P L D 2012 Balochistan 208
Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J
ABDUL MALIK ---Petitioner
Versus
METROPOLITAN CORPORATION, QUETTA, through Administrator and another --
-Respondents
Constitutional Petition No.79 of 2010, decided on 21st May, 2012.
Balochistan Local Government Act (V of 2010) ---
----S.25---Constitution of Pakistan, Art. 199 ---Constitutional petition ---Metropolitan
Corporat ion---Petitioner, a government contractor, contended that contract for collection of
parking fees had been continuously and illegally awarded to the respondent by the
Metropolitan Corporation without inviting tenders and that the respondent was a chroni c
defaulter in dues payable to the Corporation ---Respondent contended that it had a valid
agreement with the Metropolitan Corporation and the Chief Minister had waived certain
amount payable to the Corporation that had accrued before the execution of the agreement ---
Validity ---Before granting collection rights for parking to the respondent, public bids were
not invited, and the Metropolitan Corporation should have, after publication in prominent
local newspapers, awarded the contract to the highest bi dder---No legal provision was shown
under which the Chief Minister could waive public dues ---Public monies could not be waived
without a law permitting it ---Money of the Metropolitan Corporation was to be spent for the
public and should have been jealously guarded ---Metropolitan Corporation was statutory
body governed by its own laws and rules and no powers had been bestowed upon the Chief
Minister to waive the amount due to the Corporation ---High Court directed the Corporation
to immediately invite bids fo r the auction of the parking fee collection rights and award the
same to the highest bidder ---Constitutional petition, was allowed in circumstances.
S. Tahir Ali Baloch for Petitioner.
Muhammad Ali Mobeen and Rauf Ahmad Hashmi for Respondents.
Date o f hearing: 21st May, 2012.
ORDER
QAZI FAEZ ISA, C J. ---The respondents have (filed their respective replies to the petition,
which is in respect of public revenues and as the petition is pending since 2010 it is, by
consent, admitted to regular hearing ; and we proceeded to hear it.
2. This petition has been filed by a person who identifies himself as a Government
contractor alleging that the contract for the collection of parking fee in respect of Baldia
Plaza, situated at Meezan Chowk. Quetta has not been auctioned and illegally and
continuously been awarded to the respondent No.2 by respondent No.1. The petitioner
therefore sent a legal notice dated November 11, 2009 calling upon the Nazim Zarghoon
Town to invite tenders through publication and award the contract in favour of the highest
bidder. It is stated that rather than inviting tenders the respondents in apparent collusion with
one another entered into an 'Agreement' dated November, 27, 2009. It may be clarified that at
the time of filing of the petition. Zarghoon Town was arrayed as respondent No.1, but in view
of enactment of the Balochistan Local Government Act, 2010 (Act V of 2010) ("Act"), the
Metropolitan Corporation Quetta ("Corporation") succeeded Zarghoon Town , pursuant to
section 25 of the said Act; consequently, Zarghoon "Town was substituted with the
Corporation as respondent No.1.
3. Mr. Tahir Ali Baloch, Advocate appeared on behalf of the petitioner and Mr.
Muhammad Ali Mobeen, Advocate for the Corporation. Mr. Muhammad Ali Mobeen .
