1. The facts leading to the present Ehtesab Reference are that during the year 1994 M/s Ghulam Abbas Gabol, Ghulam Akbar Gabol and Muhammad Khan Gabol (accused Nos.3 to 5 respectively) made applications to the then Chief Ministers of Sindh, Syed Abdullah.Shah (accused No,1) for the allotment of land in Deh Thoming, near New Sabzi Mandi, District Malir, Karachi. Out of the three the accused No,5 sent his application directly to the Chief Minister which was then routed to the Deputy Commissioner, Karachi duly endorsed "Please put up summary through Member (L.U.)". The remaining two applications of accused Nos.3 and 4 were also sent to the Chief Minister directly but were thereafter routed to Ramesh M. Udeshi, former Secretary to the Government of Sindh, Land Utilisation Department (accused No,2) endorsed "Pleae put up summary." The latter two applications were also sent to the Deputy Commissioner, Karachi through Letters Nos.PS/MBR/(LU)/1493 and No,PS/MBR(LU)/1494, both dated 3-10-1994 by the accused No,2 directing submission of a report in relation to the availability of land as also the prevalent market value. Subsequently, on 14-12-1994 the Deputy Commissioner submitted separate reports on all the three applications to the Commissioner, Karachi, with copy to the Deputy Secretary, Land Utilisation Department. In all the three reports the Deputy Commissioner underscored the market value at Rs,800,000 per acre in Sector 24-A and Rs,7,00,000 per acre in Sector 24-B, Scheme 33, Karachi. In the said letter it was also stated that previously the Government of Sindh, had also allotted land in the same area at the rate of Rs,100 per square yards. On the strength of these letters the accused No,2 floated a joint summary dated 20-3-1995 to the accused No,1, which was thereafter, approved by the accused No,1 on the same date i,e, 20-3-1995 under section 10(1) of the Colonization of Government Lands (Sindh) Act, 1912 (hereafter: "the 1912 Act"), while exercising powers in relaxation of the then existing policy/ban/rules. In the joint summary orders of the accused No,1 were solicited by the accused No,2 as to whether the applications for allotments by the accused Nos.3 to 5 could be entertained at the rate of Rs,100 per square yard. The accused No,1 approved the same and forwarded the summary back to the accused No, 2 who, in turn, made an onward endorsement on his own on 21-3-1995. In pursuance of such expeditious actions, allotment orders were issued to the accused Nos.3 to 5 with accused Nos.3 and 4 getting four acres of land each and the accused No,5 getting three acres of land in Scheme No,33 at the rate of Rs,100 per square yard. Subsequently, the accused Nos.3 to 5 addressed a common application to the accused No,2 for the grant of four equal instalments towards the allotment price. The accused No,2 allowed such request as per his endorsement dated 10-10-1995 on the common application which read "allowed as per rules." This was followed by a letter dated 17-10-1995 signed by the accused No,2 on the same date intimating the Deputy Commissioner that the Government of Sindh had been pleased to grant four equal instalments in relation to the allotment price.
2. The above set of facts are not in dispute. Also the same are discernible from the corroborated testimonies of the prosecution witnesses as also the documentary evidence brought on record, (Exhs. P-1 to P-17 and Exhs. 10/1 to 10/18 Exhs. 11/1 to 11/3).
3. At this juncture, it is also pertinent to point out that the accused No,1 was declared to be an absconder after compliance of the necessary procedure under law. As such the case against the accused No,1 is to proceed as and when he is apprehended. With regard to the accused Nos.3 to 5 applications were moved by them under section 17 of the Ehtesab Act, 1997 for the voluntary return to the Chief Ehtesab Commissioner of the property, assets or gains acquired through corruption or corrupt practices. The said three accused were allowed on 8-9-1997 to be dropped from proceedings after the applications under section 17 were allowed upon their furnishing funds representing their unlawful gains to the satisfaction of the learned Chief Ehtesab Commissioner and this Court. As such the only accused left to be tried is accused No,2, Ramesh M. Udeshi, and the present judgment pertains to the determination of his guilt or innocence.
4. In consequence to the learned Chief Ehtesab Commissioner's forwarding the present reference to this Court on 16-1-1997 the accused No,2 (alongwith others initially) was charged on 15-5-1997 with offences punishable under sections 3 and 4 of the Ehtesab Ordinance, 1996 to which the accused No,2 pleaded not guilty. At this juncture suffice it be to say that the proceedings continued under the Ehtesab Ordinance, 1997 which were subsequently saved under section 31(2)(c) of the Ehtesab Act, 1997. Although this point has not been agitated, the same is being clarified to avoid any controversy.
