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Petitioner: Abdul Raheem Ziaratwal And Another VS Respondent: Federation of Pakistan, etc.
Court Name: Supreme Court of Pakistan Judge(s): Jawwad S. Khawaja, Iftikhar Muhammad Chaudhry, Sh. Azmat Saeed Title: Abdul Raheem Ziaratwal And Another vs Federation of Pakistan, etc. Case No.: Constitution Petition No 115 of 2011 Date of Judgment:2013-07-22 Reported As: 2014 PSC 238 Result: Order accordingly
JUDGMENT
JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, CJ. --- 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 alongwith other office bearers of Pashtoonkhwa Milli Awami Party (PMAP), filed this petition, highlighting the poor living conditions of the people of Baluchistan. It was averred in the petition that the Government of Baluchistan (GoB) conducts an annual development program throughout the Province of Baluchistan 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 Baluchistan 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, Baluchistan 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 Baluchistan including experts/engineers from the University of Baluchistan, 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 he distributed with regard to unapproved heroes identified in PSDP 2012-2013 till further orders. 4. On 04.12.2012, the learned counsel for the GoB filed a reply stating therein that in compliance of the order dated 02.11.2012, the departments had stopped work on the approved and unapproved schemes. However, it was requested that the afore-mentioned order may be withdrawn. On 06.12.2012 the Court, after hearing both sides, passed the following order:--- (1) The Government of Baluchistan is allowed to utilize the funds for the schemes, which have
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already been identified 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 identified 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. (4) As reportedly, there is no Provincial Public Accounts Committee, therefore, we direct the Chief Secretary, Government of Baluchistan to implement this order and ensure that no rule is violated and the schemes 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 uti ed 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 CMA No. 136/2013, which was made public vide order dated 11.01.2013. The 'GoB filed scheme-were reply/comments on the report. {{TABLE}} S. # Name of Schemes Observations Raised by Supreme Court Inspection Committee (SCIC) Comments by Various Executing Agencies Construction of Road I. The scheme has been I. SctTeme was originally from N-50 to Murgha revised five times by adding approved during FY Faqirzai (99 Km). ID new link roads which is not a 2003 -2004, later on No. Z2003.1153 good practice and has during execution of Executing Agency: affected the completion of the work; scheme road C&W Deptt. Scheme since last 10 years. Length was increased at Implementation different stages, so that Status: Ongoing scheme can be concluded with a logical end. a. 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
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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. As 100.000 Million additional funds during CFY 2012- 2013 are provided and As 142.946 Million during FY 2013 - 2014, are provided then the scheme can be completed by 30th June, 2014. 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 damages are not repeated during floods. a. Work on damaged components could not II. Before completion of the be left unattended as assigned works, the flood scheme completion damages contracts of the could not be achieved same road have been and remaining road awarded. Components could not be carried out. b. If damages were not reflected, there were ample of room that in any future flash floods, already damaged portion could be severely damaged and reflection cost could be
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increased by many folds. III. 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. IV. 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 the department. a. To adopt uniform width on main truck 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 III. Neither planning nor execution in a professional way has been carried out. IV. 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. For consideration and approval. 2 Pitav Valley Development Project Qilla Saifullah. ID No. Z2004-0915 I. Executing Agency: The drilling of 160 tube wells has been completed. O'- 49 tube wells have Out of 160 tube wells, only 49 tube wells have been energized. These tube well were drilled in 2006-2007. Since 2007, BDA. Implementation been installed with machines Status: Ongoing and energized. III. The stake holders complained about silting up sizeable number of wells, and demanded for thorough probe in to the
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matter through some investigating agency. IV. The QESCO has informed that 33 tube wells for which the Demand Notes have been deposited will be energized by 15th February, 2013. Is requesting for providing , but they e-iatred,.Due to this the already toe wells got at minor level. 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. Construction of Zhob Mir All Khel Road. ID No. Z2010-0845 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 M/s. 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 18-12-07. The scheme after clearance by the relevant approving forum may be started as recommended by the committee. 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 i.e. It was utmost surprise of the Committee that despite of mammoth increase in the cost of the Project (i.e. Rs. 1.447 billion to Rs. 11.036 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, Baluchistan 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 M/s. NPI and M/s. 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
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Roads & Drainage System Zhob Town City Area PSDP No. 428 - 2004-05 i. Executing Agency: BDA Implementatio n 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 I. Bituminous surface of these roads was found worn out at various locations. 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. II. The deficiencies pointed out will be rectified at the risk and cost of contractor. i.e. 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 III. Soon and the remaining works should be completed expeditiously. 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. IV. 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 i. Class rooms to be construction 104 have been completed. 02 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. I. Flooring was also found below specification. 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. II. 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. III. Flooring will be repaired at the risk and cost of contractor. IV. Noted for compliance. 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 and cost of the 'Contractors concerned. Musa Khan to Drug Road Dakian- Walwasta Project KM 10.80 to KM. 20.8 (10KM) ID No.
