SHAUKAT AZIZ SIDDIQUI, J.---Through this single judgment, Writ Petitions Nos.3387, 3724/2012 and 582/2013 are being disposed of, as common question of law and facts are involved.
FACTS AND EVENTS:-
2. The Executive Engineer, Central Civil Division No, VIII, Pak PWD, Islamabad i,e, respondent No,3, through public notice called for pre-qualification of contractors, for the development schemes, approved under Prime Minister's directives for the year 2012-2013 for Tehsil Gujar. Khan, District Rawalpindi, for the following two development projects;
(i) Dualization of Mandra to Chakwal Road, Tehsil Gujar Khan and District Chakwal (64 KM Cost of PKR 2.676 billions)
(ii) Dualization of Sohawa to Chakwal Road, Tehsil Gujar Khan, District Rawalpindi and District Chakwal (70 K.M Cost of PKR 3.3 billion)
3. Post qualification process of inviting bids for award of contract was on, when all of a sudden impugned directive No,4218/M/ PSPM/2012 dated 2-10-2012 surfaced, contents of which are of some significance, therefore, are being reproduced herein below:- "PRIME MINISTER'S SECRETARIAT ISLAMABAD.
Subject: (i) Dualization of Mandra to Chakwal Road, Tehsil Gujar Khan and District Chakwal (64 KM Cost of PKR 2.676 billions),
(ii) Dualization of Sohawa to Chakwal Road, Tehsil Gujar Khan, District Rawalpindi and District Chakwal (70 K.M Cost of PKR 3.3 billion)
The Prime Minister has been pleased to direct that the two development projects cited as subject be assigned to National Logistic Cell (NLC), (emphasis provided) which is a government organization, (emphasis provided) for execution, as deposit works.
(2) Funds be transferred to NLC and (emphasis provided) necessary coordination be made for ensuring timely completion of the projects.(Muhamamd Ayub Qazi) Principal Secretary to the Prime Minister 2-10-2012 Secretary Housing & Works No,4218/M/PSPM/2012.
4. Incidentally, both above mentioned schemes/projects, fall in the constituency. (NA 51) of Raja Pervez Ashraf, Ex-Prime Minister of Pakistan. Vide Office Order No,CEN/W-1/5268 (NA-51)/5682, dated 11-9-2012, pre-qualification list of all categories was circulated. It is worth to mention here that all three petitioners were qualified whereas, National Logistics Company, commonly known as NLC i,e, respondent No,5 was not amongst the qualified contractors in any of the categories.
5. After issuance of above directive in negotiation with NLC, cost of both projects increased from Rs,2.676 Billion to Rs,4.472 Billion and from Rs,3.3 Billion to Rs,4.900 Billion (Total Rs,5.976 billion to Rs,9.372 Billion, with net difference of Rs,3.396 Billions) but scope of work remained same.
Director General PWD Mr. Shah Din Shaikh, vide letter No,DG-215/WI/PWD/NA-51 dated 12-10-2012 addressed to the Chief Engineer (North) conveyed information about signing of MOU between Pak PWD and NLC. This letter is also of much value, therefore, it's contents are being reproduced hereunder:-- Subject: i) Dualization of Mandra to Chakwal Road, Tehsil Gujar Khan and District Chakwal (64 KM Cost of PKR 2.676 billions)
(ii) Dualization of Sohawa to Chakwal Road, Tehsil Gujar Khan, District Rawalpindi and District Chakwal (70 K.M Cost of PKR 3.3 billion)
In pursuance of Prime Minister's directive received vide P.M Secretariat Islamabad U.O. No, 4218/M/PSPM/2012 dated 2-10-2012 and MOU has been signed between Pak. PWD, and Natioanl Logistic Cell (NLC) in respect of the above mentioned development schemes approved under Prime Minister's Directives for NA-51 for the year 2012-13.
(2) MOU is sent herewith in original for taking further action strictly as per terms and conditions laid down therein (emphasis provided). All concerned may also be informed accordingly, for further necessary action. Encl: As stated MOU (in original)
(SHAH DIN SHEIKH)
Director General Contents of MOU signed between, Secretary Ministry of Housing and NLC, are being provided hereunder:-- "MEMORANDUM OF UNDERSTANDING (MOU)
This agreement (hereinafter referred to as the "MOU" is made on this the day of 2012.
BETWEEN The President of Islamic Republic of Pakistan through Secretary Housing and Works, Government of Pakistan, (hereinafter referred to as "Employer" which expression shall, wherever context so permits, include its successors-in-interest, representative and assigns) of the one part; AND Messrs Natioanl Logistics Cell (NLC), (hereinafter referred to as the "Agency" which expression shall, wherever context so permits, include its successors-in-interest, representatives and assigns) of the second part.
(Both "the Employer" and "the Agency" are collectively referred to as "the Parties")
WHEREAS the Agency is responsible for the execution of Schemes (Dualization of Mandra to Chakwal Road Tehsil Gujar Khan Distict Rawalpindi and District Chakwal (64 KMs) and Dualization of Sohawa to Chakwal Road Tehsil Gujar Khan District Rawalpindi and District Chakwal (70 KMs) assigned by the Prime Minister of Pakistan vide letter No,4218/M/PSPM/ 2012 dated 2-10-2012.
AND WHEREAS the Parties are agreed on mechanism of deposit work payment.
NOW THEREFORE, in consideration of the mutual covenants contained herein, the Parties hereto, through their authorized gents respectively, have agreed to the terms and conditions set forth hereinafter for the performance of the MOU and in token thereof have affixed their signatures.
1. GENERAL
(a) The MOU is considered to be a comprehensive document of Civil Engineering works which the Employer intends to carry out through Agency.
(b) The basic parameters of MOU are deposit works arrangements by the Employer and the Agency for execution/completion of public projects.
(c) Both schemes are planned to be completed within agreed timelines.
(2) OPERATIONAL:
(a) Work to be undertaken on the direction of Prime Minister of Pakistan through Secretary Housing and Works.
(b) the employer will be responsible for acquisition of land. Centre line with extent of Right of Way
(ROW) will be provided by 15 October 2012.
(c) The Agency shall be responsible for execution of works as deposit work arrangements.
(d) The Agency will mobilize and take up the work immediately after signing of an MOU.
(e) "The Agency" shall ensure engagement of consultant for proper planning, designing and detailed supervision on commencement of work.
(f) The Agency shall ensure assigning of work soon after the signing of the MOU. (emphasis provided)
(g) The parties will conclude and enter into formal contract for both the projects .After provision of detailed design by the Consultant and Engineer Estimate.
(h) Time schedule mutually agreed for completion of project will be integral part of both the contract agreements.
(j) The Agency will be responsible for re-location of utility services, diversion, and traffic control arrangement.
(k) Escalation/price variation will be admissible as per existing rules of PEC with effect from signing of MOU.
(I) NLC shall be responsible for maintenance period up to 2 years free of cost.
