' ABDUL SHAKOOR PARACHA, J.---This order shall decide Writ Petition No,3182 of 2005 and Writ Petition No,3109 of 2005 as identical questions of law and facts are involved in both these petitions.
2. In both the writ petitions the contract awarded to the respondents for sale of buried co-axial cable and allied repeater but equipment to respondent No,3 (Javed and Brother respondent) by respondent No,3, i.e, National Telecommunication Corporation (NTC) has been challenged by the petitioners contending that the contract was carrying the element of public interest concluded by respondents being functionary of the State was to be just, fair, transparent, reasonable and free of any taint of mala fide but respondent No,1 ignoring the petitioners did not award the contract in a transparent mean in favour of respondent No,3 therefore, matter was open for judicial review.
2. The brief facts of the case are that the National Telecommunication Corporation, NTC Headquarters/respondent No,1 invited tenders for 27-6-2005 through publication in the newspapers on 11-6-2005 for sale of buried co-axial cable and allied repeater but equipment.
Petitioners Chowhan Brothers (in W.P. No,3109 of 2005) and Hassan Brothers (in W.P. No,3182 of 2005) along with 15 others including Javed and brother, respondent No,3 participated in the bid and submitted tenders documents. All the bids offered through tenders were rejected and vide letter dated 29-9-2005, all the 17 parties who earlier participated in the tenders on 27-6-2005 were informed that again tenders would be called on 10-10-2005 for the same material and were asked to participate. However, prior to this date the work was awarded to respondent No,3 (Javed and Brother). It was alleged that same was through collusive measures by respondents Nos.1 and 2.
Petitioner Hussain Brothers was the highest bidder who offered an amount of Rs,56.54 millions whereas, respondent No,3 Javed and Brother was the second highest bidder who offered Rs,40 Million for the bid on 27th of June, 2005. Messrs GR and Co. Was the third highest bidder who offered Rs,37.40 millions.
3. Respondents Nos.1 and 2 have field report and parawise comments. It was contended that the Answering respondents had called bids to dispose of abandoned buried Co-axial cable and allied repeater but equipments of 04 section on "as is, where is and quantity available" basis publishing a tender on 11th of June, 2005 in two daily newspapers "The News" and "The Jang." Clause 2 of the Instructions to the Bidders lays down the criteria for eligible bidders, which is as follows:-- a. Have past experience for execution of such work; b. Duly registered with income tax and sales tax departments and Pakistan Engineering Council (if applicable); c. Must be financially strong enough; d. Must have skilled Manpower and machinery for execution of work; e. Must not be blacklisted by any of the Organization/Department.
' It was further submitted that in response to the tender 77 parties purchased the tender documents. The bids were opened on 27th June, 2005 and only 17 firms submitted the bids. As such the Answering respondents sought clarifications from all the competitive bidders. But failed to receive any positive response from them. Thereupon the answering respondents held a meeting on 24th August, 2005 with the first 03 (three) competitive bidders i.e, (i) Messrs Hussain and Co., with the petitioner (ii) Messrs Javed and Brothers (respondent No,3) and (iii) Messrs GR and Co. In the meeting the three bidders also submitted their own written terms and conditions with respect to her execution of work, responsibility and schedule of payment etc.
4. Messrs Hussain & Co., with the petitioner was the highest bidder, who had offered an amount of R.56.54 Million as contract price in tender opening dated 27th June, 2005. In its written submission Messrs Hussain and Co., among others, informed the Answering respondents that NOC will be obtained by NTC as it will not be the responsibility of contractor, price of unrecoverable cable will not be paid and Answering respondents shall allow the execution/recovery of cable from next section free of cost against non-recoverable cable of previous section. Messrs Hussain and Co.
Conveyed that he is neither a registered firm and nor will it be registered. The respondent No,3 was the second highest bidder, who offered Rs,40 Million in biding dated 27th June, 2005 and on meeting of competitor bidders dated 24th August, 2005, recorded his willingness to enhance the price by Rs,2,000,00 for all four sections, which was accepted by the answering respondent.
Respondent No,3 recorded that the price will be deposited in four equal instalments of Rs,10.5 million each in advance after a period of approximately four months. Messrs GR and Co. Was the third highest bidder, who offered 37.40 million and informed the answering respondents that 25% of the price will be deposited in advance and 50% of the balance of cost of each section will be paid at the time of commencement of the work on the section and rest of 50% will be payable on the completion of half of the route.
5. Besides the bids of the three competitive bidders the Evaluation Committee also examined the written terms and conditions furnished by the three competitive bidders keeping in view the required criteria for the eligible bidders and recommended respondent No,3 for award of work as the terms and conditions of respondent No,3 were simple and most responsible. But due to complaint of the bidders neither the LOI was issued nor the contract was signed with respondent No,3.
6. Keeping in view the complaints of the bidders and to make the process more transparent, the bids were again invited from the bidders, who had participated in the original bid considering that any of the bidders might offer higher price then the one offered by respondent No,3. The bids were opened on 10th October, 2005 and in re-bidding only 8 firms quoted the rates and the highest rate received was Rs,27 Millions but none of them was fulfilling the requirements as laid down in the tender. From the bids submitted by the eight firm fully reflected that the bidders have joined hands with each other so that the; price may not increase from Rs,27 Million. The re-bidding was cancelled on spot due to lower rates received.
