CH. IJAZ AHMAD, J.--- We intend to decide the following writ petitions by one consolidated judgment having similar facts and law:- W.P. No. 5437/1993; W.P. No. 9510/1996; W.P. No. 5865/1996.
The petitioners filed W.P. No 5437/1993 with the following prayer:- "In view of the above, it is prayed as follows: DECLARATIONS:
(i) All transactions whereby Shares and Management have been transferred in favour of relevant private respondents arrayed above by the respondent Federation through the respondent Commission as per List attached above as Annexure "I, are acts in conflict with specific provisions of the Constitution and the Laws protected by the Constitution and, as such are without lawful authority.
(ii) Respondent Federation has no lawful authority to proceed to transfer any share/property interest in any State-established industrial unit/company as per List attached above except in accordance with Article. 154 of the Constitution read with Economic Reforms. Order, 1972 as amended from time to time and all other relevant Laws culminating in Central Act XXII of 1991.
(i.e) Respondent Federation has no lawful authority to disregard any existing law which specially applies to transfer of State-established industrial Units unless an alternative legal frame-work and policy-guidelines have become available in due course in accordance with Article 154 though the agency of the respondent Council for Common Interests.
(iv) Respondent Privatization Commission has no lawful authority to function in the impugned manner. There is no lawful authority for it to exist.
(v) No legal protection is currently available for any impugned transfer transaction after the lapse of the series of Ordinances called the Protection of Economic Reforms Ordinances.
DIRECTIONS:
(i) Respondent Federation be directed to take back the Shares and Management from the relevant private respondents as per list attached above as Annexure "1" and, to treat them as having always remained vested with it on appropriate restitution being made. (ii) Respondent Federation be restrained from transferring the Shares or Management of any State-established Unit/Company as per list attached as Annexure 11 except in accordance with the manner; method and procedure prescribed by Article 154 of the Constitution read with the Economic Reforms Order, 1972 and all Amendments thereto and all other Law culminating in Central Act XXII of 1992.
(i.e) Respondent Federation be restrained from disbanding any holding Company under the Control of Ministry of Production until and unless all State-established Units have been transferred into private hand in accordance with law.
(iv) Any other relief deemed appropriate to the peculiar facts of this case be also afforded.
Writ Petition No. 9510/1996 was filed by the petitioners with the following prayer:- "In view of the above it is prayed as follows:- DECLARA TIONS:
(I) Petitioners have become entitled to the monetary benefits in terms of the one plus two formula prescribed by the Voluntary Separation Scheme which applies to the facts of the instant case.
(ii) Respondent Federation has become entitled to forfeit Rs. 44 million deposited by respondent Awan National Cement Limited in terms of Sale Agreement/Transfer Deed for the privatized unit on the basis of substantial default in fulfilling the terms and conditions thereof.
(i.e) Petitioners are entitled to receive their due amount out of Rs. 44 million in deposit with the respondent Federation as per table of entitled attached above.
(iv) Respondent Federation has failed to do what the law requires it to do by avoiding/refusing to pay the amounts due to the petitioners out of the amounts forfeited by it and held in deposit for the benefits of the employees such as the petitioners.
(v) Respondent Federation and other respondents have no lawful authority to treat the petitioners in a discriminatory manner as compared to the other similarly situated employees in identical circumstances i.e. Closure of the industrial unit in question.
DIRECTIONS:
(i) Respondent Federation be directed to forthwith treat 44 Million Rupees in deposit with it under the Sale Agreement of the Privatized unit as the Fund available to pay the dues under the Voluntary Separation Scheme.
(ii) Respondent Federation be directed to forthwith pay each petitioner the amount due to him on the basis of the one plus two formula prescribed by the Voluntary Separation Scheme which applies to the instant situation as per table of entitlement attached above.
(i.e) All the respondents be restrained from taking any adverse action against the petitioners in terms of curtailment of any benefits/facilities hitherto enjoyed by them as employees of the respondent Awan Cement Limited until and unless all dues according to them as per table attached above are actually received by them.
