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Petitioner: Ch. ATA-UR-REHMAN QADRI VS Respondent: -CAPITAL DEVELOPMENT AUTHORITY and JUDGMENT
Court Name: Islamabad High Court Judge(s): Shaukat Aziz Siddiqui Title:Ch. ATA-UR-REHMAN QADRI vs -CAPITAL DEVELOPMENT AUTHORITY and
JUDGMENT
Reported As: 2016 CLC 125 Result: Petition allowed Judgment JUDGMENT ' SHAUKAT AZIZ SIDDIQUI, J.--- Petitioner invoked the Constitutional Jurisdiction of this Court by way of filing instant Writ Petition with the following prayer:--- " Wherefore in view of the foregoing facts and grounds, the petitioner craves the kind and gracious indulgence of this honourable Court praying that this honourable Court may be pleased to: a. Declare that the contract dated 28-5-2008 is illegal, unlawful,without lawful authority, void ab initio and against the public policy; b. Direct the Respondent No.1 to seek fresh bids strictly in accordance with PPRA Ordinance, 2002 and PPRA Rules, 2004; c. Declare that diplomatic shuttle service a public service vehicle; d. Direct the respondents Nos.1 and 2 to refrain from interfering in determination of fares of diplomatic shuttle service; e. Direct the respondents Nos. 3 and 4 to determine the fares of diplomatic shuttle service strictly in accordance with the provisions of the West Pakistan Motor Vehicles Ordinance, 1965; f. Direct the respondent No.8 to take stern action against CDA and Police officials for exposing the foreign diplomats to a serious danger and conduct proper scrutiny of prospective bidders before allowing them to participate in the fresh bid; g. Direct the respondent No.10 to strictly monitor the process of fresh bidding in accordance with section 5(2) of PPRA Ordinance being a highly sensitive issue due to the involvement of safety and security of foreign diplomats; " AND, presented the facts as under:---
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2. That after the 9/11 incident in the United States of America, followed by subsequent threats of terrorism, the Government of Pakistan decided to start the special bus service called as "Diplomatic Shuttle Service" for Diplomatic Enclave/Embassies to ensure the safety and security of foreign diplomats and embassies. Those security arrangements were more intensified by the Government following a suicide attack on a church situated within the vicinity of Diplomatic Enclave (DE) in the year 2002 and besides walling off the DE, the government banned entry of people without appointment in embassies and made it mandatory for visa seekers to use the bus service for reaching the embassies. Therefore, Visa Seekers left with no option except to use the Diplomatic Shuttle Service as they are not allowed to take their vehicles or any other mean of transportation. 3. The first contract in this regard was given to respondent No.5 in the year 2002 who provided the service of DSS till April, 2008 which was made in an illegal way, without making it public. That on 19- 3-2008, the respondent No.2 got a vague and ambiguous public notice published in the daily news paper and in blatant violation of PPRA Ordinance, 2002 and PPRA Rules, 2004, instead of inviting bids sought applications from interested parties for provision of certain facilities to visa seekers on Build, Operator and Transfer (BOT). That respondent No.1 being a state owned Corporation, is bound to follow the provision of PPRA Ordinance and rules made there under, in order to procure goods or services and any deviation or breach made there from falls within the ambit of mis- procurement as defined in rule 50 of PPRA Rules, 2004 and liable to be declared as illegal and unlawful. 4. On the other hand respondent No.1 CDA along with respondents Nos.2 and 11, respondents Nos.3 and 4 (Secretary, ITA and Chief Commissioner) as well as respondent Nos.6 (FOP through Secretary M/o Foreign Affairs) and respondent No.9 (SECP) filed their reply and parawise comments separately. 5. Respondent CDA contended that the CDA Board in its meeting held on 11-3-2008 decided to develop the facilitation center on BOT basis and to invite applications through press from the interesfed parties. Advertisement in this regard appeared in all the national dailies on 19-3-2008. That in response to advertisement total seven applications were received out of which (5) applications were within due date i.e. 5-4-2008, list of which is as under:--- i. M/s Inter Home Travels, F-10 Markaz, Islamabad. . Ii. M/s Butt Motors, Lalarukh, Wah Cantt., Taxila. iii. M/s Diplomatic Shuttle and Transport Services, G-5, Islamabad. iv. M/s Sadaat Enterprises, Rawalpindi Cantt. v. M/s Galaxy Gas Power Int. (Pvt.) Ltd. Islamabad. ' That the applications received in sealed envelopes were opened on 05.04.2008 in the presence of the applicants/representatives of the applicants and signatures were also obtained on each and every page of the application, and on the attendance sheet. The received applications were placed before a Committee for scrutiny approved by the Chairman CDA comprising of the following:--- i. Member (P&D), CDA Chairman ii. Director Urban planning, CDA Member iii. Director PMO, CDA Member iv. Director Structure, CDA Member v. DFA-II, CDA Member ' That evaluation by the Committee was placed before the CDA Board in its meeting held on 16.04.2008 and the Board approved that planning and development of Facilitation Centre on BOT basis may be awarded to M/s Diplomatic Shuttle and Transport Service (respondent No.5). In this arrangement, expenditure for development of the site and construction of structures to accommodate the visitors were to be borne by the awardee and it does not involve any allotment of site. Infrastructure and facilities developed by M/s Diplomatic Shuttle and Transport Service would become CDA property after stipulated period of seven years, whereas the operation of facilitation center would be disposed of by CDA through open auction. That in addition, annual
