2024 M L D 105
[Balochistan]
Before Naeem Akhtar Afghan, C.J. and Muhammad Aamir Nawaz Rana, J
NOOR UL HAQ---Petitioner
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary Civil Secretariat,
Quetta and 4 others ---Respondents
Constitutional Petition No. 2137 of 2022, decided on 26th May, 2023.
Balochistan Public Procurement Rules, 2014 ---
----R. 4--- Public Sector Development Program ---Public procurement ---Criteria set for
procurement, violation of ---Petitioner was aggrieved of bidding process finalized in violation
of criteria for selection of beneficiaries without receiving applications for drilling and development of bores to provide water for agriculture purposes ---Contention of authorities
was that identification of sites and beneficiaries would be done after bidding process ---
Validity ---Earlier a judgment was passed from High Court as well as from Supreme Court on
the same issue and the petition was accepted ---Procurement process for installation of bore
for agriculture purpose in the area concerned was neither in accordance with guidelines
provided by Planning Commission of Pakistan nor in accordance with the criteria laid down by authorities in the light of decision of Provincial Cabinet ---High Court directed the
authorities not to include vague projects in Public Sector Development Programs (PSDPs) in violation of guidelines provided by Planning Commission of Pakistan as well as law settled by High Court and Supreme Court ---High Court set aside procurement process in question---
Constitutional petition was allowed accordingly.
Raja Parvaiz Ashraf's case PLD 2014 SC 131 and Abdul Raheem Ziaratwal v.
Federation of Pakistan 2014 SCMR 873 ref.
Naseebullah Tareen, Zia -ul-Haq Kakar and Fida Baloch Essazai for Petitioner.
Zahoor Ahmed Baloch, Additional Advocate General assisted by Munir Ahmed,
Deputy Director, Agriculture on Farm Water Management Ziarat (Respondent No. 5) for
Respondents.
Date of hearing: 11th April, 2023.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ---The petitioner has called in question
the legality and transparency of procurement process initiated by respondent No.5 i.e.
Deputy Director, Agriculture on Farm Water Management Ziarat, Agriculture and Cooperatives Department, Government of Balochistan ('GoB') by Notice Inviting Tenders having PRQ Nos.1075 and 1079 which were published in Daily Express Newspaper on 22.11.2022 for the project of "installation of bore for agriculture purpose in Ziarat".
2. Learned counsel for the petitioner, while referring the impugned publications,
maintained that in order to avoid e -tendering, deliberately regarding PSDP
No.107[Z2022.3455]2022- 23, two different PRQs were issued by respondent No.5. Learned
counsel contended that the impugned Notice Inviting Tenders are not only vague but illegal as in the impugned PRQs, the proposed sites, where bores are going to be installed, are not mentioned which act is clearly in violation to the principle laid down by the Supreme Court in Raja Parvaiz Ashraf
1 case and in the case of Abdul Raheem Ziaratwal v. Federation of
Pakistan2. Learned counsel further relied upon the judgment dated 04.05.2019 passed by this
Court in C.P. No.482/2016.
3. Learned Additional Advocate General ('AAG'), while opposing the petition,
maintained that the subject PRQs were in accordance with law. According to learned AAG, the grievance of the petitioner to the extent of e -bidding had already been redressed as in
view of the interim order dated 06.12.2022 passed by this Court in C.P. No.1963/2022, the process of e -tendering has been adopted regarding the subject PRQs. Learned AAG
contended that in the light of judgment passed by the Supreme Court in the case of Abdul Raheem Ziaratwal (supra) and judgment dated 04.05.2019 passed by this Court in CP No.482/2016, the Provincial Cabinet had approved a criteria for selection/identification of PSDP schemes for implementation, which criteria is in accordance with the Balochistan Public Procurement Rules, 2014 (hereinafter "BPPR, 2014") and same criteria is being followed since 2018 and onwards.
Arguments heard and the relevant record perused.
4. The Deputy Director, Agriculture on Farm Water Management, Ziarat had invited
tenders for drilling and development of bores in District Ziarat under the project "installation of bore for agriculture purpose in Ziarat" having PSDP No. 107[Z2022.3455]2022- 23. Only
villages have generally been mentioned where these bores are going to be installed which is clear violation of the guidelines provided by the Planning Commission of Pakistan which envisage as per the Development Manual, the departments have to provide details of the proposed projects for inclusion in PSDP to the Planning and Development ('P&D') Department of the Provincial Government after obtaining feasibility report etc. The
information provided by the departments has to be placed before a Committee of P&D Department which is supposed to scrutinize each and every scheme and approve all the information for inclusion in PSDP, therefore the inclusion of schemes in PSDP without proper feasibility report, survey of the area vis -à-vis exact location and estimated cost is in
violation to the "Manual for Development Projects" prepared and designed by the Planning Commission of Pakistan.
5. The record transpires that P&D Department GoB had formulated criteria for
implementation of Agriculture Sector PSDP schemes which was placed before the Provincial
Cabinet in its meeting held on 21.02.2018 for approval and the Provincial Cabinet had taken the following decision:
"The Provincial Cabinet after detailed discussion, unanimously decided that the Planning and Development Department would look into the matter and take decision at its own level, hence, it does not require any decision from the Provincial Cabinet."