(iv) Any other relief deemed appropriate in the peculiar facts of the case may also be afforded, particularly in terms of retention of all housing and other related facilities.
The petitioners filed W.P. No. 5865/1996 with almost similar prayer.
2. The learned counsel for the petitioners submits that respondents privatized the assets of the Federation and statutory bodies owned and controlled by the Federation in violation of the mandatory command of the Constitution which postulates the prior consultation with proper bodies, Council of Common Interest and National Economic Council and relied upon the judgment of the Honourable Supreme Court in Mian Muhammad Nawaz Shanf's case (PLD 1993 S.C. 473). The action of the respondents for privatization is without lawful authority as it is violative of the mandatory provisions of the. Constitution i.e. Articles 153 to 156 read with Item No. 3 of Part-II of the Federal Legislative List of the Constitution of Islamic Republic of Pakistan, 1973. He further submits that respondents have no authority to sell the projects in question without formulating and regulating policies as is envisaged in the aforesaid Articles of the Constitution and relied upon M/s. Gadoon Textile Mills and others v. Wapda and others (1997 SCMR 641) and Khalid Malik and others v. Federation of Pakistan (PLD 1991 Kar. 1) and following enactments:- Date Act/Ordinance{{TABLE}} #TBS 3.1.1973 31.8.1974 15.9.1974 16.9.1979 8.10.1992 #TBE President's Order 1 of 1972 (Economic Reforms Order, 1972 Ordinance XVIII of 1973 (Economic Reforms (Amendment) Ordinance, 1973.
Act LXIV of 1973 (Economic Reforms (Amendment) Act, 1973).
President's Order 12 of 1978 (Transfer of Managed Establishments Order, 1978).
Act XXII of 1991 (Transfer of Managed Establishments (Amendment) Act, 1991). #TBS 16.4.1993 #TBE Act XXXIII of 1991 (Transfer of Managed Establishment (Amendment) Act, 1992). #TBS 28.7.1993 #TBE Act V of 1992 (Transfer of Managed Establishments (Amendment) Act, 1992).
Act XII of 1992 (Protection of Economic Reforms Act, 1992).
He further urges that Item No. 3 of Part-II of the Federal Legislative List clearly envisages "Development of industries" which is an independent category. Therefore, the other two categories prescribed in Item No. 3 are bodies and projects. The Legislature specifically mentioned semi-colon at the end of clause pertaining to development of Industries. The significance of a semi-colon at the end of the clause pertaining to development of Industries is that the last clause which is preceded by a semi-colon is to be read as imposing a duty on the Council of Common Interest to formulate and regulate policies in relation to all projects and undertakings owned wholly or partially by the Federation. The. Constitution has a federal character wherein Provincial Governments are equally interested in their share and distribution of proceeds of sale in view of the aforesaid Articles of Constitution and the law laid down by the superior Courts. Reliance in this regard was placed upon:- (i)- M/s. Gadoon Textile Mills and others v. Wapda and others (1997 SCMR 641);
(ii) Khalid Malik and others v. Federation of Pakistan (PLD 1991 Kar. 1); (i.e) Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 S.C. 473).
Privatization is a policy linked with overall economic conditions of Pakistan and therefore, casts duty upon the respondents to sell the Units of the Federation wholly or partially owned by it after obtaining advice from the National Economic Council which is not secured in the present case and it renders the action of the respondents as not sustainable in the eyes of law. Action of the respondents is also hit by Article 38 of the Constitution, Article 173(1) of the Constitution which envisages Property Contracts, Liabilities and Suits, is not attracted in the present case as the "Industrial Units do not fall under the category of property." Learned counsel for the petitioners lastly submits that Constitution of 1973 was promulgated' and enacted at the time when the concept of Privatization was in the mind of the Legislature and Denationalization was considered at rotten concept. The whole Constitution, therefore, is based on the concept of Nationalization and does not indicate any power with the respondents to Denationalize or Privatize the Industrial Units owned wholly or partially by the Federation which were created through the Public exchequer. Hence, Constitution does not give unfettered power to dispose of the property of the Federation by the respondents without framing guidelines.
