ABDUL HAMEED DOGAR, J.---This petition for leave to appeal is directed against the order, dated 30-9-2002 passed in High Court Appeal No,34 of 2002 by a learned Division Bench of High Court of Sindh, Karachi, whereby order, dated 16-1-2002 passed in C.M.A. No,8190 of 2001 by a learned Single Judge in Suit No,1489 of 2001 refusing to grant ad interim injunction was maintained.
2. The facts leading to the filing of the instant petition are that the petitioner is a limited company and operates a Terminal at Port Qasim for handling and storage of 54,000 cubic meters of edible oil, molasses and derivatives which was constructed at a cost of US $ 5 Million and was rated as a world-class model by Malaysian Palm Oil Board. The petitioner is also constructing a Petroleum Terminal having design capacity of 300,000 MT, which is located one kilometer from Facto Jetty, thus has vast experience and expertise in handling, storage and operations of terminals and jetty.
3. On 7-6-1998, respondent No,2 Port Qasim Authority(hereinafter referred to as 'PQA') being desirous of, establishing a Liquid Cargo Terminal ("Project") on Build, Operate and Transfer (BOT) basis at Port Qasim, invited bids through advertisement in newspapers. The period of the project was mentioned as 30 years. In response whereof, the petitioner submitted its bid on 15-9-1998. The petitioner's bid including its technical and financial proposals were duly approved by respondent No,2. Accordingly, a Letter of Intent (hereinafter referred to as "LOI"), dated 5-11-1999 was issued by respondent No,2. In pursuance of the said LOI, an implementation agreement was provided to the petitioner. However, without assigning any reason, respondents Nos. 1 and 2 refused to execute the same. It was vide public notice, dated 5-6-2000, respondent No,2 re-invited the bid for the project through newspapers. Respondent No,2 continued to extend time for submission of bid up to 17-1- 2000 in order to accommodate respondent No,3 as its company was incorporated on the above date. It was on 17-1-2001, the bids of the petitioner and that of respondent No,3 were opened by respondent No,2 in presence of NESPAK officials. The main features of the bids of both the parties were as follows:--- Name Cost of Project (US $)Tariff (US $)Royalty (% age of revenue)
Puri Terminal Ltd. 13.5 Million 2.36/MT 3.75% FWQ Ent. (Pvt.) Ltd.12.5 Million 2.59/MT 2.75%
4. Though the Petitioner's bid was financially better and superior to that of respondent No,3, yet, both the bids were referred to for evaluation to NES-PAK. Though there was no provision for the revision in the tender documents/bids, yet, respondent No,3 was secretly allowed to revise its bid so as to match the .Terms whereas no such opportunity was afforded to the petitioner. According to the petitioner, respondent No,2 with mala fide intention continued to extend the period of reinvitation of the tenders/proposals up to 17-1-2001 only to accommodate Muhammad Bashir Jan Muhammad, Chief Executive of respondent No,3 who was a Member of the Board of Governors of respondent No,2.
5. As per the petitioner, notwithstanding the secret revision of the bid by respondent No,3, NESPAK still recommended that the negotiations be first made with the petitioner and in case it fails to achieve the desired objective, then respondent No,3's bid be considered on its revised financial proposal, According to the contents of the petition, a final presentation was made on 16-10-2001 by the petitioner,to respondent No,2 in which it became clear that PQA was interested in awarding the contract to respondent No,3. In order to protect its rights and legitimate expectations, the petitioner filed suit for specific performance, declaration, compensation, damages and injunction before the High Court of Sindh, Karachi, and obtained an interim injunction against the award of project to respondent No,3.
6. In rebuttal respondents Nos.2 and 3 filed their counter affidavits, wherein they denied the allegations of mala fide and ulterior motive and pleaded that the bid of the petitioner was not accepted as it lacked technical and financial viability and also that due to the serious deficiencies.
