1. ' WAJIHUDDIN AHMED, C J.---The petitioner is a freelance journalist. He has filed this petition on 25- 9-1997. The petitioner, as a concerned citizen of Pakistan, has pointed out that the Qasim International Containers Terminal (QICT) at Port Muhammad Bin Qasim (PQA-Port Qasim Authority) stands completed and since 10-8-1997 there has been a perceptible increase in the movement of ships to and from PQA with 14 renowned shipping lines having commenced the work of cargo handling. The petitioner says that, earlier on, there was only one port in Karachi, the Karachi Port Trust (KPT), and the yearly income of octroi from the KPT source to the Karachi Metropolitan Corporation (KMC), also termed as sea dues, used to be around Rs,2.5 billion per annum. The petitioner complains that the Government of Sindh, in its Local Government Department, has neither auctioned the sea dues contract for the PQA outlet nor has even established an octroi post for such collection. Taking advantage of the situation, according to the petitioner, M/s. Bolan Enterprises which was the KMC contractor for the road and rail side octroi collection, has illegally started collecting of sea dues as octroi on imported goods emanating from the PQA. The right to do this, according to the petitioner, has neither been given to Bolan Enterprises by the Government of Sindh nor by the KMC nor by the District Council, Karachi nor by the Union Council, Darsano Channo. Thus huge losses of Government revenue were being caused, in the process the KMC was allegedly likely to go bankrupt and the citizens wealth continues to go to unauthorised pockets. The petitioner maintains that according to one estimate octroi on cargo, coming through QICT at PQA and moving into the city of Karachi from the octroi post at Bhains Colony from 16-8-1997 to 31-8-1997 amounted to about Rs,4.8 million and from 1-9-1997 to 8-9- 1997 approximately Rs,5.51 million. The petitioner points out that the Government of Sindh has not yet even determined the relevant municipal or union council limits.' He draws our attention to an article in daily Dawn dated 9-9-1997 recording that the KMC had demanded extension of its limits up to Port Muhammad Bin Qasim but there the matter tarried. In the process, according to the petitioner, 30% of the cargo entering the city of Karachi through the KPT stood diverted to the PQA source, thereby providing a windfall to octroi contractor Bolan Enterprises. It is added that the 1997- 98 octori contract for the road and rail side had been given to the said contractor only for Rs,560 million when the likely income from the QICT-PQA source alone, according to the petitioner, would be in the range of Rs,1.00 billion. The petitioner has recounted that the QICT and the PQA, for all practical purposes, fall within the KMC municipal limits because the customs personnel, roads, sewerage facilities, electricity, water, gas, telephone connections and even transporters, importers, ship owners, shipping lines, cargo agents come from Karachi, what to say of the administration including the law enforcement agencies. He questions as to why the QICT has not been included in the Karachi Division and within the KMC municipal limits. The petitioner claims that if the sea dues contract was to be auctioned under the supervision of the Court, such should result in realisation of huge public revenues. The petitioner reports that while everybody knew of the activation of the QICT on 10-8-1997, the KMC paid no heed to the same and on the contrary allowed the road and rail side contractor, Bolan Enterprises, to illegally collect the sea dues in relation to goods entering from the PQA outlet. The petitioner alleges that the road and rail side contract has been given to a favourite because for the preceding year the reserve price for such contract was Rs,530 million but was actually given only for Rs,480 million. That matter, according to the petitioner, was taken note of by the learned Chief Ehtesab Commissioner and such a reference is pending before the Ehtesab Bench of this Court. In spite of this the contract for the current year was manoeuvred not to be auctioned and auction proceedings purportedly failing a negotiated contract for only Rs,560 million was awarded to the firm of Bolan Enterprises, which is also known by the other name of Chawla & Company against whose partners Ehtesab proceedings are pending. During the course of progress of this petition it has been conceded by the learned counsel representing the octroi contractor that the partners of these two concerns, even though not absolutely common, are near relatives. In fact there appear to be several such sister concerns, one other relevant to our purposes being the firm of Ziarat Enterprises, whose role would be dilated upon below. We have since verified that the Ehtesab Reference is pending against one such previous contract to Ziarat Enterprises. The petitioner goes on to assert that convenient terms were provided to the contractor and what is more even such terms were not honoured in letter and spirit, resulting in perpetuation of loss of public revenue. Several reliefs are sought, all, in essentials, to safeguard recovery and protection of public revenues.
