' QAZI FAEZ ISA, C.J.--- That whilst it was carrying out mining activities certain disputes arose between Pakistan Petroleum Limited (the petitioner) and Messrs Faheem Iron Ore (respondent No,4), which culminated in the filing of Civil Petitions Nos.521 and 522-K of 2009 before the Hon'ble Supreme Court. That vide order dated 9th July, 2009 leave to appeal was granted against the judgment of this court passed in Constitutional Petitions Nos.405 and 406 of 2008 and the parties were directed to "maintain status quo", which order was continued in Civil Appeals No,188-K and 189-K of 2009, and continues till date. The disputes between the said parties have as yet not been decided.
2. That during the pendency of the appeal filed by the respondent No,4 before the Hon'ble Supreme Court letter dated 7th May, 2013 was written by the Deputy Secretary (Technical), Government of Balochistan. Mines and Minerals Development Department to the Director General, Mines and Minerals Balochistan, Quetta, which is reproduced hereunder: "SUBJECT: REQUEST OF MESSRS FAHIM IRON ORE FOR REOPENING OF IRON ORE MINE IN DISTRICT CHAGAI.
' The undersigned is directed to refer to the subject noted above and to state that in pursuance of the directive of the Chief Minister, received through his Principal Secretary, the subject case was submitted for perusal/orders of the Hon'ble Chief Minister Balochistan. The Chief Minister after having perused the case and the explanation of the Law Department has been pleased to direct as under: "Messrs Fahim Iron Ore be allowed to continue its mining activity in the allotted area till such time the matter is decided by the Supreme Court of Pakistan."
' The Chief Secretary has also directed the following:--- "Please to it that we, in no way, violate Supreme Court orders"
' It is therefore requested to kindly take necessary action in the matter by implementing the orders of the Supreme Court in the subject-matter issued on 9-7-2009 and 3-9-2009 in letter and spirit."
' The aforesaid letter is one of the two letters that have been impugned in this petition; the other is letter dated 15th May, 2013 written by the Deputy Commissioner, Chagai (respondent No,3) to the Commandant Kharan Rifles Nokkundi reproduced hereunder:- "Subject:- REQUEST OF M/S FAHIM IRON ORE FOR REOPENING OF IRON ORE MINE IN DISTRICT CHAGAI ' Please find enclosed herewith copies of the letter No, DG (MM) ML-Iron Ore (12)/2144-48 dated 8- 5-2013 Director-General Mines and Mineral Balochistan Quetta, wherein the DG Mines has withdrawn his earlier letter No,DG(MM) ML-Iron Ore (12)/2500-04 dated 18-4-2012 regarding Disputed Mining Lease at Chigen Diq Nokkundi. Keeping in view the above withdrawal letter, the concerned parties ,are allowed to resume mining activities in the said area."
3. Mr. Amanullah Kanrani, the learned counsel for the petitioner stated that the impugned order of the Chief Minister and both the impugned letters are in contravention of the status quo orders of the Hon'ble Supreme Court and have been written in respect of a matter which is sub judice before the Hon'ble Supreme Court and as such the same may be declared illegal, unlawful and without jurisdiction. He further stated that the applicable law, i,e, the Balochistan Mineral Rules, 2002 ("the Rules"), does not grant the Chief Minister any power to pass the impugned order, and, therefore, the Chief Minister should not have entertained the request/application of the respondent No,4.
Reliance has been placed upon the following cases: ' New National Mining Corporation v. Government of Balochistan PLD 1977 Quetta 15, ' Siraj Din v. Amanullah Qureshi PLD 1980 Supreme Court 1, ' Muhammad Asghar Khan v. Mirza Aslam Baig PLD 2013 Supreme Court 1 and ' S.M. Waseem Ashraf v. Federation of Pakistan, 2013 SCMR 338.
4. Notices were issued to the respondents, and respondent No,2 (Director-General Mines and Minerals) and respondent No,4 filed their respective replies. The respondent No,2 acknowledged that a dispute was pending adjudication before the Hon'ble Supreme Court therefore, if any violation of the Hon'ble Supreme Court order had taken place, the petitioner should approach the Hon'ble Supreme Court. The respondent No,2 sought to justify the issuance of impugned letter dated 7th May, 2013, as follows: "The order of official respondents were passed as a routine after an inquiry on the request of respondent No,4 and on submission of recommendations and approval of the same". It was further stated that since the matter is sub judice before the Hon'ble Supreme Court the petition should be dismissed.