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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 already 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. OMIT submitted report in August 2011. OMIT 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. c. NAB (B) is conducting an in LA or sub'ect ' ' ii. Observations made by the Inquiry Committee must be implemented in letter and spirit and defective structures should be reconstructed at the risk and cost of the Contractor/Supervisory Staff. Road from August 2012. - ReleVant documents are provided to NAB(B). Outcome of NAB(B) inquiry is awaited. II. 32 Culverts including pipe culverts were constructed under the project as per approved scope. Some of culverts were damaged as indicated in CMIT, and Departmental inquiry reports. a. 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- 0692/961 Executing Agency: C&WD Implementatio n i. Status: The works are in progress in a satisfactory manner. Ii. Should some sincere
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efforts are poured this vital project can be made I. Functional even within this financial year. Department will make efforts to sustain & gain work momentum, so that project is completed within allowed time frame. II. 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. a. Hospital can be completed by 30th June 2014, in all respect, if additional funds to the tune of As 20.000 Million are provided during CFY 2012 - 2013 and balance completion funds i.e. As 21.397 Million are provided during FY 2013 - 2014. 8 Development Plans of Loralai PSDP No. 1417-2011-12 Executing Agency: BDA Implementation i. Status: Ongoing. Out of 16 Flood Protection Schemes one namely Shah Karez costing Rs. 2,108,889/- was inspected and found completely damaged. Ii. The Executing Agency/BDA, however, failed to produce detailed design/drawings of the Scheme. i.e. 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 I. Bores were not 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. II. The requisite information is available with the department and can be furnished to any authority as and when
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required. III. Noted for Compliance. Operational/energized. Iv. 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 on money here. This Hall will be in use of hardly 2 - 3 families. v. Dispensaries and 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. Transformers and Electric poles were found installed, vi. Change of executing agency has caused the above-mentioned problem which could have been avoided if the line department was involved in implementation process. 0 vii. The shortcomings observed and pointed out by the Inspection Team in the executed works should rectify in adequate manner at the risk and cost of the respective contractors and the site supervisory staff involved in execution process. VII. Noted for future compliance. 9 Construction of 50 Bedded Hospital at Mach. ID No. Z2009- 0333 Executing Agency: C&WD i. Implementation Status: Ongoing The quality of works was not at acceptable level. Ii. The contract comprises the specifications in executing such works. i.e. The Supervisory staff should redouble their vigilance to ensure quality works. Matter regarding quality of work has been seriously viewed by the Department. Chief Engineer, Sibi Zone and Superintending Engineer Kaclahi will be directed to carry out detailed inspection and rectify all works which are not as per required approved specifications. II. 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. Ill. The SCIC observation is well taken and DepartmFit 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 upto have checks over quality of works and counter
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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 ii. The contractor is compromising the specifications in executing of works which are not as per required approved specifications. II. 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. III. Chief Engineer, Sibi such works. Zone and Superintending Engineer i.e. Top floor roof work is simply not acceptable. 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. IV. Chief Engineer, Sibi Zone and Superintending Engineer Kachhi will be directed to carry out detailed - iv. Since the scheme is ongoing, the defective works may be got rectified at the risk and cost of the inspection and rectify all works which are not as per required approved specifications at the risk and cost of the contractor. Construction of Community Hall at Kurd Camp, Dhadar. Executing Agency: C&WD Imp ementation I. Extremely poor works. Structural cracks in the bath room. Bath room drainage work hopeless. I. Chief Engineer, Sib: Zone and 1 Superintending Engineer Kachhi will be I directed to carry out detailed inspection of the Community Hall at Kurd Gamp Dhaddar and suggest rectify work. In case it is
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beyond rectification, bath rooms will be dismantled and reconstructed at the cost of contractor. II. Bath room drainage work will be relayed at the risk and cost of contractor. Ill. Field Staff of the Department wilt make a reference to District Administration Dhaddar. In this reference. IV. SCIC observation will be forwarded to District Administration for implementation. Boundary wall has been constructed by one beneficiary. And…
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