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P L D 1998 KARACHI 416

MUSHTAQ ALI
V/S
GOVERNMENT F SINDH THROUGH CHIEF SECRETARY SINDH, NEW SINDH SECRETARIA

Per Wajiuddin Ahmed, C.J.
Constitution of Pakistan (1973) Articles. 18 & 199-

It is a matter of no small regret and a sad commentary on KMC functionaries, as the OA, (official assignee) who has been supervising collections at the KPT, has reported, that recoveries before his induction averaged lower than after the introduction of supervision through him. How and why this happened defies logic and understanding. Goods emanating from the KPT source are to be subjected to in the first place customs and other duties, then octroi and lastly wharfage. Everything is thus documented. How and why, therefore, the collections cannot be as good without supervision as under supervision is a matter for anyone’s guess. Another aspect, which the OA has pointed out, is that the contractor is in a position to pay more for the same contract than the officials making the relevant recoveries, and such arises because the contractor is able to squeeze more money from those taking out the goods than the prescribed rates. If this is so, such has to be discouraged. No one can be made to pay more than is due from him and any system which encourages or condones extraction of moneys, not permissible by law, needs to be corrected. We remain confident that the loopholes in this direction would be plugged sooner than later. [p. 422] A

Constitution of Pakistan (1973) Articles. 18, 38 & 199-

Having come to the conclusion that relief may be granted in this petition, we would now proceed to examine the question of maintainability of the petition itself. It has been urged from the side of the respondents that the petition is not maintainable because the petitioner has no locus standi and because it is for mala fide reasons that the petition has been brought. We required of the OA to find out whether there were any mala fides discernible from the conduct of the petitioner. He has submitted his report dated 30-3-1998 and has totally exonerated him and apparently for good reasons. The O.A. has also pointed out that a number of advantages have been gained from entertaining this petition. We do not wish to go into those details and the OA’s report speaks for itself. Be that as it may, there is a plethora of case-law from our own jurisdiction as also from other jurisdictions which would seem to sustain the petition, having been filed pro bono publico. In public interest litigation of this character all that ha sto be seen is public interest and public advantage. Strict rules and technicalities have no room in such matter. A good deal of laxity and an equal amount of indulgence is permissible in such matters directed solely to achieve public good. [p. 430 & 431] D
While allowing the petition in terms, with costs of Rs. 1,00,000 each against the contractor and the KMC, we would expect an inquiry against all relevant officers in accordance with the observations already recorded and the matter would be taken care of by the Chief Secretary of the Province, report being submitted within two months. Outcome of the above on-going inquiry would be placed before us within 10 days. In addition, copies of this order would be forwarded to the Chief Ehtesab Commissioner as also to the Provincial Ombudsman for appropriate action including such as may commend itself pertaining to the role of the minister incharge, namely, Dr. Farooq Sattar, beedlesds to add that none of this could be brought about by the Additional Chief Secretary alone. Political patronage and political complicity is a forgone conclusion in such a scenario. It should also be checked as to what political linkage existed, when the goings on in Zahid Hussain’s case (ibid), were taking place. Reports within two months. Forward copy also to the erstwhile Chief Secretary, Sindh, who had hitherto been dealing with this dispute. [p. 433] E.

Constitution of Pakistan (1973), Articles. 18, 38 & 199-
r/w S. 2(h) of Contract Act (IX of 1872)-

The first thing in such therefore, well known and can be anticipated in advance. The first thing in such matters is to ensure that the auction is scheduled well ahead of the commencing dates of the contract, in each case the beginning of the financial year, viz. July 1 of the calendar. If one auction proceeding fails to yield result, the other can be undertaken. Ths element, we expect, would be kept in view and acted upon in relation to all year to year contracts to be hereafter awarded under the aegis of the Government of Sindh. Needless to add that omission in this behalf proved determental for the revenue in relation of the current financial year and arguably for the proeceding ones. Another aspect, already dilated upon, consists of the fact that in so far as big octori contracts are concerned an apparent monopoly has evolved in relation thereto. It is the policy of law and indeed a mandate of the Constitution that monopolies are to be discourage and free competition is to be generated. See Article 18 and 38 of the Constitution of Pakistan. One of the measures to achieve that end can be, as pointed out, by ensuring a timely publication and holding of auction proceedings which we would expect to be at lease a period of three months ahead of the commencing date. Another, in so far as bigger contracts are concerned, should be to apportion the grants on six monthly, four monthly or even quarterly basis, each being published well before the due date, as above observed. None of these seems to have been attended to. Yet another aspect to be noted here as hinted above, brought out in the press and banked upon by the petitioner, is that the ostensibly influential and manifestly moneyed family f former M.N/A. Bhagwandas Chawala seems to be manifestly moneyed family of former M.N.A. Bhagwandas Chawala seem to be ruling the roost. Inter alia, daily Ummat issues of November, 7 of 1997 (page 365) and March, 31, 1998 suggest that there are serious allegations against the Provincial Minister, Local Government, Dr. Farooq Sattar of being in league with the referred family. [p. 424] B.

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