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ground rent of. Rs.2 per sq. Yd. As determined by Finance Wing CDA is also payable like other leased properties in this area. A total sum of Rs.44,444 per annum on account of AGR is being paid by the respondent No.5 to CDA. That facilitation center has been completed in Dec. 2008 and is functioning with all modern facilities, decided by CDA Board. An agreement between CDA & Messrs DSTS was executed on 16.06.2008 for a period of seven years ending on 16-12-2015. That through a court case in the year 2011, it came in the notice of the CDA that the awardee of the facilitation center is charging Rs.500 for exclusive/fast facilities instead of routine charges of Rs.200. That the Managing Director of M/s Diplomatic Shuttle and Transport Services (DSTS) was asked by CDA on 21.04.2011 vide letter No.CDA/PLW-RP-1(1093)/2011/1382 to stop the additional charging immediately. In response to the CDA letter, Managing Director of M/s DSTS informed that for some odd cases, which wanted extra ordinary services apart from the services which they provided under the agreement a separate window was opened for such clients, but this arrangement was not viable and also too expensive, so it could not work for long, therefore, the same was closed. Since no claimant approached the CDA for refund of additional charges, therefore, no action was taken, however, through an independent inquiry the liability of additional charges can be fixed and recovered from the lessee. 6. Respondents Nos.3 and 4 through their written comments contended that petitioner has no cause of action against answering respondents as they neither fixed any fare nor awarded the contract to respondent No.5. That no route allocated by respondent No.3 to the respondent No.5 in the area, which falls in the security zone as such there is no responsibility/liability on their part. ' Respondent ,No.6, Secretary, Ministry of Foreign Affairs through parawise comments contended that this Ministry was never consulted about the fee charged by the Diplomatic Shuttle & transport Services as such Ministry has no concern with the issue. ' Respondent No.9, Securities and Exchange Commission of Pakistan through its reply contend that no company with the name and style of M/s Diplomatic Shuttle Service is registered under the relevant provisions of the Companies Ordinance, 1984 with the Securities and Exchange Commission of Pakistan, therefore, matter does not fall within its regulatory framework, hence no comment. 7. Learned counsel for Petitioners argued that while granting the impugned contract illegally to respondent No.5, respondent No.2 transgress his jurisdiction by usurping the jurisdiction of Islamabad Transport Authority (respondent No.3) in utter violation of section 45(1) of the West Pakistan Motor Vehicles Ordinance, 1965 which provides that determination of minimum and maximum fares would be the sole prerogative of the Transport Authority, therefore, by determining the fares by CDA in the name of service charges is absolutely in excess of jurisdiction of CDA warrants to be declared as illegal and without lawful authority. That the connivance of the CDA officials is evident from the fact that impugned contract stipulates PKR 200 for pick and drop whereas Respondent No.5 even violating the terms of the said illegal contract and charging Pak Rs.500 but inaction on the part of CDA officials manifestly reflects that they have given free hand to the respondent No.5 thereby allowing him to rip off the visitors. It is further contended that impugned contract has been awarded with mala fide intention to an individual instead of a registered/incorporated entity. Learned counsel further submitted that being an individual, the respondent No.5 does not come under the regulatory control of Securities and Exchange Commission of Pakistan or any other body as a consequence whereof, respondent No.5 in illegal collaboration of the respondents Nos.1 and 2 is earning in millions without contributing a single penny to the public exchequer and the purpose of safety and security of foreign missions have been overlooked which may result into any big incident of terrorism causing bad name to the country. It is further argued that the public functionaries deriving a authority from or under the law are obligated to act justly, fairly, equitably, reasonably and without any element of discrimination.