(m) Any query/clarification will be resolved mutually
(3) FINANCIAL:
(a) Rates of contract will be mutually decided after preparation of Engineers Estimate. (emphasis provided)
(b) Payment. Following payment modalities will be followed:--
(1) 25% of already worked out indicated cost on signing of MOU.
(2) 25% on signing of contract.
(3) Remaining amount of the contract by 30 Mar.
2013.
(5) ADMINISTRATIVE:
(a) On 5th of every month a progress review meeting will be held for informing progress to Director General Pak PWD.
(b) Both parties have accepted and agreed to record the understanding and commitments through this MOU.
(c) The Agency has accepted the appointment to execute the work at the terms and conditions agreed upon. In witness WHEREOF the parties hereby sign this MOU, on day of _______ 2012.
Pak PWD, Islamabad Commander Engineers NLC Ministry of Housing and Works Witness 1 Witness 1 Senior Manager (Monitoring) Headquarters Engineers NLC Witness 2______________ Witness 2 ___________________ Senior Manager (Contract) Headquarters Engineers NLC
6. Feeling aggrieved of this act Messrs M.N Construction Company, invoked the constitutional jurisdiction of this court on 9-10-2012 by way of filing W.P No,3387 of 2012 on the following grounds;- - That award of contract to NLC is indirect violation of PPRA Rules 2004.
That impugned office order dated 2-10-2012 is illegal, void, of no legal effect, liable to be struck down.
This Writ Petition came up for hearing before this court on 10-10-2012, and after hearing the learned counsel following order was passed:-- "Grievance put forth through instant petition is that, in response tO a notice, petitioner along with other parties participated in the pre-qualification process and carried out for the following projects:-
(i) Dualization of Mandra to Chakwal Road, Tehsil Gujjar Khan, District Rawalpindi and District Chakwal (64 Kms) (Cost of PKR 2.676 Billions).
(ii) Dualization of Sohawa to Chakwal Road, Tehsil Gujjar Khan, District Rawalpindi and District Chakwal (70Kins) (Cost of PKR 3.3 Billions).
Petitioner qualified the same. According to petitioner, his previous excellent track record and prolific performance there was genuine expectancy of the award for contract, but impugned order dated 2-10-2012 surfaced through which Honourable Prime Minister of Pakistan, has directed for assigning the contract to National Logistics Cell (NLC) being a Government Organization. Learned counsel for petitioner submits that discretion exercised by the authority is in violation of the PPRA Ordinance 2002 and the Public Procurement Rules, 2004, besides the fact that non-transparent mechanism has been adopted.
Let copy of this petition be transmitted to respondent No,1, for report and parawise comments, so as to reach this court within t, fortnight, with an advance copy to the learned counsel for petitioner.
Notices may also be issued to respondents Nos.5 and 6, for their representation before the court on next date of hearing.
C.M No,1 of 2012.
Subject to notice, in the meantime, operation of impugned order dated 2-10-2012, shall remain suspended. However, if respondent Authority, opts to complete the bidding process in accordance with law, this order shall not run against it.
C.M No,2/2012.
Exemption sought for is allowed subject to all just and legal exceptions. Disposed of "
7. Messrs Gondal Construction Company and Ch. Saeed Anwar Sole Proprietor, Messrs Allied Aids filed their petitions on 3-11-2012 and 12-2-2013, on similar grounds, which came for hearing on 5-11- 2012 and 13-2-2013 respectively, and almost same order, already passed in Writ Petition No,3387 of 2012 were passed.
8. During the pendency of Writ Petitions and currency of restraining orders dated 10-10-2012, 5-11- 2012 and 13-2-2013, PWD issued three cheques in favour of NLC, detail of which is as under:- Sr. No.Cheque No. Amount Dated
(i) B 836966 Rs. 1.1 Billion 15-10-2012
(ii) B 850167 Rs. 1.2 Billion 30-1-2013
(iii) B 853844 Rs. 3.675 Billion 16-3-2013 Total Pak Rupees 5.975 Billion
9. In order to point out, disobedience and violation of court order Messrs Gondal Construction Company filed criminal Original No,128- W/2013, which came for hearing on 20-3-2013 and after hearing the learned counsel following order was passed:- "Grievance of petitioner is that despite specific orders dated 10- 10-2012 passed in Writ Petitions Nos.3387 of 2012 and 3724 of 2012, respondents intentionally, deliberately, maliciously and willfully frustrated and disobeyed these orders by making payment through cheese dated 16-3-2013 amounting to Rs,3,675,000,000. According to learned counsel, the respondents instead of performing their duties in accordance with law acted under the influence of authority, which has resulted into frustrating the orders of this court and undermining the judicial authority.
Let notice be issued to respondents for their personal appearance before the court on 25-3-2013."
10. In compliance of order, respondents put their appearance. After hearing them and learned counsel for petitioner following order was passed:-- "Respondents Nos. 1 and 2, took the stance that order dated 5-11-2012, was not in their knowledge, however, submitted that order dated 10-10-2012, passed in Writ Petition No,3387 of 2012 was in their knowledge but on the direction of Principal Secretary to the then Prime Minister of Pakistan, work for execution to NLC was awarded, therefore, Cheque No,B-853844 dated 16-3-2013, was issued.
The stance taken by the respondents on the face of it is an admission on their part that despite the order dated 10-10-2012, passed in Writ Petition No,3387 of 2012, they issued the cheque amounting to Rs, 3, 675, 000,000.
In this view of the matter they may be issued formal show cause notices, to explain that why contempt of court proceedings may not be initiated against them, for intentional, deliberate and willful disobedience of the order of the court?. They are directed to file the reply of show cause notice within two days. It is made clear that, concerned bank shall not release the payment, till the final adjudication of the main writ petition.
Adjourned to 28-3-2013."
11. By realizing the mistake and consequences of the disobedience of the orders of this court, official of PWD wrote letter No,EE.CCD.VIII/AB/546 dated 25-3-2013 which reads as under:-- Subject: (i) Dualization of Mandra to Chakwal Road, Tehsil Gujar Khan and District Chakwal (64 KM Cost of PKR 2.676 billions)
(ii) Dualization of Sohawa to Chakwal Road, Tehsil Gujar Khan, District Rawalpindi and District Chakwal (70 K.M Cost of PKR 3.3 billion)
Dear Sir, The cheque bearing No,B 0853331 dated 16-3-2013 amounting Rs,3.675 Billion (Rupees Three Billion Six Hundred Seventy five Millions Only) issued in your favour for the above cited projects be returned to this Office, as this Office is receipt of Court orders for Suspension of the direction issued by PSPM vide No,1428/PSPM/2012 dated 02-10-2012 (Copies of stay order Contempt notice are attached).
You're faithfully (M. ATIQ-UR-REHMAN) Executive Engineer, Central Civil Divan No,VIII Pak. PWD, and Islamabad.
