KESC LABOUR UNION vs FEDERATION OF PAKISTAN through Cabinet Secretary art

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KESC LABOUR UNION VS FEDERATION OF PAKISTAN through Cabinet Secretary art. 199---Constitutional jurisdiction---Public interest litigation---Bona fide of petitioner---Discretion of court---Scope---any individual or small group of persons, in the garb of public interest litigation, cannot be allowed to invoke the constitutional jurisdiction of High Court under art. 199 of the Constitution, on mere allegation of mala fide in respect of any decision of the executive authority, whereas, Courts are required to exercise restraint, and should ensure that unless there is a matter of public interest or enforcement of fundamental rights, only then its discretion under art. 199 of the Constitution should be invoked and exercised by the Courts---In such type of cases, extra caution and care has to be exercised, and unless good faith on the part of petitioner is established and the matter is found to be of a public interest, and the respondent is not in a position to distinguish that the impugned transaction does not suffer from any jurisdictional defect or patent illegality, the Courts may not encourage frivolous litigation between the parties and cause miscarriage of justice. Citation Name: 2023 CLD 718 KARACHI-HIGH-COURT-SINDHBookmark this Case KESC LABOUR UNION VS FEDERATION OF PAKISTAN through Cabinet Secretary art. 9---Security of person---Right to electricity---Scope---Right to electricity is a part of right to life, which includes right to quality of life, hence part of fundamental right of a citizen of Pakistan---To provide electricity to the citizen is the responsibility of a State, whereas, electricity service is part of essential services to be provided by the State to its citizens. Citation Name: 2023 CLD 718 KARACHI-HIGH-COURT-SINDHBookmark this Case KESC LABOUR UNION VS FEDERATION OF PAKISTAN through Cabinet Secretary art. 199---Constitutional jurisdiction---Public interest litigation---Subsequent event, notice of---Scope---High Court while exercising jurisdiction, particularly in cases relating to public interest litigation, can take cognizance of subsequent events during pendency of lis before it, in order to do complete justice, however it is to be done without changing the complexion of proceedings. Citation Name: 2023 CLD 718 KARACHI-HIGH-COURT-SINDHBookmark this Case KESC LABOUR UNION VS FEDERATION OF PAKISTAN through Cabinet Secretary Ss. 28a, 29 & 30---Constitution of Pakistan, art. 199---Constitutional petition---Maintainability---Process of privatization, challenge to---Scope---Once the process of privatization of a public asset has been challenged by any citizen of Pakistan as pro bono in a public interest litigation, for being violative of the Constitutional mandate and contrary to the legal requirements as per Privatization Commission Ordinance, 2000, then the same cannot be entertained or decided by the High Court while exercising limited jurisdiction in terms of Ss. 28-a, 29 & 30 of the Privatization Commission Ordinance, 2000, read with Privatization (Modes and Procedures) Rules, 2001---any citizen having locus standi to file a constitutional petition for seeking enforcement of fundamental rights, under art. 199 of the Constitution can file a constitutional petition for the scrutiny of the process of privatization of a public asset---Objection raised by respondents as to maintainability was overruled. Citation Name: 2023 CLD 718 KARACHI-HIGH-COURT-SINDHBookmark this Case KESC LABOUR UNION VS FEDERATION OF PAKISTAN through Cabinet Secretary Preamble---Constitution of Pakistan, Art. 199---Karachi Electric Supply Company Limited---Process of privatization, challenge to---Judicial review---Scope---Petitioners sought a declaration to the effect that the process of privatization of Karachi Electric Supply Company Limited (KESC) adopted by the Privatization Commission and KESC, including the transfer of shares and management to the respondent consortium, was illegal, void and of no legal effect---Respondents attacked the maintainability of the petition---Validity---Privatization of KESC under the Privatization Commission Ordinance, 2000, was a matter of public interest and could be regarded as a simple transaction involving the transfer of shares from one company to another---On the contrary, considering the government's clear stance on privatization and the sale and transfer of shares to the respondents, it was evident that the matter held public importance---Therefore, the transaction, which entailed scrutiny of constitutional, legal and procedural aspects, could be subjected to judicial review by the High Court under Art. 199 of the Constitution. Citation Name: 2023 CLD 718 KARACHI-HIGH-COURT-SINDHBookmark this Case KESC LABOUR UNION VS FEDERATION OF PAKISTAN through Cabinet Secretary arts. 173 & 9---Privatization Commission Ordinance (LII of 2000), S. 25---Power to acquire property and to make contracts---Right to electricity---Karachi Electric Supply Company Limited---Process of privatization, challenge to---Federal Government retaining regulatory control over privatized assets---Petitioners sought a declaration that the privatization process of Karachi Electric Supply Company Limited (KESC) by the Privatization Commission, including the transfer of shares and management to the respondent consortium, was illegal, void and without legal effect---Objection has been raised by petitioners to the effect that electricity being an essential service cannot be privatized as it is the responsibility of the State to provide all the essential services to the citizens and protect the fundamental right as guaranteed under the Constitution including the right to life---Validity---Certain percentage of shares of KESC had been sold/transferred to a private company, whereas, the Government was still the shareholder and had regulatory control over the affairs of the Company under Regulation of Generation, Transmission and Distribution of Electric Power act, 1997---NEPRa being the regulator maintained supervisory control over the functions of KESC---Constitutional