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Petitioner: ABDUL RAHEEM ZIARATWAL and anothers VS Respondent: FEDERATION OF PAKISTAN and JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Jawwad S. Khawaja, Iftikhar Muhammad Chaudhry, Sh. Azmat Saeed Title:ABDUL RAHEEM ZIARATWAL and anothers vs FEDERATION OF PAKISTAN and
JUDGMENT
Reported As: 2014 SCMR 873 Result: Order accordingly Judgment JUDGMENT ' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---Constitution Petition No,115 of 2012 has been initiated under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973. 2. Abdul Rahim Ziaratwal, General Secretary along with other office bearers of Pashtoonkhwa Milli Awami Party (PMAP), filed this petition, highlighting the poor living conditions of the people of Balochistan. It was averred in the petition that the Government of Balochistan (GoB) conducts an annual development program throughout the Province of Balochistan called the "Public Sector Development Program" (PSDP), which covers all development schemes, both ongoing and newly commenced. In this regard, the government follows the Manual for Development Projects (MDP) prepared and designed by the Planning Commission of Pakistan (PCP). In pursuance whereof, five programs were prescribed for preparation and implementation of the development schemes. As per the Development Manual, the Planning Division/Planning Department directs departments of the Provincial Government during the months of October/November to provide details of the proposed projects for inclusion in the PSDP after obtaining feasibility report, etc. The information so provided is then placed before a Committee of the Planning Department, which is supposed to scrutinize each and every scheme and approve all information for inclusion in the PSDP. The grievance in this case is that no such process has been adopted by the Planning Department and the. PSDP was prepared in a very mechanical manner; therefore, public money was plundered by the holders of public office who were not open to any accountability. A number of schemes in various sectors of the PSDP were earmarked with 100% allocation; however, all such schemes were unapproved. According to the petitioners, the government had been making public statements
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from time to time to the effect that they had spent 100% amount of PSDP for the year 2011-2012, whereas the fact remains that no amount had been spent in about 154 schemes and the government functionaries had embezzled and misappropriated an amount of Rs,6171.00 million. The non-development expenses were brought under the umbrella of development schemes, which is a clear violation of all settled norms of planning. Moreover, every MPA/Minister of the Province had been allocated an unprecedented amount of funds to the tune of Rs,300.00 million. The schemes against the allocated funds were selected by the MPA/Minister concerned without consent of the administrative departments to which the said schemes pertained. With the exception of a few parts of the province, the petitioners contend, the MPAs have been provided excess funds but without any tangible development outcome. The petitioners averred that there were many schemes in PSDP which were specific to individuals, rather than being designed and launched to benefit the community at large. The petitioners believe that such schemes have been included to lure the prospective voters to vote in favour of these benefactors. Therefore, the petitioners claim that public money was being spent in violation of the constitutional provisions and various laws enacted thereunder, including the General Financial Rules (GFR) of the Federal Government as well as MDP designed by the PCP. Lastly, it was prayed to declare as under:-- a.That the respondents are under obligation to spend the public money fairly, honestly, and in accordance with constitutional guarantees to safeguard the interest of general public. b. Due to shortage of water, priority of new schemes allocation should be given for water storage dames. c.That the Government of Balochistan and its departments may be restrained from spending any amount shown in the PSDP of 2012-13. 3.On 22-10-2012, when the matter came up for hearing before this Court, learned counsel .For the petitioner as well as the Advocate-General, Balochistan were asked to examine the matter to the extent of development work vis-a-vis the public funds which had been spent on the same, by getting them verified by involving a third party belonging to the Province of Balochistan including experts/engineers from the University of Balochistan, University of IT, Agricultural University, etc. In compliance of the said order, two notifications dated 25-10-2012 and 30-10-2012 were placed on record. However, learned counsel for the petitioner expressed reservations in respect of notification dated 30-10-2012 and stated that in order to ensure transparency, the official persons i,e, the Chairman CMIT and Member Technical CMIT should be excluded. In light of this, the Government was asked to issue a revised notification. The committee was required to exercise their discretion to select schemes of a specific area. Furthermore, at least 25 projects/schemes in respect whereof the amount has been paid since formation of the government till that time were to be examined and report thereof to be submitted to the Court. By means of the same order, it was directed that allocated amounts would not be distributed with regard to unapproved schemes identified in PSDP 2012-2013 till further orders. 4.On 4-12-2012, the learned counsel for the GoB. Filed a reply stating therein that in compliance of the order dated 2-11-2012, the departments had stopped work on the approved and unapproved schemes However, it was requested that the aforementioned order may be withdrawn. On 6-12- 2012 the Court, after hearing both sides, passed the following order:-- (1) The Government of Balochistan is allowed to utilize the funds for the schemes, whit% have already been indentified in PSDP 2012-2013 and after completion of the process, now have been approved by the Planning and Development (P & D) Department against the budgetary allocation. (2)The' amount shall be spent only to the extent of the budgetary allocation without making any increase in the same. (3)Similarly, the departments, which have indentified the schemes, shall be responsible to execute the same and no scheme shall be transferred from one department to another department at the behest of any Minister or political functionaries.