3. Kh. Saeed-uz-Zafar, Deputy Attorney General submits that the petitioner has no locus standi to file this writ petition qua the issue involved in this case i.e. The respondents have lawful authority to privatize any project without formulating policy in terms of Article 154 read with Article 156 on the ground that none of the Provincial Governments or Federation have raised any objection qua the privatization process in question. The finding of the Honourable Supreme Court in Mian Muhammad Nawaz Sharif's case (PLD 1993 S.C. 473) at pages 715 and 716 were in view of the letters issued by the Chief Ministers of the Provinces qua the process of privatization whereas in the present case no such letter was addressed by any of the Chief Executives of any Province or by Federation. Therefore, it is presumed that Provinces and Federation have no objection qua the process of privatization. Hence the judgment of the Honourable Supreme Court is not applicable in the facts of this case. He further submits that word sale or disposal is not mentioned in item-3 of Concurrent List Part-II. Therefore, respondents are well within their rights to sell or dispose of or privatize the assets. He further urges that respondents have lawful authority to dispose of or sell the projects in question in view of Article 173 of the Constitution.
He further urges that matter pertains to the policy and this Court has only jurisdiction to interpret the law and has no jurisdiction to take the role of policy maker. In support of his contention he relied upon Ellahi Cotton Mills' case (PLD 1997 S.C. 582) at 675 and 678 and (PLj 1997 S.C. 13) at page
25. He further submits that this Court cannot sit as Court of appeal over the policies framed by the respondents. In support of his contention he relied upon the following judgments:-
(1) Brig. (Retd.) Imtiaz Ahmad v. Govt. Of Pakistan (1994 Pak. Supreme Court Cases 1307).
(2) Muhammad Arshad Khan v. Secretary Establishment (PLJ 2000 Lah. 35).
He further submits that there is no difference between the Ordinance and Statute as the President has lawful authority to issue Ordinance under the Constitution. In support of his contention he relied upon Pir Sabir Shah v. Shah Muhammad Khan (PLD 1995 S.C. 66). He further submits that item No. 3 of Part-II of Concurrent List be read as one sentence and contention of the learned counsel for the petitioners that !t- should be read consisting of three independent sentences is not borne out from the intention of the Legislature. He further submits that absence of the word "sale" in item No. 3 Is significant therefore, respondents have lawful authority to dispose of the projects In question. He further submits that in case the contention of the learned counsel for the petitioners be accepted then it tantamount to read the word "sale" in item No. 3 by this Court which is not permissible in the eyes of law as this Court has no jurisdiction to and or subtract any word in the Constitution on any canon of justice.
4. Mr. Sher Zaman Khan, learned Deputy Attorney General further submits that contentions of the learned counsel of the petitioners have no force in view of Article 173 of the Constitution. The Federation is competent to sell its property without framing any law. He further submits that contentions of the learned counsel of the petitioners were considered and repelled by the Division Bench of this Court in Calicon (Pvt.) Linzited v. Federal Government of Pakistan, etc. (NLR 1993 Civil 364 and 1996 MLD 705). This judgment was upheld by the Honourable Supreme Court in Civil Appeal 1 No 70-L of 1992. The Division Bench of Karachi High Court also considered all the contentions raised .By the learned counsel for the petitioners and rejected the same in Amin Ahmad, etc. v Ministry of Production, etc. (NLR. 1996 Civil 337) and (PLD 1996 Kar. 27). Hence, the judgments relied upon by the learned counsel for the petitioners are not directly ''applicable to the question of law arising in these petitions with regard to Privatization.