Advocate on behalf of the Corporation supports the allegations made by the petitioner and
states that there is nothing on record of the Corporation (and its predecessor -in-interest,
Zarghoon Town) that the purported Agreement dated November 27, 2009 was executed in
favour of the respondent No.2. It is further stated that the record shows that the respondent
No.2 is a chronic defaulter and owes an amount of Rs.68.10,000/ - (Rupees sixty eight lac and
ten thousand only). It is next contended that the respon dent No.2 was issued a notice and
given an opportunity to come and explain about the outstanding amounts and the purported
Agreement, and that the Corporation also appointed its Tax Officer as Inquiry Officer in the
matter. The said Inquiry Officer submitt ed report dated April 12, 2012, wherein it is stated
that upon receipt of notice the respondent No.2 stated that he was not going to pay the
outstanding amount as the matter is pending before the honourable High Court of
Balochistan. The report further sta tes that the person who is attributed to have signed the
purported Agreement, i.e. the then Town Municipal Officer, Zarghoon Town, Quetta, namely
Muhammad Rahim Qambrani. stated that he had not signed the same. The said report further
states that, the orig inal of the purported Agreement was not available in the respondent No.2's
record nor produced by the respondent No.1 and that it was not routed as required through the
concerned Tax Branch before its purported execution. Mr. Muhammad Ali Mobeen further
states that, whilst the Corporation denies that either the Corporation or its predecessor -in-
interest (Zarghoon Town) executed the purported Agreement, but even if for argument's sake
it was executed, the same is void as it is without consideration, as no am ount is mentioned
therein, that is to be paid to the Corporation by the respondent No.2. He also relies upon
sections 2(g), 25 and 29 of the Contract Act, 1872.
4. Mr. Raul Ahmad Hashmi, learned counsel for the respondent No.2. stated that the
original o f the Agreement is not available with the respondent No.2 and the same is with the
respondent No.1 . He further stated that the Agreement is a valid agreement and executed
pursuant to letter bearing No.PS -CM/1 -1/07/1079 dated November 15, 2007 and that the
amount payable by the respondent No.2 (the Contractor) to the Corporation is mentioned in
the 'Comments' filed by respondent No.2 which was an amount of "Rs.14,00,000/ - per year"
and that the respondent No.2 on June 10, 2010 paid Rs.500,000/ - pursuant to the Agreement.
He further stated that the Chief Minister Balochistan had exempted payment of Rs.4,55,000/ -
from the amounts that had accrued prior to the execution of the Agreement. Reference was
also made to the auction proceedings that took place in the year 2003, pursuant to
publication, and the agreement executed pursuant thereto. However. neither copies of the
referred to letter dated November 15, 2007 the 2003 publication nor agreement purportedly
executed after the said publication were produced.
5. The purported Agreement dated November 27, 2009 comprises of ten clauses
reproduced hereunder, wherein the respondent No.2 is referred to either as Contractor or
Second Party:
(1) That the period of contract shall be for eight 08 years, commencing from 1st July,
2009 ending on 30th June, 2015.
(2) The Contractor shall deposit 5% Income Tax at the time of depositing advance
amount of the contract.
(3) That in case new rules and by laws are passing regarding car parking charges the
contractor shall be bound to abide by it.
(4) That the Second party shall not enter into any sort of partnership or other
arrangements which any person whatsoever without prior approval of the first party.
(5) That the contractor shall not sublet the contract to any othe r person, otherwise, the
contract shall be liable to be terminated without notice.
(6) That the contractor or their authorized agent staff working under him shall deal with
the visitor consumers in good and proper attitude.
(7) That the second party sh all be responsible for the safe custody of car parking brought
at the premises of parking area and in the event of theft or loss/ damage, he will be personally
responsible.
(8) That the contractor shall display clearly the timing and charges of car parki ng.
(9) That the contractor shall responsible for payment of all utility bills, and arrangements
of cleanliness in the premises of car parking.
(10) That the contractor is bound by all terms and conditions of the agreement and shall
not make any defaul ter of contractual amount. In case of any dispute the parties have a right
to approach the concerned Civil Court and the decision shall be final and binding upon the
parties.
6. The following questions arise for consideration:
(i) If any party relies on a particular document (in the present case the purported
Agreement) on whom lies the burden to prove / establish and or produce the same?
(ii) Whether the Agreement dated November 27, 2009 mentions the amount payable by
the contractor to the Corporati on (and or its predecessor -in-interest), and, if not, to what
effect?
(iii) Whether the Corporation (and or its predecessor -in-interest) is entitled to award the
subject contract without inviting public bids by advertising the same?
(iv) Whether the Ch ief Minister has the power to waive any amount payable to the
Corporation (and or its predecessor -in-interest)?