2. ' Replies have been submitted by several respondents. The contractor and the Corporation have questioned the maintainability of the petition. The contractor says that the negotiated contract was given when all else failed. It says that instructions permit even a 12% increase on the contract for the preceding year when the instant contract is far more. This is obviously equivocal because Ziarat Enterprises is the contractor's sister concern and negotiated contracts with such for the two earlier years have scuttled all projections and routine increases of percentages cannot reflect the true picture. Besides, and this appears -to be crucial, the instructions given through auctions are reported to provide furnishing of bank guarantees, when none is taken against negotiated ones, thus, possibly scaring away competitors and allowing smooth sailing to the favoured ones. The KMC and the Local Government Department, anyway, have denied wrongdoing. The KMC has added that the activation of the QICT was not anticipated by it and the moment things came to the fore, the Government was moved to extend the municipal limits of the KMC so as to cover the PQA source of sea dues but that did not come about. The Secretary, Local Government was called by us in Court. He conceded loss of public revenue and even manipulation of the contract. He said that the then In charge Officer in the Local Government Department, who also happened to be the Additional Chief Secretary, Sindh, was first made OSD and then had been proceeded against, an inquiry being on. According to his estimation an approximate loss of Rs,400 million would have come about. The Union Council, Darsano Channo and its own octroi contractor have also entered defence and say that the extension of municipal limits of the KMC was not at all conducive to public good and besides had the potential to impinge upon the union council rights which is situated in the vicinity of PQA. On the factual plane we have been able to verify that the PQA had been carved out largely from the lands comprised in the areas of Union Council Darsano Channo and the Landhi segment of the Karachi Division. It has also come on record that for the small entity of Union Council Darsano Channo the octroi contract has been assigned in the sum of Rs,120 million in comparison to which the contract awarded to Bolan Enterprises of Rs,560 million for the entire city of Karachi provides a poor match. There is no other real contest in these proceedings, the remaining respondents, amongst others, being the PQA and the QICT.
3. ' In order to understand the controversy in all its dimensions and complexities, let it be stated here that there are in all five inlets for collection of octroi, that is to say, in so far as the KMC is concerned.
4. One is the air cargo route and that caters to entry of imports and unaccompanied baggage from the Quaid-e-Azam International Airport. Such contract, a very sensitive one from the security point of view, is currently with the above referred Chawla & Co. Another concerns the octroi from the KPT source. That, again sensitive from the national angle. Nick-named the sea dues contract, does not ever seem to have been awarded, the KMC staff manning it having been shown to be making hay.
5. The third and fourth are the road and rail inlets, given usually as a single contract, catering to the goods principally coming from upcountry. This contract currently is with Bolan Enterprises. The present dispute concerns the fifth source, which has lately been evolved and such pertains to sea dues/octroi from the PQA source. Bolan Enterprises lays claim on such but that really has been a mere diversion of the sea dues of KPT origin to the PQA route.
6. ' During the course of hearings we appointed the Official Assignee (OA) as the Commissioner for achieving two distinct purposes. First, to auction the sea dues contract of goods entering Karachi from the KPT source. Such dues, we had discovered, were being collected by the KMC directly and this practice had continued from year to year. It was established before us, and no one has since questioned, that whenever and wherever a local authority has chosen to collect octroi on its own, it has landed with lesser recoveries of revenues than when for the same a contract of recovery had been accorded. The petitioner, at the time, had pointed out that auction of the sea dues contract for the remaining half of the fiscal year though limited to the KPT source was about to be held and it was on the cards that manipulations and manoeuvrings would be resorted to, which needed to be taken care of. The reserved price for such contract we were informed was Rs,3.13 billion on an annual basis. Acting on the principle that safeguarding against waste, and above all public waste, in appropriate cases necessarily invited the appointment of a receiver as rule I of Order XL, C.P.C.
7. Seems to postulate, we appointed the OA not so much a receiver but a commissioner and a supervisor to observe and control the grant of such contract as above. That auction did not come through. There were several factors involved, as would be presently adverted to below. Then a question arose of identifying and segregating the collection of sea dues from the PQA source, so that the ultimate relief such as could arise in the petition, did not dissipate, while the proceedings remained pending. The OA was, therefore, directed to establish requisite posts to identify goods issuing from the PQA and supervise and account for collections by the contractor. That was found to be an insufficient safeguard and an inadequate measure, since recovery of as much as Rs,2.1 million was found unaccounted for. The OA was, therefore, directed to collect but only sea dues leaving the undisputed portion of the contract untouched in the contractor's hands. Things still did not improve. There was non-cooperation from all sides. We, therefore, appointed the former OA (Mr. Bashir A. Memon) and a former Judge, Mr. Abdul Ghafoor Shaikh to coordinate with the OA.
