IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No. D-1436 of 2012

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Date Order with Signature of Judge

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Before: Mr. Justice Nadeem Akhtar

Mr. Justice Fahim Ahmed Siddiqui

Shah Muhammad Khan………………………...……………….… Petitioner

Versus

Karachi Water & Sewerage Board……………………………. Respondents

Date of Hearing : 25.01.2017

Mr. Zai-ul-HaqMakhdoom, advocate for the petitioner.

Mr. Masroor Ahsan, advocate for the respondent.

Mr. Miran Muhammad Shaikh, AAG Sindh

J U D G M E N T

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FAHIM AHMED SIDDIQUI, J:The petitioner is engaged in the business of water carrier under the name and style of M/S Shah Muhammad Khan. He participated and succeeded in the tender invited by the respondents (KW and SB) for the filling and distribution of water from ‘Nipa Gulshan Hydrant’. He deposited 2% earnest money amounting to Rs. 2,88,000/-as well as Rs. 24,41,000/-as three months in advance water filling charges through pay-orders in the name of respondents. According to petitioner, besides the above amount; certain other amount accumulated and so far remains outstanding against the respondents.

2. The petitioner also claimed that the respondents have admitted the claim of the petitioner in some other petition. However, through the instant petition, the petitioner has sought the following important and relevant reliefs:

A. It be declared that the petitioner having not been paid the outstanding dues as admitted by in the counter affidavit filed in CP No. D-2885 of 2010 and in view of letter/notification dated 10.03.2012 whereby the petitioner has been allowed to use the subject hydrant i.e. Sakhi Hassan Water Hydrant and thus wasted right having accrued in favour of the petitioner, he cannot be deprived of such right in the proposed action by the respondents and threats being issued by the respondents to the petitioner to close the subject hydrant are illegal, ultra vires and without jurisdiction being in colourable exercise of power theft the same are liable to be declared so.

B. Permanently restrain the respondents, their employees, servants and anybody acting under them from unlawfully and illegally interfering and interrupting the use of Sakhi Hassan Water Hydrant by the Petitioner.

3. After service of notice, the respondents appeared and filed their Written Statement/Para-wise Comments in which they denied all the important and material allegations levelled against them. It is alleged by the respondents in their comments that the petitioners have suppressed some important facts from this Court. It is also brought on record by the respondents that the Hon’ble Supreme Court on 23-12-2015 passed order in Human Right Case No. 28963-S of 2014, in which the claim of petitioner was not admitted by the government. It is further revealed from the comments of the respondents that petitioners also did not disclose that he had also initiated some other litigations regarding the same subject matter.

4. We have heard the arguments advanced and gone through the relevant record placed before us. The trail of arguments of the learned counsel for the petitioner is that the amount due is admitted by the respondents in an affidavit filed on their behalf in CP No. D-2885 of 2010 as such the same is not controversial and must be paid by them. Per him, in the said petition, the petitioner was allowed to fill water from the said hydrant, which was further carried out under an arrangement with respondent for recovery in installments and the same arrangement ought to be continued. He requested that either the tendering process is stayed for Sakhi Hassan Water Hydrant and the petitioner is allowed to fill water from there till recovery of his amount or the respondents are directed to pay the aforesaid amount to the petitioner to enable him to participate in fresh tenders.

5. Conversely, the learned counsel for the respondents argued that the respondents have never accepted or acknowledged the amount claimed by the petitioner and the same was controverted in the earlier petition also. According to him, the claim of the petitioner was sent to the provincial government for scrutiny and decision and the same was dismissed by the government. He further argued that the Secretary Local Government has stated before the Hon’ble Supreme Court in HRC No. 28963-S/2014 that he has scrutinized the claims of the contractors and found them dubious. The learned counsel for the respondent further contended that the said claims of the contractors have been rejected by the government as such the petitioner does not have the right to any recovery. He drew our attention towards the photocopies of certain orders of the Hon’ble Supreme Court filed under his statement. The learned AAG adopted the arguments advanced by the learned counsel for the respondents and additionally submitted that in the instant matter serious controversy of the facts are involved as the same cannot be decided under constitutional jurisdiction.

6. The petitioner emphasized upon a counter affidavit filed in CP No. 2885 of 2010 filed by an Executive Engineer of respondents (KW and SB) namely Inayatullah Khan. It is the contention of the petitioner that in paragraph No. 7, it has been admitted by the said executive engineer of the respondents that a certain amount is payable to the petitioner by respondents (KW and SB). It is a settled principle that a document should be read in toto and not in parts. In paragraph No. 03, of the said counter affidavit there was a denial about reconciliation of accounts between contractor and department officials, besides it was also subject to the approval by the competent authority. In such a situation, it can be said that there was no specific and unqualified admission on behalf of the respondents. For deciding a case on the basis of admission, the courts demand very high standards. In the case of Fareeda Saeed v. KhurramZaffar (2016 CLC 1251), this Court has observed as under:

“Even in cases where a portion of claim is admitted the Court may consider such admission for partially decreeing the claim, however, the law has prescribed a very high test of considering the admission by providing that an admission on the basis whereof a claim could be decreed should be specific, clear, unqualified, unequivocal, unconditional and an admission which does not qualify such test cannot be made basis of a decree.”

7. It is also forcefully argued on behalf of the respondents that the claims of the petitioner were found dubious and the same has been rejected by the government. Such a statement was given before the Hon’ble Supreme Court by the Secretary Local Government and the same is transpired in the Order dated 23-12-2015 of Hon’ble Supreme Court in HRC No. 28963-S/2014. The relevant portion of the said order reads as under:

“Secretary Local Government, present in Court, if states that he has scrutinized the claims of the contractors of water tankers and find that they are dubious. In this respect he after taking proper steps may reject them and party would then approach the appropriate forum within Executive Authority."

From the above, it is clear that the claims of the petitioner as well as other contractors have been found dubious and after their rejection, the option for the petitioner is open to approach the appropriate forum as directed by the Hon’ble Supreme Court.

8. In the backdrop of above, we would like to divert to another aspect of the case in respect of the relief claimed by the petitioner. The petitioner has sought two important reliefs in his favour. One pertains to directions for payment of the amount claimed by petitioner on the basis of alleged admission in CP No. 2885/2010 and continuity of filling of water from the said hydrant till payment is made. Through the additional prayer he sought a restraining order in respect of the of hydrant in question. It is worth noting that the petitioner has already filed CMA No. 1118/2015 before the Hon’ble Supreme Court in HRC No. 28963/2014 with a similar prayer. In these circumstances, when the similar issue has been agitated by the petitioner before the Hon’ble Supreme Court, it is not proper for the petitioner to emphasize upon the same matter before this Court, as this Court is not authorized to give any verdict regarding an issue already pending before the Apex Court. It is also worth noting that the Hon’ble Supreme Court in the aforementioned HRC has already issued instructions to the respondent (KW and SB) for re-tendering of the hydrants, as such this Court has no power to issue a restraining order in this respect.

9. In the existing circumstances and due to the intricacies involved in the instant matter, it cannot be decided under the constitutional jurisdiction of this Court, as such the instant petition stands dismissed.

The above are the reasons for our short order dated 25-01-2017.

JUDGE