7. The learned counsel appearing on behalf of Hussain Brothers and Co. Contends that the petitioner was the highest bidder who had offered Rs,56.54 Million as contract price in tender dated 27th June, 2005 whereas respondent No,3 was the second highest bidder who offered Rs,40 Million in bid. They could have only rejected if it would have been found that the petitioner was not eligible on the criteria laid down in clause 2 of the instructions to the bidders; that so called bid on 10th of October, 2005 was not invited through publication in any newspaper and that instead of calling bids again, the offer made by respondent No,3 for Rs,40 Million had been illegally accepted by respondents. The whole process was not transparent.
8. Learned counsel appearing on behalf of petitioner Chowhan Brothers in Writ Petition No,3109 of 2005 contends that respondent No,3 has been awarded a contract for Rs,42 Million whereas, the petitioner is ready to pay Rs,50 Million and respondent No,3 has been awarded the contract illegally. It is contended that the contract carrying the element of public interest concluded for functions of the State which has to be just, fair, transparent, reasonable and free of any taint of mala fide. Reliance has been placed on the case of Ramna Pipe and General Mills v. Messrs SNGPL (2004 SCM R 1274) and Brig. Muhammad Bashir v. Abdul Kareem (PLD 2004 SC 271).
9. On the other hand, learned counsel for respondents contends that the petitioners were not eligible bidders. Negotiations took place between the respondents and the petitioner and after that besides the bids of three competitive bidders, the Evaluation Committee also examined the written terms and conditions furnished by the three competitive bidders keeping in view the required criteria for the eligible bidders and recommended respondent No,3 for award of work as the terms and conditions of respondent No,3 were simple and most responsive. Further contends that award of the contract regarding the case of respondent No,3 was just, fair, transparent, reasonable and free of any taint of mala fides. The case-law relied upon by learned counsel for the petitioner does apply to the present case.
10. I have heard the arguments of the learned counsel for parties and perused the record with their assistance.
11. It is the admitted position on the record that Messrs Hussain Brothers and Co. Petitioner in Writ Petition No,3182 of 2005 was the highest bidder who had offered an amount of Rs,56.54 Million as contract price in tender dated 27th June, 2005. Respondent No,3 was the second highest bidder who offered Rs,40 Million in bidding dated 27th June, 2005. It is the case of the respondents that certain conditions were not fulfilled by the highest bidder Messrs Hussain Brothers and Co. And that besides the bids of the three competitive bidders the Evaluation Committee also examined the written terms and conditions furnished by the three competitive bidders keeping in view the required criteria for the eligible bidders and recommended respondent No,3 for award of work as the terms and conditions of respondent No,3 were simple and most responsive. If this would have been the position, vide letter dated 29-9-2005, all the 17 parties who participated in the tender dated 27th June, 2005 would not have been informed that all the bids are rejected and tenders would be called on 10-10-2005 for the same material. The respondents instead of calling bids again, accepted the bid of Messrs Javed and Brothers/respondent No,3 for Rs,42 Million which is not stand to reasons, particularly, when the petitioner Messrs Chowhan Brothers and Co. (in W.P.
No,3109 of 2005) contends that contract has been awarded to respondent No,3 for Rs,42 Million whereas, the petitioner is ready to pay Rs,50 Million. It is the settled law that a work carrying the element of public interest concluded by the functions of the State has to be just, fair, transparent, reasonable and free of any taint of mala fides. See the case of Ramna Pipe and General Mills v.
Messrs SNGPL (2004 SCM R 1274) wherein the honourable Supreme Court while interpreting Article 199 and 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 ruled that a contract carrying the elements of public interest concluded by functionaries of state has to be just, fair, transparent, reasonable and free of any taint of mala fides all such aspects remaining open for judicial review. The rule is founded on the premises that public functionaries, deriving authority from or under law, are obliged to act justly, fairly, equitably, reasonable, without any element of discrimination and squarely within the parameters of law, as applicable in the given situation. The deviation if of substance can be corrected through appropriate orders, under Article 199 of the Constitution.
12. Similarly, in the case of Brig. Muhammad Bashir v. Abdul Kareem (PLD 2004 SC 271) the honourable Supreme Court had ruled that provisions of Article 199 of the Constitution of Islamic Republic of Pakistan has intended to enable High Court to control executive so as to bring it in conformity with law---Whenever the executive acts in violation of law, an appropriate order can be granted which can relieve the citizen of the effects of illegal action.
' October, 2005 and Ist work order was issued on 2nd November, 2005. This would cause an irreparable loss to the respondents 13. Learned counsel for respondents contends that letter of intent issued to respondent No,3 on 20th of October, 2005. The contract agreement was signed on 27th if at action of respondents in awarding the contract be declared unlawful and annulled.
14. In the case supra i.e, PLD 2004 SC 271 the honourable Supreme Court had ruled that technicalities cannot prevent High Court from exercising its constitutional jurisdiction and affording relief which otherwise a party is found entitled to receive. In the facts and circumstances of this case, the respondents have failed to show that why the bid offered by petitioner Hussain Brothers to the tune of Rs,56.54 Million and again the bid of Rs,40,000 offered by respondent No,3 was not accepted in tender dated 27th June, 2005. Why the petitioners' bid along with bids of all the parties including respondent No,3 was rejected earlier and all of them were informed that tenders would be called again. Why without calling the tenders in newspapers again, the respondents awarded the contract to respondent No,3.
' For what has been discussed above, both the writ petitions are allowed. The action of respondents Nos.1 and 2 in awarding the contract for sale of buried coaxial cable and allied repeater but equipment through tender dated 27th June, 2005 and the contract dated 17th October, 2005 and Ist work order dated 2nd of November, 2005 is declared to be without lawful authority and of no legal effect. The respondents are directed to award the contract through transparent means by inviting tenders in newspapers. The writ petitions are disposed of.