8. They have performed effectively. This is where the functions and duties of a commission got transformed into receivership. Collections have been duly made and loop-holes plugged. The collected amounts have been appropriately invested. Full accounts have been maintained and the learned .Counsel for the KMC has conceded that more has been learnt in the process than in years of KMC operations. Above all, waste has been avoided and this petition, which ultimately should either have borne no fruit or a very distant one, does not at least suffer with that detriment. It has, however, since been complained before us and elsewhere that we had yet not even admitted this petition to regular hearing and quite unwarrantedly resorted to such extreme measures. We have made it clear, from the outset, in this petition and put all concerned on notice that in order to ensure expeditious disposal and with a view to avoid the petition to go to the bottom of the list, on account of the urgency involved because the contract was only for a year's duration, the petition would be heard, admitted and disposed of at the same time. This is nothing peculiar and such procedural measures are often adopted in this Court as would be patent from the case reported as Hameedullah Khan v. Director, Customs Intelligence 1992 CLC 57. Resides, the admission stage of a Constitutional petition in the High Court is very much similar to the hearing of a leave petition in the Supreme Court of Pakistan where often enough a petition is converted into an appeal and disposed of quite frequently at that very stage. What is more interim orders are often passed by the Supreme Court at the (pre-hearing) petition stage itself. Thus, there is ample authority and justification for passing of such interim orders and adopting measures at the pre-admission stage of a Constitutional petition. All that is necessary is that there should be circumstances, factual as well as legal, justifying the passing of such orders or adoption of such measures. Be that as it may, and reverting the auction of the sea dues contract for the KPT origin did not materialise for several reasons. It is fruitless to go into those reasons because the same are on record which already runs into some 1500 pages. The most patent of these reasons, however, is the fact that the market of octroi contracts and particularly the big ones is a small market. There is little or no competition. The contracts can be and are often manipulated. The KMC, particularly and the Local Government Department generally should take heed of the realities on the ground. If the dimension of a contract is large, steps should be taken that such contract is not awarded for the whole fiscal year at one time. Instead, such contracts can be bifurcated into quarterly, four monthly or even biannual contracts. Such would open the way for a fair competition in a restricted market. None of this, however, can be achieved unless the contracts to be given are widely publicised in advance and realistic terms are introduced. There should be a process of checks and balances but such ought not to be time consuming. If approval of the Government is necessary, the contracts should be auctioned sufficiently in advance of the dates of operation and approvals should be accorded or refused with sufficient time in hand, necessary either for execution thereof or for holding a fresh auction or otherwise arriving at a beneficial contract, which must always, besides being just, fair and lawful, be transparent and capable of standing to public scrutiny. We may add here that the auction of the sea dues contract from the KPT source having failed we even permitted the Local Government Department and the KMC to negotiate one so as to ensure that better recoveries are made through a contract than were feasible by direct deployment of the KMC staff at the KPT octroi post. It is a matter of no small regret and a sad commentary on KMC functionaries, as the OA, who has been supervising collections at the KPT, has reported, that recoveries before his induction averaged lower than after the introduction of supervision through him. How and why this happened defies logic and understanding. Goods emanating from the KPT source are to be subjected to in the first place customs and other duties, then octroi and lastly wharf age.
9. Everything is thus documented. How and why, therefore, the collections cannot be as good without supervision as under supervision is a matter for anyone's guess. Another aspect, which the OA has pointed out, is that the contractor is in a position to pay more for the same contract than the officials making the relevant recoveries, and such arises because the contractor is able to squeeze more money from those taking out the goods than the prescribed rates. If this is so, such has to be discouraged. No one can be made to pay more than is due from him and any system which encourages or condones extraction of moneys, not permissible by law, needs to be corrected. We remain confident that the loopholes in this direction would be plugged sooner than later.
10. ' This brings us to the second aspect of why we had to resort to the artifice of appointing, in the ultimate analysis, a Receiver pertaining to the goods which flowed, from the PQA-QICT source.
11. There was a prima facie case, as would be seen below, for drawing an inference that the contractor did not have a lawful right to collect octroi or sea dues in respect of goods which issued from the referred source. It was not our intention, at any stage of the proceedings, to deprive the contractor of any of its lawful rights. All that was intended to be ensured was that the revenue collected from the PQA-QICT source stood clearly and definitely identified and besides a mechanism had to be devised whereby if, in the final reckoning. It was found that such recoveries did not lawfully belong to the contractor, the same were protected for such a one as was found to be entitled to the same. These being the relevant ingredients of irreparable loss and balance of convenience, we decided to authorise the OA to post his staff though for the limited purpose of supervision only that the octroi or sea dues from the last-mentioned source were collected and placed with him so as to be disbursed to the person ultimately found entitled. This purpose has been achieved. The moneys collected from time to time were placed with the Nazir and directed to be invested, to be taken away by him who was found the rightful claimant to the same. Certain things have been revealed in the process. At times the contractor has issued receipts, which did not tally with the record being maintained. There are allegations, by no means unsubstantiated, that the contractor had been maintaining a duplicate record, one for official purposes and the other for his own. Arguably, if not for tax purposes, the ploy may have been devised by way of providing a cover to meet the situation if and when the contractor was not found entitled to keep all that he collects. It needs to be stated here that all collections made by the contractor are through the staff in the actual and physical employment of the KMC. The contractor is to issue printed receipts carrying the KMC name on the face thereof. The object is not difficult to find. Such is to ensure that a proper record of recoveries is maintained so that the contracts which are to follow from year to year can be based and assessed on past recoveries because it is public dues which are being recovered through a contractor and the public bodies concerned have a vital interest in recoveries being made so that the future can be guarded against. Confronted with the above contradictions we appointed, as already stated, Mr. Abdul Ghafoor Shaikh, a former Judge, to look into the deviations, if any. The task though heavy, was technically not difficult. Upon emergence of a consensus between the OA, the PQA, the QICT and the other agencies the methodology followed and worked out was the same, as prevalent at the KPT source. In other words, at the PQA as well, the three consecutive exercises of payments of customs and other tax dues, followed by collection of octroi or sea dues and then they were ensured in that order. This guaranteed a trustworthy method of ensuring the collection of all that was due from the PQA outlet. Because the OA as a corresponding measure was also required to and deputed his staff to supervise the other collections of the contractor in the context of the road and rail link, the two separate segments of collections from the PQA source and the remaining source undisputedly belonging to the contractor, have been identified, on per day basis, from which annual figures are worked out. We may point out here that, not surprisingly in the background above discussed, the figures drawn on the basis of working days when the contractor was on his own are perceptibly lower. Such, not being reliable, are shown within brackets. The figures are Rs,37,29,98,240 (Rs,10,32,72,602) in the way of octroi or sea dues collection from the PQA and Rs,64,68,38,090 (Rs,53,56,18,885) in the way of octroi for the remainder. From this it is obvious that even if the contract awarded to Bolan Enterprises was restricted to collection of octroi from the road -and rail side alone and other than to the PQA-QICT origin, the contractor would still make a very substantial profit on the contracted amount. While conceding this, Mr.Jhamat Jethanand for the contractor has maintained that if luck would have it that the contractor should have more and in fact much more than that he had bargained for such should not be denied to him. This aspect would meet our attention below.