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Learned counsel for petitioner also argued that the advertisement dated 19.03.2008 through which CDA invited applications, on the face of it is illegal, unlawful and based on mala fide. No details of the property proposed to be leased out was mentioned in the advertisement. The location of the property proposed to be leased out was also not disclosed. Applications were invited instead of floating tender and inviting bids. The advertisement gives an impression that something is going to be distributed by CDA and for that matter it requires applications from interested parties. Learned counsel added that the property for which CDA has been made custodian under the law, basically is ownership of people of Pakistan and huge chunk of precious land i.e. 4,5 acres at a prime location right next to the Diplomatic Enclave could not have been thrown out against a petty amount of Rs.44,444 per annum. Had it been a fair process, it would have brought huge amount for the public exchequer. That the first contract for provision of shuttle service was also given to the respondent No.5 in the year 2002 but the arrangement entered into, between the CDA and him were never made public. It is submitted that as per. CDA Conduct of Business of Regulations, 1985 it is the function of Directorate of Municipal Administration CDA and this has also been admitted by CDA in para 4 of its comments. A question arises that if this was the function of the Directorate of Municipal Administration in the year 2002 then why subsequently the function was performed by the Planning Wing of CDA. The advertisement was published by Mr. Ghulam Serwer Sindhu the then Director Planning CDA and the entire process was carried out by the Planning Wing. This also manifests that the officials of Planning Wing acted unlawfully and withdishonest intent, encroached upon the domain of Municipal Administration Directorate, It is further contended that the advertisement though was not in accordance with law but that too was not followed by CDA. As per the advertisement, applications were invited only from "firm" or "company". The respondent No.5 (Contractor) was neither a firm nor a Company. He did not submit any certificate from Registrar of Firms or SECP. That the agreement which finally executed between CDA and the respondent No.5 reflects that second party to the agreement is "M/s Diplomatic Shuttle and Transport Services a private limited company incorporated under the provisions of Companies Ordinance, 1984." " It is humbly submitted that no company with the name and style of M/s Diplomatic Shuttle Service (the entity) is registered under the relevant provisions of the Companies Ordinance, 1984 (the Ordinance), with the Securities and Exchange Commission of Pakistan (the Commission), therefore the matter does not fall within its regulatory framework; hence, no comments. " ' That the legal status of M/S Diplomatic Shuttle and Transport Services, CDA states in paragraph No.7 of its parawise comments which is as under:--- " Para 7 is denied as M/S Diplomatic Shuttle Transport Service is registered with Registrar Office, ICT, F-8 Markaz, Islamabad. " ' Learned counsel further contended that it is beyond understanding that on one hand CDA mentions the entity as a private limited company on the impugned agreement executed between CDA and the respondent No.5 and on the other while filing comments, it took absolutely new stance that it is registered with Registrar office ICT F-8 Markaz Islamabad. In fact the stance was taken by CDA after filing of comments by SCEP. It is submitted that Registrar ICT F-8 Markaz has no mandate to register a Firm rather under the Registration Act, 1908, the Registrar is obliged to deal with matters of registration of documents inter alia relating to gift, lease, sale and General Power of Attorney etc. And he possess no authority whatsoever to register legal entities. The paragraph No. XIV - 17 of the impugned agreement states that "The operator would also operate shuttle service from the facility area to the main coach stand in Islamabad and Rawalpindi". Till date no such facility is available to the visa seekers as no shuttle plies from Faizabad/Pirwadhai or any other coach stand to the facility. CDA has so far taken absolutely no action against the respondent No.5 which shows that they are in league with each other. The respondent No.5 was also given unilateral
