' IFTIKHAR MUHAMMAD CHAUDHRY, Asif Fasihuddin Khan Vardag, an Advocate of the Supreme Court of Pakistan (Petitioner), has invoked the jurisdiction of this Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 by means of the instant petition.
2. The petitioner inter alia, has alleged corruption by the higher echelons in the construction/completion of New Benazir Bhutto International Airport Project, Islamabad (NBBIAP), which was required to be completed at cost of Rs, 35 billion; and as it has not been completed on the due date i.e, December, 2011, the initial cost now has shoot up to Rs, 73 billion and there is every likelihood that it may further be escalated to Rs, 90 billion.
3-4. The petitioner further alleged that Air Marshal (Retd.) Khalid Chaudhry was appointed as Director General, Civil Aviation Authority (DG, CAA) through executive arrangements made by the then Minister for Defence without observing legal formalities, therefore, he has pivotal role in this organized loot. Besides, he had also been given the charge of other mega project, namely, the Multan International Airport.
5. The above facts, including allegations of corruption. Necessitated assumption of jurisdiction to examine, inter alia. As to whether the appointment of incumbent DG, CAA (respondent No, 3) had been made in accordance with law. While adhering to the principle of transparency. And also to ascertain the status of the construction of both the above-said airports. DG. CAA has appended an Inquiry Report with CMA 4379/2013 prepared by a Committee constituted by Ministry of Defence comprising of the .Following officers:--
(i) Lt. Gen. (Retd.) Shahid Niaz
(ii) Member Implementation & -Monitoring of Planning Commission.
(iii) Additional Secretary, Military Finance.
(iv) Director General CAA.
(v) Director Planning & Development CAA.
' It is to be noted that the Committee was required to conduct performance audit in a manner which would not hamper the overall progress of developmental works at the site.
6. Notices were issued to the respondents i.e, Federation of Pakistan and others; whose attendance has been marked in the title of the order, who appeared alongwith their learned Advocates and advanced arguments at considerable length. They also placed on record documents in support of their respective pleas. On having taking into consideration pleadings. Arguments and all other documents, the instant petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan particularly the report of the Committee which was authorized to conduct a comprehensive study performance audit of the project and to inquire into the reasons for increase in the cost of the project, to identify the persons responsible for this state of affairs, to suggest ways and means to bring this project on track for its expeditious completion as well as the Auditor General's report. The CAA was directed to file a statement. A statement has been filed on behalf of the Project Director today in the Court which reads as follows:- "Most respectfully submitted:
(1) That the New Benazir Bhutto International Airport Project ("The Project") from its very inception was not conceived and planned properly.
(2) That to start with, the selection of the Project Site was faulty and to-date there is no water availability for the Project. Initially, it was planned that water would be brought from the nearby Shahpur Dam which is approximately twenty-one (21) kilometers away from the Project Site. More perplexingly, there is not enough water in the Shahpur Dam, hence, the plan now is to construct small dams by harvesting rain water.
(3) That the PC-1 of the Project was approved at all levels without the design and other essential Components relating to different aspects of the Project. Importantly, the work on the Project was started without any design.
(4) That the Project was divided into seventeen (17) packages which created enormous, interface/ integration issues resulting in delay and cost overruns.
(5) That strangely enough, separate packages for piling and pile-caps were created and, that too, without the design of the Passenger Terminal Building.
(6) That all payments to the Contractors were made in strict conformity with applicable contractual provisions (clause 67.1 of the Special Conditions of whereunder CM was bound to forthwith give effect. To PMC (Engineer)'s decisions regardless of final resolution of a disputed payment. Failing to give effect to the PMC's decision was to result in accruing of interest on the pending payment in addition to the contractor's right to suspend works.
(7) That be that as it may, the Federal Government is fully cognizant of the importance and gravity of the matter and has already referred the same to the Federal Investigation Agency 'which has already nominated a team of competent officers to investigate the matter.
(8) That meanwhile, the Federal Government is fully committed and determined to complete the Project and has passed instructions to this effect. At present, around sixty-seven percent (67%) of the works of the Project are complete with approximately ninety two percent (92%) airside infrastructure complete and approximately fifty-five percent (55%) of the Passenger Terminal Building.