7. In our constitutional jurisdiction we cannot determine the rights/liabilities of the
parties arising pursuant to a contract, but the presen t case is one where the Corporation denies
executing the purported Agreement. It was for the respondent No.2. who relied upon the
purported Agreement, to prima facie establish its existence. The original of the purported
Agreement has also not been produce d and the respondent No.1 states that it does not exist in
its records. The person who is stated to have signed the purported Agreement on behalf of the
respondent No.1 has also denied signing the same. The respondent No.2 also did not
approach the civil c ourt for declaration as to the existence/subsistence of the purported
Agreement. The purported Agreement appears to be silent about the amount that the
respondent No.2 is required to pay to the respondent No.1, and such an 'Agreement' may be
deemed to be v oid for uncertainty and for lack of consideration, however, it would not be
appropriate to hold so in our constitutional jurisdiction. If however the respondent No.2's
version is accepted, that he was required to pay an amount of Rs.1,400,000 per year, the n the
following amounts should have been paid by him till date:
Period Amount
November 27, 2009 throughout to
November 26, 2010 Rs.1, 400,000
November 27, 2010 throughout to
November 26, 2011 Rs.1, 400,000
November 27, 2011 throug hout to
May 21, 2012 Rs. 673,150
Total: Rs.3, 473,150/ -
However, against the aforesaid outstanding amount only amount of Rs.500,000 (Rupees five
hundred thousand only) is stated to have been paid. The purported Agreement stipulates that
the Contractor (respondent No.2) shall not commit any default but the Contractor is an
admitted defaulter of public dues and therefore on such ground too the purported Agreement
could have been terminated and steps taken to recover the outstanding amounts. I t however
appears that no effort has been made by the respondent No.1 to recover the outstanding
amounts due from the respondent No.2.
8. Moreover, admittedly before granting the collection rights in respect of car parking
fee to the respondent No.2. pub lic bids were not invited nor publication made to this effect.
The respondent No.1 should have taken immediate steps to rectify the situation, as the grant
of parking fee collection rights generates considerable revenue, therefore, after publication in
prominent local newspapers respondent No.1 should have awarded the contract to the bidder
who offered the highest amount. The last question which arises for consideration is whether
the Chief Minister, Balochistan was/is empowered to waive the outstanding amo unt or any
part thereof in respect of the amounts payable by the respondent No.2 to respondent No.l.
Vide order dated April 5, 2012, we had put counsel on notice in the following terms:
The learned Additional A.G. and the respondent No.1 should assist th e court on the point as
to whether, the Chief Minister has the power to waive the amount of the Metropolitan
Corporation outstanding against the contractor, and if so then on what ground?
Mr. Abdul Aziz Khliji, learned Additional Advocate General ("Addl. AG") states that he has
not been provided with comments by the department in this particular case but can make the
general statement that no power vests in the Chief Minister to waive public amounts payable
by a private person. Such statement of the learn ed Addl. AG is also supported by the learned
counsel for the Corporation. It is for the person who is relying upon the power/act of the
Chief Minister to waive public dues to show under which legal provision the Chief Minister
can do so, which he has faile d to show. Public monies cannot be waived without a law
permitting this. The monies of the Corporation are to be spent for the public and to be spent
on public works and as such have to be jealously guarded and fully accounted for. Moreover,
the Corporatio n is a statutory body governed by its own law and rules; and no power therein
has been bestowed upon the Chief Minister to waive the amounts due to the Corporation. We
therefore declare that the Chief Minister did not have the power to waive any amount pay able
by the respondent No.2 to the respondent No.1, and the purported waiver is of no legal effect.
9. Therefore, for the above reasons, the petition is accepted and the respondent No.1 is
directed to immediately invite bids for the auction of the parkin g fee collection rights in
respect of the car parking of Baldia Plaza Quetta and to award the same to the highest bidder.
The bids to be invited by publishing advertisements in prominent local newspapers having
wide and large circulation. The respondent No .1 will be within its rights to recover from the
respondent No.2 the outstanding amounts. The respondent No.2 may participate in the
bidding process provided he has first made payment of the amounts owed to the respondent
No.l.
K.M.Z./43/Bal. Order accordingly.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,
let us know.