P L D 2013 Supreme Court 167 (PLP)

ANWAR ZAHEER JAMALI, J.

The petitioners, by invoking the jurisdiction of this Court under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 "the Constitution", making specific reference to Articles 9 and 38 of the Constitution, have brought this petition to agitate their grievance against the respondents for the inordinate delay in the gasification project "the Project" from available Thar Coal Reserves in Pakistan. In this context, they have strongly criticized the respondents for their policies, priorities, non-mobilization of funds etc. and made following prayers in the petition:-- "(1) It is therefore respectfully prayed that development of national natural resources may be allowed to develop for the betterment of all citizen in Pakistan. (ii) It is further prayed no hindrance may be allowed to develop the committed financial project of Underground Coal Gasification at Tharparkar or else where and the Sindh Govt. may be directed to release Rs.200 Millions and Federal Govt. to release funds of Rs.5 billions immediately. (iii) It is further prayed that amount of total required amount at present of Dollars 1.2 Billions, may also be arranged for 84 gasifiers as promised by the Government of Pakistan. (iv) Any other relief to people of Pakistan under these circumstances may be allowed."

2. During the proceedings of the petition, keeping in view the plea of fundamental rights guaranteed to every citizen of this Country under the Constitution qua wider meaning of "fundamental right" given by this Court in its various pronouncements (see: PLD 1994 SC 693), vide order dated 17-4-2012, notices were issued to the concerned Government functionaries/respondents. In response to it, on their behalf, earlier some Government officials have appeared and submitted their replies. Respondent No.3 (Government of Sindh), in its para wise comments has stated that the project in question is federally funded project, approved by ECNEC, therefore, all its funds are also to be provided by the Federal Government, and there is no occasion for the Government of Sindh to release any funds from their budget for the purpose of this project.

3. The petitioner No.2, in his submissions, highlighted the importance of the project for the better future prospects of the economy and the ordinary citizens of this Country. He recounted number of planning lapses, which, according to him, are largely instrumental in derailing the economy, in particular, due to acute shortage of electricity, resulting in closure of number of industrial units of public importance, consequent increase in unemployment and large scale load shedding in urban and rural areas of the Country. To fortify his submissions, he placed on record various reports of planners and experts in the field of electricity generation through use of underground coal reserves. He further placed on record a copy of "Thar Coal Presentation" and bunch of newspapers cuttings to lay further stress for early completion of the project.

4. In order to make further progress in this petition, on 4-10-2012, an order was passed by this Court calling upon the Secretary, Coal and Energy Development Department, Government of Sindh and Secretary, Planning and Development Division, Government of Pakistan to appear before this Court and answer some relevant queries.

5. Today, in response to it, Mr. Ajaz Ali Khan, Secretary Coal and Energy Development Department, Government of Sindh is present. He states that the Federal Government has already released Rs.900 million for the Project and after release of these funds, now work at site is in progress for gasification and initial generation of 8 to 10 mega watts of electricity, which shall be thereafter expanded on regular basis. Mr. Abdur Rehman, Chief (S&T), Planning Commission, present on behalf of Secretary, Planning & Development Division, Government of Pakistan also confirms that Rs.900 million have been already released by the Ministry of Finance, Government of Pakistan for the Project, while the remaining sum of Rs.900 million will also be released within the current financial year, to expedite the progress on this Project. Both the officials are directed to place on record all these facts and figures in writing.

6. Barrister Zafarullah Khan, when confronted with the above factual position, contends that in this regard the policies and priorities of the Government are neither pragmatic nor bona fide, therefore petitioners have been compelled to approach this Court in order to seek necessary directions as regards expeditious completion of the Project, which is likely to play a vital role in the economic development of the country and for the betterment of its poor people.

7. We are afraid that at the instance of petitioners, in order to expedite the progress of the Project, we cannot assume the functions of policy making or determining the priorities of various development projects in the country, which are the exclusive domain and functions of the Federal and Provincial Government, as the case may be, who have their own ministries, departments, commissions and consultants, etc. for policy making, determining the priorities of various development projects and its implementation. It is pertinent to mention here that under the scheme of the Constitution having its structure based on trichotomy of power amongst its different organs i.e. legislature, executive and judiciary, each of its organ has to work and exercise its authority strictly within its mandate, without encroaching upon or usurping the jurisdiction/functions of any other organ of the State.

8. From the bare reading of the Constitution, particularly, Articles 29 and 38 of Chapter 2, Part-II, relating to principles of policy, it is evident that policies are to be made by the respective Federal and Provincial Governments and all decisions regarding their implementation are also to be taken by them on the basis of determined priorities of different projects and availability of financial resources at their disposal. Obviously, this exercise cannot be ordinarily interfered with by this Court by invoking its jurisdiction under Article 184(3) of the Constitution, unless shown to be mala fide or in violation of the fundamental rights guaranteed under the Constitution to every citizen of this Country, thereby affecting the interest of public at large.

9. In view of the above statement of facts by the two concerned officials from the Federal Government and the Provincial Government and the material placed on record, at this stage, we are satisfied that no further action is required to be taken in this petition, which has served its purpose to a greater extent upon release of 50% funds for the Project and commitment of the Federal Government for release of remaining 50% funds within this financial year. Accordingly, this petition is disposed of. MWA/W-5/SC Order accordingl