Learned Attorney General of Pakistan submits that in Mian Muhammad Nawaz Shanf 's case almost all the learned Judges have written their separate judgments. The view of Mr. Justice Ajmal Mian (as he then was) was not concurred by the other learned Judges. Therefore, judgment of Mian Muhammad Nawaz Shanf's case is not unanimous judgment qua the point involved in this case viz-a-viz C.C.I. (Articles 153-154). The majority judgment Is otherwise. He further submits that Mr. Justice Ajmal Mian (as he then was) interpreted his on judgment in the subsequent judgment in M/s. Gadoon Textile Mills v. Wapda (1997 SCMR 641) and elaborated the Constitutional provisions with more clarity and distinguished the basic features of Mian Nawaz Sharif's case (supra). He further submits that item No. 3 of the Federal Legislative List consists of different parts but each part is controlled by the "Development of Industries" as is evident from the word used by the legislature "as such" in the last category/part of item No. 3. He further urges that it is not the duty and obligation of the Council of Common Interest to fix the prices of Units in question. In support of his contention he relied upon Gadoon Textile Mills's case (supra) (1997 SCMR 641). He further submits that there is no dispute between the Provinces and the Federation. Therefore, questions of interpretation of Articles 153-154 does not arise. He further submits that, this Court has no jurisdiction to decide the Constitutional petitions on the question of law without impleading and hearing the Provinces and the petitioners failed to implead the Provinces in the writ petitions.
Therefore, writ petitions are liable to be dismissed. He further urges that in case the petitioners be directed to implead the Provinces as respondents and any of the Provinces is not in line with federation then this Court has no jurisdiction to take the cognizance of the matter by virtue of Article 184(1) of the Constitution. He further urges that petitioners have no locus standi to file these writ petitions. In support of his contention he relied upon Federation of Pakistan v. United Sugar Mills (PLD 1977 S.C. 397), Gadoon Textile Mills v. Wapda (1997 SCMR 641) and Malik Asad A.I's, case (PLD 1998 S.C. 161) and unreported judgment of the Honourable Supreme Court dated 15.7.2002 passed in C.P.S.L.A. No. 750/2002.
6. Mr. M. Saleem Sehgal, Advocate for Privatization Commission adopted the arguments of the learned Attorney General for Pakistan. In supplement to his arguments, he submits that no Court can take cognizance of non-observance of Articles 153 to 155 of the Constitution of Pakistan in view of Article 154(5) and Article 155(6). He further submits that petitioner has no locus standi to file this Constitution petition qua the action taken by the competent body prescribed under the Constitution even without referring the matter to the Council of Common Interest. In support of his contentions, he relied upon the following judgments:- Federation of Pakistan v. United Sugar Mills Ltd. (PLD 1977 S.C. 397); Khalid Malik and others v. Federation of Pakistan (PLD 1991 Kar. 1).
Kh. Ahmad Tariq Rahim v. The Federation of. Pakistan (PLD 1992 S.C. 646); Mian Muhammad Nawaz Shanf v. President of Pakistan (PLD 1993 S.C. 473).
Amin Ahmed v. Ministry of Production, Government of Pakistan and 3 others (PLD 1996 Kar. 27).
Messrs Gadoon Textile Mills v. WAPDA and others (1997 S.C.M.R. 641).
He further submits that principles of CPC are applicable in Constitutional proceedings. The writ petitions are liable to be dismissed as the petitions did not implead the Council of Common Interest, as respondent. He further urges that Privatization Commission was constituted on 21.1.1991 and the petitioners filed the present writ petitions after a considerable delay, therefore, writ petitions are liable to be dismissed on the well-known principle of laches. He further submits that Privatization Commission was constituted in accordance with law. In support of his contentions he relied upon Workers Union, United Industries v. The Federation of Pakistan (1992 SCMR 2121) and Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 S.C. 473). He further submits that Federation can dispose of the units in-question In view of Article 173 of the Constitution. In support of his contentions, he relied upon the following judgments:- Millat Tractors Employees Trust v. Government of Pakistan (PLD 1992 Lah. 68).
Amin Ahmed' v. Ministry of Production, Government of Pakistan (PLD 1996 Kar. 27).
Calicon (Pvt.) Ltd. v. Federal Government of Pakistan, etc. (NLR 1993 Civil 364), Calicon (Pvt.) Ltd. v. Federal Government of Pakistan (1994 S.C.M. R. 1758).
