' Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 a direction is being sought to be issued to respondents 1 to 3 to process the tenders of all the parties strictly in accordance with the terms and conditions stipulated by them and processed in a transparent manner justly, fairly and without any discrimination. It is also prayed that the contract be granted in favour of the petitioner.
2. Brief facts of this petition are that respondent No,1 through respondent No,2 invited the tenders for the sale of 92,428 metric tons of wheat through an advertisement published in different newspapers. Petitioner also opened the tender alongwith other parties. The necessary conditions of the tender were as follows:--
(i) Bids will be received in HQ PASSCO (Commercial Wing) not later than 11-00 hours on 20-7-2002 and will be opened in the Committee Room the same date at 11-30 hours in the presence of the tenderers or their representatives who may like to be present.
(ii) Tender bids must be accompanied with a Bid Bond in the form of Bank Draft/Call Deposit drawn on any scheduled bank at Lahore in favour of PASSCO, Lahore equivalent to 1% of the tendered value of the stock. Cash/cheques or bank guarantee will not be acceptable as Bid Bond.
(iii) Rate will be quoted for a unit of per metric ton wheat with bag Ex. Storage points. Loading charges will be borne by the buyer. Bidder shall quote rate for the entire lot of wheat at each zone/group of zones (details at Schedule-I).
(iv) The tenderer may bid for any quantity but the stocks at each zone are indivisible and will have to be lifted as such by the buyer.
' The petitioner also submitted the tender and quoted rate of Rs,6,277 per metric ton and deposited a call deposit of 1% amounting to Rs,66,55,000. According to the petitioner he was the sole bidder and nobody matched the price quoted by him while respondent No,2 started creating hindrance in the way of the petitioner. Resultantly various other persons who had not submitted their tenders were treated with preference. Petitioner came to know that the following firms gave the tender by quoting the below rates:-- Zone Name of person/firm Rate per M.T.
Khanewal Afaq Associates (respondent No,4)Rs,7,010 Alipur/Layyah Yousaf Brothers (respondent No,5)6,700 Bahawalnagar -do- 6,700 Burewala. -do- 7,070 Sahiwal. -do- 6,950 Multan/Vehari. Mashaallah Traders, Karachi7,120
3. Learned counsel for the petitioner contends that respondents Nos. 4 and 5 were not qualified and their bids have been wrongly accepted by the respondents as respondent No,4 had not filed the tender for Khanewal Zone and he was bidder of 1 centre of Pakpattan Sahiwal Zone and not the whole Zone of Sahiwal, who quoted the rate of Rs,6,771 per metric ton but he has been awarded the contract of Zone Khanewal. Respondents Nos. 4 and 5 also gave partial tenders and having not fulfilled the conditions mentioned in the tender were not qualified but the respondents Nos. 2 and 3 have also granted the tender to the said respondents. It is contended that this position is accepted by the respondents Nos. 2 and 3 in their report and parawise comments through statement attached as Annexure-R. Afaq Associates respondent had given the tender only for Sahiwal for Rs,6,770. It finds mention in the column of Remarks against said party that rate quoted is for only 5,161,400 M/tons of Pakpattan godowns only. Similarly respondent No,5 Muhammad Yousaf did not give the tender for all the Zones and only had offered the bid for Multan Vehari and Alipur-Layyah of Rs,6,110 and 6,115 respectively and in the remarks it has been mentioned that out of Vehari Zone only Jehanian had been selected by respondent No,5 for the purpose of tender. Similarly Fatehpur and Jatoi were selected by him and he had not offered the purchase of wheat for the Zone as was the condition in the tender form. It is contended that the respondents-in order to give favour to the respondents 4 and 5 started negotiations and the comparative statement after the negotiation was prepared which is Annexure-R4 attached with the comments of respondents Nos. 1 to 3 and Afaq Associates offered Rs,6,800 for Sahiwal Zone only and in the column of Remarks it has been mentioned that they are ready to lift the whole stock of Sahiwal Zone at the above said price but they