr. Shahid Hamid, learned counsel for the respondent has argued that the petition is based on misconception as the plant in question has not been privatized but has been leased out for a specific terms of 20 years on certain terms and conditions. He has referred the lease documents dated 11-9-2006, which are annexed with the comments of respondents Nos.2 to 5, he has pointed out several clauses including clause 1 on page 2 of the lease to show that the plant has been given on lease for 20 years and under clause 2 of it the employees have been provided certain benefits including retirement benefits during the lease period. He has referred clause 4 to show that substantial amount of rent amounting to Rs,28,835,500 per annum has been retained and that the lessee will also bring foreign exchange towards the improvement of the plant and will also reimburse the WAPDA by US $2.00 millions which were incurred by WAPDA towards rehabilitation of the plant. He has further submitted that the plant was going in severe losses and its energy production capacity was reduced to minimum but under the lease the lessor/respondent No,7 was bound to enhance production capacity of the plant to 571 KWh in terms of clause 4 of the lease. He submitted that by the lease, the intention of the respondent is very much clear 'from the documents itself and the terms and conditions of the said lease are to be carried forward in future and the petitioner, being union, itself can observe the factual position in respect of the lease. Learned counsel has pointed out some other documents of the Federal Government Privatization Commission of Pakistan, Sindh Privatization Commission and argued that it is a fact that once the intention of the Government was to privatize the plant but keeping in view its condition and expected consideration it was decided that before any action in this respect, it was necessary to rehabilitate it, therefore, lease has been executed with this aim. He submits that there might be some confusion even between the Government 'functionary but that has been, cleared by letter dated 31st July, 2006 from the Government of Pakistan Ministry of Privatization and Investment whereby all the concerned have been let to understand that lease was not a privatization, therefore, no NOC was required for the purpose of lease. Learned counsel has also argued that as far as the WAPDA is concerned it has power by virtue of section 8(2)(vii) to privatize its project without resorting to Privatization Commission but without indulging into controversy as to which law i,e, WAPDA Act or Privatization Ordinance will override the others, he has emphasized that since there is no privatization, the discussion is not needed here. He has further referred the advertisement dated 26-7-2003 in the newspaper and after going through the wordings therein has pointed out that this document, which has been relied upon by the petitioners themselves, do not disclose anything but a lease and that for the purpose of leasing proper opportunity to everyone was provided wherein the respondent No,7 succeeded, hence a lease has been executed.
7. He submits that there was no privatization and still the respondents are stuck up to this position therefore, the petition is not maintainable.
8. ' Mr. Malik Qayyum, learned Attorney-General for Pakistan along with Mr. Rizwan Ahmed Siddiqui, learned D.A.-G. Has taken the rostrum and have argued that the lease executed with respondent No,7 is not a privatization as the ownership of the plant has not been transferred in any way while the intention of the Government is to rehabilitate one of its important project. He submits that total capacity of the plant to generate the electricity was 115 MWs. But it was hardly working 20/30 MWs.
9. And was suffering losses, therefore, serious efforts were made by the Government with direction to WAPDA and a very lucrative deal has been struck whereby the interest of the plant, WAPDA, country as well as employees have been improved and safeguarded. Learned Advocate-General submits that the lease deed is an open contract and its terms are lucid and need no interpretation as the same are being followed in its letter and spirit while the petitioners being union are there, to watch the factual position. He further argued that by lease not only the country will have more electricity but the electricity will be provided by the plant at reduced rate. He has also requested for dismissal of instant petition.