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(4)As reportedly, there is no Provincial Public Accounts Committee., therefore, we direct the Chief Secretary, Government of Balochistan to implement this order and ensure that no rule is violated and the schenjes are properly executed to the extent of the budgetary allocation, which have been made, -till the final disposal of this petition. (5)As this matter is of an important nature, therefore, parties' counsel are required to exchange their pleadings, enabling this Court to dispose of the same on the next date of hearing. (6)It has been informed by Mr. Saleem Raza, Chairman of the Committee, constituted to ascertain as to whether funds have been utilized against the development schemes or otherwise, that primarily sufficient time is required for the completion of the task. 5. The Inspection Committee undertook inspection of 55 projects/ schemes situated in various parts of the province and submitted report by means of C.M.A. No,136 of 2013, which was made public vide order dated 11-1-2013. The GoB filed scheme-wise reply/comments on the report. {{TABLE}} S.# Name of Schemes Observations Raised by Supreme Court Inspection Conunittee (SCIC) Comments by Various Executing Agencies 1 Construction of Road from N-50 to Murgha Faqirzai (99 km). ID No,Z2003.1153 Executing Agency: C&W Deptt. Implementation Status: Ongoing I. The scheme has been revised five times by adding new link roads which is not a good practice and has affected the completion of the scheme since last 10 years. I. a. Scheme was originally approved during FY 2003- 2004, later on during execution of work; scheme road length was increased at different stages, so that scheme can be concluded with a logical end. Link roads were added to the scheme, for the reason, to extend better road communication network facilities to nearby villages falling in the vicinity of the road alignment, which was also demand of general public since long. This inclusion of link roads has facilitated general public of the area. b. Delay in completion of scheme is due to insufficient releases during course of scheme implementation. The releases against scheme are not proportionate with the approved cost of scheme. If required level of funding i,e, Rs, 100.000 Million additional funds during CFY 2012- 2013 are provided and Rs, 142.946 Million during FY 2013- 2014, are provided then the scheme can be completed by 30th June 2014. II. Before completion of the assigned works, the flood damages contracts of the same road have been awarded. II. During Execution of work, flash flood was encountered, which damaged already complemented components of the scheme. Since under contract agreement there is no provision that flood damaged work on ongoing scheme will be reflected by the contractor, since being a natural disaster. Therefore flood damages contract was awarded to reflective the damaged components and to ensure that are not repeated during floods. a. Work on damaged b. components could not be left unattended as scheme completion could not be achieved and remaining road components could not, be carried out. c. If damages were not reflected, there were ample of room that in any future flash floods, already damaged portion could be severely damaged and
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I. II. III.Neither planning nor execution in a professional way has been carried out. I. The works are in progress. Discrepancies were observed in dimension of the road as the width varied at different places. This omission should be removed by adopting a uniform alignment and payments be adjusted in the Final Bill. IV. Reflection cost could be increased by many folds. I. Scheme was planned for completion within three years and the same was approved, but funds were not released in the approved manner as specified in approved PC - I. Due to insufficient releases the planning schedule has been revised repeatedly. a. Rate of funds releases have a direct bearing over physical progress, due to less releases and increase in scope of work, scheme is under execution since FY 2003 - 2004. Under the said circumstances, fund releases dominate the planning. I. Dimension of road various depending of traffic volume. However the width of road should not have been varied on main trunk road. This discrepancy will be addressed by thy; department. a. To adopt uniform width on main trunk road, estimates are to be reviewed. Apparently uniform width on alignment cannot be adjusted in final bill as approved estimates are as per approved scope and item rates are as per CSR 1998. In case revision of scheme is required due to adoption of uniform width, revised PC - I will be submitted to competent authority for consideration and approval. 