Thursday, November 24, 2011

Pakistani Case Law on Locus Standi

        By Yasser Latif Hamdani

1.      Attaullah Khan Malik v. Federation PLD 2010 SC 605
(Lahore High Court before Syed Mansoor Ali Shah and Muhammad Yawar Ali, JJ)
Para 16
Any citizen or person (part of the public) has "sufficient Interest" and is, therefore, an aggrieved person under Article 199 of the Constitution, if public property is being acquired, held, used, or disposed of by public functionaries in violation of the law. Public functionaries as trustees of the people, cannot have any personal interest in any public property, therefore if there is any abuse of trust or violation of law, it qualifies any member of the general public as an "aggrieved person" with the right to' invoke the constitutional jurisdiction of this Court, subject to fulfilling other requirements of Article 199.

2.      Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC) Karachi and 4 1999 SCMR 288 

(Note: this case elsewhere is also good for doctrine of laches)
Para 12
Adverting to the question of locus standi of the appellants, we may observe that the Clifton beach is a place in Karachi, which is not only visited by the Karachi-cites, but generally people who are on short visit either from other parts of the country or from abroad also visit Clifton beach as it is a well established place of public recreation since before the partition of India. The title of the memo. of appeal indicates that most of the appellants reside in close proximity of the Park and, therefore, it cannot be urged that they have no locus standi to file the above Constitution petition. In our view, because of the location of the Park as highlighted hereinabove even a resident of a distant area like Layari Quarters could have filed the above Constitution Petition.
Para 3
Mr. K.M. Nadeem learned counsel for the petitioners has impugned the decision of the respondent No.2 to award these licences to the respondent No.3 on a number of grounds. It is inter alia contended that such action is intended to deprive the petitioners of their legitimate right of livelihood and carrying on a lawful business and conferring the monopoly on the respondent No.3 in awarding licences… Moreover, the award of such licence/contract without inviting public offers amounted to abuse of discretion conferred upon public authority by law.
Para 5
 We regret, we cannot approve the method of awarding such contracts by way of State largesse. Periods of three years and five years cannot by any stretch of imagination be considered to be a period for working out an A arrangement on experimental basis. It has been vehemently contended on behalf of the petitioners that through inviting public offers, the respondent No.2 could have received twice as much of the amount required to be paid by the respondent No.3. In the circumstances, particularly keeping in view the tenure of the contract, we are constrained to infer that the power entered into the contract by the respondent No.2, which is a public body has not been exercised honestly fairly and in the public interest. It is settled law by now, that the exercise of such power is amenable to judicial review. Learned counsel for the respondent No.3 has not argued anything to justify the award of the contract in his clients favour. In the circumstances, we are constrained to allow this petition to the extent that the two contracts, dated 23‑2‑1997 are declared to be against the public policy and public interest and the respondent No.2 is directed to invite Public offers for award of such contracts if it is considered expedient to do so, or continued with the earlier method of granting of permits with effect from 28th February, 1999.


Para 4
4 however, according to Mr. Chughtai as the petitioner did not participate in auction and that a concluded contract has come into existence between respondents, therefore, the petitioner is estopped from challenging the disputed auction and also this Court while sitting in constitutional jurisdiction is precluded from going into vires of disputed auction on the ground of violation of above mentioned rules.
Para 6
 So far as the contention of learned counsel for respondents that in the presence of concluded contract this Court has got no jurisdiction to interfere in the matter is concerned, the law declared by Honourable Supreme Court of Pakistan in the case Muhammad Afzal v. Shahzad Asghar Dar and others 2003 SCMR 280 and Messrs Airport Support Services' v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 are the answers, which lay down that no sanctity is attached to a concluded contract which is neither transparent nor has been made keeping in view the overall interest of the leasing body and that the contract entered into by the public exchequer is always open to judicial review on the touchstone of reasonableness, fair play, natural justice, equality and non-discrimination. Since the very auction was held in violation of the rules mentioned above, therefore, mere fact that as a result of the said auction a concluded contract has come into existence, would neither mean that this Court is deprived of its constitutional jurisdiction, of judicial review to look into the very object of such contract but this Court while silting in constitutional jurisdiction is always to see that public functionaries act fairly, honestly and in a transparent manner, as held by the Honourable Supreme Court of Pakistan in unreported judgment passed in C.Ps. Nos.2404, 2405 and 2406 of 2004 Atta Muhammad v. Government of Punjab and others reiterating its earlier view in Muhammad Afzal v. Shahzad Asghar Dar and others 2003 SCMR 280.
Para 7 
For what has been discussed above, this writ petition is allowed, all the proceedings from publication of' advertisement till the date of auction of disputed contract, are declared as without lawful authority. Resultantly, the T.M.A., Lodhran would initiate fresh proceedings for holding fresh auction by giving publication in newspaper, mentioning the reserve price, calling for deposit of 2% earnest money and also by strictly following the other requirements of the relevant Rules, within two weeks from today.

8.      MUSHTAQ ALI vs. GOVERNMENT OF SINDH P L D 1998 Karachi 416
Having come to the conclusion that relief may be granted in this petition, we would now proceed to examine the question of maintainability of the petition itself. It has been urged from the side of the respondents that the D petition is not maintainable because the petitioner has no locus standi and because it is for mala fide reasons that the petition has been brought…Be that as it may, there is a plethora of case-law from our own jurisdiction as also from other jurisdictions which would seem to sustain the petition, having been filed pro bono publico. In public interest litigation of this character all that has to be seen is public interest and public advantage. Strict rules and technicalities have no room in such matters. A good deal of laxity and an equal amount of indulgence is permissible in such matters directed solely to achieve public good.
It is well-known by the time, that to invoke the Constitutional jurisdiction under Article 199 of the Constitution, it is necessary that petitioner must show a vested right to claim discretionary relief. This condition of being an aggrieved person, stands fulfilled, particularly in the matter, which involves public interest litigation, if it has been established that the petitioner is an interested person and the object of invoking the jurisdiction is not to claim relief, essentially in his favour, but only to show that by means of an administrative action, unlawful proceedings have been drawn, which are required to be rectified by exercising judicial review. As it has been noted hereinabove, in the instant case, the petitioner not only has shown his interest in t seeking relief from the Court, that Administrative Department must provide equal opportunity to all the Traders, Suppliers, interested in the business of supply wheat, but has also proved with the help of record, maintained by the department that on a large scale, illegalities and irregularities, have been committed in the Food Department, to favour the respondent No. 3, by entering into a deal of purchase of wheat, which he allegedly imported from outside the country, although for this purpose, as far as the department is concerned, it has not shown its inclination, at any stage, to the wheat supplier Agencies, i.e. MINFAL, PASSCO or any other source, that it is not possible to procure wheat, therefore, it has become necessary to purchase wheat from respondent No. 3.

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