' SHAUKAT AZIZ SIDDIQUI, J.--- Petitioner invoked the Constitutional Jurisdiction of this Court by way of filing instant Writ Petition with the following prayer:--- " Wherefore in view of the foregoing facts and grounds, the petitioner craves the kind and gracious indulgence of this honourable Court praying that this honourable Court may be pleased to: a. Declare that the contract dated 28-5-2008 is illegal, unlawful,without lawful authority, void ab initio and against the public policy; b. Direct the Respondent No.1 to seek fresh bids strictly in accordance with PPRA Ordinance, 2002 and PPRA Rules, 2004; c. Declare that diplomatic shuttle service a public service vehicle; d. Direct the respondents Nos.1 and 2 to refrain from interfering in determination of fares of diplomatic shuttle service; e. Direct the respondents Nos. 3 and 4 to determine the fares of diplomatic shuttle service strictly in accordance with the provisions of the West Pakistan Motor Vehicles Ordinance, 1965; f. Direct the respondent No.8 to take stern action against CDA and Police officials for exposing the foreign diplomats to a serious danger and conduct proper scrutiny of prospective bidders before allowing them to participate in the fresh bid; g. Direct the respondent No.10 to strictly monitor the process of fresh bidding in accordance with section 5(2) of PPRA Ordinance being a highly sensitive issue due to the involvement of safety and security of foreign diplomats; "
AND, presented the facts as under:---
2. That after the 9/11 incident in the United States of America, followed by subsequent threats of terrorism, the Government of Pakistan decided to start the special bus service called as "Diplomatic Shuttle Service" for Diplomatic Enclave/Embassies to ensure the safety and security of foreign diplomats and embassies. Those security arrangements were more intensified by the Government following a suicide attack on a church situated within the vicinity of Diplomatic Enclave (DE) in the year 2002 and besides walling off the DE, the government banned entry of people without appointment in embassies and made it mandatory for visa seekers to use the bus service for reaching the embassies. Therefore, Visa Seekers left with no option except to use the Diplomatic Shuttle Service as they are not allowed to take their vehicles or any other mean of transportation.
3. The first contract in this regard was given to respondent No.5 in the year 2002 who provided the service of DSS till April, 2008 which was made in an illegal way, without making it public. That on 19- 3-2008, the respondent No.2 got a vague and ambiguous public notice published in the daily news paper and in blatant violation of PPRA Ordinance, 2002 and PPRA Rules, 2004, instead of inviting bids sought applications from interested parties for provision of certain facilities to visa seekers on Build, Operator and Transfer (BOT). That respondent No.1 being a state owned Corporation, is bound to follow the provision of PPRA Ordinance and rules made there under, in order to procure goods or services and any deviation or breach made there from falls within the ambit of mis- procurement as defined in rule 50 of PPRA Rules, 2004 and liable to be declared as illegal and unlawful.
4. On the other hand respondent No.1 CDA along with respondents Nos.2 and 11, respondents Nos.3 and 4 (Secretary, ITA and Chief Commissioner) as well as respondent Nos.6 (FOP through Secretary M/o Foreign Affairs) and respondent No.9 (SECP) filed their reply and parawise comments separately.
5. Respondent CDA contended that the CDA Board in its meeting held on 11-3-2008 decided to develop the facilitation center on BOT basis and to invite applications through press from the interesfed parties. Advertisement in this regard appeared in all the national dailies on 19-3-2008.
That in response to advertisement total seven applications were received out of which (5) applications were within due date i.e. 5-4-2008, list of which is as under:--- i. M/s Inter Home Travels, F-10 Markaz, Islamabad. . Ii. M/s Butt Motors, Lalarukh, Wah Cantt., Taxila. iii. M/s Diplomatic Shuttle and Transport Services, G-5, Islamabad. iv. M/s Sadaat Enterprises, Rawalpindi Cantt. v. M/s Galaxy Gas Power Int. (Pvt.) Ltd. Islamabad.