requested for extension of time to deposit the balance earnest money/amount. Similarly respondent No,5 also offered lifting of wheat from Sahiwal, B/Nagar Alipur-Layyah and Burewala on different rates and earnest money of this party was also less than the required amount. It is contended that letter, dated 27-7-2002 in favour of Afaq Associates is ante-dated and got issued with mala fide intention by the respondent No,2 as the comparative statement which is Annexure R-4 shows the different situation but the letter referred as R-5 shows that negotiations were held on 20-7-2002 and the bids of Afaq Associates were accepted for Khanewal Zone at the rate of Rs,7,010 per M/ton in spite of the fact that Afaq Associate had never offered for lifting the wheat for the said Zone. Letter, dated 29-7-2002 which is part of parawise comments and report of respondents Nos. 1 to 3 as Annexure R-7 shows that the negotiation was conducted with respondent No,5 on 20-7- 2002 and 29-7-2002 and this letter has been issued by approving the sale of 20,598 M/tons at Sahiwal Zone. It is contended that this letter shows that the negotiation remained continued with respondents Nos.4 and 5 till 29-7-2002. It is further contended that the petitioner addressed a letter to respondents Nos. 1 to 3 and offered the price which was higher than that of respondents Nos. 4 and 5 but respondents Nos. 1 to 3 had not entertained this application with mala fide intention and with Ulterior motive. Respondents had mentioned that the negotiations had already been concluded and no negotiation can be held. The main contention of the learned counsel for the petitioner is that if the negotiations continued. Till 29-7-2002, the mentioning of the fact that the negotiation had already been concluded itself shows the mala fides on the part of the respondents Nos. 1 to 3.- He further contends that in the parawise comments and report submitted by the respondents Nos. 1 to 3 para. 4 of the petition is admitted hence they admitted that the 1% earnest money was deficient to the extent of respondents Nos. 4 and 5 but even then the bid was given in favour of such respondents who were not qualified for the same. Also relied upon para. 9 of the written statement of respondent No,4 according to which Affaq AssOciates, Munir Mahar and Suresh Kumar entered into an oral partnership under the name and style of Afaq Associates and revised bids were offered by this partnership. Subsequently 'a partnership deed was, also executed.
The amounts already deposited by Messrs Munir Mahar and Suresh Kumar were adjusted towards the earnest money/bid bond. Also relied the agreement which is at page 8 of their written statement, dated 21-7-2002. It is also contended that the agreement at page 11 finds mention that the conditions of this agreement will be read along with contents of the authority letter, dated 2-8- 2002. The main contention is that when the agreement was executed on 31-7-2002 the authority letter issued on 2-8-2002 how is applicable in the earlier agreement and it is crystal clear that this agreement has been maneuvered subsequently to cover up illegalities committed by the respondents Nos. 2 and 3. According to this agreement Afar Associates had not spent even a single penny and will get the profit of Rs,30% of the total profits. It is contended that the bid has not been given in a legal manner by the respondents and documents are sufficient to prove that respondents had acted in haste and not granted the bid after due care and caution. It is further contended that the stay order was granted by this Court on 12-8-2002 with the condition that the petitioner will deposit 70 lacs with the respondent No,2. According to the petitioner this pay order was prepared on 15-8-2002 and was submitted in the office of respondent No,2 On 16-8-2002 at 9- 15 a.m. But in spite of this order lifting of wheat was not stayed by respondent No,2 and order was passed in this respect on 17-8-2002. He relied upon the following judgments:-- ' PLD 1994 Lah. 315, 1998 SCMR 2268, PLD 1973 SC 733, AIR 1988.SC 157. And re-affirms the earlier offer made by him on 12-8-2002 for payment of excess amount of Rs, 2 crore to the respondent No,2 for lifting of the wheat over and above the rates which on contract issued to the respondents Nos. 4 and 5.