Copy forwarded to:
(1) The Treasury Officer, Federal Treasury Office Islamabad. He is requested that the cheque bearing No,B 08534/ B 853331 dated 16-3-2013 amounting Rs,3.675 Billion issued in favour of Messrs NLC may not be entertained for endorsement till the decision of the honourable Islamabad High Court, Islamabad.
12. On the same date i,e, 25-3-2013 through C.M. No,1200 of 2013 under section 151, C.P.C., for appropriate order and setting aside order dated 5-11-2012 was sought by the NLC, and vide order dated 26-3-2013, notice of CM was issued for the already fixed date i,e,,28-3-2013, similarly on 26- 3-2013 C.M. Nos.1241 and 1243/2013 were moved in connected Writ Petitions. On 27-3-2013 Messrs M.N. Construction Company moved C.M. No,1248 of 2013 for permission to withdraw the Writ Petition on the ground that "grievance of the petitioner remains resolved due to filing of the titled Writ Petition". This move was not sudden, rather all stake holders were trying to provide cover to the assigning of work to NLC, therefore, Messrs M.N. Construction Company was also blessed by award of Sub. Contract by NLC, this aspect is evident from the contents of undertaking given to the Executive Engineer Pak PWD by Mr. Zain Ullah son of Niamat Ullah, Proprietor of Messrs M.N.
Construction Company which reads as under:-- The Executive Engineer, Central Civil Division No,VIII, Pak, PWD, Islamabad.
Subject: Court Case Writ Petition No,3387 of 2012.
Dear Sir, We had filed the subjected writ petition because we were not allowed to participate in the tenders of Mandra to Chakwal Road and Sohawa to Chakwal Road. However, NLC has awarded the portion of these roads and the agreement will be signed with NLC shortly.
Since our grievance has been redressed, we are withdrawing the subjected writ petition, and will not pursue this case till withdrawal. However, we reserve the right for litigation in future.
Yours Sincerely, (ZAIN ULLAH) Son of Niamat Ullah
13. On the date of hearing i,e, 28-3-2013 learned counsel for petitioner looked unsure about the approach of his client, regarding move of withdrawal of Writ Petition. I will deal this aspect in the later part of my judgement. However, learned counsel appearing on behalf of NLC, requested that, application under section 151 may be treated as reply to writ petition, and that they are ready to advance their arguments on the main petition.
14. Learned counsel for petitioners and petitioners of Writ Petitions Nos.3724/2012 and 582/2013 submitted that entire process of award of contract to NLC is besides the law, non-transparent and result of some underhand deal. Petitioners in person further submitted that NLC does not execute work directly, rather through sub-contractors.
'15. Conversely, learned counsel for NLC supported the impugned directive dated 2-10-2012 on the following grounds; That respondent No,5 has deployed heavy machinery on the project site at main G.T road and development work of road is being completed with full use of all resources and manpower as public at large is suffering tremendously due to traffic hazards and development work:- That Public Procurement Law are not applicable on the development projects assigned to respondent No,5 as development projects were to be executed as "Deposit Works" and not from Public Fund and for the reason that NLC is a Govt. Organization.
That, deposit works are not included in the definition of Public Fund as well as Public Procurement, so Federal Government is at liberty to assign any project as deposit works, as per the decision/policy and it is settled principle of law that constitutional jurisdiction cannot be invoked in policy matters formulated by the Federal Government.
That the instant writ petition is mandamus in nature, therefore, it comes within the ambit of Article 199(1) (a) (i) of the Constitution and interim order dated 5-11-2012 was obtained in violation of provision of sub-Article (4) of Article 199 of the Constitution.
That, petitioners placed reliance on letter dated 11-9-2012 which contains list of companies who declared pre-qualified but the Prime Minister under exercise of his authority and discretion directed to assign the work to NLC, as deposit works, therefore list/letter dated 11-9-2012 became infructuous.
16. Besides above grounds, objection raised on the maintainability of Writ Petitions. In support of their contentions learned counsel placed reliance on the judgments reported as PLD 2002 Lab. 359, 2011 CLC 1985 and 2000 PCr.LJ 1150.
I have heard learned counsel, perused the documents appended with the pleadings and gone through the PPRA Ordinance, 2002 and Rules made there under.
17. Since facts and events took place have already been provided, therefore, I will confine myself to the provisions of law, dictums laid down by the august Supreme Court and their applicability to the instant matter. Objection with regard to maintainability of writ petition and applicability of PPRA Ordinance, 2002 and PPRA Rules, 2004 are being answered through celebrated judgments delivered by ultimate Court of the country:- "In the case of Sindh High Court Bar Association "PLD 2009 SC 879" honourable Supreme Court held as under;-- "Government power must be exercised within the constraints of rules that apply to ample categories of persons and acts, and these rules, whatever they may be, must be uniformly applied.
Rule of law as defined by Aristotle is "Rule of law is to be preferred to that of any individual" whereas in the words of the Massachusetts Constitution it means "a Government of laws and not of men" which described in one word means supremacy of law. Supremacy of law defined with the Divine Command in the Holy Qur'an 4:59 which is translated in English as under:- "0 ye who believe!
Obey Allah and obey the Apostle, And those charged with authority among you".
Hazrat Abu Bakr Siddique (R.A.A.) in his first speech as Caliph explained the above words; the nub of its is that obedience to persons in authority is an obligation only if what they require you to do so is in accordance with the Holy Qur'an and Sunnah of the Holy Prophet (S.A.W.S.) This is the highest authority in the power to judicial review. ".
"In the Suo Motu Case No, 18 of 2010 regarding matter of violation of Public Procurement Rules, 2004 reported as (PLD 2011 SC 927) august Supreme Court held that:- "Where a procedure has been provided for doing a thing in a particular manner that thing should be done in that manner and in no other way or it should not be done at all; indeed it impliedly prohibits doing of thing- in any other manner; the compliance for such thing in no way could be either ignored or dispensed with.
If the act complained of is without jurisdiction or is in excess of authority conferred by statute or there is abuse or misuse of power, court can interfere. In such an eventuality, mere fact that there is denial of allegation of mala fide or oblique motive or of its having taken into consideration improper or irrelevant matter does not preclude the court from enquiring into the truth of allegations levelled against the authority and granting appropriate relief to the aggrieved party.
The decision is unlawful if it is one to which no reasonable authority could have come.
The discretion enjoyed by the persons holding high offices should not be left to the good sense of individuals and presumption that person holding high office does not commit wrong is liable to be repelled.
Every arbitrary action, whether in the nature of legislative or administrative or quasi-judicial exercise of power, is liable to attract the prohibition under the Constitution.
Court may look into the material on record, uphold the right of judicial review, on the basis of illegality in decision making process coupled with irrationality and perversity. If the administrative or judicial power has been exercised on non-consideration or.Non-application of mind to relevant factors, such exercise shall stand vitiated.
The parameters of the court's power of judicial review of administrative or executive action or decision and the grounds on which the court can interfere with the same are well-settled.
Indisputably, if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matter the court would be justified in interfering with the same.".