He further urges that petitioners are not aggrieved persons as the petitioners have filed the aforesaid writ petitions in probono publico. In support of his contentions, he relied upon the following judgments:- Malik Asad A.I and others v. Federation of Pakistan (PLD 1998 S.C. 161).
(PLD 1969 S.C. 34) (There is, no judgment on this page).
He further submits that even in the public interest it Is a condition precedent that petitioners should have some interest to agitate the matter before the Court of law whereas the petitioners have no personal interest, therefore, writ petitions are not maintainable. In support of his contentions, he relied upon the following judgments:- Multiline Associates v. Ardeshir Cowasjee and others (1995 S.C.M.R. 362).
(1999 S.C.M.R. 286) (There is no judgment at this page).
(PLD 1989 S.C. 223) (There is no judgment at this page).
Muhammad Din v. Muhammad Saleem (NIA 1979 Civil 273).
He further urges that action of the respondents Is protected in view of Protection of Economic Reforms Act, 1992. In support of his contention he relied upon the following judgments:- Ameer v. Province of Punjab (1999 CLC 603), Aftab Private Limited v. Central Board of Revenue, Government of Pakistan and 3 others (1999 MLD 122), Mrs. Sandesh Ram Mehta v. State Bank of Pakistan (1992 MID 1372), (NLR 1995 Tax 44) (There is no judgment on the cited page).
He further submits that all possibilities should be explored to protect the action of the public functionaries. In support of his contentions he relied upon the following judgments:- Zahoor Ahmad and others v. The Federation of Pakistan (1999 Lah. I 39), Government of Sindh v. Khalil. Ahmed and others (1994 SCMR 782), M/s. Pragma Leather Industries v. Mrs. Sadia Sajjad (PLD 1996 S.C. 725), Lahore Improvement Trust, Lahore v. The Custodian Evacuee Property, West Pakistan, Lahore' (PLD 1971 S.C. 811), Kh. Ahmad Tariq Rahim v. Federation of Pakistan (PLD 1991 Lah. 78), Hudabiya Engineering (Pvt.) Ltd. v. Pakistan and others (PLJ 1997 Lah. 1693).
7. He further submits that petitioners have no locus standi to file these writ petitions. He further submits that question of law has already been settled by the Honourable Supreme Court in C.P. No. 70-L of 1992. Therefore, writ petitions are liable to be dismissed. He further submits that petitioners were directed to implead all the necessary parties but they failed to comply with the direction of this Court. Therefore, writ petitions are liable to be dismissed.
8. Mr. Abid Adz Sheikh, Advocate for respondent No. 4 submits that petitioner Nos. 1 and 2 have filed the aforesaid writ petitions against respondent No. 4. During the pendency of the writ petitions, petitioners Nos. 1 and 2 had availed the Golden Handshake Scheme on 15.11.1994 and 15.9.1994 respectively, therefore, writ petitions have become infructuous qua respondent No. 4. He further submits that petitioners did not implead all the aggrieved persons as respondents, therefore, writ petitions are liable to be dismissed.
9. Learned counsel of the petitioners in rebuttal submits that judgment relied upon by the learned Attorney General of Pakistan dated 6.7.2002 passed in CPSLA No. -705/2002 has no relevance to decide the present controversy on the following reasons. The petitioners in the aforesaid case filed a suit for specific performance on the basis of agreement dated 15.10.1991 for enforcement of the agreement which attained statutory force in view of the provisions of Protection of Economic Reforms Act, 1992. The interim relief was refused by the High Court on the ground that neither the petitioner made any offer within specified period nor submitted an application on the basis of aforesaid agreement to match the bid offered by the participant in the auction proceedings held by the respondent in the cited judgment. He further submits that observation in the judgment of the Honourable Supreme Court arising out of the interim order being tentative in nature therefore is not a declared law. He further submits that Honourable Supreme Court in the cited judgment dismissed the petition with the observation that the High Court shall decide the dispute without being influenced by the observation of the Honourable Supreme Court therefore, judgment relied by the learned-Attorney General of Pakistan is not applicable in the present case and observations made in para 6 of the cited Judgment are not binding on this Court. He further submits that petitioner has challenged the administrative action of the respondents qua the privatization of the Units in violation of mandatory provisions of Constitution and law framed by the respondents in violation of mandatory provisions of the Constitution. He further submits that judgment of the Honourable Supreme Court in Gadoon Textile Mills' case (1997 SCMR 641) has also no nexus to decide the present controversy as the question was not raised and decided by the Honourable Supreme Court as urged by the petitioners in the present Constitutional petitions. He further submits that respondents have attached decision of Council of Common Interest which reveals that Federation has kept power of regulation qua the units which relates to utility consumption by the public. The petitioners also pray through these petitions that respondents be directed to act in accordance with the provisions of Constitution keeping in view the regulatory power of the Federation. He further submits that power of this Court remains in tact in spite of promulgation of Privatization Commission Ordinance, 2002 in view of Sections 22 and 28 of the said Ordinance.