12. ' We may now take up the main dispute and the petition itself. This would involve questions firstly, whether the contract in dispute was awarded otherwise than in due course and then as to what are the terms of the said contract, inclusive of the manner in which the same interact with the controversies raised in this petition.
13. ' It is not disputed that the contract in the petition was awarded through negotiations. This, according to the contractor, the KMC and the Local Government Department, transpired because the auction proceedings did not succeed in bearing fruit. It is also not disputed that the two preceding contracts for the years 1995-96 and 1996-97 were also given in the same manner. What is more, the same were granted to the contractor's 'sister concern of Ziarat Enterprises, the partners of the two firms being not only inter-related but, in effect, members of the same family, as would be discussed below. It hardly needs mention that such is a year to year collection and the amounts involved are so substantial that bulk of the KMC revenue is dependent on the same. See editorial of Daily Jang, dated November 16, 1997 (page 951). The difficulties and the problems encountered in finding the highest and best bidder are, therefore, well known and can be anticipated in advance.
14. The first thing in such matters is to ensure that the auction is scheduled well ahead of the commencing dates of the contract, in each case the beginning of the financial year, viz. July 1 of the calendar. If one auction proceeding fails to yield result, the other can be undertaken. This element, we expect, would be kept in view and acted upon in relation to all year to year contracts to be hereafter awarded under the aegis of the Government of Sindh. Needless to add that omission in this behalf proved detrimental for the revenue in relation of the current financial year and arguably for the preceding ones. Another aspect, already dilated upon, consists of the fact that in so far as big octroi contracts are concerned an apparent monopoly has evolved in relation thereto. It is the policy of law and indeed a mandate of the Constitution that monopolies are to be discouraged and free competition is to be generated. See Articles 18 and 38 of the Constitution of Pakistan. One of the measures to achieve that end can be, as pointed out, by ensuring a timely publication and holding of auction proceedings which we would expect to be at least a period of three months ahead of the commencing date. Another, in so far as bigger contracts are concerned, should be to apportion the grants on six monthly, four monthly or even quarterly basis, each being published well before the due date, as above observed. None of these seems to have been attended to. Yet another aspect to be noted here, as hinted above, brought out in the press and banked upon by the petitioner, is that the ostensibly influential and manifestly moneyed family of former M.N.A. Bhagwandas Chawla seems to be ruling the roast. Inter alia, daily Ummat issues of November. 7, 1997 (page-365) and March 31, 1998 suggest that there are serious allegations against the Provincial Minister, Local Government, Dr. Farooq Sattar of being in league with the referred family. The issue of March 31, 1998 of daily Ummat maintains that 6192 hours have gone by for the said minister to clarify his position regarding the alleged Rs,480 million cut on such contract and he had failed to refer the matter to the Ehtesab Commission. In order to test the petitioner's allegations of collusion and mala fides between the functionaries of the department and the KMC on one hand and the contractor on the other. We required the learned counsel, representing Bolan Enterprises, the present contractor, to place on record the relevant material showing whether the partners in the two concerns were the same. In response, a statement has been filed (pages 393- 403) enclosing photo stat copies of the register of firms pertaining to Ziarat Enterprises and the Deed of Partnership of Bolan Enterprises. These documents show that the family of Bhagwandas Chawla is a common denominator in the two concerns. The significant members also include immediate relatives of Arjundas and Soofandas, even babies and other minors happening to be partners, thus, inextricably inter-linking the two firms. There is no bar to free enterprise. Trade and commerce is to be encouraged but that does not mean that institutions which could have been created only as a front or facade may be allowed to manipulate or otherwise play around with interests of the public revenue. These are matters eminently fit to be taken note of at the level of the administration itself but where they fail to live up to expectations and public spirited individuals bring the matters to Court, Judges who are the custodians of the Constitution and enforcers of law cannot just sit back and helplessly watch the degenerative process afflicting the administration.
