MOHAMMAD SAYEED AKHTAR, J.- The facts culled from the Constitutional petition and the documents attached with it are that the appellants (the petitioners in Constitutional petition) are running business of Stone Crushing in Taxila District Rawalpindi. They are allegedly lease holders of mineral blocks from the Provincial Government under the Punjab Minor Minerals Concession Rules, 1990. Lime stone required by the appellants was quarried from the said mining blocks. The respondents held auction for lease holder rights in respect of 278 blocks on 3.9.98. The appellants deposited 5% of ,the bid money but they were not issued work orders. The petitioner filed W.P. No. 2057/1998. Iftikhar Hussain Chaudhry, J. Passed the following order:- "1 direct that:-
(a) The Director, Mineral Department shall call upon the petitioners/successful bidders to clear their dues, indicating the amounts due. Any dispute about the demand/or amount due shall be resolved mutually by the parties. As submitted by learned counsel for the petitioners the Director would keep in view his earlier decision (contained in his memo, dated 18.2.99 to his Minister) given in a similar matter. The petitioners/successful bidders will thereafter, clear their liabilities. This exercise shall be completed by 31 May, 1999.
(b) The respondents may decide about the fate of proposed buffer zone' by the aforesaid date, In case no decision is competently taken regarding establishment of the 'buffer zone' by 31.5.1999, the successful bidders, who would have paid their dues, shall be issued the work- orders after execution of lease agreements in terms of the auction held on 3.9.1999, and they shall be permitted to carry on their work in accordance with the terms of lease.
(c) The petitioners/stone-crushers shall cease their operation-quarrying, extraction and crushing of stones, forthwith. The respondents shall have recourse to necessary measures to stop the operation till work-orders are issued to the successful Aiders. The respondents, however, shall not forcibly remove the stone crushing equipment of the petitioners from present sites till 31.5.1999.
The above arrangement is acceptable to the parties, as well."
The respondents did not comply with the abovesaid order. A Criminal Original No. 92/1999 was filed which was disposed of by Muhammad Nawaz Abbasi, J. On 16.6.1999 on an undertaking that the operation of the crushing of stone will not be disturbed by the respondents till the area is declared as. 'buffer zone'.
2. The Governor of Punjab vide Notification No. V (ISMD) 8-11/91, dated 22.6.2001 in the exercise of powers conferred by section 2 of the Regulation of Mines and Oil Fields and Mineral Development (Government Control) Act, 1948 and Rule 31 of the Punjab Minor Mineral Concession Rules, 1990 declared an area of 1000 yards from Islamabad Capital Territory boundaries extending into Rawalpindi District of Punjab as ' buffer zone'/prohibited area for mining and crushing of minerals of any kind for preservation of environment for public purpose. In pursuance of the said Notification Director of Industries and Mineral Development Punjab, Lahore issued a notice on June 23, 2001 to the appellants to Stop mining of limestone forthwith and remove/shift the mining machinery i.e. Crushers and other relevant installations etc. Within a period of six months from the date of issue of the notice. The appellants assailed the said Notification dated 22.6.2001 and the notice dated 23.6.2001 in Constitutional Petition No. 2667/2001. Another Writ Petition No. 2647/2001 was filed by Stone Crushers Association, Taxila.
Both the Constitutional petitions were disposed of with the observation as under:- "The Secretary to the Government of the Punjab Industries and Minerals Development is directed to look into this, matter hear the petitioners and then pass a lawful order on this aspect of the case."
3. The learned counsel for the appellants contended that the Governor Punjab was not empowered under Section 2 of the Regulation of Mines and Oilfields and Mineral Development (Government Control) Act, 1948 to create a buffer zone'/prohibited area for mining and crushing of minerals. He submitted that under Rule 31 of the Punjab Minor Mineral Concession Rules, 1990 power vests in the Licensing Authority and the order has not been passed by Licensing Authority. If an area or a portion thereof under a lease was required at any time for any public purpose, the Licensing Authority could ask for release of the area. Learned counsel argued that the creation of a buffer zone'/prohibited area for mining and crushing of minerals of any kind for preservation of environment was not a public purpose and environment protection was not the subject-matter of Act XXIV of 1948. He further submitted that the Licensing Authority could not ask the appellants to remove their crushing plants/installations from the land as the same did not vest in the respondents. The respondents could only stop the quarrying of the minerals but could not be deprived of the use of their machinery/plants which had been installed after spending a colossal amount. The appellants would like to continue the business of stone crushing by importing the same from other areas. He urges that neither buffer zone' nor ' public purpose' has been defined in the Act or the Rules. The power has been exercised by the respondents in arbitory and colourable manner. It was lastly argued that if the Notification is upheld, about 30000 persons shall, be deprived of their livelihood. Learned counsel varyingly stated that the Fecto Cement Factory, Stone Company, Industrial Sector T-9 are omitting 314 UGM and 520 suspended particles whereas the concentration of total suspended particles in the prohibited zone is only 185 UGM.