5. I have heard the arguments advanced by Mrs. Ismat Mehdi, the learned Special Prosecutor as also Mr. Akhtar Ali G. Kazi assisted by Mr. Partab Rai the learned counsel for the accused No,2. Mrs. Ismat Mehdi has vehemently contended that the accused No,2 has acted in concert and collusion with the other accused, in dereliction of his official duties as a holder of public office in complete disregard of the law and procedure. The learned Special Prosecutor has attacked the joint summary floated by the accused No,2 on grounds that his suggestion in the said summary to allot the land despite the existence of a complete ban in the purported relaxation of rules/policy/ban at a ridiculously throw away price of Rs,100 per square yard was completely in violation of the law and procedure, especially when the Deputy Commissioner had also recommended the parallel prices of similar land at Rs,7,00,000 and Rs,8,00,000 per acre, respectively. Mrs. Mehdi has pointed out to Rule 28 of the Sindh Government Rules:of Business 1986; condition No,14 of a Sindh Government Notification dated 12-5-1975 issued under section 10(2) of 1912 Act; and the decision of the Supreme Court in Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 to support the prosecution case.
6. On the other hand M/s Akhtar Ali G. Kazi and Partab Rai Advocates have made oral and written submissions to the following effect that:-- (i)the accused No,2 in the joint summary did not conceal the prices conveyed by the Deputy Commissioner. Also he did not recommend the rate at Rs,100 per square yard. Also he did not suppress the fact that there existed a ban on the disposal of land; (ii)the accused No,2 only followed the orders of the accused No,1 in merely communicating the orders of the Chief Minister to the Collector/Deputy Commissioner; (iii)the prosecution has not cited a single instance in which land was granted at a rate higher than Rs,100 per square yard; (iv)the Deputy Commissioner who had initiated the report on the orders of the accused No,1 has not been charged, as such the entire prosecution proceedings have been discriminatory in nature; (v)earlier many such summaries had been floated by the predecessors of the accused No,2; (vi)no ban has been notified through the Gazette. The same is accordingly not applicable to the grant made under section 10 of the 1912 Act;
(vii) in any event, the Chief Minister, being the head of he Province has ample power to relax the rules and the ban. Under rule 7 of the Sindh Government Rules of Business, 1986, the Chief Minister also has the powers to pass any order in any case without consultation with any Department or Minister. Also the land in question can always be cancelled by the Government;
(viii) reliance is also placed on Agha Saifuddin v. Dr. Muhammad Ashfaq Paracha, 1986 CLC 1819 and Agha Fakhruddin v. Muhammad Faryal PLD 1989 SC 16).
7. I have given anxious thoughts to the submissions advanced. In my opinion the crux of the matter lies in ascertaining as to whether the accused No,2 exceeded any of his powers or acted illegally in forwarding and formulating the joint summary dated 20-3-1995. The decision of the Supreme Court relied upon by the prosecution in Zahid Akhtar v. Government of Punjab categorically holds that compliance of an illegal or incompetent direction/order by a subordinate officer could neither be justified on the plea of the same having been issued by a superior authority nor the same could be defended on the ground that non-compliance thereof would expose the subordinate officer to disciplinary action for defying the orders of the superior authority. There is no cavil with the principle enunciated in the said Supreme Court decision. The same applies with full vigour in cases where the subordinate officer is entrusted with the task to perform a function as opposed to a case where the subordinate officer is only entrusted with the task to communicate orders. In my humble opinion the ratio decidendi in Zahid Akhtar will be inapplicable in the latter scenario. Accordingly, the fundamental point which requires determination whether the accused No,2 while formulating and forwarding the joint summary to the accused No,1 as also in following up the approval/decision of the accused No,1 was performing a function entrusted to him or was he merely communicating the orders of a superior officer. In my opinion the accused No,2 while formulating the joint summary had to apply his conscious mind in collecting the information, making recommendation as per law and apprising his superior officer i,e, the Chief Minister with the correct state of law and facts for example, whether the ban could be relaxed, the methodology of disposal of land and the correct market value. With regard to such function the accused No,2 was not expected to act as a rubber stamp and if he so did he is only to blame himself. It is the subsequent action of the accused No,2 when he communicated the approval of the Chief Minister to the Deputy Commissioner which did not require any conscious application of his mind. For this the accused No,2 could not be blamed as he only acted as a post office, while communicating the orders of a superior authority to some other authority.