4. On the other hand learned counsel appearing on behalf of respondent No,4 contends that the writ petitioner has concealed the true facts and writ petition is liable to be dismissed on this ground alone. It is contended that document R-1 attached with the parawise comments and report of respondent No,2 show that writ petitioner was asked to join the negotiation on 23-7-2002 at 11 hours on the said date. On 24-7-2002, the petitioner offered price of per M/Tons at the rate of Rs,6,417.70. Note has been given by him that this bid will be executable only if the wheat 2003 ' Shahid Waqqas Traders v. Pakistan Agricultural Storage 573 and Services Corpn. Ltd. (Ijaz Ahmed Chaudhary, J) lifting contract is given of all the Zones to him. This matter has not been mentioned in the writ petition. It is contended that as far as the shortage, which is claimed, in the deposit of the security is concerned that was due to the enhancement of the rates through negotiations hence after the settlement of the total amount the securities or the amount could only have to be deposited. It is further contended that maximum rate was offered by respondent No,4 and respondents Nos. 4 and 5 have already lifted 10% wheat as contract had been acted upon and it has become past and closed transaction. It is further contended that this Court can only interfere while exercising jurisdiction under Article 199 of the Constitution if mala fides or dishonesty is mentioned anywhere in the writ petition. The petitioner who himself joined in the negotiation proceedings is estopped to allege mala fides as he himself participated in the negotiations. It is contended that once he had participated, he cannot back out and claim the setting aside of the negotiation proceedings. He relied upon the following judgments: ' 2000 CLC 535, PLD 1983 Lab.
86.
' As he himself has availed chance in the proceedings by participating earlier, opportunity cannot be allowed to raise objection on this ground. As far as acting upon of the contract, he relied upon 1998 CLC 1890, relevant portion is at page 1097. It is also contended that Supreme Court of Pakistan in case reported in PLD 2001 SC 116 has held that concluded contracts should not be interfered by the Court in the public interest and interfering by the Court shall shatter the confidence of the general public and nobody will be ready to take contract from the Government functionaries under the apprehension of interference.
5. Learned Senior Counsel S.A. Manan, Advocate for respondent No,5 has also addressed the arguments with the permission of this Court and has contended that the prayer made cannot be granted to the petitioner as the contract was awarded to the respondents Nos. 4 and 5 and has been acted upon and the petition has become infructuous. It is also contended that total quantity 83500 M/Tons including Khanewal has been given out to respondents Nos.4 and 5 and already respondent No,4 has enhanced the rate from the original bid to the tune of Rs,31,93,983 hence the writ petition is liable to be dismissed as though this Court has wide powers in the Constitutional jurisdiction but the Supreme Court has laid down certain principles in 1994 SCMR 55 and the interference of this Court is subject to jurisdictional defect or patent illegality.
6. Learned counsel for respondents Nos. 1 to 3 has denied the allegations that in spite of the receipt of the notice the wheat was allowed to be lifted till 17-8-2002. It is explained that 16th was Friday and on 17-8-2002 the order was conveyed as the pay order was received after 12-00 noon.
' Lastly learned counsel for respondents Nos. 4 and 5 has given undertaking as under: "Learned counsel on instructions in the presence of the representative of respondents Nos. 4 and 5 states that they will make a payment to PASSCO at the enhanced rate of Rs, 100 per M/Tons over and above which has been settled between PASSCO and respondents Nos. 4 and 5 in the final negotiation. Respondent No,2 should extend time for 30 days for the lifting of the wheat."
7. I have given my anxious consideration to the arguments of both the parties and also perused the record with the assistance of their counsel. Petitioner who had participated in the bid was not the highest bidder and also had not offered the lifting of wheat from all the Zones according to clause 6 of the tender which is reproduced in para. 3(iii) of the writ petition which is to the following effect: "Rate will be quoted for a unit of per matric ton wheat with bag ex-storage points. Loading charges will be borne by the buyer. Bidder shall quote rate for the entire lot of wheat at each zone/group of zones."