Conversely the Learned Advocate-General, Punjab raised a preliminary objection that I.C.A, was not maintainable as an appeal was provided under the law. He contended that decision regarding the creation of buffer zone' was not taken in haste. Voices of dissent were heard. After taking into a number of considerations the decision was taken by the Federal Government to direct the Provincial Government to declare it as 'buffer zone'. The surroundings are two important places, Taxila civilization and Taxila Defence Installations. The appellants were offered an alternate place despite the fact that they were not the owners of the land/area. It belongs to the State. Only 20% land was owned by the private persons and they were not appellants before this Court nor the appellants were the lessees. He urged that successful bidders cannot be dubbed as lessees.
Reliance was placed upon Javaid Iqbal Abbasi and Company Vs. Province of Punjab and 6 others (1996 SCMR 1433) and Saeed Afzal v. Mumtaz Hussain and others (1994 PSC 1349). He further submitted that the public purpose' was apparent and the Government was only arbiter of the same. Reliance was placed upon Pakistan through M/O Works, Govt, of Pakistan, Karachi and another v. Muhammad Ali and others (PLD 1960 S.C. 60). The appellants had already availed the facility of excavation of crushing, Rs. 17,00,00,000/- were due from them. Lastly it was urged that the appellants had no locus standi to file the writ petition.
4. We first take-up the preliminary objection raised by the Learned Advocate-General about the maintainability of the appeal. An appeal is competent under Rule 48 of Punjab Minor Minerals Concession Rules, 1990 before the Director of Industries and Mineral Development if a person is aggrieved by an order of Licensing Authority passed under these Rules. In the instant case the Notification has been issued by the Governor Punjab and no appeal is provided against the said order. The notice dated 23.6.2001 has been issued by the Director as a consequence of Notification issued by the Hon'ble Governor Punjab. We tend to agree with the learned counsel for the appellants that the I.C.A, is maintainable.
5. The impugned Notification dated 22 June, 2001 has been issued under section 2 of the Regulation of Mines and Oilfields and Mineral Development (Government Control) Act, 1948 read with Rule 31 of the Punjab Minor Minerals Concession Rules, 1990. Section 2 of the Act XXIV of 1948 empowers the appropriate Government' "to make rule to provide for all or any of the matter" enumerated therein. '
Appropriate Government' has been defined in section 6 of the afore-mentioned Act as under:- "6. Definition of appropriate Government.- In this Act, "appropriate Government" means, in relation to the mines of nuclear substances, oil-fields, and gas-fields, and development of such substances, mineral oil and gas, the Central Government and, in relation to the other mines and mineral development, the Provincial Government."
The Government of Punjab is the Appropriate Government' in the instant case. Rule 31 of the Punjab Mines Minerals Concession Rules, 1990 reads as under:- "31. Exclusion of lands for public purposes etc.- If an area or a portion thereof held under a lease is required at any time for any public purpose, the lessee shall forthwith release to the Licensing authority such area and to such extent as is required by the Government and in such a case the bid money will be reduced proportionately."
The above rule would clearly reveal that whenever an area or a portion thereof held under a release is required by the Government at any time for any public purpose, the lessee is bound to hand over the same to the Licensing Authority. The controversy centres around the public purpose for which the area is required. The term ' public purpose' has not be defined in the Act and the Punjab Minor Minerals Concession Rules, 1990. There are many statutes in which the expression public purpose' occurs. Similar phrase has been used in the Land Acquisition Act, 1894. It employs the expression ' public purpose in a very wide sense, It is impossible to place any limit upon the purposes which in the light of the exercise of governmental power over large territories and populations, in respect of the multifarious activities go on in the new system of development being carried out by the Government. In the case reported as Hamabai Framjee Vs. Secretary of State for India; (AIR 1914 P.C. 20) wherein the expression ' public' purpose' occurring in an instrument of lease was explained as under:- "I make no attempt to define precisely the extent of the phrase public purposes' in lease; it is enough to say that, in my opinion, the phrase, whatever else it may mean, must include a purpose i.e., an object or aim, in which the general interest of the community as opposed to the particular interest of the individuals, is directly and widely concerned."