' That the applications received in sealed envelopes were opened on 05.04.2008 in the presence of the applicants/representatives of the applicants and signatures were also obtained on each and every page of the application, and on the attendance sheet. The received applications were placed before a Committee for scrutiny approved by the Chairman CDA comprising of the following:--- i. Member (P&D), CDA Chairman ii. Director Urban planning, CDA Member iii. Director PMO, CDA Member iv. Director Structure, CDA Member v. DFA-II, CDA Member ' That evaluation by the Committee was placed before the CDA Board in its meeting held on 16.04.2008 and the Board approved that planning and development of Facilitation Centre on BOT basis may be awarded to M/s Diplomatic Shuttle and Transport Service (respondent No.5). In this arrangement, expenditure for development of the site and construction of structures to accommodate the visitors were to be borne by the awardee and it does not involve any allotment of site. Infrastructure and facilities developed by M/s Diplomatic Shuttle and Transport Service would become CDA property after stipulated period of seven years, whereas the operation of facilitation center would be disposed of by CDA through open auction. That in addition, annual ground rent of. Rs.2 per sq. Yd. As determined by Finance Wing CDA is also payable like other leased properties in this area. A total sum of Rs.44,444 per annum on account of AGR is being paid by the respondent No.5 to CDA. That facilitation center has been completed in Dec. 2008 and is functioning with all modern facilities, decided by CDA Board. An agreement between CDA & Messrs DSTS was executed on 16.06.2008 for a period of seven years ending on 16-12-2015. That through a court case in the year 2011, it came in the notice of the CDA that the awardee of the facilitation center is charging Rs.500 for exclusive/fast facilities instead of routine charges of Rs.200. That the Managing Director of M/s Diplomatic Shuttle and Transport Services (DSTS) was asked by CDA on 21.04.2011 vide letter No.CDA/PLW-RP-1(1093)/2011/1382 to stop the additional charging immediately.
In response to the CDA letter, Managing Director of M/s DSTS informed that for some odd cases, which wanted extra ordinary services apart from the services which they provided under the agreement a separate window was opened for such clients, but this arrangement was not viable and also too expensive, so it could not work for long, therefore, the same was closed. Since no claimant approached the CDA for refund of additional charges, therefore, no action was taken, however, through an independent inquiry the liability of additional charges can be fixed and recovered from the lessee.
6. Respondents Nos.3 and 4 through their written comments contended that petitioner has no cause of action against answering respondents as they neither fixed any fare nor awarded the contract to respondent No.5. That no route allocated by respondent No.3 to the respondent No.5 in the area, which falls in the security zone as such there is no responsibility/liability on their part.
' Respondent ,No.6, Secretary, Ministry of Foreign Affairs through parawise comments contended that this Ministry was never consulted about the fee charged by the Diplomatic Shuttle & transport Services as such Ministry has no concern with the issue.
' Respondent No.9, Securities and Exchange Commission of Pakistan through its reply contend that no company with the name and style of M/s Diplomatic Shuttle Service is registered under the relevant provisions of the Companies Ordinance, 1984 with the Securities and Exchange Commission of Pakistan, therefore, matter does not fall within its regulatory framework, hence no comment.