15. ' Here we may do no more than to reproduce the contents of the letter dated 9-12-1997, addressed to the Advocate-General by the S & GA Department and the accompanying summary to the Chief Minister, Sindh, brought on record by the Advocate-General: "Sir, ' I am directed to refer to your Letters No, AG-3866, dated 22-11-1997 and No, AG-3991, dated 6-'12- 1997 on the above subject and to inform that Mr.Ahmed Maqsood Hameedee, formerly, Additional Chief Secretary, Local Government Department was made an O.S.D. As a consequence of an administrative decision taken in view of his ill-health and his inability to attend office his frequent requests for leave. His own request for proceeding on L.P.R. Golden Hand Shake was also under process.
2. However, when some general complaints were received regarding the award of octroi contracts the Chief Secretary had sent a summary to the Chief Minister, Sindh, dated 5-7-1997 (copy enclosed) in this behalf. The Chief Minister had entrusted an enquiry to the Chairman, Chief Minister's Inspection Team into these complaints/allegations vide his order as recorded by Secretary to Chief Minister dated 15-8-1997.
3. As regards the statement of the Secretary, Local Government made before the Honourable High Court that according to his modest estimate a minimum loss in relation to the disputed contract to the KMC could not have been less than Rs,40 crores, this particular aspect was never reported.
16. However, the Administrative Department is fully competent to take cognizance in the matter as and when it comes to its notice. Since the Secretary, Local Government has made the statement, it is presumed that he would have already initiated action in this regard. In any case he is being advised to proceed in the matter immediately and order an inquiry into this allegation and also take steps to recover the losses incurred to the KMC or Union Council, Darsano Chaim, if any. He is also being asked to contact the Chairman. CMIT to obtain the latest position regarding the enquiry entrusted to him."
17. "MOST IMMEDIATE Confidential CHIEF SECRETARY GOVERNMENT OF SINDH ' SUBJECT: IRREGULARITIES IN OCTROI CONTRACTS ' A large number of complaints have been received in respect of the Octroi contracts being given for the current financial year all over Sindh. I have been writing to the Local Government and Rural Development Department to take notice of the same (copies of the same are being enclosed). In addition to these complaints the people of the Province have also been talking about it. While some complaints relate to the award of contract at rates less than last year's auction amount, some other mention that auctions have been held in closed rooms and not in the open--still some others say that auction has not been held at all and all proceedings have been fictitious and tailor- mode to accommodate some favourties. Since it is adversely affecting the credibility of the Government agencies, it is proposed that a high-level committee comprising the Chairman, Chief Minister's Inspection and Evaluation Team, Additional Secretary, Local Government and Rural Development Department (Mr. Manzoor Syed) and Director, Anti-Corruption (Mr. Akbar Arain), to be appointed to look into the octroi and similar contracts being awarded by the local councils as well as Local Government Department and put up a report within a fortnight positively. Further, all those contracts which have been awarded at rates 20% less than last year's auction amount should be cancelled forthwith and re-auctioned strictly in accordance with the procedure policy.
18. (Sd.)
19. MUHAMMAD SAEED MEHDI, CHIEF SECRETARY.
20. ' CHIEF MINISTER ' The C.M. Has already given enquiry to the Chairman, C.M.'s Inspection Team.
21. (Sd.)
22. 15-8-1997 ' C.S. (Sd)
23. 16-8-1997 ' Chairman, ' C.M.'s Inspection and Evaluation Team."
24. ' The foregoing would possibly imply that things were moving. Add to that the fact that we on our part, through appropriate orders, more than once, emphasised the urgency and importance of the inquiry proceedings and yet what would one make of it when it is seen that next to nothing has so far materialised.
25. ' It is noteworthy that while the Secretary, Local Government, the Administrator, KMC and others who are expected to share the same concerns have admitted serious detriment, indeed losses, to the public revenue, each one of them has explained the development to unanticipated activation of the QICT and the belated efforts to purportedly extend the municipal limits of the KMC up to the PQA in order to plug the holes from which the contractor admittedly has been deriving an advantage not normally and routinely due to it. This itself is partly wrong and partly misconceived.
26. The PQA was established way back in the year 1973. It was known to all concerned that goods from the PQA source had started percolating in Karachi by the year 1984. It was also all through on the cards that there was necessity to extend the municipal limits of the KMC up to the PQA area or something akin to it had to be conceived so as to protect the octroi from that source. Yet nothing was done. There is ample material on the record that the effective activation of the QICT itself was very much anticipated during the current fiscal year and yet no protective mechanism was provided in the agreement with the contractor so as to adequately safeguard the revenue. Indeed, a halfhearted effort was made, which apparently has also floundered, to extend the KMC limits. Not one letter was written to the contractor to pay up the collections from the said source except and too belatedly in December, 1997, well after the institution of this petition and only after the Bench of this Court had drawn attention relative thereto. As expected such was too little too late. Another significant aspect is that neither the Local Government Department nor the KMC, in the replies that they have entered, laid any claim whatsoever to such questionable recoveries by the contractor and in fact while conceding the loss of revenue supported the contractor's stance. It was only in the end and while arguments on the main petition were being heard that Mr. Muhammad Yasin Kiyani, learned counsel for the K.M.C., said that the collections made through the agency of this Court, relative to octroi from the PQA source, belonged to the KMC and be made over to it. None of this is healthy and no part of it inspires confidence.