In Suo Motu case No, 5 of 2010 reported as (PLD 2010 SC 731) the learned apex Court held that:-- "Awarding of contract---Transparency---Supreme Court, duty of---Massive corruption was alleged in awarding contract of supply of Liquefied Natural Gas (LNG)---Supreme Court, in exercise of powers under Art. 184(3) of the Constitution took notice of the allegation and issued notices to the parties concerned---Validity---Ministry of Petroleum and Gas Company did not follow the process for awarding contract for LNG supply for Mashal or Short Term project seriously and with high order of transparency---Price slope averaging from 0.145 to 0.155, needed to be kept in view---It was duty of Supreme Court to ensure that Public Procurement Regulatory Authority Ordinance 2002, read with Public Procurement Rules, 2004, were adhered to strictly to exhibit transparency---Such type of transactions must be made in transparent manner for the satisfaction of people, who were the virtual owners of national exchequer, which was being invested in such projects.
While taking suo motu notice of violation of Public Procurement Rules 2004 august Supreme Court through reported judgment "2011 PLC(CS) 1130" observed as under:- "Fair and transparent discretion, exercise of---Principles--Action must be based on fair, open and just consideration to decide matters more particularly when such powers are to be exercised on discretion---Arbitrariness in any manner is to be avoided to ensure that action based on discretion is fair and transparent---Discretion is to be exercised according to rational reasons which means that; there be finding of primary facts based on good evidence; and decisions about facts be made for reasons which serve the purpose of statute in an intelligible and reasonable manner---Actions which do not meet these threshold requirements are considered arbitrary and misuse of power---Discretionary power conferred on Government should be exercised reasonably subject to existence of essential conditions required for exercise of such power with the scope of law---All judicial, quasi-judicial and administrative authorities must exercise power in reasonable manner and also must ensure justice as per spirit of law and instruments regarding exercise of discretion---Obligation to act fairly on the part of administrative authority has been evolved to ensure rule of law and to prevent failure of justice.".
In the case titled Raja Mujahid Muzaffar and others v. Federation of Pakistan and others "2012 SCMR 1651" it is held that:-- "Contract in question was illegal and invalid having been executed in violation of the mandatory provisions of the Public Procurement Rules, 2004, as the exemption there from purportedly granted under Rule 42(c)(v) of the said Rules was based on extraneous and irrelevant reasons and therefore of no legal effect or consequence----Entire transaction was carried out in a non- transparent manner and for a cost which appeared to be inflated---Government was directed by Supreme Court to reinitiate the process for the procurement of the required equipment, software and services in a fair, just, rational and transparent manner, strictly in accordance with the provisions of the Public Procurement Regulatory Authority Ordinance, 2002 and the Public Procurement Rules, 2004 and the law".
Similarly, judgment of the honourable Supreme Court of Pakistan passed in the case of Muhammad Yasin v. Federation of Pakistan, reported as PLD 2012 SC 132, wherein appointment of Mr. Touqeer Sadiq as Chairman of the Regulatory Authority i,e, OGRA was set aside, has served as a lightship for me. The honourable Supreme Court has elaborately set forth certain guidelines for the high courts in terms of Article-189 of the Constitution, which are fully attracted in the instant case.
The honourable Supreme Court held as follows:-- "At the end of this part of our opinion, we can now summarize our three-step rationale for maintaining the present petition. Firstly, when understood correctly, a number of Articles of the Constitution make it clear that it is not silent about the economic life of the nation and the concomitant fundamental rights of its citizens; secondly, we are dear that there is an ever-greater nexus between the proper and independent functioning of the regulatory bodies and economic life of the nation and its citizens and that this nexus is fully recognized by the Legislature in its use of language employed by the Ordinance in the provisions referred to above; and finally, there can be no doubt that regulatory bodies can function competently and independently only once their autonomy is ensured through enforcement of the legal checks upon appointments to important positions therein. When these three points are fully appreciated, it becomes clear that the validity of the process of appointment of the Chairman, OGRA is indeed a matter of public importance which has a direct linkage with the fundamental rights of the people of Pakistan, and thus warrants the exercise of jurisdiction by this Court under Article 184(3) supra. It is possible, however, that if similar cases arise in future, the High Courts may be in a position to decide the same by applying the principles of law enunciated in this judgment, in terms of Article 189 of the Constitution."
In paras-13 and 14 of the verdict (supra) the honourable Supreme Court while elaborating the fundamental rights of the citizens in connection with the functions and powers of the regulatory authorities, has held:-- "When we see the Constitution in this manner, we are brought to the unavoidable conclusion that it is a part of the fundamental rights of the people of Pakistan that they be governed by a State which provides effective safeguards for their economic wellbeing; a State which protects inter alia, the belongings and assets of the State and its citizens from waste and malversation. Contrary to what some commentators seem to believe, our Constitution is not silent on issues, which affect the economic life of the nation and its citizens. It contains a whole range of Articles which have a direct nexus with good economic governance and fundamental rights. At the very beginning in Article 3 there is, for instance, an oft-forgotten but eloquently stated directive "The State shall ensure that elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability to each according to his work". Then there is Article 4, which guarantees the protection of law, not just for life and liberty, but also for the body and property of citizens. Furthermore, there is a whole range of fundamental rights, such as the right to life (Article 9), the universal and non-derivable right to a life of dignity (Article-14), the right to engage in business (Article 25) which has clear economic ramifications. When these articles are read together, we cannot escape the conclusion that the Constitution envisages a political dispensation where good economic governance is a right of the people of Pakistan which they cannot be deprived of Articles 18, 23 and other Articles cited above support this conclusion. In this treatise 'Judicial Review of Public Action', while interpreting these Articles, Justice Fazal Karim a former Judge of this Court and the nation's leading legal academic and author, concludes with a telling comment from which we seek guidance: "In short, . Article 18 and the rights guaranteed by it are concerned with the economic life of the nation and its citizens." (emphasis supplied) p.
718. The direct nexus between the appointment of Chairman, OGRA and the other fundamental rights enumerated above can now be elaborated as the Second step of our reasoning.
In the famous Hajj Corruption Case, reported as 2011 PLC (C.S.) 1076, Larger Bench of the honourable Supreme Court held that:- "The judiciary including the High Courts and the Supreme Court is bound to protect and preserve the Constitution as well as to enforce fundamental rights conferred by the Constitution either individually or collectively, in exercise of the jurisdiction conferred upon it either under Article 199 or 184(3) of the Constitution. We are fully cognizant of our jurisdiction; it is one of the functions of the judicial functionaries to decide the matters strictly in accordance with the Constitution and law. We are conscious of our jurisdiction, and exercise the same with judicial restraint. But such restraint cannot be exercised at the cost of rights of the citizens to deny justice to them.
