' QAZI FAEZ ISA, C J.---The respondents have (filed their respective replies to the petition, which is in respect of public revenues and as the petition is pending. Since 2010 it is, by consent, admitted to regular hearing; and we proceeded to hear it. '
2. This petition has been filed by a person who identifies himself as a Government contractor alleging that the contract for the collection of parking fee in respect of Baldia Plaza, situated at Meezan Chowk. Quetta has not been auctioned and illegally and continuously been awarded to the respondent No.2 by respondent No.
1. The petitioner therefore sent a legal notice dated November 11, 2009 calling upon the Nazim Zarghoon Town to invite tenders through publication and award the contract in favour of the highest bidder. It is stated that rather than inviting tenders the respondents in apparent collusion with one another entered into an `Agreement' dated November, 27, 2009. It may be clarified that at the time of filing of the petition. Zarghoon Town was arrayed as respondent No.1, but in view of enactment of the Balochistan Local Government Act, 2010 (Act V of 2010) ("Act"), the Metropolitan Corporation Quetta ("Corporation") succeeded Zarghoon Town , pursuant to section 25 of the said Act; consequently, Zarghoon "Town was substituted with the Corporation as respondent No.1.
3. Mr. Tahir Ali Baloch, Advocate appeared on behalf of the petitioner and Mr. Muhammad Ali Mobeen, Advocate for the Corporation. Mr. Muhammad Ali Mobeen. Advocate on behalf of the Corporation supports the allegations made by the petitioner and states that there is nothing on record of the Corporation (and its predecessor-in-interest, Zarghoon Town) that the purported Agreement dated November 27, 2009 was executed in favour of the respondent No.2. It is further stated that the record shows that the respondent No.2 is a chronic defaulter and owes an amount of Rs,68.10,000/- (Rupees sixty eight lac and ten thousand only). It is next contended that the respondent No.2 was issued a notice and given an opportunity to come and explain about the outstanding amounts and the purported Agreement, and that the Corporation also appointed its Tax Officer as Inquiry Officer in the matter. The said Inquiry Officer submitted report dated April 12, 2012, wherein it is stated that upon receipt of notice the respondent No.2 stated that he was not going to pay the outstanding amount as the matter is pending before the honourable High Court of Balochistan. The report further states that the person who is attributed to have signed the purported Agreement, i,e, the then Town Municipal Officer, Zarghoon Town, Quetta, namely Muhammad Rahim Qambrani. Stated that he had not signed the same. The said report further states that, the original of the purported Agreement was not available in the respondent No.2's record nor produced by the respondent No.1 and that it was not routed as required through the concerned Tax Branch before its purported execution. Mr. Muhammad Ali Mobeen further states that, whilst the Corporation denies that either the Corporation or its predecessor-in interest (Zarghoon Town) executed the purported Agreement, but even if for argument's sake it was executed, the same is void as it is without consideration, as no amount is mentioned therein, that is to be paid to the Corporation by the respondent No.2. He also relies upon sections 2(g), 25 and 29 of the Contract Act, 1872.
4. Mr. Raul Ahmad Hashmi, learned counsel for the respondent No 2 stated that the original of the Agreement is not available with the respondent No.2 and the same is with the respondent No.1 . He further stated that the Agreement is a valid agreement and executed pursuant to letter bearing No.PS-CM/1-1/07/1079 dated November 15, 2007 and that the amount payable by the respondent No.2 (the Contractor) to the Corporation is mentioned in the 'Comments' filed by respondent No.2 which was an amount of "Rs,14,00,000/- per year and that the respondent No.2 on June 10, 2010 paid Rs,500,000/- pursuant to the Agreement, He further stated that the Chief Minister Balochistan had exempted payment of Rs,4,55,000/- from the amounts that had accrued prior to the execution of the Agreement. Reference was also made to the auction proceedings that took place in the year 2003, pursuant to publication, and the agreement executed pursuant thereto. However. Neither copies of the referred to letter dated November 15, 2007 the 2003 publication nor agreement purportedly executed after the said publication were produced.
5. The purported Agreement dated November 27, 2009 comprises of ten clauses reproduced hereunder, wherein the respondent No.2 is referred to either as Contractor or Second Party:
(1) That the period of contract shall be for eight 08 years, commencing from 1st July, 2009 ending on 30th June, 2015.
(2) The Contractor shall deposit 5% Income Tax at the time of depositing advance amount of the contract.
(3) That in case new rules and by laws are passing regarding car parking charges the contractor shall be bound to abide by it.
(4) That the Second party shall not enter into any sort ,of partnership or other arrangements which any person whatsoever without prior approval of the first party.
(5) That the contractor shall not sublet the contract to any other person, otherwise, the contract shall be liable to be terminated without notice.
(6) That, the contractor or their authorized agent staff working under him shall deal with the visitor consumers in good and proper attitude.
(7) That the second party shall be responsible for the safe custody of car parking brought at the premises of parking area and in the event of theft or loss/ damage, he will be personally responsible.