Learned counsel of the petitioners admits that during the pendency of these writ petitions some of the petitioners had availed the golden handshake scheme but in spite of that the petitioners have locus standi to agitate the matter before this Court on the ground that petitioners at the time of filing the petitions had locus standi and have not withdrawn their power-of attorney by them in his favour.
10. We have given our anxious consideration to the contentions of the learned counsels of the parties and perused the record.
11. Without adverting to the contentions of the learned counsel of the parties on merits we intend to decide the preliminary objection raised by the learned counsel for the respondents qua the locus standi of the petitioners. It is better and appropriate to reproduce Articles. 153, 154 and 184(1) of the Constitution to resolve the controversy between the . Parties:- "153. Council of Common Interests.-- (1) There shall - be a Council of Common Interests, in this Chapter referred to as the Council, to be appointed by the President.
(2) The members of the Council shall be--
(a) The Chief Minister of the Provinces, and
(b) An equal number of members from the Federal Government to be nominated by the Prime Minister from time to time.
(3) The Prime Minister, if he is member of the Council, shall be the Chairman of the Council, but if at any time he is not, a member, the President may nominate a Federal Minister who is a member of the Council to be its Chairman.
(4) The Council shall be responsible to Majlis-e-Shoora (Parliament).
154. Functions and rules of procedure.-- (1) The Council shall formulate and regulate policies in relation to matters in Part 11 of the Federal Legislative List and, insofar as it is in relation to the affairs of the Federation, the matter in entry 34 (electricity) in the Concurrent Legislative List, and shall exercise supervision and control over related institutions.
(2) The decisions of the Council shall be expressed in terms of the opinion of the majority.
(3) Until Majlis-e-Shoora (Parliament) makes provisions by law in this behalf, the Council may make its rules or procedure.
(4) Majlis-e-Shoora (Parliament) in joint sitting may from time to time by resolution issue directions through the Federal Government to the Council generally or In a particular matter to take action as Majils-e-Shoora (Parliament) may deem just and proper and such directions shall be binding on the Council.
(5) If the Federal Government or a Provincial Government Is dissatisfied with the decision of the Council, it may refer the matter to Majlis-e-Shoora (Parliament) in a joint sitting whose decision in this behalf shall be final."
184. Original jurisdiction of Supreme Court.-- (1) Supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute between any two or more Governments.
Explanation.- In this clause, "Governments" means the Federal Government and the Provincial Governments".
(1) The issue with regard to resolution of disputes between any two Governments firstly came-up for consideration before the Federal Court in a case titled Province of Punjab v. Federation of Pakistan (PLD 1956 F.C. 72) and it was held in the following terms:- "The principle underlying that Section which creates a special jurisdiction is that all disputes, whether of law or of fact, on which the existence or extent of a legal right depends must be determined by this Court if the parties to the dispute happen to be the Federation on the one side and any one or more of the Provinces on the other or if two or more Provinces are arrayed against one another, because it is in the highest degree undesirable that the Federation and Provinces should be fighting out their battles in ordinary Courts like common litigants."