8. The question that is now to be examined is whether in formulating the joint summary in the first place the accused No,2 had acted illegally or in dereliction of his duties. In the said summary the accused No,2 had admittedly underscored the three rates vonveyed by the Deputy Commissioner i,e, Rs,700,000 per acre, Rs,800,000 per acre and Rs,100 per square yard. He had also indicated that as per condition 14 of the notification dated 12-5-1975 plots could only be disposed of through open auction; there was a complete ban on the disposal of State land, however, the Chief Minister earlier had allotted land similarly situated at the rate of Rs,100 per square yard in relaxation of the ban.
9. The ultimate and operative part of the summary reads as under:-- "5. Under the circumstances orders are solicited as to whether the request of applicants may be entertained under section 10(1) of the Colonization of Government Lands (Sindh) Act, 1912 at the rate of Rs,100 per square yard in relexation of existing policy/ban/rules.
10. (Sd.)
11. (Ramesh M. Udeshi)
12. Secretary to Government of Sindh Land Utilisation Department."
13. The accused No,2 cannot be absolved for formulating a summary e without categorically apprising the Chief Minister that the plots could only be sold off through an open public auction; there was a complete ban in relation to the disposal of State land which could not have been relaxed; and that in view of the marked disparity in the rates conveyed by the Deputy Commissioner, sale at an excessively low/throw away price i,e, Rs,100 per square yard could not have been made without further and proper probe and inquiry into the prevalent market value. By formulating the summary in the manner indicated above, the accused No,2 has failed to discharge the duty entrusted to him as a holder of public office. The arguments advanced by the learned counsel for the accused No,2 that the Chief Minister had validly exercised powers in relaxation of the ban/rules under section 10(1) of the 1912 Act and the Sindh Government Rules of Business, 1986 do not carry any force.
14. Section 10(1) of the 1912 Act provides that the Board of Revenue subject to the general approval of the Government may grant land in a colony to any person on such conditions as it thinks fit. Such .provision on its bare reading does not provide any power to the Chief Minister to act in relaxation of rules/ban/policy. Looked from the view point of the Sindh Government Rules of Business, 1986 the actions in issue militate against Rule 28(i)(a) which provides:-- "28. Consultantion with Finance Department;
(i) No department shall, without concurrence of the Finance Department, issue order, other than an order in pursuance of any general or special delegation made by the Finance Department, which directly or indirectly affects the finances of the Province or which involves--
(a) relinquishment, remission or assignment or revenue, actual or potential or grant of guarantee against it; or grant of land or lease or licence of mineral, forest or water-power rights;"
15. The above Rule 28(i)(a) clearly stipulates that in matters pertaining to the grant of land no Department shall issue any order without the concurrence of the Finance Department except when there has been a general or special delegation of powers made by the Finance Department. There has been no such delegation nor any material has been brought to show that that any concurrence or consultation has been made by the Finance Department in this regard. The averment that at material times the Chief Minister also held the portfolio of Finance would also not come to rescue the situation since in terms of Rule 28(i)(a) the concurrence/consultation has to be with the Finance Department and not merely its head i,e, the Minister. If the proper procedure had been followed the Finance Department would have been presumably involved and consulted which would then have again necessitated necessary inquiries, flotation of summaries and then grant of approvals at the appropriate levels in the Finance Department. None were so done. The grant of approval by the Chief Minister also holding the portfolio of Finance Minister could not have been a substitute to the procedure that ought to have been routed through the Finance Department.
16. The learned counsel for the accused No,2 has also placed reliance upon Rule 7(i) of the Sindh Government Rules of Business, 1986, which reads as under:-- "7. Allocation of Departments.
(i) The Chief Minister may allocate to a Minister one or more Departments or part of a Department, but the Chief Minister shall have powers to pass order in any case concerning any Department without consulting the Minister of that Department."
17. Rule 7(i) only entrusts the Chief Minister with powers to pass orders in matters concerning any Department without the need of consultation with the Minister of the said Department. This provision does not empower the Chief Minister to bypass the procedures and inquiries that ought to have been undertaken by the Finance Department under Rule 28(i). It is true that had the Finance Department been involved at appropriate levels and then a recommendation/summary had reached its Minister (i,e, hypothetically if the portfolio of Finance was held by someone other than the Chief Minister), the Chief Minister could then have exercised powers in lieu the Minister of Finance without the latter's consultation under Rule 7(i)(a). Any other interpretation, or the interpretation so proposed by the learned counsel for the accused No,2 would render Rule 28(i)(a) completely redundant. Such would also be the desired interpretation in a democratic polity since otherwise the Chief Minister would be equipped with naked and arbitrary powers sheltered by law and rules. It is needless to mention that on the legal plane statutes, instruments and 'documents are to be read as a whole and the Court should first make an attempt to reconcile the various clauses for a rational meaning to avoid redundancy (See Kamran Industries v. Collector of Customs, PLD 1996 Karachi 68).