Even NESPAK did not recommend its case. After, hearing the parties, the learned Judge in Chambers vide order, dated 16-1-2002 did not confirm interim injunction and dismissed the application under Order XXXIX, rules 1 and 2, C.P.C. Filed by the petitioner.
7. We have heard Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court for the petitioner, Mr. Nasir Saeed Sheikh, learned Standing Counsel for respondent No,1, Syed Qalb-e-Hassan, learned Advocate Supreme Court for respondent No,2 and Mr. S.M. Zafar, learned Senior Advocate Supreme Court for respondent No,3 and have gone through the record and proceedings of the case in minute particulars.
8. Ch. Aitzaz Ahsan, learned Senior Advocate Supreme Court for the petitioner mainly stressed that learned Single Judge as well as the learned Division Bench of the High Court of Sindh, while refusing to grant injunction to the petitioner, have overlooked the facts that the entire process of inviting tenders and evaluation of bid was not transparent but was tainted with malice and favoritism.
According to him, the principles of natural justice, fair play and equity have been totally ignored in the entire process of biding by respondents Nos. 1 and 2, so much so, even the recommendations of NESPAK the consultant of respondent No,2, were ignored and the petitioner was not afforded an opportunity to revise the original bid as was done in case of respondent No,3. Learned counsel further contended that learned Single Judge as well as learned Division Bench, have overlooked the fact that whole process for awarding of contract is vitiated, by arbitrariness, unfairness, illegality and procedural impropriety on the part of respondent No,2, which being a Government controlled Organization is bound to protect the financial interest of the State. Learned counsel vehemently urged that the petitioner was given a bias treatment due to Muhammad Bashir Jan Muhammad, Chief Executive of respondent No,3, who was a member of Board of respondent No,2. Thus respondent No,2 in order to favour its member, namely, Muhammad Bashir Jan Muhammad, acted unfairly,arbitrarily and mala fide in the process of entire evaluation of the contract. He lastly argued that even according to the report of NESPAK, the proposal of the petitioner-company was found acceptable, hence it was recommended that PQA should first enter into the negotiation with the petitioner and in case of failure it should consider revised financial parameters of respondent No,3, which factor was not considered by learned High Court in the impugned judgment. In support of his contentions, he relied upon Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh Police Headquarters and 2 others PLD 1992 Karachi 283, Javed Hotel (Pvt.) Limited v. Capital Development Authority, Islamabad through Chairman and another PLD 1994 Lahore 315 and Messrs -Arif Builders and Developers v. Government of Pakistan and 4 others PLD 1997 Karachi 627.
9. On the other side, Mr. S.M. Zafar, learned Senior Advocate Supreme Court for respondents Nos. 2 and 3 vehemently controverted the above contentions and argued that in fact the petitioner has experience of storage of oil at the terminal only and does not possess any experience/expertise about the construction of operating Liquid Cargo Terminal (or Jetty/Berth). For this project one must have experience in the design, construction, operation and management of Jetty and Terminal handling liquid cargoes. According to him, respondent No,3 is the only party which fulfils the above terms and conditions. As regards its financial evaluation, its entire foreign exchange component (65% of the project costs) was arranged by Felda Group of Companies of Malaysia, which has also sufficient expertise of building and operating Jetty and Terminal and had built the same at Pasir Gudang, Johor, Malaysia and Sabah, East Malaysia, whereas rest of the finance has been arranged by the local component such as Westbur Pakistan. They have produced letters from banks guaranteeing to provide required loan facility. According to the learned counsel, respondent No,3 fulfilled the entire conditions and it was therefore, it revised the match, whereas the petitioner did not do so deliberately as it lacked both financial as well as technical expertise. He further contended that report of NESPAK and the other Technical Committee formed by respondent No,2 to evaluate the status of petitioner and respondent No,3 have gone in favour of respondent No,3 in all aspects as required in terms of the contract. Thus, in view of the above report, the proposal of respondent No,3 was not only approved by the Board of Governors of PQA but was finally sanctioned by Economic Coordination Committee (ECC) of the Cabinet, Government of Pakistan. He vehemently denied the allegation of Lfavoritism in favour of Muhammad Bashir Jan Muhammad, the proprietor of respondent No,3, and stated that he in order to show impartiality and fairness, remained absent at the time when item regarding the award of contract was taken up for discussion in themeeting by the Board of Governors of PQA. He lastly contended that since the concurrent findings of fact have been recorded by the two Courts below and the relief of grant of injunction was declined, therefore, the same cannot be questioned in the Constitutional jurisdiction before this Court through the instant petition. In support he relied upon Gohar Rehman and others v. Liaqat Ali and others 1991 SCMR 305, Messrs Port Services (Private) Limited v. Pakistan through Secretary, Ministry of Communications, Government of Pakistan, Islamabad and 2 others PLD 1995 Kar.
