2017 PLP 962 (YLR)

HAIDER ALI KHAN, J.

The petitioner invoked Constitutional jurisdiction of this Court praying that:-- "On acceptance of the instant writ petition, (i) The respondents may kindly be directed not to execute the agreement deed, issue an work order regarding the construction/ rehabilitation of water supply sanitation scheme K.P. ADP No.207/150208(201502016) sub-head A Para No.3 installation of pressure pumps in KalaKhel Masti Khan. (ii) The respondents may further please be directed to issue fresh tenders and work order in accordance with the Notification No.SO.III/CMS/6-1/2013/general/15227-56 dated Peshawar, the 27th November, 2015 issued by the Chief Minister Khyber Pakhtunkhwa. (iii) Any other relief deems fit in circumstances of the case may also be granted if not specifically asked for.

2. Brief facts of the case are that the petitioner is elected Member Provincial Assembly of the PK-73. The petitioner filed a Suit No.162/1 in Court of learned Senior Civil Judge, Bannu, which was later on withdrawn on the pretext to file a writ petition before this Court, vide order dated 28.05.2016; that vide notification dated 27.11.2015, the Chief Minister has issued directive for utilization of saving funds (development work) to be carried out with consultation, pointation and identification of scheme of the concerned MPA; that no work on the site seems to have been done nor the places for the scheme have been selected on merit; that advertisement, tendering, acceptance of tender, issuance of work order and execution of agreement deed for the construction/ rehabilitation of water supply and sanitation scheme is absolutely illegal, based on mala fide and without lawful authority, as these have been done without consultation of the petitioner, vide notification No.27.11.2015, therefore, the respondents may be directed not to execute the agreement deed, issue any work order regarding construction of water supply sanitation scheme KPADP No.207/ 1550208(2015-16) sub-head a Para No.3 installation of pressure pumps in Kala Khel Masti Khan KP-73. Hence, the instant writ petition.

3. Arguments of learned counsel for petitioner heard in motion and available record perused.

4. Perusal of the record reveals that the petitioner has challenged the tender notice published in daily news "express" on 26.04.2016, alleging therein that the tender of pressure pumps in his union council Kala Khel Masti Khel are not issued with his consultation as per notification dated 27.11.2015, while perusal of the same tender notice reveals that the respondents have issued construction and rehabilitation of water supply schemes in almost all union councils, but no one from other union council has leveled the same allegation. Moreover, the schemes pertain to the year 2015-16 under ADP No.207/150208, for which cost estimate and PC-1, has been prepared and even approval has been taken much before, but at that time the petitioner has not objected regarding their feasibility and if the tender notice is cancelled, it would also frustrate the same water supply scheme of other union councils, which is not the mandate of law, hence, to the extent of one union council the tender cannot be cancelled. In addition to that, the allegation that he has not been consulted for the scheme is a factual controversy, could not be resolved under constitutional jurisdiction of this court.

5. Further neither the constitution nor the rules of procedure and conduct of business in national/provincial assembly contained any provision, whatsoever, that permits the use/allocation of discretionary funds through a member of national/ provincial assemblies. The allocation of funds for development schemes has to be made after following the procedure provided in Articles 80 to 84 of the Constitution and the relevant law/rules/ instructions, therefore, the schemes passed by the provincial assembly are in accordance with law.

6. Another aspect of the case is the standing of the petitioner to throw a challenge to the ADP schemes as, certainly he is not an aggrieved person within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Reliance is placed on well celebrated judgment of august Supreme Court of Pakistan, published in PLD 214 Supreme Court 131.

7. For the reasons stated above, this writ petition stands dismissed in limine. ZC/313/P Petition dismissed.