2. Pitav Valley Development Project Qilla Saifullah. I. The drilling of 160 tube wells has been completed. Out of 160 tube wells, only 49 tube wells have been energized. These tube well were drilled in 2006- 2007. Since 2007, BDA is requesting QESCO for providing {{TABLE}} ID No, Z2004- 0915 Executing Agency: BDA. Implemen- I. tationStatus: Ongoing Only 49 tube wells have II. been installed with machines and energized. I. The stake holders II. complained about silting up sizeable number of tube wells; and demanded for thorough into the matter tter through some investigating agency. I. The QESCO has II. informed that 33 tube wells for which the Demand Notes have been deposited will be energized by 15th February, 2013. Connection, but they delayed. Due to this reason the already drilled tube wells got silted at minor level. Furthermore, the soil texture of Dolatzai, Ghabzai Santozai and Batozai is sandy zone according to geologist report. The demand note of remaining 78 nos tube wells is not submitted by QESCO, whereas; the minutely silted portions of Tube Wells would easily be cleaned through compressor testing. 3. Construction of Zhob Mir Ali Khel Road. ID No: Z2010- 0845
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Executing Agency: Initially C&WD but transferred to BDA by the P&DD Implementation ,Status: Ongoing i. Original contract being one package was awarded to Messrs Hasnain Cotex Ltd., who proceeded with the works at snail's pace and hardly achieved some 30% progress till complete suspension which led to abandoning of the Contract on 1842-2007. ii. Following withdrawal of ADB from the Project the BDA entered in the scene critically and reviewed the scope of works resulted in gigantic increase in the cost instigating the executants to, split the contract into three distinct packages duly approved by the P&DD with the cost allocation as under: a. Rs, 4.521 Billion b. Rs, 2.816 Billion c. Rs, 3.669 Billion Total: Rs, 11.006 Billion iii. It was utmost surprise of the Committee that despite of mammoth increase in the cost of The scheme after clearance by the relevant approving forum may be started as recommended by the committee. the Project (i,e, Rs,1.447 billion to Rs,I1.036 Billion) it was somewhat binding upon the Executing Agency to get it approved by the CDWP/ECNEC but this could not happened which is considered to be a serious omission and currently being investigated by NAB, Balochistan and the construction works have been put to halt. Iv. Although, the scheme was not inspected by the Committee yet one of its members (Engr. Usman Babai) inspected the works at different time and shared his knowledge about the scheme with other Committee members. v: The Scheme was initially split up into two packages vis: Road and Bridges awarded to Messrs NPI and Messrs MN Construction. Respectively. Later on, a further split in the road package emerged but the number of contractors remained two. Vi. The scheme may be got' approved at the appropriate forums so that - it can be implemented as soon as possible. 4. Construction of Roads and Drainage System Zhob Town City Area PSDP No,428- 2004-05 Executing Agency: BDA Implementation Status: Ongoing The works have not been executed in professional manner and the scheme is still in progress even after 8th year of its implementation starting from 2004-05 The work has been executed by professional engineers who are regular employees of BDA. In respect of delay in completion of the project, it is due to piece meal provision of funds to the executing agency. i. ii. Bituminous surface of these roads was found worn out at various locations. Iii. Drainage channels , in some area are not functioning in an efficient manner. Major lengths are choked and without required joints. Iv. The poor quality/below specification works attributed to the gross negligence on part of the supervisory staff which needs to be rectified soon' and the remaining works should be completed expeditiously.