(2) Subsequently the issue in question was raised and decided by the Honourable Supreme Court in Federation of Pakistan v. United Sugar Mills (PLD 1977 S.C. 397). The relevant observation is as follows:- "Any dispute arising between one or more Provinces inter se or between the Federation or a Province regarding aforesaid subjects is referable to the Parliament in joint Session for final decision. This Constitutional arrangement also abridges the original jurisdiction of the Supreme Court under Article 184 and correspondingly new power essentially quasi-judicial in character has been conferred on the Parliament in joint sitting."
(3) In 1991 the Sindh High Court again considered the instant issue in a case of Khalid Malik v.
Federation of Pakistan (PLD 1991 Kar. 1) and held as follows:- "The learned counsel for the Federation contended that the Council of Common Interests (CCI) created under Article 153 was not allowed to discharge its Constitutional function and exercise its power despite persistent demands from the Provinces. Tracing the concept and history of CCI the learned counsel referred to ' Constitution Making In Pakistan' published by the Government of Pakistan in 1975 which contains text of Accord on Constitution dated 20.10.1972 between the leaders of the parliamentary parties including late Z.Z. Bhutto the then President of Pakistan, recording unanimous decision before the framing of the Constitution. The Constitution of CCI, its composition, working, control and supervision on various items of the Federal List was agreed. Article 153 requires the constitution of CCI and it is answerable to Majlis-e-Shoora (Parliament) and not the National Assembly. Its functions and powers were considered in Federation of Pakistan v. United Sugar Mills Ltd. (PLD 1977 SC 397) and it was observed as follows:- "Again in one significant respect the federal executive authority has been abridged under the Constitution has been entrusted to a newly created institution called ' the Council of Common Interests'. It is a body quite apart from the Federal executive (See Articles 153-156). The administration of matters falling in Part II of the Federal Legislative List (Railways, mineral oil, natural gas etc.) and item 34 of the Concurrent List (electricity) are entrusted to the Council of Common Interests. This is a body consisting of the representatives of the Federal Government and the four Provinces. Any dispute arising between one or more Provinces inter se or between the Federation or a Province regarding aforesaid subjects is referable to the Parliament in joint session for final decision. This Constitutional arrangement also abridges the original jurisdiction of the Supreme Court under Article 184 and correspondingly new power essentially quasi-judicial in character has been conferred on the Parliament in joint sitting."
By referring to this observe action and provisions of Articles 153 and 154, Mr. Pirzada has highlighted the object, function and the pivotal position CCI occupies In the Constitutional field. Its object is to strengthen and integrate Federation and Provinces, iron out their differences and provide Constitutional justice to the Provinces. Similar provisions are found in Federal Parliamentary Constitutions, Section 135 of the. Government of India Act and Article 263 of the Constitution of India provide for Inter-State Council for inter- provincial conflicts and problems relating to common interest. Pleading for a broader spectrum of Inter-state Council and appointment of Leader of Opposition as its member."
(4) It is pertinent to, mention here that question of law was raised in Mian Muhammad Nawaz Sharif's ease (PLD 1993 S.C. 473)'. Out of twelve Honourable Judges, Mr. Justice Ajmal Mian (as he then was) had taken note of this question of law and observed as follows:- "The President's Secretary raised the above questions first time in the aforesaid letter dated 28.12.1992. The Chief Minister NWFP's letter about NEC is of 8.10.1993 (sic) and about CCI of 9.1.1993 and of the Sindh Chief Minster is of 21.3.1993. The Baluchistan Chief Minister's letter of 6.12.1992 does not refer to CCI, but asked for the payment of balance amount. In my view, the Federal Government should have brought the matter of Privatization in respect of the items covered by the above Constitutional provisions before the CCI. The petitioner's plea that, it was not mandatory is not sustainable."