(8) That the contractor shall display clearly the timing and charges of car parking.
(9) That the contractor shall responsible for payment of all utility bills, and arrangements of cleanliness in the premises of car parking.
(10) That the contractor is bound by all terms and conditions of the agreement and shall not make any defaulter of contractual amount. In case of any dispute the parties have a right to approach the concerned Civil Court and the decision shall be final and binding upon the parties. .6. The following questions arise for consideration:
(i) If any party relies on a particular document (in the present case the purported Agreement) on whom lies the burden to prove / establish and or produce the same?
(ii) Whether the Agreement dated November 27, 2009 mentions the amount payable by the contractor to the Corporation (and or its predecessor-in-interest), and, if not, to what effect?
(iii) Whether the Corporation (and or its predecessor-in-interest) is entitled to award the subject contract without inviting public bids by advertising the same?
(iv) Whether the Chief Minister has the power to waive any amount payable to the Corporation (and or its predecessor-in-interest) ?
7. In our constitutional jurisdiction we cannot determine the rights/liabilities of the parties arising pursuant to a contract, but the present case is one where the Corporation denies executing the purported Agreement. It was for the respondent No.2. Who relied upon the purported Agreement, to prima facie establish its existence. The original of the purported Agreement has also not been produced and the respondent No.1 states that it does not exist in its records. The person who is stated to have signed the purported Agreement on behalf of the respondent No.1 has also denied signing the same. The respondent No.2 also did not approach the civil court for declaration as to the existence/subsistence of the purported Agreement. The purported Agreement appears to be silent about the amount that the respondent No.2 is required to pay to the respondent No.1, and such an 'Agreement' may be deemed to be void for uncertainty and for lack of consideration, however, it would not be appropriate to hold so in our constitutional jurisdiction. If however the respondent No.2's version is accepted, that he was required to pay an amount of Rs,1,400,000 per year, then the following amounts should have been paid by him till date: Period November 27, 2009 throughout to November 26, 2010 November 27, 2010 throughout to November 26, 2011 November 27, 2011 throughout to May 21, 2012 Total: Amount Rs,1,400,000 Rs, 1,400, 000 Rs, 673,150 Rs,3,473,150/- ' However, against the aforesaid outstanding amount only amount of Rs,500,000 (Rupees five hundred thousand only) is stated to have been paid. The purported Agreement stipulates that the Contractor (respondent No.2) shall not commit any default but the Contractor is an admitted defaulter of public dues and therefore on such ground to the purported Agreement could have been terminated and steps taken to recover the outstanding amounts. It however appears that no effort has been made by the respondent No.1 to recover the outstanding amounts due from the respondent No.2.
8. Moreover, admittedly before granting the collection rights in respect of car parking fee to the respondent No.2. Public bids were not invited nor publication made to this effect. The respondent No.1 should A have taken immediate steps to rectify. The situation, as the grant of parking fee collection rights generates considerable revenue, therefore, after publication in prominent local newspapers respondent No.1 should have awarded the contract to the bidder who offered the highest amount. The last question which arises for consideration is whether the Chief Minister, Balochistan was/is empowered to waive the outstanding amount or any part thereof. In respect of the amounts payable by the respondent No.2 to respondent No.l. Vide order dated April 5, 2012, we had put counsel on notice in the following terms: The learned Additional A.G. And the respondent No.1 should assist the court on the point as to whether, the Chief Minister has the power to waive the amount of the Metropolitan Corporation outstanding against the contractor, and if so then on what ground.?
Mr. Abdul Aziz Khliji, learned Additional Advocate General ("Addl. AG") states .That he has not been provided with comments by the department in this particular case but can make the general statement that no power vests in the Chief Minister to waive public amounts payable by a private person. Such statement of the learned Addl. AG is also supported by the learned counsel for the Corporation. It is for the person who is relying upon the power/act of the Chief Minister to waive public dues to show under which legal provision the Chief Minister can do so, which he has failed to show. Public monies cannot be waived without a law permitting this. The monies of the Corporation are to be spent for the public and to be spent on public works and as such have to be jealously guarded and fully accounted for. Moreover, the Corporation is a statutory body governed by its own law and rules; and no power therein has been bestowed upon the Chief Minister to waive the amounts due to the Corporation. We therefore declare that the Chief Minister did not have the power to waive any amount payable by the respondent No.2 to the respondent No.1, and the purported waiver is, of no legal effect.
9. Therefore, for the above reasons, the petition is accepted and the respondent No.1 is directed to immediately invite bids for the auction of the parking fee collection rights in respect of the car parking of Baldia Plaza Quetta and to award the same to the highest bidder. The bids to be invited by publishing advertisements in prominent local newspapers having wide and large circulation.
The respondent No.1 will be within its rights to recover from the respondent No.2 the outstanding amounts. The respondent No. 2 may participate in the bidding process provided he has first made payment of the amounts owed to the respondent No.1.