18. The most salient objection which could be levelled against the allotments is that the same militates against condition No,14 to the Notification No,KB-1/1/30/72/7096 12-5-1975 which reads as under:-- "(14)The commercial plots and plots for petrol pumps and Cinemas shall be leased out by open auction to the highest bidder."
19. This notification has been issued in the exercise of powers conferred by section 10(2) of the 1912 Act.
20. Since the said notification remains in force any violation thereto would amount to a violation of the Statute, since it is trite law that delegated legislation issued under powers conferred by the statute have statutory force (See Khan Anjum Khan v. the Government of West Pakistan PLD 1968 Peshawar 191). The plots in question could not have been allotted except by open auction to the highest bidder. The term "open auction" has been interpreted by a full Bench of the Supreme Court in M/s Lanvin Traders v. Deputy Administrator, Evacuee Trust Property, 1993 SCMR 1707. In this case Saleem Akhtar, J. writing for the Court has observed that open auction means a public sale where bidders have the opportunity to compete with each other and raise their bids before acceptance. In such an auction there is an element of open competition between the bidders, where one knows the bid offered by the others and has the opportunity to raise it and succeed to purchase as a highest bidder on acceptance. In the case of Lavin Traders para 6 of Martial Law Regulation No,57 provided for sale of land through an open public auction. The sale was struck down by the Supreme Court when it was found that the sale had been made only through an auction as opposed to open auction. In the present case, there has been no auction let alone any open auction. Such requirement of law could also not have been relaxed under the Sindh Government Rules of Business, 1986 since the powers exercised under the Rules of Business cannot be inconsistent with the provisions of the statute in question. In Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423, a Full Bench of the Supreme Court while interpreting building rules and regulations has expressed the view that the Sindh Government Rules of Business, 1986 confers separate and independent statutory power to the Chief Minister but the same have to be exercised within the frame work of the Sindh Building Control Ordinance, 1979. It is also categorically observed in this case that the exercise of power by the Chief Minister under the Rules of Business cannot be inconsistent with the provisions of the Sindh Building Control Ordinance, 1979. I am, thus, of the opinion that the Chief Minister had no power to dispose of State land in violation of condition 14 of the Notification dated 12-5-1975, since:-- (a)the Notification dated 12-5-1975 had statutory effect, having been issued under section 10(2) of the Colonization of Government Land Act, 1912; (b)the Chief Minister had no power to relax the condition No,14 even under the Sindh Government's rules of Business, 1986, since the latter could not have authorised the Chief Minister to act in violation of the Colonization of Government Lands Act, 1912.
21. It is in this context that the accused No,2 had materially erred since in his joint summary to the Chief Minister he had completely failed to point out to him that the land could not have been disposed of except through open auction and that the Chief Minister had no power and authority to relax this requirement of law. The decisions cited by the learned counsel for the accused No,2 i,e, Agha Saifuddin v. Dr. Muhammad Ashfaq Paracha, 1985 CLC 1819 and Agha Fakhruddin v.
22. Muhammad Paryal PLD 1989 SC 16 do not advance the case of the accused No,2. The same are also not relevant. The argument advanced by the learned counsel for the accused No,2 that the latter's predecessors and successors have floated similar summaries are also not relevant. The same are not before this Court. All such arguments as also the averments that the ban was not gazetted; no action had been taken against the recalcitrant Deputy Commissioner and that the market value of the land in question has not been established by the prosecution cannot cure the violation in relation to condition No,14 of the Notification dated 12-5-1975. The legal, moral and ethical duty of the accused No,2 had become even more onerous in view of the marked disparity of rates conveyed by the Deputy Commissioner. The accused No,2 ought to have conducted inquiries to ascertain the correct and proper prices before floating the summary. After all the public money and state interests were at stake.
23. I accordingly hold the accused No,2 guilty under section 3 of the Ehtesab Act, 1997, and convict him under section 4 of the said Act with two years rigorous imprisonment. The accused is in custody. A copy of this judgment shall be supplied to him immediately after its announcement.