The scheme of the Constitution makes it obligatory on the part of superior Courts to interpret Constitution, law and enforce fundamental rights. There is no cavil with the proposition that ultimate arbiter is the Court which is the custodian of the Constitution, as it has been noted herein before and without repeating the same, this Court had initiated proceedings in the instant case as is evident from the detailed facts and circumstances noted hereinabove to ensure that corruption and corrupt practices by which the Hujjaj were looted and robed has brought bad name to the country.
23. This Court is of the considered view that a democratic system must prevail in the Country which aspect has been highlighted in the case of Sindh High Court Bar Association's Case (PLD 2009 SC 879) wherein all the actions of the military dictator were declared unconstitutional besides the elections held in February, 2008 was also under threat of being declared illegal were validated to promote will of the electorate. Justice Abdul Hameed Dogar, who was not recognized as lawful Chief Justice but the oath he administered to the President of Pakistan was declared valid by this Court in order to save the system by holding inter alia as under; This Court hopes that all institutions, on the well-known principles of good governance, and without transgressing their constitutional bounds, will endeavor to eradicate corruption and self- enrichment, and will devote themselves to the service of the people. Needless to add that the Courts will, at all times, remain vigilant in this behalf and will always come to the rescue of any beleaguered citizen or class of citizens whenever and wherever an occasion 'arises'."
As this proposition has been exhaustively discussed, comprehensively elaborated and thoroughly settled in a variety of cases. It would be advantageous to reproduce following passages from a recent judgment of the honourable Supreme Court i,e, Watan Party v. Federation of Pakistan, PLD 2012 SC 292 [Memogate case]:- Indisputably, if the action or decision is perverse or is such that no reasonable body of persons, properly informed; could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same. [Commissioner of IncomeTax v. Mahindra (AIR 1984 SC 1182)]. The exercise of constitutional powers by the High Court and the Supreme Court is categorized as power of judicial review. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Articles dealing with Fundamental Rights, every executive action of the Government or other public bodies, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of the Superior Courts and can be validly scrutinized on the touchstone of the Constitutional mandates. [Common Cause, A Regd. Society v.
Union of India (AIR 1999 SC 2979)]. In the case of Union Carbide Corporation v. Union of India [AIR 1992 SC 248 = 1991 SCR (1) Supl. 251], the Court while taking up the issues of healthcare and compensation to the victims, supervised the distribution of the money among the victims of Bhopal gas tragedy and monitored the hospitals set up to treat the victims.
9. Superior Court's supervisory jurisdiction of judicial review is invoked by an aggrieved party in myriad cases. High Courts in India are empowered under Article 226 of the Constitution to exercise judicial review to correct administrative decisions and under this jurisdiction High Court can issue to any person or authority, any direction or order or writs for enforcement of any of the rights conferred by Part III or for any other purpose. The jurisdiction conferred on the High Court under Article 226 is very wide. However, it is an accepted principle that this is a public law remedy and it is available against a body or person performing public law function. Before considering the scope and ambit of public law remedy in the light of certain English decisions, it is worthwhile to remember the words of Subha Rao, J. Expressed in relation to the powers conferred on the High Court under Article 226 of the Constitution in Dwarkanath v, Income Tax Officer 1965 Indlaw SC 125 at pages 540-41: "This Article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can he exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution of India with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with the unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the Article itself .. "
In case of Munir Hussain Bhatti v. Sindh High Court Bar Association, PLD 2011 SC 407, the honourable Supreme Court held:--
65. A classical analysis of the grounds on which administrative decisions are subjected to judicial review was presented in an English case, Council of Civil Service Union v. Minister, by Lord Diplock. This analysis has also been frequently adverted to in our jurisprudence on the judicial review of executive action. A recent instance can be found in the opinion of Ch.Ljaz Ahmad, J. In the case of the Chief Justice of Pakistan, supra at pages 232 to 238. The analysis in the case of the Civil Service Union suprais equally applicable to the circumstances of these petitions. Lord Diplock stated three grounds for exercise of the Court's power of judicial review.
These are `illegality', 'irrationalityand 'procedural impropriety.Council of Civil Service Union v.
Minister ([1984] 3 All ER 935, 950-952). What is important for deciding the present petitions is the scope and nature of 'illegality', which, in the language of the aforesaid case, is measured on the consideration "... That the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par-excellence a justiciable question to be decided, in the event of dispute, by those persons-the Judges by whom judicial power of the State is exercisable" (ibid). Thus any decision based on an incorrect understanding of the law that regulates the decision-maker's decision-making power, would be an illegal decision, and it could be corrected through judicial review. What must be emphasized here is that in disputed cases, it is for the Courts to definitively interpret the law and thereafter to test the administrative decision on the touchstone of the law so interpreted.
In the case of Watan Party and another v. Federation of Pakistan (Law and Order in Karachi) PLD 2011 SC 997, it has been held:- "2. This aspect of the Islamic teachings, as well finds its reflection in the Constitution of the Islamic Republic of Pakistan 1973. The Constitution, in its very Preamble, postulates that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and the fundamental rights, including equality of status, of opportunity and before the law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject, to law and public morality; shall be fully guaranteed. These very principles have been made a substantive part of the Constitution under Article 2A. Thus, it is the duty of the State to protect and safeguard all these Fundamental Rights including the right to life and liberty as envisaged by Article 9 of the Constitution, which has been interpreted by this Court in Shehla Zia'scase (PLD 1994 SC 693) as under:- "Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word "life" is very significant as it covers all facts of human existence.
The word "life" has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally.
The instances are not few, when the honourable Supreme Court of Pakistan while exercising the constitutional jurisdiction, checked the arbitrary exercise of authority, looting of public by the executive functionaries and involvement in the corruption and corrupt practices by the holders of public offices. In the case of Alleged Corruption in Rental Power Plants etc., in which case too, unfortunately the main accusation/ charge of corruption is against Raja Pervez Ashraf, reported as 2012 SCMR 773, the honourable Supreme Court of Pakistan highlighted the responsibilities of members of Parliament, relevant para is reproduced hereunder:-- "The Constitution of the Islamic Republic of Pakistan mandates that State shall exercise its powers and authority through chosen representatives of the people. A democratic order in place, through the representatives of people, being the members of Parliament, obligates the elected representatives to fulfill their commitments bestowed upon them under the Constitution, and in their representative capacity, they are bound to perform their functions honestly, to the best of their ability, faithfully, in accordance with the Constitution and the law as well as the Rules of the Assembly, and always in the interest of sovereignty, integrity, solidarity, wellbeing and prosperity of Pakistan. Such a binding force of the Constitution commands them to ensure wellbeing and prosperity of Pakistan, so whenever they feel threat to the wellbeing of the people of Pakistan for any reason, they are bound to preserve the same."
Above referred dictums laid down by the august Supreme Court provide acumen, courage, wisdom and strength to perform sacred duty of judge in accordance with the Constitution, guidelines provided by the superior Courts and firm belief that we are answerable to Allah Almighty, thus are required to perform our duty without fear, favour and ill-will and this is what our oath reminds us.