10. ' Mr. Yawar Farooqi, learned counsel appearing for respondent No,7 has argued that everything has been done in black and white in respect of the lease and that the respondent No,7 has won the contract in an open competition in a process of time which was an open process and that there is a considerable delay in approaching this Court as the notice for lease was published in 2003 while the petition has been filed in the end of 2006, hence suffers from laches. He further argued that the constitutional jurisdiction cannot be invoked as the petitioners union is not an aggrieved party within the ambit of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 rather it is a beneficiary as not only the terms and conditions of the employees have been safeguarded but all service benefits have been retained and safeguarded. He submits that the lease executed with respondent No,7 is in the public interest keeping in view the factual position through which the plant was going through. He has further pointed out the contents of the petition and stated that the factual position given by the petitioners is in respect of sale of share but he cannot prove it by any mean. He has also pointed out para.7 of the petition and stated that the petitioners themselves are aware that the lease of plant is for about 20/30 years which negate the privatization.
11. ' He submits that the petitioners are not entitled to any relief as it has slept over their alleged right and have jumped to the Court once the lease was executed.
12. ' Exercising the right of rebuttal, Mr. Abdul Mujeeb Pirzada, learned counsel for the petitioners has argued that above contention of learned counsel is not correct and that the WAPDA Act does not empower it to privatize its project in view of overriding status of the Privatization Ordinance and that according to its explanation clause of section 8 of the WAPDA Act, it is a privatization which contention is also to be considered keeping in view section 2(i) as well as section 5 of the Ordinance LII of 2000 which shows that these are the function and power of the Commission of privatization. Learned counsel submits that the rules have also been framed under the Privatization Ordinance but all the laws and rules have been avoided and privatization has been illegally termed as a lease but it is still being controlled by the Privatization Ordinance, hence the lease is illegal and contrary to law and it is to be struck off.
13. ' After having heard the arguments advanced by all the learned counsel' for the parties, perused the material available on record and examining the case-laws cited at Bar.
14. ' We have observed that the petition has been filed with the basic contention that the plant/company has been privatized as envisaged by Privatization Ordinance but several sections of the said Ordinance including sections 22 to 26 have not been followed nor any approval from the Council of Common Interest ("CCI") as required under Article 154 of the Constitution has been obtained to privatize the plant/company, hence grave violation of the Constitution has been committed. In this situation, the question before us is to see as to whether the process and the document of lease dated 11-9-2006 is truly a privatization or not and for the said purpose, the intention of. The respondents is to be firstly gathered from very much trumpeted documents i,e,; advertisement in the newspaper dated 26-7-2003 of which first portion is reproduced as under:-- "The 150 MW Fluidized Bed Combustion coal-fired Power Plant Lakhra, near Khanote, District Dadu, on the Hyderabad-Dadu Road, about 50 Kms from Hyderabad, is to be privatized through the Sindh Privatization Commission (SPC), as per the decision of the Federal Government. This Company has determined, in consultation with WAPDA, the major shareholder, PEPCO, the GOP appointed management company, and the SPC that the plant requires major rehabilitation. For this purpose, it is proposed to appoint an internationally experienced operator for Rehabilitation, Operation, Maintenance and Management (ROMM). It is expected that ROMM will prove an effective route to privatization, but the final decision will be made in consultation with SPC."
15. ' The said advertisement has been followed by some letters specifically letter dated 12-12-2005 from Ministry of Water and Power Government of Pakistan to WAPDA of which contents are as under:--- "I am directed to state that the Prime Minister has been pleased to approve that WAPDA to complete rehabilitation to increase the available capacity of the Lakhra plant from 30 MW to 84 MW and be allowed to facilitate studies by parties intending to make proposals for lease, rehabilitation and operation of the plant. Such proposals may be at their risk and cost with no commitment from WAPDA or GOP. Government of Sindh may not pursue the lease option, as it was not included in Chief Executive of Pakistan's directive of June 12, 2001.
16. ' It is requested to please take further necessary action in the matter under intimation to this Ministry."
17. ' The letter dated 24-8-2006 was written by the Government of Sindh to WAPDA giving thereby NOC for lease and para.2 of the said letter is as follows:--- "The Chief Secretary, Sindh called a meeting on 21st August, 2006 wherein it was decided that the Government of Sindh has no objection to the leasing out of the Lakhra Power Generation Company Ltd. On the following conditions:"
18. ' Another letter is dated 31st July, 2006 written by Ministry of Privatization and Investment, Government of Pakistan to NEPRA and WAPDA and the last para. Of the same is as under:--- "(3) In view of the above, WAPDA and NEPRA are requested to kindly enlighten the Privatization.