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IL The deficiencies pointed.Out will be rectified at the risk and cost of contractor. I. Drainage channel is 100% complete and functioning properly. Garbage and refuse is thrown in the channel which adversely affects its functioning. The town committee is responsible for its cleaning. I. The work is still in progress. Defects will be removed. 5. Construction of Additional Class Rooms at Various Schools, P8-19. PSDP No, 600 Implementing Agency: BDA Implementation Status: Out of 144 class rooms to be constructed 104 have been completed. 2 schools in Zhob town were inspected and the quality of works was found far below the acceptable level. Ii. Doors and Windows erected were found below specifications. Iii. Flooring was also found below specification. I. The building was completed 4 to 5 years age and still there are no cracks in roof, walls and other structures; however the deficiencies will be removed accordingly. I. Doors are made of pine wood (Chalghoza) which is locally available and windows are made of Z angle iron by . Local manufactures which though do not give good finishing but are durable. I. Flooring will be repaired at the risk and cost of contractor. iv. The remaining schools included in the project require detailed inspection and the defects found in the executed works should be rectified at the risk IV. Noted for compliance. and cost of the Contractors concerned. 6. Musa Khail to Drug Road DakianWalwasta Project KM 10.80 to KM 20.8 (10KM) ID No, Z2003.0074/30 (2008-09) Executing Agency: C&WD Implementation Status: Ongoing i. More or less all the structures have failed. Payment for 10 KM road Premix work has been made, but on site hardly 1 KM length of road was found premixed. Despite the inquiries al ready conducted, the field staff has not been punished. Opportunity has been provided to get the Premix carpeting work done now, but they were hardly able to complete 01 KM premix work only. I. Scheme from start runs into implementation problems. Firstly a Departmental inquiry team was held regarding said scheme in March 2010. The finding of the inquiry team were that "work done at site be got measured and deducted from the total cost, the balance amount be recovered from the contractor, officers and staff involved in making the payments may be reverted and not posted in future for assignments involving financial matters". Said inquiry report was processed for approval of competent authority. a. P&D Department asked CMIT to carry out inquiry of subject road. CMIT submitted report in August 2011. CMIT recommended that within four months scheme be completed. b. Concerned field staff was given time to complete the scheme as per CMIT recommendations. But concerned staff took considerable time to start work and are presently carrying out work as reported by supervisory staff. ii. Observations made by the Inquiry Committee must be intplemented in letter and spirit and defective structures should be reconstructed at the risk and cost of c. NAB (B) is conducting an inquiry or subject road from August 2012. Relevant documents are provided to NAB(B). Outcome of NAB(B) inquiry is awaited. II. 32 Culverts including pipe culverts
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were constructed under the project as per approved scope. Some of culverts were damaged as indicated in CMIT and Departmental inquiry {{TABLE}} the Contractor/ Supervisory Staff. a. Reports. Defective structures will be demolished and reconstructed at the risk and cost of the contractor/supervisory staff. 7. Establishment of Women Hospital in Zhob. ID No, Z2010- i. 0692/961 Executing Agency: C&WD Implementation Status: The works are in progress . In a satisfactory manner. Should some sincere efforts are poured this vital project can be made functional even within this financial year. L II. a. Department will make efforts to sustain and gain work momentum, so that project is completed within allowed time frame. Department realizes the importance of this public utility project and is making genuine efforts for early completion of the hospital, but since being a building work, requiring time for curing and settlement, work items are interlinked and cannot be squeezed being time bound work items. Secondly six months of CFY 2012-2013 have already passed and remaining approved scope cannot be completed in remaining six months. Hospital can be completed by 30th June, 2014, in all respect, if additional funds to the tune of Rs, 20.000 Million are provided during CFY 2012-2013 and balance completion funds i,e. Rs, 21.397 Million are provided during FY 2013- 2014. .----- 8. Development Plans of Loralai PSDP No,1417-2011-12 Executing Agency: BDA Implementation Status: Ongoing i. Out of 16 Flood Protection Schemes one namely Shah Karez costing Rs, 2,108,889 was inspected and found completely damaged. 1. - - The scheme with its appropriate scope of work stands complete. But damages caused by catastrophic floods of August, 2012. According to Pakistan history last year's rains and floods broke records of 15 years. {{TABLE}} i. ii. The Executing iii. Agency/BDA, however, failed to produce detailed design/drawings of the Scheme. . i. Out of 31 number bores, 3 were checked. Bore at Shah Karez was found operational for individual agriculture use. Stone masonry circular water tank was neither completed nor connected. The other .2 bores were not operational/ energized. i. Out of 5 Community Halls, 2 were inspected. The one at Circuit House Loralai was of acceptable quality whereas the second one at Killi Khan Karez was found in A-1 condition. The beneficiary has invested his own money here. This Hall will be in use of hardly 2-3 families. i. Dispensaries and ii. Boundary Walls of Schools etc: A Dispensary and a Boundary Wall was inspected, and found ok, keeping in view the non-workable CSR of 1998.