6. In the light of direction passed by the Provincial Cabinet, the P&D Department GoB
formulated a formula in its meeting held on 13.03.2018; relevant portion of the same, regarding the subject matter of this petition i.e. drilling and development of bores for agriculture purpose is reproduced:
"Drilling and Development of Bores for Agriculture purpose
a) Bore has not been previously developed/installed.
b) Farmers are willing to form a Water Users Association (WUA).
(All the relevant record of WUAs will be maintained by the concerned field offices)
c) Farmers are agree with the cost sharing arrangement (if applicable).
d) Discharge of water (tentatively) should be 5- 6 liters per second (LPS) keeping in view
the discharge of surrounding tube wells.
e) More number of beneficiaries (minimum 10 numbers).
(All the relevant record of beneficiaries will be maintained by the concerned field offices)
f) The land holdings should be 10 Acres (minimum).
(All the relevant record of revenue regarding land holding and ownership will be maintained by the concerned field offices)
g) Replacement of previous installed bores and machinery could be considered for replacement which are completely abundant.
h) Energization is the responsibility of beneficiary himself.
Note. i. The beneficiary will start the process of Energization simultaneously so that the
scheme could be made functional to get the envisaged benefits without any delay.
ii. NOC will be obtained for drilling/development of bores from the concerned district
water board".
7. In order to implement the aforementioned criteria, a scrutiny committee was also
formulated by P&D Department GoB under the Chairmanship of Deputy Director, Agriculture on Farm Water Management and Deputy Director, Agriculture Extension/Soil Fertility/ Plant Protection as Member and Water Management Officer/Assistant Agriculture Engineer/Agriculture Officer as Member/Secretary.
The TORs of the Committee stipulate as under:
I. The Committee shall receive the applications for the schemes.
II. The Committee shall scrutinize the applications.
III. The Committee shall finalize the selection of beneficiaries for the schemes as per
approved criteria.
IV. The Secretary Agriculture and Cooperatives Department will address and decide the issues and complaints of the applicants if occur during the scrutiny of applications by the scrutiny committee."
8. The respondent No.5, despite abovementioned criteria and formulation of scrutiny
committee to scrutinize the applications and selection of beneficiaries, has invited tenders in complete disregard to the criteria set by P&D Department GoB, without receiving the applications for drilling and development of bores for agriculture purpose from the people of the area, rather surprisingly the Deputy Director Agriculture on Farm Water Management Ziarat (respondent No.5) in his parawise comments admitted that the identification of the sites and beneficiaries shall be done after the bidding process; this act on the part of respondent No.5 is not only illogical but amounts to putting the cart before the horse, and such admission also supports the contention of learned counsel for the petitioner that procurement process has been initiated by Deputy Director Agriculture without ascertaining the proposed location of sites where bores are going to be installed and without preparing
proper PC -1 in this context according to the guidelines provided by the Planning
Commission of Pakistan which exercise would pave the way for malpractices and corruption.
9. This Court in Constitution Petition No.482/2016, which was decided on 04.05.2019,
had observed as follows:
"We have gone through the reports submitted by the departments and have thoroughly
scrutinized the current PSDP. We have noted with grave concern that despite specific
directions of the Hon'ble Supreme Court in the case of the Ex.MPA from Balochistan, namely Abdul Rahim Ziaratwal, reported in 2014 SCMR 873 and general directions contained in the case of Ex. Prime Minister, Raja Pervaiz Ashraf, reported in PLD 2014 SC 131 and subsequent directions issued by this Court from time to time to prepare the PSDP strictly in accordance with the Rules of the Planning Commission of Pakistan and the referred judgments, but the needful was not done. Most of the schemes included in the PSDP were without the consent of the concerned department, and were not submitted through concept paper. The approval of the concerned wings of the P&D Department was also not obtained. All these schemes contained no details, nor have proper specification, as provided by the Planning Commission of Pakistan, the guidelines, given by the Hon'ble Supreme Court, as well as by this Court. Lastly, before the preparation of the current PSDP of the year 2018- 19, we had
passed a detailed judgment with direction to the Government to strictly follow the judgments of the Hon'ble Supreme Court and the guidelines of the Planning Commission. To put a check upon the Government, this petition was kept alive, but unfortunately again while preparing the current PSDP, the Rules have been violated."
(Emphasis provided)
While deciding the ibid constitution petition, apart from other directions, the
following direction had also been passed by this Court:
"6. Every scheme intended to be included in the PSDP, must be through a concept
paper and a PC -I, duly processed through the concerned department, containing
relevant information and applying cost -benefit analysis tools, while identifying,
conceiving and formulating the new proposal/PC -I, coupled with Geographical
Information System (GIS). Administrative Heads of the departments, authorities and agencies under the Provincial Government should personally ensure and certify the needful to be done, so as to make the relevant officials accountable, in case of providing wrong or fake data."
For the foregoing reasons and in view of the judgment passed by this Court as well as
by the Supreme Court of Pakistan, the petition is accepted. The procurement process for "installation of bore for agriculture purpose in Ziarat" having PSDP No. 107[Z2022.3455]2022- 23 is held neither in accordance with the guidelines provided by the
Planning Commission of Pakistan nor in accordance with the criteria laid down by the P&D Department GoB in the light of decision of Provincial Cabinet dated 21.02.2018, therefore the impugned procurement process is set -aside and the official respondents are directed not
to include such vague Projects in PSDPs in violation of the guidelines provided by the
Planning Commission of Pakistan as well as law settled by this Court and Supreme Court of
Pakistan (supra).
MH/140/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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