7. Learned counsel for Petitioners argued that while granting the impugned contract illegally to respondent No.5, respondent No.2 transgress his jurisdiction by usurping the jurisdiction of Islamabad Transport Authority (respondent No.3) in utter violation of section 45(1) of the West Pakistan Motor Vehicles Ordinance, 1965 which provides that determination of minimum and maximum fares would be the sole prerogative of the Transport Authority, therefore, by determining the fares by CDA in the name of service charges is absolutely in excess of jurisdiction of CDA warrants to be declared as illegal and without lawful authority. That the connivance of the CDA officials is evident from the fact that impugned contract stipulates PKR 200 for pick and drop whereas Respondent No.5 even violating the terms of the said illegal contract and charging Pak Rs.500 but inaction on the part of CDA officials manifestly reflects that they have given free hand to the respondent No.5 thereby allowing him to rip off the visitors. It is further contended that impugned contract has been awarded with mala fide intention to an individual instead of a registered/incorporated entity. Learned counsel further submitted that being an individual, the respondent No.5 does not come under the regulatory control of Securities and Exchange Commission of Pakistan or any other body as a consequence whereof, respondent No.5 in illegal collaboration of the respondents Nos.1 and 2 is earning in millions without contributing a single penny to the public exchequer and the purpose of safety and security of foreign missions have been overlooked which may result into any big incident of terrorism causing bad name to the country. It is further argued that the public functionaries deriving a authority from or under the law are obligated to act justly, fairly, equitably, reasonably and without any element of discrimination.
Learned counsel for petitioner also argued that the advertisement dated 19.03.2008 through which CDA invited applications, on the face of it is illegal, unlawful and based on mala fide. No details of the property proposed to be leased out was mentioned in the advertisement. The location of the property proposed to be leased out was also not disclosed. Applications were invited instead of floating tender and inviting bids. The advertisement gives an impression that something is going to be distributed by CDA and for that matter it requires applications from interested parties. Learned counsel added that the property for which CDA has been made custodian under the law, basically is ownership of people of Pakistan and huge chunk of precious land i.e. 4,5 acres at a prime location right next to the Diplomatic Enclave could not have been thrown out against a petty amount of Rs.44,444 per annum. Had it been a fair process, it would have brought huge amount for the public exchequer. That the first contract for provision of shuttle service was also given to the respondent No.5 in the year 2002 but the arrangement entered into, between the CDA and him were never made public. It is submitted that as per. CDA Conduct of Business of Regulations, 1985 it is the function of Directorate of Municipal Administration CDA and this has also been admitted by CDA in para 4 of its comments. A question arises that if this was the function of the Directorate of Municipal Administration in the year 2002 then why subsequently the function was performed by the Planning Wing of CDA. The advertisement was published by Mr. Ghulam Serwer Sindhu the then Director Planning CDA and the entire process was carried out by the Planning Wing. This also manifests that the officials of Planning Wing acted unlawfully and withdishonest intent, encroached upon the domain of Municipal Administration Directorate, It is further contended that the advertisement though was not in accordance with law but that too was not followed by CDA.
As per the advertisement, applications were invited only from "firm" or "company". The respondent No.5 (Contractor) was neither a firm nor a Company. He did not submit any certificate from Registrar of Firms or SECP. That the agreement which finally executed between CDA and the respondent No.5 reflects that second party to the agreement is "M/s Diplomatic Shuttle and Transport Services a private limited company incorporated under the provisions of Companies Ordinance, 1984."
" It is humbly submitted that no company with the name and style of M/s Diplomatic Shuttle Service (the entity) is registered under the relevant provisions of the Companies Ordinance, 1984 (the Ordinance), with the Securities and Exchange Commission of Pakistan (the Commission), therefore the matter does not fall within its regulatory framework; hence, no comments. "
' That the legal status of M/S Diplomatic Shuttle and Transport Services, CDA states in paragraph No.7 of its parawise comments which is as under:--- " Para 7 is denied as M/S Diplomatic Shuttle Transport Service is registered with Registrar Office, ICT, F-8 Markaz, Islamabad. "
' Learned counsel further contended that it is beyond understanding that on one hand CDA mentions the entity as a private limited company on the impugned agreement executed between CDA and the respondent No.5 and on the other while filing comments, it took absolutely new stance that it is registered with Registrar office ICT F-8 Markaz Islamabad. In fact the stance was taken by CDA after filing of comments by SCEP. It is submitted that Registrar ICT F-8 Markaz has no mandate to register a Firm rather under the Registration Act, 1908, the Registrar is obliged to deal with matters of registration of documents inter alia relating to gift, lease, sale and General Power of Attorney etc. And he possess no authority whatsoever to register legal entities. The paragraph No. XIV - 17 of the impugned agreement states that "The operator would also operate shuttle service from the facility area to the main coach stand in Islamabad and Rawalpindi". Till date no such facility is available to the visa seekers as no shuttle plies from Faizabad/Pirwadhai or any other coach stand to the facility. CDA has so far taken absolutely no action against the respondent No.5 which shows that they are in league with each other. The respondent No.5 was also given unilateral access to the decision makers and the case of Habibullah Energy is fully applicable on the proposition involved in the case. Learned counsel for petitioner placed his reliance on the case- laws reported as PLD 2014 SC 47, PLD 2010 SC 731, 2007 CLD 125, 2010 CLD 726, PLD 2010 Lahore 605, 2014 YLR 2571 and PLD 2012 Balochistan 31.