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Transformers and Electric poles were found installed. i. Change of executing agency has caused the above mentioned problem which could have been avoided if the line. Department was involved in implementation process. i. The shortcomings ii. observed and pointed out by the Inspection Team in the executed works should rectify in v. H. The requisite information is available with the department and can be furnished to any authority as and when required. I. Noted for compliance. II. The executing agency i,e, BDA accepts the observation of the committee; however, it is assured by the department that these community halls will be used for the benefit of general public/community: I. No comments are required in this regard. II. Noted for future compliance III. Noted for future compliance {{TABLE}} adequate manner at the risk and cost of the respective contractors and the site supervisory staff involved in execution process. 9. Construction of 50 Bedded Hospital at Mach. ID, .. No Z2009- 0333 i. Executing Agency: C&WD Implementation Status: Ongoing. The quality of works was not at acceptable level. i. The contract comprises the specifications in executing such works. i. The Supervisory staff should redouble their vigilance to ensure I. quality works. Matter regarding quality of work has been seriously viewed by the Department. Chief Engineer, Sibi Zone and Superintending Engineer Kachhi will be directed to carry out detailed inspection and rectify all works which are not as per required approved specifications. I. Field Staff is being directed to vigilantly supervise the work and approved/laid down specification must be followed at all cost and quality of work should not be compromised at any cost. I. The SCIC observation is II. well taken and Department will be strictly following the same. a. Department will ensure that Field Staff will be extra vigilant to ensure quality of work and ' Department internal monitoring system will be beefed up to have checks over quality of works and counter ensure that executed works are of required specification and quality. 10. Construction of Government Girls Intermediate College Mach ID No, Z2003- 0763 Executing Agency: C&WD Implementation Status: Ongoing i. The quality of works was not at acceptable level - I, Matter regarding quality of work has been seriously viewed by the Department. Chief Engineer, Sibi Zone and Superintending Engineer Kachhi will be directed to carry out detailed inspection and rectify all works which are not as per required. Approved specifications. i. ii.
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iii. The contractor is compromising the specifications in executing of such works. i. Top floor roof work is simply not acceptable. Ii. Since the scheme is ongoing, the defective works may be got rectified at the risk and cost of the Contractor I. Field Staff is being directed to vigilantly supervise the work and approved / laid down specification must be followed at all cost and quality of work should not be compromised at any cost. II. Chief Engineer, Sibi Zone and Superintending Engineer Kachhi will be directed to carry out detailed inspection of the top floor roof and suggest rectify work, in case it is beyond rectification, top floor roof will be dismantled and roof slab will be relayed at the cost of contractor. I. Chief Engineer, Sibi Zone and Superintending Engineer Kachhi will be directed to carry out detailed inspection and rectify all works which are not as per required approved specifications at the risk and cost of the contractor. 11. Construction of Community Hall at Kurd Camp, Dhadar. Executing Agency: C&WD Implementation Status: Ongoing i. Extremely poor works. Structural cracks in the bath room. I. Chief Engineer, Sibi Zone and 1 Superintending Engineer Kachhi will be directed to carry out detailed inspection, of the Community Hall at Kurd Camp Dhaddar and suggest rectify work, in case it is beyond rectification, bath rooms will be dismantled and reconstructed at the cost of contractor. i. Ii. Bath room drainage work…
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