18. Now, I come to next aspect of the proposition. The Public Procurement Regulatory Authority Ordinance, 2002 hereinafter called PPRA, Ordinance was promulgated with the object:- "For regulating procurement of goods, services and works in the public sector and for matters connected therewith or ancillary thereto"
19. Section 2 of the PPRA Ordinance relates to definitions, for the purpose of understanding the issue, subject matter of instant petitions, relevant definitions are being provided herein below; 2(h) "misprocurement" means public procurement in contravention of any provision of this Ordinance, any rules, regulations, orders or instructions made thereunder or any other law in respect of, or relating to, public procurement;
(i) "prescribed" means prescribed by rules made under this ordinance;
(i) "procuring agency" means:-
(i) any Ministry, Division, Department or any Office of the Federal Government;
(ii) any authority, corporation, body or organization established by or under a Federal Law or which is owned or controlled by the. Federal Government;
(j) "Public Fund" means the Federal Consolidated Fund and at the Public Account of the Federation and includes funds of enterprises which are owned or controlled by the Federal Government;
(k) "Public procurement" means acquisition of goods, services or construction of any works financed wholly or partly out of the Public Fund, unless excluded otherwise by the Federal Government;
(p) "Works" means any construction work consisting of erection, assembly, repair, renovation or demolition of a building or structure or part thereof, such as site preparation, excavation, installation or equipment or materials and decoration, finishing and includes incidental services such as drilling, mapping, satellite photography, seismic investigations and similar activities, if the value of those services does not exceed that of the works themselves.
20. Under Section 26 of the Ordinance ibid, the Federal Government, vested with power to make Rules and under Section 27 Authority is empowered to make Regulations.
21. In exercise of power under section 26, Federal Government made Rules titled as "The Public Procurement Rules, 2004". These rules comprehensively deal with all situations of "Public Procurement". This court has to determine as to whether assigning oT work to NLC was in.
Accordance with the objects of PPRA Ordinance 2002 and Public Procurement Rules 2004 or not?
22. Before dilating upon the issue, I find it appropriate to provide admitted facts:-- Development Projects are for the constituency NA-51 from where Ex-Prime Minister was elected as MNA, intended candidate in the forthcoming election.
In requirement of PPRA Rules 2004, process of pre-qualification started, with publication of Notice in the Newsapaper i,e, Tribune and Al-Sharq dated 2-8-2011, and also on the PPRA Website.
Both the above mentioned Newspapers do not fall in the category of leading Newspapers, circulation wise.
As per letter No,CEN/W-1/5268 (NA-51)/5682, dated 11-9-2012 Addressed to the Superintending Engineer, Central Civil Circle No,II, Pak PWD, Islamabad by Chief Engineer (North) number of companies against each category, pre-qualified are as under; Category A-1 Total 34 Companies Category A Total 32 Companies Category B-1 Total 54 Companies * NLC failed to pre-qualify, therefore, its name was not mentioned in any of the categories. * There is no provision in the PPRA Ordinance and Rules on the basis of which any Government Organization may be assigned work on the ground that Organization is of Government, more particularly when such Organization itself opts to take part in the competitive process. * Both projects assigned to NLC on the direction of the Prime Minister for consideration that it is a Government Organization with further direction of transfer of funds. Although no provision of law exists in this regard. * Words "assigning of projects" have been used instead of "award of contract". * Against same "scope of work" cost of projects increased from R.s.2.676 billion to Rs,4.676 billion and Rs,3.3 billion to Rs,4.9 billion (total from Rs,5.976 billion to Rs,9.576 billion). * Total cost increased by Rs,3.6 billion. First payment made on 15-10-2012 within 13 days of directive dated 2-10-2012. * Total payment of initial cost of projects, Rs,5.975 billion made in violation of court order dated 10- 10-2012. * No reason advanced that why pre-qualified companies were ousted from the process and that why bidding could not took place? * NLC does not execute the assigned "work" itself and awards the "work" to subcontractoRs, * Due to non-adherence to PPRA Rule of competitive process loss in billions of Rupees caused to public exchequer. * MOU signed between Secretary Housing and Works and NLC, was never made public. * Through MOU, NLC being agency put in advantageous position and employer (Ministry of Housing and Pak PWD) at its mercy.
23. Above mentioned admitted facts make the controversy easy to understand and provide answer about the dubious deal. Learned counsel for NLC i,e, respondent No,5 took the stance that since development projects were to be executed from "DEPOSITS WORK" therefore, competitive bidding process was not required and Prime Minister had the authority to assign the work to NLC being a Govt. Organization, which is fully equipped with sophisticated machinery, and team of professionals. When asked, is transparency not a requirement of any transaction? Learned counsel answered in affirmative. According to learned counsel for respondent No,5, PPRA Rules do not apply to works, which are to be executed by NLC from "DEPOSITS WORK" as same are not part of Federal Consolidated Funds and Public Account.
24. I am not persuaded by the arguments of learned counsel for respondent No,5. Money, which comes to Govt. Treasury (URDU TEXT ) from whichever source, belongs to Pakistan and its citizens.
Amount in "Deposits Work" was not of personal account of the Prime Minister, regarding which King's like direction could have been issued, for its distribution like bounties and entrustment to the loyals. In any Welfare State and democratic setup, public money has always been treated as sacred trust, for spending of which extra caution and care is ensured. In an Islamic State, responsibility to deal and disburse the public money becomes more delicate, which require due diligence, as regarding Bait- ul-Maal (URDU TEXT ) our illuminating history is full of great examples and shining precedents.
Preamble to the Constitution of the Islamic Republic of Pakistan and Objectives Resolution being its substantive part, Article 2-A command as under:-- "Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust"
"Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust"
In the case of Pervaiz Oliver reported as PLD 1999 SC 26, august Supreme Court, regarding disposal of Public property has held as under:-
(d) Public property--- Disposal of---No public property, big or small, tangible or intangible, can be disposed of except in accordance with law---Functionaries who transgress, expose themselves to the severest or penalties under law, the cardinal principle being that the higher the functionary, the higher the responsibility and, for that reason, the stricter the punishment."
25. Now, the question arises that can die Head of Govt. In Pakistan i,e, Chief Executive is vested with any mandate for not treating the authority as "sacred trust"? Answer is an obvious No, because any action initiated, decision made, direction issued and step taken which violates the sanctity of trust, tantamount to abrogation of the Constitution. Deposits Work under no stretch of imagination can be termed other than "Public Funds", therefore, PPRA Rules are fully applicable on development projects, subject matter of these Petitions. For convenience Article 78 of the Constitution, which defines the Consolidated and Public fund is being reproduced herein below:- "78. Federal Consolidated Fund and the Public Account:--
(1) All revenues received by the Federal Government, all loans raised by that Government, and all moneys received by it in, repayment of any loan, shall form part of a consolidated fund, to be known as the. Federal Consolidated Fund.
(2) All other moneys:- (a). Received by or on behalf of the Federal Government; or
(b) received by .Or deposited with the Supreme Court or any other court established under the authority of the Federation; shall be credited to the. Public Account of the. Federation".
