' SYED ZAHID HUSSAIN, J.---This petition under Article 199 of the Constitution, of Islamic Republic of Pakistan, 1973 primarily rests upon letter dated 10-12-2004, purported to have been issued by the Project Manager, Government of Punjab, Information Technology Department, the authenticity of which is disputed and controverted by respondents Nos. 1 and 2. The petition was amended later on so as to implead National Data Base and Registration Authority (NADRA) as one of the respondents (respondent No,3). Narrating the factual background in which the abovementioned letter is claimed to have been issued it proceeds to make the prayer that "the respondents' act of negotiating the contract with other parties or NADRA may kindly be declared to be illegal, without lawful authority and of no legal effect. It is further prayed that the Respondent Nos.1 and 2 may also kindly be directed to do what they by law are required to do i,e, to execute and implement the formal contract with the petitioner. The letter of Award dated 10-9-2005 in favour of Respondent No,3 (NADRA) may kindly be declared to be illegal, without lawful authority and of no legal effect."The petition is being contested by all the three respondents through the reply filed by them.
The very maintainability of the petition before this Court has also been objected to.
2. As mentioned above, the mainstay of the petitioner is the letter dated 10-12-2004, which reads as follows:-- "To ' IRIS-RIST Technologies (Pvt.) Ltd.
5A Gulberg II, Lahore Pakistan ' Attention: Mr. Omer Iqbal Wahla LETTER OF AWARD - GOVERNMENT OF THE PUNJAB MOTOR TRANSPORT MANAGEMENT INFORMATION SYSTEM PROJECT ' With reference to the above, we are pleased to inform you that our technical evaluation committee has accepted your tender submission for the supply of smart cards and associated software and hardware with a total bid value of Rs,353,740,974.00, therefore, we have decided to engage your company to undertake the said project.
' Upon the approval by the Finance Department of the Government of the Punjab, we will be issuing you a formal purchase order for the deliverables outlined in your tender submission. The contract signing will take place after the negotiation between both parties and approval of the contract by the Law Department of the Government of the Punjab.
' Please provide us with a written confirmation of your acceptance at your earliest convenience to undertake the project so as we can commence planning for the project implementation.
(Faysal Jamshaid)
Project Manager"
' It was affirmatively responded by the petitioner.
3. It is apparent from the perusal of the letter that the award of the contract was dependent upon the approval by the Finance Department of the Government of Punjab, whereafter the contract was to be signed on approval of the contract by the Law Department. Even the issuance of this letter has not been admitted by respondents Nos.1 and 2 who have in reply to the assertions made in paragraph 5 of the petition taken the position as under:-- "5. Incorrect Denied. The issue has been examined in detail in IT Department during which it has transpired that:
(i) No such letter as placed by the petitioner at Annex-B/1 is available on record.
(ii) No authorization by any official has been found on the note sheet records for issuance of any such letter.
(iii) 'the file number of aforementioned letter i,e, SO. (Admn-IT)8- 23/2003 does not relate to the correspondence of MTMIS file.
(iv) There is no entry of dispatch number of said letter in the dispatch record of IT Department.
' Further, since the purchase was over Rs,6.00 million, therefore, under para.102 of Purchase Manual, matter was to be decided by the Standing Purchase Committee and was to be subsequently approved by the Finance Department.
' Financial bids were opened on 10-12-2004 and the meeting of Standing Purchase Committee was held on 19-4-2005, therefore, letter could not have been issued on 10-12-2004. Even otherwise as per the standing instructions of IT Department, Project Managers were not competent to issue any such letter. Only Purchase Officers i,e, Section Officer, Deputy Secretary, Additional Secretary or the Secretary as notified under para.28-29 of the Purchase Manual were competent in this regard.
Similarly the letter has not been authenticated by the Purchase Officer which is a mandatory requirement under section 29. Of Purchase Manual.
' Therefore, letter attached at annex-B/1 has never been issued by IT Department and its submission amounts to contempt of this honorable Court."
Thus the authenticity of the very basic document (upon which the case of the petitioner rests) has been disputed by the respondents. It is in this context that when no conclusive and binding contract had yet been arrived at between the parties and the transaction was still at the stage of bid and negotiations, it is to be seen as to whether the petition can be maintained for such a relief as has been prayed. Another question of significant importance is the legal efficacy of the letter itself i,e, 10-12-2004.
4. Mr. Ali Sibtain Fazli, Advocate the learned counsel for the petitioner has made reference to Messrs Presson Manufacturing Limited and another v. Secretary, Ministry of Petroleum and Natural Resources and 2 others 1995 MLD 15 to highlight the duties of the public functionaries even in matters falling within contractual realm. In that case ultimately the petition was dismissed as the petitioner was not found"entitled to any equitable relief". Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 has also been cited by him to show that"entering into a contract by a public functionary was open to judicial review on the touchstone of reasonableness, relevance, fair-play, natural justice, equity and non-discrimination". The writ petition had been dismissed by the High Court and the appellant in that case also failed before the Hon'ble Supreme Court of. Pakistan. A judgment by a larger Bench of this Court i,e, Messrs Wak Orient Power and Light Limited through Chief Executive Lahore v.