27. ' As to the expanse of the contract, it is nobody's case that sea dues or octroi on air cargo is included therein. Both are separate matters. Sea dues at the KPT are collected by the KMC directly whereas there is always a distinct contract for the airport post. There were some goods of foreign origin coming in from Quetta and Landi Kotal on which the rail and road contractor was collecting octroi. A question arose in one case whether that collection could be on weightage or ad valorem basis. This Court (one of us being on the Bench) found the former applicable. So, rule 46 of the Octroi Rules, 1964 was amended providing enhanced levies on ad valorem basis for goods of foreign origin. May it here be noted that except for sea dues all octroi collections hitherto used to be on weight basis and ad valorem charges are, on an average, as the OA told us in Court, about three times higher. Prior to this there was no mention of PQA source of goods but under the garb of the amendment die pre-existing equivalent of contract condition 6(10) was altered, surreptitiously but expressly mentioning goods from the PQA source. No re-evaluation of the contract took place and no benefit of the amendment accrued to the people. As an eye wash, however, a reservation for extending of municipal limits to PQA was introduced in clause 6(19-B) of the contracts with the contractor and its sister concern. This Was fraudulent, Clause 6(10) is of no effect. The novelties do not stop here. It was for the first time, and without any quid pro quo, that Bolan Enterprises and its sister concern of Ziarat Enterprises was permitted to collect octroi in lump sum and in advance much as for the first time clauses 6(19-A) and 6(19-B) were inserted providing leverage for foul play. No interpretation, therefore, of the contractual terms, which conflicts with public interest is to be countenanced.
28. ' Coming to the indications in the contract that all concerned were aware of the activation of the PQA source of goods, we may refer to clauses 6(10), 6(19-A) and 6(19-B) of the Contract. Such are as under:- "6(10) That the contractor shall collect octroi in the manner, and at the rates prescribed in Octroi Rules, 1964, and octroi Schedule 'B' as per Notification No,1288/Gen.Oct/92, dated 6-8-1992 and as amended from time to time and shall recover octroi under Schedule 'A' strictly for goods imported from abroad through Bin Qasim and aforesaid octroi posts as per Notification No,SO(VI)/5-1/92, dated 18-1-1993. In the event of any dispute over the assessment of octroi, description of goods, the matter shall be referred to the Director Octroi, whose decision shall be final and binding upon the contractor unless set aside by Appellate Authority as specified in the Octroi Rules.
29. 6(19-A). That the contractor may recover octroi under Octroi Schedule 'A' on goods imported by sea/air and brought back to KMC octroi limits provided that prior permission is obtained from Corporation in this regard.
30. 6(19-B). That in case, the octroi limits at National Highway are extended via Bin Qasim up to Ghaghar Phatak, the octroi so recovered due to extended octroi limits shall be paid to the Corporation by the contractor."
31. ' The first of these has been altered, as above, but curiously the enhanced rate does not extend to foreign goods coming from Quetta and Landi Kotal and seems to be confined to the PQA source of goods entering through the posts mentioned in the earlier recitals. On the other hand, clauses 6(19-A) and 6(19-B) are new and appear to have been introduced for' the first time since the year 1995-96. Now what is the significance of clauses 6(19-A) and 6(19-B)? Mr. Muhammad Yasin Kiyani, the learned counsel for the KMC, has pointed out that clause 6(19-A) covers a situation where goods arriving by sea or aii are brought back to the octroi limits, meaning thereby that such goods having once left the octroi limits are re-inducted within those limits, entailing charge of octroi but with the prior permission from the Corporation. The emphasis, according to him, is on the phrase "brought back to KMC octroi limits". The contracts from the year 1993 todate (1994-95 contract, we now note, not filed in spite of orders for unexplained reasons) indicate that these are, in effect, stereotyped instruments and no great care seems to have been taken in drawing up the same.
32. Besides, there have been sudden and surprising insertions therein, without any public advantage gained therewith. The language employed therein is, therefore, to be liberally and beneficially construed in public interest. Contextually, it would be seen that there is little question of goods arriving by air to be brought back in the octroi limits because such are in essence delivered within such limits and octroi is charged at the airport source, no further prospect of octroi being recoverable on them. Likewise, as regards goods coming from the KPT source, again there is hardly any prospect of such goods being brought back within the octroi limits much as the goods arriving by air and leaving the octroi posts. Mr. Kiyani concedes that no resulting permission was even sought. In any case and in essentials the contract awarded to Bolan Enterprises was a road and rail contract and necessarily meant for charge of octroi on goods coming from up-country. When clauses 6(10) and 6(19-A) are placed in juxtaposition with clause 6(19-B), it becomes manifest that a sole but perceptible in-road was being made to clinch the octroi on goods coming from the sea as well, the KPT source being kept out and the PQA source being trapped in through the process.
