P L D 2010 Karachi 6 (PLP)

By this common order we shall dispose of both the petitions.

1. The case of the petitioner is that by virtue of publication made in the newspapers, fishing rights in the lakes and water areas of Sindh were auctioned by Forest Department. The auction for Sukkur area was held by the District Forest Officer of Afforestation on 3-10-2007. The petitioner was declared successful bidder of the lake Sundrani in the old Gublo Forest and was awarded the fishing rights for the period ending on 30-6-2008 for an amount of Rs.3,50,

000. It is also the case of the petitioner that in February 2008 he made a request for extension in his finishing rights up to five years to the Ministry of Forest and Wild Life Department, Government of Sindh. Pursuant to this application a summary was floated before the Minister who gave his approval as is evident from Paragraph Nos.6 & 7 of the summary which reads as follows:-- "The contractor, Mr. Niaz Muhammad has therefore prayed for extension in the contract on lump sum amount of Rs. 1,500,000 (Rupees Fifteen Lacs) only for further five years ending 2013 and subsequent auctioning on long tenure (5 years) basis which is a genuine request and is in the interest of either parties i.e. Department and the fishery contractors as it ensures sustained/confirmed income for the department and provides sense of secured investment to the fisher contractor." "It is, therefore, recommended that fishery contract of Sundrani/old Gublo Forest may be extended for five years (2008-09 to 2012-13) on the lump sum offer of Rs.1,500,000 to be paid in annual instalments and for subsequent period it may be auctions on five years tenure basis"

2. On the basis of above summary necessary orders for granting extension up to five years i.e. up till December 2013 were issued in favour of the petitioner. In this regard a sum of Rs.15,00,000 is said to have been deposited by the petitioner which covered the entire extended period i.e. up to December 2013. It is also the case of the petitioner that S.H.O. and A.S.-I of P.S. Aandal Sundrani are supporting the private respondents Nos.11 and 12 who are unauthorisedly catching fish from the lake and therefore he sought protection from this Court.

3. This Court put a specific question to the counsel for the ' petitioner as to what is the legal validity of the extension in the lease .period up to December 2013 as the original term expired on 30-6-2008, the learned counsel replied that item listed at S.No.7 in Part-II to the second schedule of the West Pakistan Delegation of Powers under the Official Rules and the Powers of the Re-appropriation Rules 1962 under the caption "Special Powers to the Certain Departments and officials" entitles the Chief Conservator of Forest to lease the lands in Forest areas for the period up to five years. He contended that since the Chief Conservator of Forests had the power to lease the Forest land up to five years, therefore, the extension in lease in favour of the petitioner was also within his competence. For the sake of convenience, the relevant item listed at S.No.7 in Part II to the second schedule of the above referred Rules is reproduced as follows:--

7. Lease of land in Forest areas (i) Chief Conservator of Forests. By auction or tenders up to 5 years for irrigated up to 15 years barani lands. (ii) Conservator of Forests By auction or tenders for annual leases. (iv) Divisional Forest Officers. By auction or tenders up to 50 acres in Each for one year

4. From a bare reading of the above rule, it is evident that power to grant lease for a term up to five years in the forest areas lies with the Chief Conservator of Forest but it is qualified with the restriction that such leases are to be granted only through auction or by inviting tenders. In the present case bids were invited for a term of only one year i.e. for 2007-08 and not for five years. It was only on a subsequent request of the petitioner that the forest department extended the lease for further five years. Thus this was patently illegal and apparently meant to unduly favour the petitioner. Learned Additional Advocate General has very candidly conceded that lease of the forest land can only be granted through auction or through inviting bids and therefore, he was unable to defend the extension in the lease up to five years in favour of the petitioner on any legal principle or provision of law. We have noticed that even invitation through tender in the auction notice is vague. It does not describe necessary details of the lake that were put to auction nor it mentions its area. Hence it is totally bereft of any details in order to facilitate the prospective bidders to compete among themselves. Such is the pathetic state of affairs in the forest department which is entrusted to deal with valuable public property. It may be pointed out that the lake which has been leased out to the petitioner is said to be spread over an area of 9 square miles. On account of its vast area and the potential of earning huge income, it ought to have been specifically described in the advertisement in order to attract offers which commensurate with its fishing potential. However, we find that no such details were published in the newspaper. The advertisement neither describes the name of the lake, what to speak of the area and its location. All this 'appears to have has been deliberately done so that not many prospective bidders are attracted and there remain room to lease out the lake at throw away rates to either favoured person and bring in un-accounted personal benefits for the functionaries of the forest department. Hence a dishonest intention in the entire process is quite evident on the part of functionaries of Forest Department.

5. We are therefore of the opinion that a complete maladministration under the watch of Chief Conservator as well as the concerned Minister of Forest is found in the Forest Department that may have caused loss of millions of rupees to the Provincial Government. They should certainly be identified by the Anti-corruption Department and made accountable for the same. We hold that the manner which the lake was leased and its subsequent extension is based on dishonesty, without lawful authority and of no legal effect. As a result of such findings we declare that the extension in the lease made on the basis of such illegal grant to be void, ab initio. We direct that the lake shall be auctioned afresh after describing all its necessary details in the newspaper such as the name of lake, its area, its location and boundaries. This exercise of re-auction be completed on or before 30-11-2009. Till such time the present petitioner shall continue to hold fishing rights subject to adjustment of the lease amount lying deposited with the Forest Department.

6. With regard to the allegations of unlawful use of the administrative powers by the police which facilitated the private respondents to unauthorizedly fish from the lake, we hold that D.P.O. Ghotki shall initiate appropriate inquiry in order to ascertain which of the police functionaries were involved in facilitating illegal fishing of the lake and in case they are found involved then appropriate disciplinary action be taken against them after giving them opportunity of hearing. In case any private respondents are also found involved in the matter then appropriate cases shall be registered against them.

7. We may observe that the dispute as to the ownership of the certain area of the lake between the forest department and fisheries department shall be settled by the concerned functionaries of the Government of Sindh. Nevertheless this would not be a reason to delay the process of lease as directed by this Court. It shall in any case go ahead through Forest Department. A representative of the fisheries Department shall always be present in the whole process of auction/invitation of bids. In case fisheries department are found entitled to fishing rights, the amount generated from such process would accordingly be appropriated to it.

8. Let copies of this order be dispatched to (i) Anti-corruption Authority, (ii) Accountant General Sindh for appropriate action and so also to (iii) Chief Minister Sindh.

9. With these directions, both these petitions stand disposed of. M.H./N-47/K Order accordingly.