While adjudicating a plea challenging legality of contract to M/s IMEX Associates for operation and maintenance of Service Area on Islamabad Peshawar Motorway (M-1) Justice Jawad Hassan of the Lahore High Court (LHC) observed that providing an appropriate safe passage to travel throughout the country is a responsibility shouldered upon the state and the custodian of national roads ‘National Highways Authority’ (NHA).
Besides, the court has restrained the IMEX from further construction on the site till final decision of the matter in hand in response to petition of Niaz Muhammad, a citizen who frequently commutes on M-1.
Advocate Umer Ijaz Gillani, counsel for the petitioner has made Federal Secretary Communication, National Highways Authority, M/s IMEX Associates Islamabad and Public Procurement Regulatory Authority as respondents.
It has been alleged that the Service Areas on M-1 is in a terrible state and lack basic facilities such as washrooms, Masjid and rest and recreation facilities.
Terming non-availability of such facilities as violation of the fundamental rights of travelers the petitioner has alleged that the cause behind this state of affairs is mis-procurement and nepotism by NHA which has awarded the multi-million-dollar contract to IMEX.
He alleged that the IMEX is a local fuel retailer of dubious repute, which has never previously built any motorway service area anywhere in the country. The petitioner also alleged that “ It is clear that the entire process was mala fide and manipulated to ensure that tender was won by M/S IMEX Associates ” saying the IMEX simply does not possess a license for construction and operation of engineering works which is a legal prerequisite for carrying out such work.
He further said the tender documents were drafted in a clever way which ousted from the bidding process all the leading companies such as FWO, NLC and HASCOL which have built Service Areas on the other motorways.
The petitioner has pointed out that that the company to which the contract has been awarded is actually a wound-up company which is no longer on the active register of SECP. The entire procurement process was a sham and NHA had already decided to award the contract to a favorite.
After hearing contentions of Advocate Umer Gillani, single-member of the LHC Rawalpindi bench comprising Justice Jawad Hassan issued notices to NHA a fortnight ago, on 17th October.
After conducting a preliminary hearing on the matter, the court admitted the petition for hearing and sought comments from NHA. In its detailed admitting note, the Court mentioned its earlier judgment titled Muhammad Tahir Jamal Advocate vs Government of Punjab (PLD 2020 Lahore 407) where it had emphasized the rights of travelers and commuters on motorway in the law as well as in Islam.
In its order the court cited Rule 2 (xiv) of The Highways and Strategic Roads (Control Rules) 1998 which defines a “motorway” as “…. a road especially designed and built for motor vehicles which does not serve the properties bordering on it except at special points and has separate carriageways for the two directions of the traffic and does not cross at level with any road, railway, tramway, cycle track or footpath.”
Justice Jawad Hassan observed that the NHA bears an onerous responsibility to discharge its duties towards travelers. Referring to Article 15 of the Constitution the Justice Jawad Hassan observed that “every citizen has a fundamental right to freedom of movement throughout Pakistan subject to restrictions imposed by the law. Providing an appropriate safe passage to travel throughout the country is a responsibility shouldered upon the state and the NHA created under The National Highways Authority Act 1991 which was established for very purpose of planning, development, operation and maintenance of the National Highways and strategic roads …..”
This week, on 01.11.2022, the case again came up for hearing on before the bench of Justice Anwaar Hussain. Counsel for the NHA Sardar Haroon Sami submitted written comments of NHA. Counsel for the IMEX sought time to submit comments which was granted.
Substantiating his claim in the matter, counsel for the petitioner, Barrister Umer Ijaz Gilani submitted a document saying the company IMEX Associate had already been wound up by the time NHA awarded the contract to it. He submitted that in case the contractor violation the Concession Agreement, the NHA would be unable to sue anyone. This state of affairs is jeopardizing the public exchequer.
After placing the document on the record, the case was adjourned till November 29, 2022. In the meantime, the contractor has been warned by the Court that any further construction carried out on the site would be at its own risk and cost.