33. The prospect of extending the municipal limits to the PQA route was remote and must have been known to everyone as being so and yet the PQA source was being wantonly given away. We have already found clause 6(10) to be fraudulent. Because perceptible elements of manipulation seem to have been involved we are also constrained to interpret clause 6(19-A) in a manner whereby the revenue in the nature of sea dues from the PQA source can be protected. It is permissible to a Court even to read or exclude words in a statute so as to advance the remedy and to suppress the mischief. We cannot see as to why the word "back" occurring in the above reproduced phrase from clause 6(19-A) cannot be omitted from consideration. If we do so, we would be giving effect to the contract in all its essentials, namely, ensuring to the contractor everything that would be lawfully due to it, as reflected in the pristine agreement of the nature, namely, the contract for the year 1993.
34. No other mode of interpretation can serve the public interest, save the public revenue and do away with the manifest manipulations witnessed only in the case of the three contracts signed by the KMC with the present contractor and its sister concern of Ziarat Enterprises. Reading the provision in this way the contractor would not be entitled to collect octroi on goods imported by sea and brought to KMC octroi limits except with the prior permission obtained from the Corporation. That permission not being there all such collections would be beyond the entitlement of the contractor.
35. As already indicated no prejudice in this behalf would be caused to the contractor because even bereft of such source it would still stand to make a substantial profit from the conventional octroi sources. We are strengthened in taking and adopting this view because nothing was easier for the KMC than to immediately blow the whistle as soon as the QICT became operative on August 10, 1997 and requiring its staff at the National Highway source to collect the sea dues from the PQA source independently of the contractor and to make it over to the KMC, the dispute, if any, arising therefrom being left to be decided in terms of the other conditions of the contract. It is a sad commentary on the performance of our administrators that such had to be left to a public spritted individual to come forward and stick his neck out, suffering personal hazards of life, liberty and honour, something for. Which we had to intervene by devising measures and ensuring security while the petition proceeded. See order dated 29-10-1997. All this augments the petitioner's assertion that the acts of commission and omission involved in relation to the contract in dispute are a pointer to collusion between the contractor and those who matter in the administration.
36. Indeed on 13-11-1997, the present incumbent of the office of Secretary, Local Government, conceded before us that the grant of contract to the current contractor has at least caused a loss of Rs,400 million to the exchequer. When it was inquired of him as to what steps were being taken against those responsible, he said that an inquiry was on against the then incumbent of the same office who also happened to be the Additional Chief Secretary of Sindh. We understand that nothing worthwhile in that inquiry has taken place and nothing apparently would unless a person higher in status than such officer is appointed as the inquiry officer and unless agencies such as the Ehtesab Commissioner and the Ombudsman see to it that such wrong doings do not escape without punishment and without retribution. It is perhaps not coincidental if one of us (the writer) was to recall that he had, some years back, occasion to deal with a similar if not a worse case of breach of public trust where the role models were the same viz. The Additional Chief Secretary above referred and Soofandas. The order in that case, replete with a record of similar bunglings with strictures concerning the official, is reported as Zahid Hussain v. Government of Sindh 1992 CLC 2396. Nothing happened to the officer then and no lesson was learnt. Perhaps that case and this would be put together now and continuing betrayal of the people would be taken account of.
37. Having come to the conclusion that relief may be granted in this petition, we would now proceed to examine the question of maintainability of the petition itself. It has been urged from the side of the respondents that the petition is not maintainable because the petitioner has no locus standi and because it is for mala fide reasons that the petition has been brought. We required of the OA to find out whether there were any mala fides discernible from the conduct of the petitioner. He has submitted his report dated 30-3-1998 and has totally exonerated him and apparently for good reasons. The OA has also pointed out that a number of advantages have been gained from entertaining this petition. We do not wish to go into those details and the OA's report speaks for itself. Be that as it may, there is a plethora of case-law from our own jurisdiction as also from other jurisdictions which would seem to sustain the petition, having been filed pro bono publico. In public interest litigation of this character all that has to be seen is public interest and public advantage.
38. Strict rules and technicalities have no room in such matters. A good deal of laxity and an equal amount of indulgence is permissible in such matters directed solely to achieve public good.
39. ' As to non-maintainability Mr. Jhamat Jethanand for the contractor has referred to Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192, inter alia, observing that the Courts do not claim to exercise a general power to enforce performance of statutory duties by public bodies and it is necessary for the purpose of seeking mandamus that the applicant should show that he has some particular ground to seek performance apart from the fact that he is interested in the performance of such duty as a member of a class of persons all of whom are equally interested.