Government of Pakistan, Ministry of Water and Power through Secretary, Islamabad and 2 others 1998 CLC 1178 has also been cited to show that trends had changed and the remedy of writ could be resorted to in cases involving contracts. Reference has been made to Muhammad Akram and 33 others v. Government of Pakistan and 2 others 1999 CLC 745 and Network Television Marketing Ltd. v. Government of Pakistan and another 2001 CLC 681 to contend that a public body was expected to enter into contract honestly, fairly and in the public interest, and that such exercise of power was amenable to judicial review by the Court. Owasico v. Federation of Pakistan and others PLD 1999 Kar. 472 and Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116 have also been cited by him. In the latter case of Messrs Ittehad Cargo Service, the Hon'ble Supreme Court of Pakistan had observed that "The High Court in exercise of its constitutional jurisdiction is possessed of power to examine the validity of the order in regard to grant of a concluded contract and strike it down on the grounds of mala fide, arbitrary exercise of discretionary power, lack of transparency, discrimination and unfairness etc. Provided the challenge is made promptly and contentious questions of fact are not involved."The writ issued by the High Court was, however, recalled by setting aside the judgment of the High Court. Fawwad and Fareen Enterprises Ltd. v. The Director of Industries, Government of Sindh Karachi and others PLD 1983 SC 268 has been cited by him in order to show that the rules and instructions contained in the Purchase Manual are merely departmental instructions but it was observed in that case that these are meant to facilitate the working of the Government Department and cannot operate to create legal rights to be enforced in the Courts of law.
' Mr. Aamer Rehman, the learned Additional Advocate-General Punjab while vehemently opposing the maintainability of the petition has contended that mere participation in the bid even if it be the highest or lowest (as the case may be), does not clothe the party concerned with any right to invoke writ of mandamus to compel the Government to enter into a contract. While making reference to paragraphs 5, 6 and 7 of the reply, he disputes the very issuance of letter dated 10-12- 2004. According to him writ of mandamus does not lie for such a purpose as laid down in The State of Pakistan and another v. Mehrajuddin (1959 SC (Pak.)
147. Masudul Hassan v. Khadim Hussain and another (PLD 1963SC 203) has been relied upon to contend that for the issuance of writ of mandamus there has to be in existence a legal right to seek performance of a legal duty. He has also cited Asdullah Mangi and others v. Pakistan International Airlines Corporation and others (2005 SCMR 445) in this, context. Babu Parvez Qureshi v. Settlement Commissioner. Multan and Bahawalpur Divisions, Multan and 2 others (1974 SCMR 337) has been cited by him that where the bid of an auction-purchaser is subject to confirmation it does not create any right in the bidder unless the bid had been confirmed. Subramania Mudaliar v. Ammapet Co-Operative Weavers Production and Sales Society Ltd. By its President S. Gopalaswami Mudaliar (AIR 1961 Madras 289) has been cited by him to contend that a casual communication of acceptance by the President of the Society could not be considered as a concluded contract. A Division Bench judgment of this Court in Dr. Azeem Shad v. Municipal Committee Multan (PLD 1968 Lahore 1419) has been cited to show that all legal formalities must have been completed in order to create a binding contract and mere acceptance of tender could not be considered as a valid contract.
' Dr. Danishwar Malik, the learned Deputy Attorney-General Pakistan who represents respondent No,3 (NADRA) has contended that dispute as to whether letter dated 10-12-2004 had been issued or not is a question of fact which cannot be determined by this Court nor such an inquiry can be undertaken about such assertions of the respective contending parties. According to him even the negotiations said to have been commenced between the parties are indicative of the fact that no contract had yet been concluded and unless there was an absolute and unqualified agreement the petitioner could not claim any right merely for the reason that he was one of the participants in response to the tender. According to him even the acceptance of the tender did not in itself make a contract. For this purpose he cites "Principles of the English Law of Contract by Sir William R.
Anson, Twentieth Edition, page 44. He has also made reference to Law of Contract, page 35 by Dr. Avtar Singh, Sixth Edition. It has been contended by him that the award of contract to his client was in the best interest of the Government and the public exchequer and even no tender was required when the contracting parties are two Government Departments.
5. I have had the occasion and advantage of hearing able arguments of the learned counsel representing the parties whose contentions apart from the competency or otherwise of the petition touched certain factual aspects of the matter also. However, in view of the order that I propose to pass after hearing them, I tend to refrain from entering into the factual realm as there is serious controversy about the same.