(5) The question of law was raised before the Division Bench of this Court in a case titled Nadeem Younas v. Wapda (1996 CLC 1090) and it was held as follows:- "As regards the contention that the tariff is to be determined by the Provincial Government, the same is misconceived. It is admitted position amongst the parties that the electricity is on the Concurrent Legislative List and hence the Federal Government as well as the Provincial Government can legislate on the subject. A bare perusal of Article 157 of the Constitution shows that clauses (b), (c) and (d) of sub -Article (2) of the said Article shall be attracted only if the condition as mentioned in Clause (a) of sub-Article (2) are satisfied, which is to the effect that the Province should get supply of electricity in bulk from the National grid for transmission and then distribute itself within the Province. In the case in hand it is the WAPDA who is supplying and distributing the electricity amongst the consumers of various Provinces and not the Provincial Governments. Therefore, the argument that the tariff for distribution of electricity is to ' be determined by the Provincial Government is misconceived, and, hence, is repelled. For the same reasons argument addressed by Mr. Qamar Afzal Khan, Advocate to the effect that it is the Council of Common Interests who alone can determine the price of electricity, the same is also misconceived and is based upon misreading of the relevant Article, hence is repelled.
(6) His Lordship Mr. Justice Ajmal Mian had considered the same in Gadoon 'Textile Mills' case (1997 SCMR 641) and explained the position in the following terms:- "In our view Articles 153, 154, 155, 160 and 161 of the Constitution provide an in-built selfad judicatory and self-executory mechanism in the Constitutional set-up. The object seems to be to generate sense of participation among the Federating Units on sensitive issues of national importance referred to ii the above Articles, and to ensure:-
(i) resolving of any dispute arising between one or more Federating Units inter se or between the Federation and a Federating Unit;
(ii) payment of the not proceeds of the Federal duty excise on natural gas levied at well-head and collected by the Federal Government to the Federating Units in which the well-heads of natural gas are situated; (i.e) payment of not profits earned by the Federal Government or any undertaking established or administered by the Federal Government from the bulk-generation of power at a hydro-electric station to the Federating Unit in which the hydro-electric station is situated;
(iv) carrying out direction issued by the Parliament in its joint session to C.C.I.;
(v) equitable distribution of Federal taxes among the Federating Units and resolving other financial Issues (Article 160 of the Constitution).
29. We are inclined to hold that the matters referred to in Part II of the Federal Legislative List and Item 34 of the. Concurrent Legislative Lict (electricity) are to be brought before C.C.I. For formulating and regulating policies. In Nawaz Shanf's case (supra), it was held (by one of us Ajmal Mian, J.) that before taking any action towards privatization of WAPDA, it was mandatory to have brought the above matter before C.C.I. The rationale of the above conclusion was that hydropower stations were situated in N.W.F.P., which was then opposing privatization of WAPDA. It would not have been proper on the part of the Federation to privatize above hydro-power stations and to create private interest in such . Sensitive installations situated in a Federating Unit without the participation of the Federating Units. So 'the forum for ironing out such a controversy was C.C.I."
"The appellants who have their factories in the above two Federating Units have no locus standi to urge that above Article 154(1) has been violated particularly in view of the fact that there is no Constitutional mandate that C.C.I.'s approval is to be obtained before enforcing any tariff."
(underlining is ours).
12. In view of what has been discussed above, we hold as follows:- Our Constitution contains different Chapters to deal different situations. The aforesaid Articles of the Constitution prescribe specific machinery to harmonize the system of different Governments i.e. To resolve the disputes between the Federation and Provinces or between the Provinces inter se.
Meaning thereby the Constitution prescribes a specific mode for resolution of disputes qua the matters prescribed in the aforesaid Articles of the Constitution of Islamic Republic of Pakistan. The aforesaid Articles are Code in itself, therefore, Provinces or Federation only has the right to voice against the action taken in violation of the aforesaid Articles of the Constitution of Islamic Republic of Pakistan. In case an action has been initiated by any of the Governments without adopting the procedure highlighted in the aforesaid Articles of Constitution of Pakistan then, either Government has only right to agitate the matter before the competent body or before the Honourable Supreme Court in view of aforesaid discussions coupled with the fact that none of the Provincial Governments has come forward to oppose privatization of the Establishments/Projects in question.
In any case the petitioners lack locus standi to raise this controversy before this Court`by invoking the extra-ordinary jurisdiction under Article 199 of the Constitution. Therefore, all the three writ petitions are hereby dismissed.