40. Chairman, Railway Board v. Abdul Majid Sardar PLD 1966 SC 725, lays down that every possible explanation for the acts performed and orders made by public authorities have to be explored and only when such are found to be without lawful authority interference may be made in the Constitutional jurisdiction. Lahore Improvement Trust v. Custodian of Evacuee Property PLD 1971 SC 811, is to the same effect. Next to be relied upon by the learned counsel for the contractor is Khiali Khan v. Nazir PLD 1997 SC 304, which postulates that even a void order need not always be struck down regardless of the consequences flowing from it. Province of the Punjab v. Muhammad Zafar Bukhari PLD 1997 SC 351, reiterates the same rule that even where an order is void, discretion still vests for the Court to interfere or not to interfere relative thereto. We would like to intervene here and say that a Constitutional provision such as Article 199 thereof is not susceptible to any fixed or static approach. The Constitution is a living document and each one of its provisions, if enforceable, is to he applied in ever evolving circumstances. The rule of locus standi, both here and abroad, including England, has, as pointed out by Mr. Sharifuddin Pirzada, undergone considerable appraisement. In England, there has even been a legislative change by way of amendment in the Supreme Court Rules. An affectee under the altered version need not be personally injured nor directly targeted but a person with sufficient interest qualifies for seeking redress. The House of Lords Case of IRC v. Federation of Self-Employed, (1981) 2 AER 93(116) bears testimony to the change. In our own country note may be taken of Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223, Suleman Mala v. Karachi Building Control Authority 1990 CLC 448, Darshan Masih v. State PLD 1990 SC 513, Government of Sindh v. Sharaf Faridi PLD 1994 SC 105, Multilines Associates v.
41. Ardeshir Cowasjee 1995 SCM R 362 and Javed Iqbal Abbasi v. Province of Punjab 1996 SCMR 1433. In the last of these cases, the Supreme Court of Pakistan, inter alia approved the opinion of the Indian Supreme Court (page 1449) that a Government cannot give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it unless, of course, there are other circumstances which render it reasonable in public interest to do so. Examining these cases, we are of the view that the concept of an aggrieved party/person in Article 199 of the Constitution can no longer be restricted to a direct affectee of an illegal or unlawful act. A broader view has since come to prevail. One can only be a relator now of how a public or general right of some moment has been transgressed or an official obligation, duty or even function, in contravention of law, is not being discharged or performed and that the relator, as member of a class of persons, is thereby affected, howsoever, indirectly or remotely. Such should be enough and the Court can be approached under Article 199 of the Constitution. There always will, however, be a discretion left to the Court in these matters to interfere or not to interfere with such a transgression, as aforesaid, and to entertain or not to entertain a Constitutional petition so based, the discretion remaining to be exercised along sound judicial lines.
42. ' On the touchstone of the foregoing and within the parameters discussed the petition qualifies. We find it maintainable.
43. ' Reverting to the question of relief, a contract so brought about and worked upon is ex facie avoidable transaction. We can avoid it in totality. However, we are not inclined to do so and confine ourselves to interpreting it the way we have done hereinabove. There is good reason for so doing.
44. As seen, members of the minority community are involved. Minorities have sensitivities of their own.
45. Courts have to be alive to such sensitivities. The Constitution of Pakistan ensures an honoured place and status to all minorities. That is in line with the pristine concepts of Islam, which envisage incomparable safeguards to minority rights. It is for the Courts to recognise and enforce them.
46. ' We would, accordingly, direct the continuation of the mechanism of collection already in operation till the very end of the fiscal year. There is no need to extend the municipal limits of KMC solely to ensure collection of sea dues. The existing arrangement can stay in place. This should leave, however, Union Council Darsano Channo handsome revenues but we are told that such are being frittered away and little of the same goes for uplift of the area. An inquiry in the context is ordered to be conducted by the OA and report submitted within a month. As to the collections of sea dues so far made such and hereafter to be made shall be passed on to the KMC after due accounting. The OA and other appointees assigned various duties, whose devotion and efforts we appreciate, would be entitled to due fees and emoluments according to the rules and practice of the Court. Necessary reference may be submitted. Regarding the collections which Bolan Enterprises has made in the way of octroi dues from the PQA source there are already some reports from the OA and others specifying the relevant amounts. Reported collections by the contractor of octroi from the PQA source for the period 1-7-1997 to 15-8-1997 are Rs,10,19,589 and from 16-8-1997 to 31-10-1997 Rs,3,37,81,863 yielding a total of Rs,3,48,01,452 Such total would be deposited by the Bolan Enterprises, within one month, with the Nazir of the Court to be made over to the Corporation in the same manner as other collections. The balance and other accounts would be worked out by the OA within 3 days of which notice would be given by the OA to the contractor and that too would be deposited within the same period. The other matters, including the works assigned to Mr.Bashir A. Memon and Mr. Abdul Ghafoor Shaikh would continue till the end of the fiscal year with reports to the Court on the 1st of each calendar month.
47. While allowing the petition in terms, with costs of Rs,1,00,000 each against the contractor and the KMC, we would expect an inquiry against all relevant officers in accordance with the observations already recorded and the matter would be taken care of by the Chief Secretary of the Province, report being submitted within two months. Outcome of the above on-going inquiry would be placed before us within 10 days. In addition, copies of this order would be forwarded to the Chief Ehtesab Commissioner as also to the Provincial Ombudsman for appropriate action including such as may commend itself pertaining to the role of the minister in charge, namely, Dr. Farooq Sattar.
48. Needless to add that none of this could be brought about by the Additional Chief Secretary alone.
49. Political patronage and political complicity is a forgone conclusion in such a scenario. It should also be checked as to what political linkage existed, when the goings on in Zahid Hussain's case (ibid), were taking place. Reports within two months. Forward copy also to the erstwhile Chief Secretary, Sindh, who had hitherto been dealing with this dispute.