8. On objection that petitioner has no locus standi, learned counsel submitted that Petitioner being lawyer by profession and member of District Bar Association Gujrat personally aggrieved as in order to appear in the US embassy in a prescheduled interview he reached the terminal of DSS near Convention Center and lodged a serious protest against excessive, disproportionate and arbitrary fare for just 2/3 kilometers but the dealing person misbehaved with the petitioner in front of hundreds of people and refused to entertain him. Moreover, since the property for which CDA is the custodian vests in the people of Pakistan, not only the petitioner but also every member of the society has locus standi to bring forward a public matter disclosing the violation of any constitutional and legal provisions or unreasonable behavior of public functionary.
9. Learned counsel for respondent CDA and respondent No.5 argued that, petitioner has no locus standi to agitate the issue as he is not an aggrieved person within the contemplation of Article 199 of the Constitution. Moreover, factual controversies are involved which cannot be resolved in exercise of constitutional jurisdiction. Learned counsel added that, it was within the competence of Authority to adopt a particular procedure to safeguard its interests. Learned counsel further submitted that contract period, almost concluded, therefore, no interference be made in the lawful act of CDA.
' Arguments heard. Record perused.
' From the pleadings of the parties and arguments advanced, following admitted facts surfaced; ' First contract from 2002 to 2008 awarded to respondent No.5, without any competitive process.
' Mr. Ghulam Sarwar Sandhu (Director Urban Planning) gave the advertisement dated 19-3-2008 in the Newspapers, acted as member of the Scrutiny Committee, participated in the Board meeting dated 16-4-2008 and signed the concession agreement dated 28-5-2008.
' In the Board Meeting held on 18-12-2007 following proceedings took place:--- " Director Urban Planning, explained to the Board that the Visa seekers from Islamabad and outside Islamabad are not allowed to enter into Diplomatic Enclave directly and therefore, these people gather at one point. Presently parking and other facilities to visa seekers are provided on the east of Convention Centre. And to start of construction and security issues, it was decided by the authority to relocate the facilities near Diplomatic Enclave on a safer and accessible location.
The new site is of measuring 400' x 500' (4.50 Acres) and has located along 3rd Avenue having approach from Muree Road, Kashmir Highway and Khayaban-e-Margalla.
He stated that it was desired by the authority that facilities should be developed preferably on BOT basis, Accordingly, presentation was made to the Chairman CDA by the, present licensee who is operating these facilities from last 10 years. The concept was approved by the Authority.
He placed the case before the Board for allotment of the land measuring 400' x 500' (4.50 Acres) for a period of 5 years on BOT basis to the present licensee on rent basis i.e. Rs.100/- per sq. Yard.
The licensee will provide the following facilities at the site.
(1) Main Muree Road,
(2) Road to new site.
(3) Road to main gate.
(4) Vehicle check post.
(5) Parking area.
(6) Rest area.
(7) Luggage.
(8)
Security checks in.
(9) Entrance.
(10) Information desk.
(11) Admin Office.
(12) Security room.
(13) PCO/Photostat/fax/photo shop.
(14) First Aid.