19. Commission as to why a NOC is required from the Privatization Commission. To lease out LPGCL for 20 years (reference WAPDA letter under reference) besides the approval for modification of the terms and conditions of the licence including a change in the status of ownership such as proposed leasing of LPGCL as desired by NEPRA vide its letter No,NEPRA/R/TRD-32/5738-41,dated 6- 7-2006 to the Member Power WAPDA."
20. ' The above letters were followed by a meeting of WAPDA Authority in which leasing was approved.
21. There came another letter from the Chief Operating Officer of Central Power Purchasing Agency written to NEPRA in which it was pointed out as follows:-- "Keeping in view the slow pace of Privatization the Prime Minster of Pakistan approved and directed to complete the rehabilitation of Lakhra Power Plant to increase its availability from 30 MW to 84 MW and to facilitate the parties intending to make proposals for lease, rehabilitation and operation of the plant which was conveyed by Ministry of Water and Power vide letter dated December 12, 2005 to WAPDA."
22. 'In the light of above letters, when one go through the lease deed dated 11-9-2006 then it would appear that it is for a specific period of 20 years. In clause (b) of the said lease deed on opening page, the intention of the parties do appear, which is as follows:--- "(b) The lessee is desirous of obtaining the Demised Premises, on lease from the lessor, having all the technical know-how and financial capacity to upgrade, rehabilitate, re-commission, operate and maintain the plant and generate electricity for sale to the NTDC (the "Permitted Usage"). "
23. ' It can also be observed through clause 2 of the said lease deed that the benefit of the workers in respect of salaries, wages, social and retirement benefits and all actuarial liabilities of the employees for lease period have been guaranteed by the lessee. By clause 4 of it, minimum annual generation of energy has been guaranteed to 571 million KWh. While annual rent of Rs,28,835,500 is undertaken. According to clause 5 of the lease deed, an amount of Rs,2 million is to be reimbursed by lessee to WAPDA towards spare parts which were ordered by the lessor in the past towards rehabilitation. As far as termination of the lease is concerned, certain provisions are being inscribed in the lease including the force majeure clause and by virtue of clause 10 at the last page of the lease it has been agreed as follows:-- ".(10) It is agreed between the parties that on the expiry of the lease period, the lessee shall forthwith restore physical possession to the lessor, without any costs to the lessor. If the lessee thereafter is desirous of taking a further lease, it shall be negotiated afresh."
24. ' It has also been agreed that in case of any dispute, the parties can resort to the arbitration.
25. 'In the light of above documented position as well as explanation by the respondents in writing and the arguments of the learned counsel of the respondents including the learned Attorney-General for Pakistan, we can conclude nothing but that the arrangement through the lease is not a privatization under the Ordinance No,LII of 2000 but a lease for a specific period on certain terms and conditions. The term of lease can give open impression that it is not only in the interest of the plant/company but the employees, public and the country as well the lessee i,e, respondent No,7 has not been given right to terminate the employment of existing employees within one period which is normal in privatization cases and has been bound to act within the parameter provided under the lease. We have also gathered the documents appearing on record that although it was once desire of the Government to privatize the said plant but that was not implemented keeping in view the status and dilapidated condition of the plant and because of the said reason it was decided to rehabilitate the same and thereafter to think over it. The correspondence shows that the Government and the Privatization Commission as well as the Province of Sindh finding it not proper to privatize the plant opted and consented for the lease with the apparent intention to rehabilitate to improve its working and to strengthen it in all respect. In such a E situation, when we find that the plant has not be privatized, therefore, any observation on its effect by the relevant Articles of the Constitution as well as provisions of Privatization Law is not warranted. In such a situation the petition has no force and is misconceived, hence dismissed with costs.