374.
10. Mr. Nasir Saeed Sheikh, learned Standing Counsel for respondent No,1 and Syed Qalb-e-Hassan, learned counsel for respondent No,2 adopted the arguments advanced by Mr. S.M. Zafar, learned Senior Advocate Supreme Court.
11. As regards the question of first bid offered in pursuance of advertisement, dated 7-6-1998 by the petitioner, it has become past and closed transaction as the petitioner remained silent and did not challenge the same before any forum. In response to the re-invitation of the tender, only the petitioner and respondent No,3 offered their bids. It was with their consent, the time of the bid was extended from time to time till 17-1-2001. Another important aspect to extend the time to open the tender was that the Government of Pakistan had not announced its agriculture policy by which the incentives were offered to the farmers to enhance the local production of edible oil. It was because of the above reasons bidders themselves requested that the proposal be deferred by 2 to 3 months which was considered by the PQA in its meeting held on 108-2000 and the time was extended accordingly. Thus the objection of the petitioner's counsel that the time was extended only to accommodate respondent No,3 is of no avail to him and cannot claim any relief on the alleged ground of bias. It is also unbelievable that Muhammad Bashir Jan Muhammad, member of PQA a nominee of Chambers of Commerce, was in a position to exert his influence over the other members of the Board, who being high officials of PQA were well-vigilant and conscious about their duties and responsibilities.
12. In order to show transparency, respondent No,2 initially got evaluated the proposals of both bidders from NESPAK, its own consultants and also provided guidelines for the preparation of proposals on BOT basis. The NESPAK mentioned the following three major factors to be considered while carrying out the evaluation of bid: The suitability of technical (Best technical proposal) proposal.
Tariff structure and (Best financial proposal) parameters of financial model.
(iii) Royalty offered to PQA.
13. Though respondent No,2 raised certain queries from the petitioner vide letter, dated 15-2-2001, received by the petitioner on 17-2-2001, yet the petitioner did not respond and revise the rates of tariff, whereas respondent No,3 revised the same.
14. Even after receipt of report from NESPAK, respondent No,2, in order to be more careful, transparent and contented referred the proposals of the parties to a Committee consisting of experts for evaluation on the following guidelines: "The project Sponsors must have experience in design, construction, operation and management of jetties and terminal handling liquid cargo. Details of the bidders with world wide experience should be included in the bid documents."
15. The said Committee held the detailed discussions and deliberations in its meetings on 26th April, 5th, 16th, 21st, 31st May, 18th July and 3rd August, 2001, which was also attended by NESPAK.
They not only visited the site but also sought post bid clarifications, which were essentially required for completeness of proposals from both bidders. It was concluded as under:---
(i) That IPTL do not have experience of design, construction, operation and management of similar (or any) terminal as required by PQA's guidelines.
(ii) Whereas respondent No,3 FWQ having joint venture with Felda have adequate experience of design, construction, operation and management of this type of terminal in Malysia "as they own their jetties in Malaysia". They, therefore, fulfil this vital requirement while IPTL does not.
16. The cargo forescast of respondent No,3 was also found reasonable and achievable mainly because of Felda J.V. Being in the worldwide business of edible oil and molasses. They being financially sound was expected to generate more revenue.