(15) Waiting area.
(16) Cafeteria.
(17) Laundary room.
(18) Prayer hall,
(19) Wash basin/ablution area/washrooms.
(20) Coupon Counter.
(21) For departure only.
(22) Screening point.
(23) Departure parking area.
(24) Gate of shuttle service only
(25) Shuttle point.
(26) Urban Shuttle Service.
He placed the case before the Board for approval.
DECISION: The Board approved the licensing of 4.5 acres land at proposed site to the present licensee for five years on BOT basis and also to charge rent @ Rs.100 per square yard on annum basis. The licensee will develop the site and provide all the proposed facilities at site.
' There is no termination clause in the agreement.
' Decision to advertise for construction of facilities to be provided to visa seekers in Islamabad was made in the Board meeting held on 11-3-2008.
' Respondent No.5 was neither company registered with SECP nor a firm duly registered with Registrar of Firms.
' Minutes of Board, meeting held on 16-4-2008 show that out of seven (7) applicants (6) were ousted due to single reason i.e. Relevant documents have not been submitted. Not qualified, whereas respondent No.5 submitted relevant documents, therefore, qualified.
' In the same meeting Board approved to allow respondent No.5 to develop the area as per requirements.
' Respondent No.5 had been charging Rs.500 per person instead of Rs.200 but CDA took no action against him.
' Requirement of PEPRA Rules compromised.
' Rs.44,444 on account of AGR for 4.5 acres.
11. Above admitted facts shrinked the controversy and made it easy for this court to decide the same in the light of dictums laid down by the Hon'ble apex Court.
12. As far as objection raised by the respondent on the maintainability of the Writ Petition is concerned, reply to same may be found in the case of Habib Ullah Energy's case, reported as PLD 2014 SC 47, august Supreme Court held as under:- " All public functionaries must exercise public authority, especially while dealing with public property, public funds, and assets; in a fair, just, transparent, and reasonable manner, untainted by mala fide without discrimination and in accordance with law, keeping in view the Constitutional Rights of the citizens; and the same would hold true even in absence of any specific statutory provisions setting forth the process in such behalf-While exercising its jurisdiction, Superior Courts neither sit in appeal over administrative actions nor interfere on account of inconsequential deviations; however, where Administrative Authority acted in a discriminatory manner, and action failed the test of reasonableness, transparency and/or was otherwise unjust and unfair or suffered from mala fide, the Courts not only were vested with the jurisdiction to set aside such actions but any failure in such an eventuality to exercise power of judicial Review, when invoked, would make the court a party to such unreasonable, unfair, mala fide and illegal action. "
' 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 descried 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 (SAWS) This is the highest authority in the power to judicial review ": "In the Suo Motu Case No. 18/2010 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 orL 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 courts 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 slop 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 (C.S.) 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---Action 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 honorable 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.
The honorable Supreme Court has elaborately set forth certain guidelines for the high courts in terms of Article 199 of the Constitution, which are fully attracted in the instant case. The honorable 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 clear 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 honorable 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-derogable 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, 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 Hail 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.
' 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'."
13. 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 judgment of the honorable 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 Income Tax 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 vs. 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 be 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 honorable 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. Ijaz 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 supra is 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" 'irrationality' and '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's case (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."
14. The instances are not few, when the honorable Supreme Court of Pakistan while exercising the constitutional jurisdiction, checked the arbitrary exercise of authority, looting of public money 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 Pover Plants etc. reported as 2012 SCMR 773, the honorable 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, well being and prosperity of Pakistan. Such a binding force of the Constitution commands them to ensure well being and prosperity of Pakistan, so whenever they feel threat to the well being of the people of Pakistan for any reason, they are bound to preserve the same."