(9) That the Contractors are being pushed for timely completion of their scope of works and penal action against Contractors is also being taken where necessary. For example, two contracts i.e, Package-8B (Electric Power & Telecommunication) and Package-8C1 (ATC Complex) have been terminated and their respective scope of work is to be completed at the risk and cost of the terminated Contractors as per the scheme of contract. Early completion is the utmost desire of the Government".
7. We may point out here that the above report is, prima facie, not acceptable as correct. The reasons whereof shall be spelt out later on particularly in respect of the payments made to the Contractors noted herein above and thus; for the reasons to be recorded later, it is held:-
(i) That the appointment of Air Marshal (Retd.) Khalid Chaudhry has been made in a non- transparent manner as well as without strictly following the available law on the subject. Therefore, the notification of appointment of Air Marshal (Retd.) Khalid Chaudhry dated 18th July, 2012 is declared illegal, void ab initio and of no legal consequence.
(ii) As the appointment of the DG, CAA has been declared void ab initio, illegal being made in non- transparent manner, therefore, the Federal Government is directed to appoint DG, CAA as early as could be possible by following the law and rules on the subject as well as the principles of transparency.
(iii) The project of -the New Benazir Bhutto International Airport Project, Islamabad (NBBIAP), prima facie, suffers. From illegalities, irregularities, corruption and corrupt practices and the delay caused in its completion on account of illegal deeds, omissions and commissions of the consultants Louis Burger and all other concerned persons who were responsible for selecting the site, preparing the designs and also awarding contracts to the contractors.
(iv) The Contractors responsible for the completion of .Different respective projects except Al-Tariq Pvt. Ltd., prima facie are responsible for causing the delay in the completion of the projects as on account of their such conduct the value/prices of the projects has increased inasmuch as raising its cost from Rs, 37 billion to Rs, 73 billion. There is no possibility to complete the project in the near future except a tentative assessm ent by the respondents that the project may be completed in the year 2014-' 2015. Therefore, subject to all just exceptions, this case requires a thorough probe on the basis of tentative assessm ents made in the Committee's report of Let. Gen. (Retd.) Shahid Niaz as well as the audit report prepared by the Auditor General of Pakistan and the stance taken by the Project Director reference to which, with certain exceptions, have already been made hereinabove.
(v) The Government of Pakistan had already made the reference for conducting inquiries/investigations and to fix criminal liabilities upon all the concerned persons/contractors, therefore, we direct the DG Investigation, , FIA to supervise the inquiries/ investigations himself and to complete the same expeditiously.
' The Federal Government is required to take all necessary steps to ensure the completion of the project as early as could be possible. However, it is made clear that subject to the contractual agreements the consultants, designers and all other Contractors to whom contracts have been awarded, shall continue to complete the work and the competent authority if need be, proceed against any one of them for the purpose of ensuring completion of the work as early as possible and if so required, to constitute a committee headed by a senior officer to supervise the completion of work and to remove any and all difficulties in this way.
(vii) As regards report of the Auditor General in respect of over-payment of Rs, 1556.47 million is concerned, this audit objection so far has not been removed, therefore, LTH(JV) is required to deposit this amount with the Exchequer within a period of seven days subject to intimation to the Registrar for our perusal in Chambers.
(viii)As all the respondents have cooperated with, the Court by making their appearance through counsel, therefore, the passports which were deposited. By them with the Registrar, shall be returned back to them subject to furnishing undertaking that whenever they are required to appear before the FIA or any other Agency/Committee for the purpose of inquiry or investigation, they shall cooperate without any hesitation and in case of noncooperation, the FIA, shall be free to undertake any steps under 'the law to enforce their attendance.
(ix) The FIA is directed that inquiry process must be completed in the shortest possible time.
Subject to outcome of inquiry by the HA or any other Agency/Committee constituted by the Government, the LTH(JV) Pvt. Ltd. Shall :be entitled to adjust the amount which has been deposited if payments are cleared by the competent authority in accordance with law and rules and in view of the observations made herein above.
8. The instant matter stands disposed of. The parties are left to bear their own costs.