The Deposit Work is defined in Central Public Works Account Code as under:- "Deposit Works".
This term is applied to works of construction or repair the cost of which is met, not out of Government funds, but our of funds from non-Government sources, which may either be deposited in cash- or otherwise placed at the disposal of the Divisional Officer. Works executed for municipalities and other public bodies fall under this category when the cost is chargeable either to cash deposits made for the purpose, or to their credit balances at treasuries".
As is evident from above provisions, command enshrined in the Organic law, under Article 78, definition of Public Fund provided under section 2(k) of PPRA Ordinance 2002 and term deposits work, contained in Central Public Works Account Code, makes it abundantly clear that it is a public money for all practical intent and purposes. To better understand, it may be read as "deposits for works" or work for which amount is already deposited with the employer who need not to wait for approval. I must observe that respondent with mala fide intention, ulterior motives and in order to achieve nefarious designs, took the plea of deposits work to escape from the applicability of golden principles of transparency, fairness, honesty and openness. Even otherwise competitive process is mandatory irrespective of the fact that public money is in which account or head.
26. If, for the sake of arguments, stance of respondent No,5 regarding "deposits work" and non- applicability of PPRA Rules, is treated as correct, for the time being, then can respondents answer the following questions?
(a) Why entire process in requirement of PPRA Rules was started?
(b) Was it deception?
(c) Was it an illusion?
(d) Was it cheating with the pre-qualified contractors/companies?
(e) Was it for public consumption?
(f) Expenses incurred on the entire process paid by whom?
Apparently no answer is forthcoming.
27. Another important question which requires answer is that can any Government Organization/entity competing with the Companies of Private and Public Sectors be put in an advantageous position for assigning of work or award of contract, merely on the ground that it is a Government Organization or entity? In my humble estimation any F Government Organization which opts to take part in the competitive process cannot be treated differently from its competitoRs, More particularly, when process of public procurement once started under the PPRA Rules, then under no circumstances, it can be stopped and winded up to extend undue favour to any Government Organization. The Development projects of idealization of roads are not an installation of any defence equipment nor are roads situated in any sensitive area where persons with specific back ground and identity may enter. The development projects subject matter of these petitions are ordinary civil works which fall in the definition of public procurement. I really failed to understand that if NLC awards contract to other companies for execution then for which purpose white elephant of Pak PWD is allowed to suck the blood of nation. It is very strange that petitioner in Writ Petition No, 3387 of 2012 titled as "Messrs M. N Construction Company v. F.O.P and others", was pre-qualified by procuring agency, however it was deprived from taking part in bidding process, has been awarded sub-contract by NLC. Since NLC claims that PPRA Rules are not applicable to it being an Organization of Armed Forces, therefore, by, taking advantage of this, contracts are awarded to favourites.
It is so unfortunate that officials of PWD, who are public servants, acted in aid of illegal acts, rather became privy to conspiracy, G through which loss of billions of rupees has been caused to public exchequer. The august Supreme Court held time and again that Public H Servants are not supposed to obey illegal orders of their bosses/seniors, but in the present case all Government officials not only obeyed the illegal orders but even violated and disobeyed the orders of this court.
Executive functionaries are not supposed to obey illegal orders as Constitution of Islamic Republic, of Pakistan casts duty upon them to remain loyal to the State. The conduct of the officials of Pak PWD in general and of D.G, Chief Executive Engineer, Superintendent PWD, XEN Central Civil Division No, VIII in particular is rebellious to law and rules applicable. They demonstrated through their conduct that they were privy to conspiracy through which billion of Rupees of Pakistan were looted in broad day light by the device of assigning and execution of development projects. At every stage they abetted, facilitated, and surrendered the assets without any repose, which can be termed as corruption, corrupt practices, and criminal breach of trust, fraud, forgery and bribe.
I am constrained to hold that none of above mentioned officials deserve to remain in the office, as they miserably failed to safeguard the interest of Pakistan, protect the assets of the nation and adhere to the Rule of law.
28. Rule 42 of PPRA Rules, 2004 deals with the alternative methods of procurement, which for convenience is being reproduced herein below:-- "42. Alternative methods of procurements:-- A procuring agency may utilize the following alternative methods of procurement of goods, services and works, namely:-
(a) Petty purchases:- Procuring agencies may provide for petty purchases where the object of the procurement is below the financial limit of [twenty-five thousand] rupees. Such procurement shall be exempt from the requirements of bidding or quotation of prices: Provided that the procuring agencies shall ensure that procurement of petty purchases is in conformity with the principles of procurement prescribed in rule 4: Provided further that procuring agencies convinced of the inadequacy of the financial limit prescribed for petty purchases in undertaking their respective operations may approach the Federal Government for enhancement of the same with full and proper justifications.
(b) request for quotations.- A procuring agency shall engage in this method of procurement only if the following conditions exist, namely:--
(i) the cost of object of procurement is below the prescribed limit of lone hundred thousand] rupees: Provided that the respective Boards of autonomous bodies are authorized to fix an appropriate limit for request for quotations method of procurement subject to a maximum of rupees five hundred thousand which will become financial limit under this sub-rule;]
(ii) the object of the procurement has standard specifications;
(iii) minimum of three quotations have been obtained; and
(iv) the object of the procurement is purchased from the supplier offering the lowest price: Provided that procuring agencies convinced of the inadequacy of the financial limit prescribed for request for quotations in undertaking their respective operations may approach the Federal Government for enhancement of the same with full and proper justifications.
(c) direct contracting.- A procuring agency shall only engage in direct contracting if the following conditions exist, namely:-
(i) the procurement concerns the acquisition of spare parts or supplementary services from original manufacturer or supplier: Provided that the same are not available from alternative sources;
(ii) only one manufacturer or supplier exists for the required procurement: Provided that the procuring agencies shall specify the appropriate for a, which may authorize procurement of proprietary object after due diligence; and
(iii) where a change of supplier would oblige the procuring agency to acquire material having different technical specifications or characteristics and would result in incompatibility or disproportionate technical difficulties in operation and maintenance: Provided that the contract or contracts do not exceed three years in duration;
(iv) repeat orders not exceeding fifteen per cent of the original procurement;
(v) in case of an emergency: Provided that the procuring agencies shall specify appropriate fora vested with necessary authority to declare an emergency; and
(vi) when the price of goods, services or works is fixed by Government or any other authority agency or body duly authorized by the Government, on its behalf; and
(vii) for purchase of motor vehicle from local original manufacturers or their authorized agents at manufacturer's price.
