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Saturday, May 11, 2013
SC turns Riko Diq accord null and voidby Hasnaat Malik
ISLAMABAD: Giving a detailed judgement over Riko Diq case, Supreme Court (SC) has turned the execution of Chagai Hills Exploration Joint Venture Agreement (CHEJVA) order as illegal and void.
The detailed judgement issued by SC said that CHEJVA was executed contrary to the provisions of Mineral Development Act, 1948, Mining Concession Rules, 1970 and Transfer of Property Act, 1882 therefore it does not stand any legal value or authority. Earlier, a three-member bench headed Chief Justice Iftikhar Muhammad Chaudhry and comprising Justice Gulzar Ahmed and Justice Sh Azmat Saeed had heard the case for several months and announced short order on January 7, 2013.
CHEJVA was entered into in violation of a large number of provisions of BMCR 1970, therefore, it opposed public policy, which calls for across the board enforcement and application of the laws of the land, said the judgement. The 149 pages judgment announced on Friday, authored by Chief Justice Iftikhar Muhammad Chaudhry, contained detailed reasons.
The judgment said that the official accountable for executing CHEJVA, Ata Muhammad Jaffer, held dual position of Chairman Balochistan Development Authority (BDA) and Additional Chief Secretary at the relevant time. BDA entered into negotiations with BHP and took up the issue of grant of exploration rights with Balochistan government in a most haphazard manner.
BHP-BDA failed to get CHEJVA registered under section 17 of the Registration Act. An undated authorisation letter on a plain paper was signed by the then Governor of Balochistan Justice (retd) Amir-ul-Mulk Mengal, purporting to authorise Chairman BDA to sign the addendum on behalf of the Governor.
The court order further said that Balochistan government failed to determine the terms and conditions to be fixed in granting the relaxations sought for BHP. The key provisions of CHEJVA were made subject to a reliance on relaxations that were illegal.
Initially an area of 50 sq km was granted to the licensee for exploration, which was illegally extended to 1000 sq km pursuant to the request made by BHP-BDA. All the relaxations were granted in excess of authority and were entirely beyond the scope of the provisions of the law, read the detailed judgement.
The court observed that a perusal of CHEJVA reveals that BHP and BDA exceeded their mandate by going beyond the scope of their legal powers. BMCR provides an exclusive right to mine for a specified mineral, but does not envisage exclusive possession of the area for which Prospecting Licence (PL) is granted for all purposes of conducting activities of a joint venture being given to the holder of the licence, it stated.
The court order said that, “Since BHP did not have any mineral title under the said rule, GOB was empowered under rule 67 of the BMR 2002 to invite bids to tender for award of exploration licences for the same area. However, GOB did not exercise its prerogative and instead granted exploration licence (EL-5) for the Reko Diq area, which was renewed for a further period of 6 years.”
It further said that, “Under CHEJVA, BHP/TCC enjoyed rights for exploration in the Reko Diq area between 1994 and 1996; held a prospecting licence for the same area for 5 years and an exploration licence for the same area for 9 years, meaning thereby that the exploration/prospecting facility was extended to BHP/TCC for a total period of 17 years, which is an extraordinary and undue favour in itself granted under CHEJVA.”
The order went on to say, “It appears that neither did BHP-BDA pay the annual fee nor did it comply with other conditions so prescribed, and the Department through letter dated 16.11.1994 conveys the approval of the competent authority to the waiving of annual fee of Rs.3.347 million mentioning once again no justification for the said waiver, as was done in granting relaxation of bulk of the provisions of BMCR.”
“It was an extraordinary treatment meted out to BHP whereby a loss of Rs16,736,130/- per annum was caused to the public exchequer without any justification. No advertisement published in the press to invite tenders with a view to providing opportunity to other investors in the field of mining to come forward and compete with others”, said the court order.
Courtesy www.dailytimes.com.pk