petitions were dismissed, in circumstances. Citation Name: 2023 CLD 718 KARACHI-HIGH-COURT-SINDHBookmark this Case KESC LABOUR UNION VS FEDERATION OF PAKISTAN through Cabinet Secretary arts. 173, 142 & Fourth Sched. Pt. II, Entry No. 4---Legislation relating to electricity---Parliament, authority of---Scope---as per art. 142(a) of the Constitution, the Parliament has exclusive power to make laws with respect to any matter in the Federal Legislative List, whereas, as per Entry No.4 of Part-II of Fourth Schedule to the Constitution electricity is the subject matter of Federal Legislative List, therefore, any legislation relating to electricity falls within the domain of the Legislative authority of the Parliament---article 173(1) of the Constitution, gives powers to the Federation and to the Provinces to exercise executive authority, subject to any act of the appropriate legislature, to grant, sell, disposition or mortgage any property vested in and to purchase or acquisition of any property on behalf of the Federal Government or as the case may be the Provincial Government and also to make contract. Citation Name: 2023 CLD 718 KARACHI-HIGH-COURT-SINDHBookmark this Case KESC LABOUR UNION VS FEDERATION OF PAKISTAN through Cabinet Secretary Preamble---Constitution of Pakistan, Art. 173---Privatization of "National Asset"---Scope---Executive, duty of---Even if there is no specific embargo under the Constitution or the Privatization Commission Ordinance, 2000, along with the Privatization (Modes and Procedures) Rules, 2001, restricting the sale or transfer of a "National Asset" that holds a strategic position and relates to the exercise of sovereign rights by the State, the Executive must exercise extraordinary caution and due care---Executive should ensure that, in the guise of privatizing, a public asset supposedly in the public interest and citing financial exigency, it does not diminish or affect the sovereign rights of the State, its obligation to provide essential services and the safeguarding of fundamental rights of citizens---This caution is necessary to avoid losses to the public exchequer and to ensure the generation of profits. Citation Name: 2023 CLD 718 KARACHI-HIGH-COURT-SINDHBookmark this Case KESC LABOUR UNION VS FEDERATION OF PAKISTAN through Cabinet Secretary S. 25---Privatization Commission (Modes and Procedures) Rule, 2001, R. 6---Constitution of Pakistan, Arts. 153 & 173---Karachi Electric Supply Company Limited---Process of privatization, challenge to---Petitioners sought a declaration that the privatization process of Karachi Electric Supply Company Limited (KESC) by the Privatization Commission, including the transfer of shares and management to the respondent consortium, was illegal, void, and without legal effect---Validity---Approval from the Council of Common Interests (CCI) was obtained in 1993, and post-facto approval was also received in 2006---CCI's formal approval was granted twice, fulfilling the requirements of Article 153 of the Constitution for KESC's privatization---Decision to privatize KESC was prompted by significant financial losses, reaching around PKR 16 billion annually, escalating to approximately PKR 80 billion in 2002---As a result, the Federal Government initiated the privatization process---First attempt to privatize KESC was made in March 2002 under S. 25 of the Privatization Commission Ordinance, 2000---Strategic investors were invited to express their interest in acquiring 51-73% of KESC's share capital---Only two parties submitted their expressions of interest, and when both were requested to submit a statement of qualification (SOQ), only one party complied by the closing date---Privatization Commission's pre-qualification committee reviewed the SOQ but the party withdrew during the due diligence phase---Subsequently, the Federal Government re-launched the privatization process in September 2003, inviting fresh expressions of interest from potential investors---Five parties submitted their EOIs, and four out of five parties submitted their SOQs---Financial Advisor assessed the SOQs and identified three parties as suitable to proceed to the next stage---However, one party later withdrew from the bidding process, leaving only two---Parties were allowed to belong to multiple consortia as long as the lead bidder in each consortium was different---Prior to the bidding, a reference price of PKR 1.30 per share was approved by the Cabinet Committee on Privatization, which remained confidential---Bidding began in 2005, and each party was required to deposit PKR 100 million as earnest money and subscribe to redeemable preference shares worth PKR 4.38 billion in KESC---Both parties submitted their bids, and the highest bid was accepted---Unfortunately, the highest bidder disappeared without making the balance payment, resulting in the forfeiture of the earnest money---Consequently, the second attempt to privatize KESC was unsuccessful---Under Rule 6 of the Privatization (Modes and Procedures) Rules, 2001, the Privatization Board opted for a negotiated sale---Unsuccessful bidder (original consortium) was given the opportunity to match the previously offered bid by the highest bidder---Unsuccessful bidder, after obtaining permission to form a new consortium, formed it accordingly and the same expressed its willingness to match the bid---Cabinet Committee on Privatization approved the transaction and forwarded it for Cabinet ratification---Eventually, the transaction was completed---Overall, the official respondents substantially complied with the relevant constitutional articles and legal provisions of the Privatization Commission Ordinance, 2000, and Privatization Commission (Modes and Procedures) Rule, 2001, during the privatization process of KESC---Petitioners, failed to provide evidence demonstrating that the Federal Government's privatization of KESC was unconstitutional, illegal, or violated the principles of natural justice---Constitutional petitions were dismissed, in circumstances.

KESC LABOUR UNION vs FEDERATION OF PAKISTAN through Cabinet Secretary art — 2023 CLD 718 KARACHI-HIGH-COURT-SINDH

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