' The honourable D.B. Of Sind High Court (KHI) in the case of Messrs Shams and Brothers, reported as 2007 CLD 125, held that:--- ----Ss. 10 & 37---Constitution of Pakistan (1973), Art.I99--- Constitutional jurisdiction of High Court- --Scope---Award of contract by State functionaries---Judicial review of administrative action--- Scope---State functionary in awarding contracts was to act fairly, reasonably, honestly and justly- - court though was not to substitute its opinion with that of State functionary; yet it certainly had powers to judicially review administrative actions to check their fairness, reasonableness and transparency---In the context of tenders and award of contracts the prescribed conditions were not to be unreasonable, irrational and were to have direct nexus with performance of work sought to be performed by contractors in totality of circumstances---Condition whether had or did not have nexus with the object was to depend upon facts and circumstances of each case. Similarly learned D.B of Lahore High Court in the case of Atta Ullah Khan Malik v. FOP (2010 PLD Lah. 605) held that:--- 'Art. 199---Public interest litigation-Significance---"Aggrieved person" and "sufficient interest"--- Scope---Duty of public functionaries---Public interest litigation is a judicial tool to help resurrect or jump start public institutions on the road to healthy democratic values and traditions---Unless substantive democracy takes root in public administration and institutions flourish with democratic maturity, court dockets will continue to be filled with public interest litigation, however; courts will continue to redress grievance, with the hope that public institutions will soon come of age---Any citizen or person (part of public) has "sufficient Interest" and is, therefore, an aggrieved person under Art.199 of the Constitution, if public property is being acquired, held, used or disposed of by public functionaries in violation of the law---Public functionaries as trustees of the people, cannot have any personal interest in any public property, therefore if there is any abuse of trust or violation of law; it qualifies any member of the general public as an "aggrieved person" with the right to invoke the constitutional jurisdiction of High Court, .Subject to fulfilling other requirements of Art.199 of the Constitution---Principles---Public functionaries are supposed to understand the importance and meaning of democratic welfare State---Concept of democracy elaborated.
15. Now, I come to next aspect, Hof the proposition as to whether CDA being a public sector civic body can be exempted from application of PPRA, Ordinance, 2002 and PPRA, Rules, 2004 or not? The Public Procurement Regulatory Authority Ordinance, 2002 (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."
' 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 there under or any other law in respect of, or relating to, public procurement;
(i) "prescribed" means prescribed by rules made under this Ordinance;
(j) "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;
(k) "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;
(1) "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.
16. 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.
17. 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" and are fully applicable to CDA as well, and departure if any is not only misconduct but smacks mala fide.
18. 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 () our illuminating history is full of great examples and shining precedents.
19. 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."
' 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 [one 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 fora, 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) repeal 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 of 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.
20. Bare reading of above rule, makes it crystal clear that assigning of work subject-matter of writ petition 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. 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."
' 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 1.48(5) thereof would not arise so as to attract prohibitory clause of R.3(2), proviso (1) 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."
22. It is being observed with great concern that Civic body provided no mechanism to gauge, as to whether, respondent No.5 fulfilled his obligations or not. There was no check on him regarding charges which he was collecting from passengers, until findings recorded by the learned Judicial Commission appointed vide order dated 15-10-2012. For convenience, relevant para is reproduced herein below:- "It is submitted that paragraph No.XIV - 17 of the impugned agreement (pages 42 and 43 of writ petition) states that "The operator would also operate shuttle service from the facility area to the main coach stand in Islamabad and Rawalpindi." Till date no such facility is available to the visa seekers as no shuttle plies from Faizabad/Pirwadhai or any other coach stand to the facility. CDA has so far taken absolutely no action against the respondent No.5 which shows that they are in league with each other. The service charges for pick and drop were fixed @ Rs.200/- per passenger but subsequently the fare was unilaterally enhanced from Rs.200/- to Rs.500/- per passenger for a 2/3 kilometer distance making it the most expensive ride in the country. As per agreement (last clause at page 43 of Writ Petition), if any variation was to be made in the fare, the same could have been done with the permission of CDA. No such permission was sought by the respondent No.5 and he continued fleecing the people of Pakistan for several years."