5. Mr. Abdullah Baloch, learned Advocate on behalf of respondent No,4, opposed the maintainability of this petition, as according to him, the petitioner had filed a contempt application under Article 204 of the Constitution read with sections 3, 4 and 5 of the Contempt of Court Act, 2003 in respect of the orders passed by the Chief Minister, therefore, the petitioner could not file a petition under Article 199 of the Constitution since the remedy had already been availed before the Hon'ble Supreme Court; and, since the petitioner had suppressed this fact he was not entitled to any discretionary relief. He relied upon the following cases: --- ' Muhammad Yaqoob v. Behram Khan 2006 SCMR 1262, ' Nawab Ferozuddin v. State 2009 MLD 94 and ' Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari 2012 SCMR 366.
6. Availing of his right of reply Mr. Amanullah Kanrani stated that the petitioner had not filed any contempt application before the Hon'ble Supreme Court. The application, copy whereof has been filed with the respondent No,4's reply, shows that one Atta-ur-Rehman, Managing Director of Al- Rehman and Brothers, was the applicant. Learned counsel further stated that the impugned letters constitute contempt of the Hon'ble Supreme Court and are also illegal and ultra vires the Rules, and a party may seek the punishment of the person who is violating the orders of the Hon'ble Supreme Court or seek to set aside the same, or seek both remedies. He stated that the objective of the petitioner is not to seek the punishment of any individual, but rather to ensure that the law is upheld and illegal orders are struck down; therefore, whilst the petitioner could also submit a contempt application before the Hon'ble Supreme Court the petitioner has restricted itself, for the time being, to undo the impugned letters. He further stated that since the impugned letters have not been assailed by the petitioner before the Hon'ble Supreme Court, and as the same constitute an independent cause of action, the petitioner was within its right to approach the High Court in the first instance.
7. We have examined the application attached with respondent No,4's reply that is stated to have been filed by the petitioner before the Hon'ble Supreme Court for initiating contempt of court action. The said application has clearly not been filed by the petitioner, therefore, Mr. Abdullah Baloch's contention that the petitioner has approached both the Supreme Court and this court with regard to the impugned order and letters and allegedly suppressed the filing of the application is not factually correct.
8. That admittedly, there is a dispute between the parties, which is pending adjudication before the Hon'ble Supreme Court; therefore, we cannot comment thereon. The question which however requires consideration is whether the impugned order of the Chief Minister and the impugned letters, issued pursuant to the same, are lawful and, whether during the subsistence of the appeal before the Hon'ble Supreme Court, the same should have been written. We agree with Mr. Amanullah Kanrani that initiation of contempt action and impugning an action are separate and distinct. In this case the petitioner has chosen not to initiate contempt action but instead sought to have the impugned letters declared illegal and ultra vires.
9. It remains to be considered whether the petitioner is debarred from filing a petition under Article 199 of the Constitution and assail an act that took place after the filing of the petition/appeal before the Hon'ble Supreme Court, and which has not been impugned before the Hon'ble Supreme Court. Admittedly, respondent No,4 approached the Chief Minister despite the fact that the dispute between the parties was pending before the Hon'ble Supreme Court. In case respondent No,4 wanted to seek a concession or permission it would have been appropriate for the respondent No,4 to have submitted an application before the Hon'ble Supreme Court for issuance of appropriate orders. This it did not do. Instead respondent No,4 approached the Chief Minister, who was not empowered under the Rules to entertain an application, nor could he have passed an order in respect thereof under the Rules. However, despite such lack of powers the Chief Minister passed the impugned order, reproduced in the impugned letter dated 7th May, 2013, reproduced hereunder:-- - "Messrs Fahim Iron Ore be allowed to continue its mining activity in the allotted area till such time the matter is decided by the Supreme Court of Pakistan"
' That the impugned letter dated 15th May, 2013 of the Deputy Commissioner was a follow up to the impugned order of the Chief Minister.
10. That neither, Mr. Shai Haq Baloch, the learned Assistant Advocate-General, nor Mr. Abdullah Baloch were able to show under which law the Chief Minister could have passed the impugned order. The Chief Secretary appears to have been cognizant of the lack of jurisdiction and authority of the Chief Minister as he wrote that, "Pl see to it that we, in no way, violate Supreme Court orders."
11. That in view of the fact that the Chief Minister did not have any power under the Rules to hear or decide the application that was submitted to him by the respondent No,4, therefore the order passed by him, reproduced in the impugned letter dated 7th May, 2013, was ultra vires the Rules.
12. We, therefore, allow this petition and declare that the impugned order of the Chief Minister contained in the impugned letter dated 7th May, 2013 and the subsequent letter of the Deputy Commissioner dated 15th May, 2013, which appears to have been issued in continuance of the same, are illegal, ultra vires and consequently of no legal effect. The parties are left to bear their respective costs.