In the case Pakistan through M/O. Works, Govt, of Pakistan, Karachi and another v. Muhammad Ali and others (PLD 1960 S.C. 60), Pakistan through the Secretary, M/O Defence v. Province of Punjab and others (PLD 1975 S.C. 37), Muhammad Akbar (through legal representatives) and seven others v. The Commissioner, Rawalpindi Division and 2 others; (PLD 1976 Lah. 747) and Muhammad Ashraf Khan v. Revenue E.A.C, and 7 others (1980 CLC 1504). The said connotation Was approved. Now it is widely accepted that the general interest of the community, as opposed to the particular interest of the individuals is to be respected.
6. In the similar circumstances, in the case of Rural Litigation and Entitlement Kendra, Dehradun and others v. State of U.P. And others (AIR 1985 S.C. 652) the Indian Supreme Court directed closure of 'C' category mines and also 'B' category mines on permanent basis. The Court observed:- " It is the price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with the minimal disturbance to ecology and balance and without hazard to them, to their cattle, agricultural land, etc." In Rural Litigation and Entitlement Kendra and others v.
State of U.P. And others (AIR 1987 S.C. 359) the Court stated as under:- "It is for the Government and the Nation not for the Court to decide whether the deposit should be exploited at the cost of ecology and environmental consideration or the industrial requirement should be otherwise satisfied, It, may be perhaps possible to exercise great control and vigil over the portion and strike a balance between preservation and utilization; that would indeed be a matter for an expert body to examine and on the basis of appropriate advice, government should take a policy decision and formally implement the same." Consciousness regarding environmental protection is of recent origin and this sense is on the increase. The human society is always progressing, law cannot be static. Society changes and the law has to help in the form of this transformation. A balance has to be maintained between the conflicting interests. Plants posing danger to the health in the neighbourhood have to be weighed against various considerations, such as welfare of the people. The Govt, has the responsibilities in relation to environmental matters, river pollution, clean air and noise control. The Notification has not been issued in haste but after conscious application of the mind keeping in view the importance of the areas one of the oldest civilization and the ecology requirement. Gandhara and Budhist civilization is a national asset and is to be preserved.
7. Generally, environmental matters can be tackled in three ways; voluntary efforts, regulatory regimes and economic means such as environmental taxation. Voluntary efforts have their limits, as past experience amply shows. Regulations should be minimised so as not to hurt long term economic growth. The Government has chosen the process of regulation. We are of the view that keeping in view the importance of the area the Notification has been rightly issued in the public interest i.e. For public purpose.
8. As far as the contention of the Learned counsel for the appellants that they are the owners of the land and cannot be directed to remove their machinery/plants is concerned there is nothing on record to show the title of the appellants in the land. The Learned Judge-in-Chamber rightly observed that:- "It is verbally argued before this Court that the lands upon which the installations have been made belonged to the private owners and not the Government, and, therefore, the Government had no locus standi in asking them for the removal of the installations or structure or imposing penalties so long as they were not indulging in excavation minerals."
In the absence of any documentary evidence regarding ownership of land by appellants, it would be futile to divulge on this point. Similarly, there is no report or evidence regarding the strength of total suspended particles in the area. Likewise the question of 30000 persons becoming jobless cannot be gone into by this Court as these are all policy matters. We also have our doubts about the figure. These points can be urged before the Government. Pakistan being a welfare state, every Department and organ of this country must always endeavour to seek the welfare of the people.
The concept of social justice would stand defeated in case the hierarchy of officialdom go on ignoring the well-being of the people.
It is on record that the appellants have declined to accept the alternate land. The Learned Judge- in-Chamber has provided ample relief to the appellants by allowing them to urge these points before the Secretary to Government of Punjab Industries and Minerals Development, where all these matters can be thrashed.
9. For what has been discussed above this appeal has no merit and is dismissed leaving the parties to bear their on costs.