' Though the petitioner had offered lifting of the wheat from all the Zones but the other participants had given the higher rates for the purchase of the wheat from different Zones hence the authorities had decided to negotiate with the parties and letter was also addressed to the petitioner, dated 20-7-2002 but he offered the maximum price of Rs,6,417 per M/Tons and it is mentioned at the bottom of the Annexure-R-2 that he is ready and willing to lift the wheat if the contract of all the Zones is given to him and if any of the Zone is not given to him, his offer may be rejected. Hence from this letter it is crystal clear that the petitioner himself joined in the negotiations on 24-7-2002 in pursuance of the above said order and gave the offer but the respondent No,4 had given the offer of Rs,6,800 for lifting of wheat from Sahiwal while respondent No,5 had given the offer of Rs,6,910, 6,670, 6,655 and 7,070 from Sahiwal, Bahawalnagar, Alipur and Burgwala Zones and had already deposited 35 lacs twenty thousand. In such circumstances, it is established on the record that during the negotiations the petitioner was not highest bidder in the earlier comparative statement made on 20-7-2002 for all the Zones and as a result of the negotiation the rate was enhanced by respondent No,4 than offered earlier but the petitioner was not highest bidder. He offered Rs,6,417 while the other offered enhanced rate than the petitioners of per M/Tons hence the respondents Nos.1 to 3 had opted to sell the wheat by entering contract with respondents Nos.4 and 5. In such circumstances it seems that they have not acted against the interest of the public exchequer and PASSCO but tried their best to get lifting of wheat on the highest rate but subsequently some petition was filed by the petitioner on 30-7-2002 in which he did not make the offer that he is ready and willing to purchase the wheat by putting more amount of Rs,2 crore than the respondents Nos.4 and 5. In such circumstances offer was not made on 1-8-2002 and when this petition came for hearing for first time this offer had been made by the petitioner on 12-8-2002, who is directed to deposit Rs,70 lacs and this Court restrained respondents Nos. 4 and 5 from lifting the wheat. In the circumstances the contention raised by the petitioner that he was highest bidder and was ready and willing to pay the highest rates than the. Respondents Nos. 4 and 5 is not established on the record. The other contention that the petitioner had not joined the negotiations is not borne out from the record which is placed along with the paradise comments and report filed by the respondents Nos.1 to 3. The fact otherwise, B rather the petitioner joined in the negotiations and had participated actively but his offer was not accepted as it Was conditional and also on the lesser rate than respondents Nos.4 and 5. I agree with the learned counsel for respondents Nos.4 and 5 after perusal of the documents that the agreement had been arrived at between respondent's Nos.1 to 3. And respondents Nos.4 and 5 and some portion of the contract has already been acted upon. Learned counsel for the petitioner has failed to counter the case-law cited by learned counsel for respondent No,5 reported in PLD 2001 SC 116, the relevant portion is at page 127 which is reproduced as under: "We would conclude the above discussion with the observations that the impugned judgment is not sustainable as the administrative decision challenged by the respondent neither lacks transparency nor is tainted with- mala fide or is unfair, unjust or unreasonable or based on bias or favouritism and the discretion vested in the Pakistan Railways having been properly structured by reference to objective standards cannot be said to have been exercised arbitrarily. The public interest would be best served if the concluded contracts in question are preserved."
'Following this dictum the contracts cannot be set aside on suspicion alone unless the illegalities or malpractices are available from the record. There is not visible from the record anything, rather the petitioner has concealed certain facts i,e, negotiation held between him and respondents. Nos.1 to 3 subsequent to the preparation of comparative statement after obtaining bids. Even otherwise learned counsel appearing on behalf of respondents Nos.4 and 5 on instructions, have given undertaking that the respondents Nos 4 and 5 will pay at the enhanced rate of Rs,100 per M/Tons over and above which has been settled between PASSCO and respondents Nos.4 and 5 in the final negotiation. It is, however,' observed that respondent No,2 can extend time for 30 days for the lifting of the wheat from today. Due to the above reasons I do not feel the necessity of interfering in the contract already awarded to the respondents Nos. 4 and 5 for the lifting of the wheat. However, the respondents Nos. 4 and 5 are bound to make the payment of the wheat according to the final settlement with the respondents Nos.1 to 3 with an enhanced rate of Rs,100 per M/Tons.
Respondents Nos. 1 to 3 shall ensure that not only the settled amount between them but the enhanced amount undertaking of which has been given by respondents Nos. 4 and 5 today is also received by it before the lifting of the total wheat. The other reason for the non-interference in the awarding of contract is also that wheat may be wasted in the rainy season if is not lifted and can cause huge loss to the public exchequer in this manner as well. Draft pay order deposited by the petitioner amounting to Rs, 70 lacs will be handed over to the petitioner immediately after the receipt of this order.
'For the reasons mentioned above I do not want to exercise my powers under Article 199 of the Constitution. This petition is dismissed.