(d) negotiated tendering.---A procuring agency may engage in negotiated tendering with one or more suppliers or contractors with or without prior publication of a procurement notification. This procedure shall only be used when,-
(i) the suppliers involved are manufactured purely for the purpose of supporting a specific piece of research or an experiment, a study or a particular development;
(ii) for technical or artistic reasons, or for reasons connected with protection of exclusive rights or intellectual property, the supplies may be manufactured or delivered only by a particular. Supplier;
(iii) for reasons of extreme urgency brought about by events unforeseeable by the procuring agency, the time limits laid down or open and limited bidding methods cannot be met. The circumstances invoked to justify extreme urgency must not be attributable to the procuring agency: Provided that any procuring agency desirous of using negotiated tendering as a method of procurement shall record its reasons and justifications in writing for resorting to negotiated tendering and shall place the same on record.
Bare reading of above rule, makes it crystal clear that assigning IL of work of development projects subject matter of these writ petitions did not fall in any of the exceptions, therefore, it is mis- procurement as defined in section 2(h) of PPRA Ordinance and Rule 50 of PPRA Rules. L Another very important aspect is that in requirement to rule 47 which reads as under:--- "47. Public access and transparency.---As soon as a contract has been awarded the procuring agency shall make all documents related to the evaluation of the bid and award of contract public: Provided that where the disclosure of any information related to the award of a contract is of proprietary nature or where the procuring agency is convinced that such disclosure shall be against the public interest, it can withhold only such information from public disclosure subject to the prior approval of the Authority.".
The documents related to the evaluation of assigning of the work have not been made public and in a most clandestine manner, increase in cost of projects was left on the discretion of agency i,e, NLC. Moreover, increase of almost 4-00 billion in cost of project has also not been disclosed which leads to the presumption that for irrelevant consideration M and with dishonest intent, in fact a deal has been made between the procuring agency, NLC, persons at helm of affairs, obviously on the dictates of the then Chief Executive of the Govt. Of Pakistan. In the case titled Messrs Malik Goods Transport Co. Lahore v. Federation of Pakistan through Secretary Railways, Islamabad and 9 others "PLD 2010 Lahore 289" the learned Division Bench of honourable Lahore High Court held as under:- "Pakistan Railways being a department of Federal Government would fall within definition of "Procuring agency" as given in S.2(j) of Public Procurement Regulatory Authority Ordinance, 2002-- -Concept of open competitive bidding introduced by Public Procurement Rules, 2004 was with a view to ensure a transparent exercise of powers by a procuring agency in awarding of its contract---Awarding of contract through negotiation was specifically prohibited. By R.40 of Rules, 2004---Transparent exercise of powers by public authorities in awarding contracts of valuable rights was always insisted----Emergent situation to bypass competitive bidding process as provided in R.42(v) of Rules, 2004 did not exist in the present case---No order of competent authority was available on record for adopting process of negotiation for awarding contract to respondent---Process for award of contract to respondent was not only without lawful authority, but same had been conducted in a non-transparent manner, thus could not be sustained in eye of law----Running of contract by respondent on account of injunctive order of High Court would not justify to give protection to illegal and non-transparent method of awarding contract by authority----No complaint in the present case had been made to Committee under R.48(2) of Public Procurement Rules, 2004 nor had any order been passed thereon, thus question of preferring of appeal under R.48(5) thereof would not arise so as to attract prohibitory clause of R.3(2), proviso(I) thereof---High Court directed authority to invite fresh bids for auction of contract and directed Auditors of Pakistan Railways to assess loss, if any, accrued to public exchequer on account. Of illegal award of contract to respondent and its cancellation and submit report before Committee constituted by Authority, which if was found correct, then such financial loss would be made good by respondent and officials of Pakistan Railways in equal share, who issued such letter and contributed towards awarding of such contract to respondent in addition to other action which such committee would direct to be taken against persons held and found responsible for loss."
29. In view of the above discussion, Writ Petitions Nos.3387, 3724 of 2012 and 582 of 2013 are allowed.
I declare that assigning of work to respondent No, 5 i,e, NLC is illegal, unconstitutional, besides the PPRA. Ordinance 2002 and. PPRA Rules 2004, dictums laid down by the august Supreme Court, offensive to the universally accepted principle of fairness, honesty, transparency, openness and is result of colourable exercise of authority, irrelevant considerations, a naked corruption, polluted mannerism, offensive to public ex-chequer and an infringement to constitutionally guaranteed fundamental rights. It is also declared that assigning of work to NLC is glaring example of discrimination, favouritism, nepotism, ulterior motives and stinking approach to advance personal agenda.
The directive No,4218/M/PSPM/2012 dated 2-10-2012 issued by the Principal Secretary to the Prime , Minister, Memorandum of Understanding between Secretary, Ministry of Housing and Works and NLC and all subsequent orders passed are hereby set aside, declared Void, unprecedented, sham, rarity, based on cheating, deception, fraud and nullity in the eyes of law, therefore, same are set aside.
The assigning of work to NLC is declared to be cancelled with the direction that NLC shall return all amount received vide Cheque Nos.B836966, B850167 and B853844 for execution of the projects within one week of the receipt of the order.
The procuring agency i,e, Pak PWD may initiate the procedure afresh strictly in accordance with the PPRA Ordinance, 2002 and PPRA Rules, 2004 and by following the dictums laid down on the point of Public Procurement by the Hon'ble Supreme Court of Pakistan and may complete its process within one month.
It is further directed that copies of this judgment be sent to. Chairman NAB for initiating proceedings against all those persons involved in big scam, including the then Prime Minister, his Principal Secretary, Secretary Ministry of Housing and Works and all the official of Pak PWD who abetted, aided and executed the illegal orders issued on behalf of the then Prime Minister and officials of NLC, who remained involved in obtaining assigning of work of development projects.
Similarly copy of this judgment may also be sent to the Chief Election Commissioner, District Returning Officer of constituency NA-51, Gujar Khan to appreciate as to whether in the light of the observations made in the judgment, Raja Pervaiz Ashraf, can be believed as sagacious, righteous, honest, upright, trustworthy and Ameen.
30. Before parting with the judgment, I may add that conduct of Messrs M.N Construction Company of filing the writ on the grounds mentioned at page 7 of instant judgment and after passing of restraining order by this court, used the order as tool of negotiation to get award of contract by exerting pressure on procuring agency and NLC and succeeded in it. This act is totally uncalled for, any litigant cannot be allowed to use the order of court of law, to blackmail any other party and on achieving the desired result back out from the proceedings and close his eyes on pointed illegalities. The approach of writ petitioner is stinking, cryptic, unscrupulous, deceitful and dishonest.
The undertaking given to procuring agency and filing of C.M. No,1248 of 2012 for withdrawal of writ petition on the grounds mentioned therein substantiate the observation of this court.
Since the matter brought before this court comes within the definition of "public interest litigation" therefore, this court proceeded with it as corruption of billions of Rupees had become apparent.
C.M No,1248/2012 is therefore dismissed with costs of Rs,2:00 Million which petitioner/applicant shall deposit in "Bait-ul-Maal" for "Pakistan Sweet Homes" Orphanage established in different parts of the country.
In case 'of failure in deposit of cost, the licence/registration of petitioner i,e, Messrs M.N.
Construction Company, shall deem to be cancelled by the Pakistan Engineering Council.