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access to the decision makers and the case of Habibullah Energy is fully applicable on the proposition involved in the case. Learned counsel for petitioner placed his reliance on the case- laws reported as PLD 2014 SC 47, PLD 2010 SC 731, 2007 CLD 125, 2010 CLD 726, PLD 2010 Lahore 605, 2014 YLR 2571 and PLD 2012 Balochistan 31. 8. On objection that petitioner has no locus standi, learned counsel submitted that Petitioner being lawyer by profession and member of District Bar Association Gujrat personally aggrieved as in order to appear in the US embassy in a prescheduled interview he reached the terminal of DSS near Convention Center and lodged a serious protest against excessive, disproportionate and arbitrary fare for just 2/3 kilometers but the dealing person misbehaved with the petitioner in front of hundreds of people and refused to entertain him. Moreover, since the property for which CDA is the custodian vests in the people of Pakistan, not only the petitioner but also every member of the society has locus standi to bring forward a public matter disclosing the violation of any constitutional and legal provisions or unreasonable behavior of public functionary. 9. Learned counsel for respondent CDA and respondent No.5 argued that, petitioner has no locus standi to agitate the issue as he is not an aggrieved person within the contemplation of Article 199 of the Constitution. Moreover, factual controversies are involved which cannot be resolved in exercise of constitutional jurisdiction. Learned counsel added that, it was within the competence of Authority to adopt a particular procedure to safeguard its interests. Learned counsel further submitted that contract period, almost concluded, therefore, no interference be made in the lawful act of CDA. ' Arguments heard. Record perused. ' From the pleadings of the parties and arguments advanced, following admitted facts surfaced; ' First contract from 2002 to 2008 awarded to respondent No.5, without any competitive process. ' Mr. Ghulam Sarwar Sandhu (Director Urban Planning) gave the advertisement dated 19-3-2008 in the Newspapers, acted as member of the Scrutiny Committee, participated in the Board meeting dated 16-4-2008 and signed the concession agreement dated 28-5-2008. ' In the Board Meeting held on 18-12-2007 following proceedings took place:--- " Director Urban Planning, explained to the Board that the Visa seekers from Islamabad and outside Islamabad are not allowed to enter into Diplomatic Enclave directly and therefore, these people gather at one point. Presently parking and other facilities to visa seekers are provided on the east of Convention Centre. And to start of construction and security issues, it was decided by the authority to relocate the facilities near Diplomatic Enclave on a safer and accessible location. The new site is of measuring 400' x 500' (4.50 Acres) and has located along 3rd Avenue having approach from Muree Road, Kashmir Highway and Khayaban-e-Margalla. He stated that it was desired by the authority that facilities should be developed preferably on BOT basis, Accordingly, presentation was made to the Chairman CDA by the, present licensee who is operating these facilities from last 10 years. The concept was approved by the Authority. He placed the case before the Board for allotment of the land measuring 400' x 500' (4.50 Acres) for a period of 5 years on BOT basis to the present licensee on rent basis i.e. Rs.100/- per sq. Yard. The licensee will provide the following facilities at the site. (1) Main Muree Road, (2) Road to new site. (3) Road to main gate. (4) Vehicle check post. (5) Parking area. (6) Rest area. (7) Luggage. (8)
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Security checks in. (9) Entrance. (10) Information desk. (11) Admin Office. (12) Security room. (13) PCO/Photostat/fax/photo shop. (14) First Aid. (15) Waiting area. (16) Cafeteria. (17) Laundary room. (18) Prayer hall, (19) Wash basin/ablution area/washrooms. (20) Coupon Counter. (21) For departure only. (22) Screening point. (23) Departure parking area. (24) Gate of shuttle service only (25) Shuttle point. (26) Urban Shuttle Service. He placed the case before the Board for approval. DECISION: The Board approved the licensing of 4.5 acres land at proposed site to the present licensee for five years on BOT basis and also to charge rent @ Rs.100 per square yard on annum basis. The licensee will develop the site and provide all the proposed facilities at site. ' There is no termination clause in the agreement. ' Decision to advertise for construction of facilities to be provided to visa seekers in Islamabad was made in the Board meeting held on 11-3-2008. ' Respondent No.5 was neither company registered with SECP nor a firm duly registered with Registrar of Firms. ' Minutes of Board, meeting held on 16-4-2008 show that out of seven (7) applicants (6) were ousted due to single reason i.e. Relevant documents have not been submitted. Not qualified, whereas respondent No.5 submitted relevant documents, therefore, qualified. ' In the same meeting Board approved to allow respondent No.5 to develop the area as per requirements. ' Respondent No.5 had been charging Rs.500 per person instead of Rs.200 but CDA took no action against him. ' Requirement of PEPRA Rules compromised. ' Rs.44,444 on account of AGR for 4.5 acres. 