17. Finally, the proposal of respondent No,2 was vetted and approved bECC of the cabinet in its meeting held on 11-7-2002.
18. It would be pertinent to note that irrespective of above serious deficiencies, the petitioner admitted in the meeting of the Board, dated 8-9-2001 that it does not possess any past experience in design, construction, operation and management of jutties but has experience only in operation of tank-farm terminal for storage and distribution of edible oil at land side. The petitioner stated that qualified and experienced personnel would be engaged by it in this regard.
19. As regards its equity and financing th&project, the petitioner informed that it will float the shares to the general public through stock exchange and, also approach financial institutions as mentioned in the proposal and in case it does not succeed, it will arrange finances through its own sources. The petitioner, however, did not disclose such sources during the meeting. On another query regarding having any commitment from bank to provide funds, the petitioner informed that it will get it in due course of time.
20. A similar type of controversy came under discussion before a learned Division Bench of High Court of Sindh in the case of Messrs Port Services (private) limited v. Pakistan through Secretary, Ministry of Communications, Government of Pakistan, Islamabad and 2 others PLD 1995 Kar. 274, wherein Port Qasim Authority had invited proposals for the development of an integrated container terminal on Berth Nos.5 to 7 which were found inadequate and were rejected. Thereafter, the proposals were re-invited for the project on (Build Own and Operate) basis. The proposals/bids of petitioner and respondent No,3 therein for the said project were evaluated by National Engineering Services Pakistan (Pvt.) Ltd. (NESPAK) first and then by a Committee comprising of six technical officers. The proposal of respondent No,3 as compared to that of the petitioner was found comprehensively and technically best and was accepted and that of the petitioner was, rejected.
21. No doubt an injunction is a form of equitable relief and is to be issued in aid of equity and justice, but not to add injustice. For grant of such relief, it is mandatory to establish that in order to obtain an interim injunction, the applicant has not only to establish that he has a prima facia case, but he has also to show that the balance of convenience is on his side and that he would suffer irreparable injury/loss unless he is protected during the pendency of suit. It is pertinent to note that the petitioner irrespective of seeking declaration, permanent injunction, compensation also claimed damages as an alternative relief. By claiming damages as an alternative relief, the petitioner seemed to be not confident about the grant of other relief. Section 56 of the Specific Relief Act, stipulates that an injunction cannot be granted in the cases where an interference is sought in the functions of public duties of any department of. The Federal Government or any Provincial Government or with the sovereign acts of a foreign Government. Though it was a service matter yet this Court in the case of Province of West Pakistan through the Deputy Commissioner, Hyderabad and another v. Malik Asghar Khan 1971 SCMR 569 held that issuance of temporary injunction against the Government departments in respect of service matters is bound to disturb their working and they should not ordinarily be issued unless there are compelling reasons to do so because balance of convenience ordinarily would not lie in disturbing the administrative arrangements of a department. On the question of any irreparable injury, it has also been observed that respondent on refusal of temporary injunction can claim a monetary compensation in case he succeeds in the suit. To further fortify, it would be relevant to refer the case of Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 wherein this Court has observed that in view of provisions of section 56(1), no injunction should be granted when equally efficacious relief can certainly be obtained by any usual mode of proceedings. Since the petitioner has claimed compensation/damages as an alternative relief in the suit, as such, the above principle is fully attracted in the instant case.
22. Two Courts below, after examining material before them, have come to the conclusion that prima facie case was not established and balance of convenience was also not in favour of grant of the injunction as such. Rightly declined to grant the interim injunction. This view gets support from the case of Gohar Rehman and others v. Liaqat Ali and others 1991 SCMR 305 wherein this Court did not interfere in the matter as three Courts below had rejected the petitioner's application for grant of interim injunction.
23. For what has been discussed above, we are of the opinion that the petitioner has failed to make out a case for grant of temporary injunction. Accordingly, the petition is dismissed and leave to