' The learned Commission in paragraph No. 69 (4th line from top at page 60 of the report) observed as under:- "The grave irregularity which has been proved rather admitted on record is that the lessee is charging Rs.500/- per passenger per trip as against a sum of Rs.200/- determined, fixed and finalized in the agreement. The contractor/lessee has come up with the excuse that Rs.500/- per passenger is charged from those who are provided special facility. According to him the rate was variable, keeping in view the prices of fuel but admitted that amount of Rs.500/- is not charged with reference to the increase in the rates of fuel but is charged for special facility. On the contrary, the agreement admittedly does not contain any provision that the rate could be unilaterally enhanced to more than double by the lessee. Such is the irregularity whcih we have observed and for which the CDA authorities of Planning Wing have taken no action.
' That the learned Commission observed in para 70 as under:-- ' It is held and observed that the contractor is charging Rs.500/- per person per trip dishonestly and unlawfully. For such violation his lease be cancelled and no further lease be allotted in his favour.
As per his own admission of charging Rs.500/- per person per trip, the authorities shall determine the overcharge amount so far and the same shall be recovered from the lessee. Departmental action be taken against the officials concerned who failed or avoided to take notice of this illegality."
The report of the learned judicial commission was issued on 5-4-2013 and till date no action as proposed by the learned Commission has been taken by CDA.
23. Another important aspect in the matter in hand is that respondent No.5 was presented and placed as only option. His access to Board Members and presentation to Chairman CDA to advance his case, speaks loudly of his influence. This court failed to understand that why nobody in the meeting of Board dated 18-12-2007 raised objection or asked question about the allotment of the land to respondent No.5. The perusal of minutes of above mentioned meeting leave no doubt that decision of allotment to respondent No.5 was taken in it and all subsequent decisions, in fact were an illusion and made up story. Whenever, prescribed procedure and objects of transparency are compromised, other considerations prevail. Instant matter is crude example of arbitrary and colourable exercise of the authority and mens rea of the officials responsible. This act of CDA officials, who played active role or who kept on watching the commission of illegalities as spectator and instead of exercising their authority to prevent the wrong, prima facie, committed an offence under section 9(vi) of NAB, Ordinance, 1999 beside other offences. For convenience above provision is reproduced herein below "9. Corruption and Corrupt Practices. --- (a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:-
(vi) [If he] misuses his authority so as to gain any benefit or favour for himself or any other person, or renders or attempt to render to do so, or willfully fails to exercise his authority to prevent grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority].
24. Admitted facts make it abundantly clear that entire process was engineered, manipulated and person specific for respondent No.5, when this Court inquired about the record of award of contract/license to Respondent No.5 from the years 2002 to 2008, learned counsel for CDA frankly conceded that no record of said period is available. Similarly, learned counsel failed to advance any plausible reason of assumption of Municipal Administration work/functions by the planning directorate of the CDA.
' In view of the above discussion, instant Writ Petition is allowed. It is declared that assigning of contract/work to respondent No.5 (Muhammad Hussain, Contractor Diplomatic Shuttle Service) as 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 exchequer and an infringement to constitutionally guaranteed fundamental rights and a glaring example of discrimination, favoritism, nepotism, ulterior motives and stinking approach to advance personal agenda.
' Resultantly, impugned contract dated 28-5-2008 is set aside. The Chairman CDA is directed to immediately take possession of the site, initiate disciplinary proceedings against all officials of CDA who contributed in award of contract/work to respondent No.5 from 2002 and onward. The Chairman shall also ensure as to whether respondent No.5 performed his part under the impugned agreement or not and if answer is in negative then appropriate legal proceedings may be initiated for the recovery of amount due including the over charged amount. Fresh process may be commenced by adhering to the provisions of PPRA, Ordinance, 2002 and PPRA, Rules, 2004.
' Copy of this judgment be forwarded to the Chairman NAB for his perusal and action in accordance with law.