11. Above admitted facts shrinked the controversy and made it easy for this court to decide the same in the light of dictums laid down by the Hon'ble apex Court. 12. As far as objection raised by the respondent on the maintainability of the Writ Petition is concerned, reply to same may be found in the case of Habib Ullah Energy's case, reported as PLD 2014 SC 47, august Supreme Court held as under:- " All public functionaries must exercise public authority, especially while dealing with public property, public funds, and assets; in a fair, just, transparent, and reasonable manner, untainted by mala fide without discrimination and in accordance with law, keeping in view the Constitutional Rights of the citizens; and the same would hold true even in absence of any specific statutory provisions setting forth the process in such behalf-While exercising its jurisdiction, Superior Courts
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neither sit in appeal over administrative actions nor interfere on account of inconsequential deviations; however, where Administrative Authority acted in a discriminatory manner, and action failed the test of reasonableness, transparency and/or was otherwise unjust and unfair or suffered from mala fide, the Courts not only were vested with the jurisdiction to set aside such actions but any failure in such an eventuality to exercise power of judicial Review, when invoked, would make the court a party to such unreasonable, unfair, mala fide and illegal action. " ' In the case of Sindh High Court Bar Association "PLD 2009 SC 879" honourable Supreme Court held as under:--- " Government power must be exercised within the constraints of rules that apply to ample categories of persons and acts, and these rules, whatever they may be, must be uniformly applied: ' Rule of law as defined by Aristotle is "Rule of law is to be preferred to that of any individual" whereas in the words of the Massachusetts Constitution it means "a Government of laws and not of men" which descried in one word means supremacy of law. Supremacy of law defined with the Divine Command in the Holy Qur'an 4:59 which is translated in English as under:--- "0 ye who believe! Obey Allah and obey the Apostle, ' And those charged with authority among you". ' Hazrat Abu Bakr Siddique (R.A.A) in his first speech as Caliph explained the above words; the nub of its is that obedience to persons in authority is an obligation only if what they require you to do so is in accordance with the Holy Qur'an and Sunnah of the Holy Prophet (SAWS) This is the highest authority in the power to judicial review ": "In the Suo Motu Case No. 18/2010 regarding matter of Violation of Public Procurement Rules, 2004 reported as (PLD 2011 SC 927) august Supreme Court held that:- " Where a procedure has been provided for doing a thing in a particular manner that thing should be done in that manner and in no other way or it should not be done at all; indeed it impliedly prohibits doing of thing in any other manner; the compliance for such thing in no way could be either ignored or dispensed with. ' If the act complained of is without jurisdiction or is in excess of authority conferred by statute or there is abuse or misuse of power court can interfere. In such an eventuality, mere fact that there is denial of allegation of mala fide or oblique motive or of its having taken into consideration improper or irrelevant matter does not preclude the court from enquiring into the truth of allegations levelled against the authority and granting appropriate relief to the aggrieved party. ' The decision is unlawful if it is one to which no reasonable authority could have come. ' The discretion enjoyed by the persons holding high offices should not be left to the good sense of individuals and presumption that person holding high office does not commit wrong is liable to be repelled. ' Every arbitrary action, whether in the nature of legislative orL administrative or quasi judicial exercise of power, is liable to attract the prohibition under the Constitution. ' Court may look into the material on record, uphold the right of judicial review, on the basis of illegality in decision making process coupled with irrationality and perversity. If the administrative or judicial power has been exercised on non-consideration or non-application of mind to relevant factors, such exercise shall stand vitiated. ' The parameters of the courts power of judicial review of administrative or executive action or decision and the grounds on which the court can interfere with the same are well-settled. Indisputably, if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by
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adopting a wrong approach or has been influenced by irrelevant or extraneous matter the court would be justified in interfering with the same. " ' In suo motu case No. 5 of 2010 reported as (PLD 2010 SC 731) the learned…
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