6. The case of the petitioner in short is that the Evaluation Committee of the Government of Punjab had determined the bid submitted by the petitioner as the lowest one and thus w:'s the winner who was entitled to the award of Contract. Though the issuance of letter dated 10-12-2004 is being vehemently disputed by respondents Nos.1 and 2 yet assuming for the present that it was so conveyed to the petitioner, its perusal itself was indicative of the fact that the contract was yet to be D negotiated and formalized and thereafter to be executed after approval by the Finance Department and the Law Department of the Government of the Punjab. Nothing has come on the record to establish that such stages and steps had been overcome and finalized. Such an inchoate process meant to arrive at a contract did not confer any indefeasible right to compel respondents Nos.1 and 2 by means of a writ in the nature of mandamus "to execute and implement the formal contract with the petitioner." Indeed clause 30.1 of the Bid Document itself provides that "The Purchaser reserves the rights to accept or reject the bid and to annul the bidding process at any time prior to award of Contract, without thereby incurring any liability to the bidder or any obligation to inform the bidder of the grounds for the Purchaser's action. The underlined portion of the clause would leave no room for doubt that the petitioner before participation in the bid must have known and was aware of the procedure and the powers reserved by the Government. It may be observed that this clause is akin to many such clauses which are part of public auctions/bids. It has in such context repeatedly been held that the mere fact that the petitioner was the lowest bidder does not clothe him with a right or locus standi to succeed on that basis. In Meraj Din v. Noor Muhammad (1970 SCMR 542) it was held that even the highest bidder at an auction who had deposited a substantial amount of auction money did not acquire any right whatsoever in the property as the auction was subject to confirmation in terms of relevant conditions of auction which provided that even the highest bid could be rejected without assigning any reason. In Munshi Muhammad v. Faizanul Haq (1971 SCMR 533) it was held by their Lordships of the Supreme Court of Pakistan that the highest bidder in an auction in absence of final approval was not clothed with any right in the auctioned property and had no locus standi in the matter. In Pervez Qureshi v.
Settlement Commissioner (1974 SCMR 337) it was held that a mere bid at an auction does not create any contractual right until the bid is confirmed if it is subject to confirmation and the bidder cannot be considered to be a person aggrieved by cancellation of the auction. In Fawwad and Fareen Enterprises Ltd v. Director of Industries, Government of Sindh, Karachi (PLD 1983 Karachi 340), a Division Bench of the Sindh High Court, (which was a case of tenders), it was observed that where the authority had reserved the right to accept or reject the bid the mere fact, that the bid was lowest would not confer any right unless the petitioner could prove that the offer had been accepted. In view of the factual controversy involved in the case the petition was dismissed by the learned Division Bench. In Nizamuddin and another v. Civil Aviation Authority and 2others (1999 SCMR 467) it was observed that "The argument advanced by the learned counsel for the appellants that as the latest trend of superior Courts in our country and also elsewhere is to enlarge the scope of judicial review, therefore, availability of alternate remedy or matter involving contractual obligation should not pose hurdle in exercise of power of judicial review under Article 199, is too wide and sweeping to be adopted in every case. It is axiomatic principle of, law that every case is to be adjudged on its own facts, circumstances and merits. If in a particular case both the parties admit the factual aspect which give rise to the dispute and the Court feels that the matter is of such an urgent nature that the very remedy would get frustrated, if the aggrieved party is directed to seek redress through alternative remedy available under the law, then in that case it would be proper for the Court to entertain the writ petition If in every contractual matter giving rise to enforcement of contractual obligations or a dispute which can be redressed through other remedy available under the law, writ petitions are entertained, then this would defeat that very purpose of law and which competent Courts of the "Administrative Law by Sir Willam Wade, Seventh Edition, in the context of writ of mandamus the learned author has commented "A distinction which needs to be clarified is that between public duties enforceable by mandamus, which are usually statutory, and duties arising merely from contract. Contractual duties are enforceable as matters of private law by the ordinary contractual remedies, such as damages, injunction, specific performance and declaration. They are not enforceable by mandamus_ which in the first place is confined to public duties and secondly is not granted where there are other adequate remedies." There is thus no obscurity or confusion that in the facts and circumstances, the petitioner cannot legitimately seek a command in the nature of mandamus from this Court to compel the Government to enter into the contract with him. Resort to the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is entirely misdirected and misconceived.
7. The precedents cited by the learned counsel for the parties though show the tendency of the Court in the recent times to examine the vires of the actions of the public functionaries on the touchstone of reasonableness and fairness even in matters falling within the contractual regime yet such an exercise to be undertaken by the Court, is dependent upon the facts and circumstances of each case. The essential feature to be kept in view is that elementary and crucial facts were not disputed by the parties as there is a consensus in the judicial approach that controversy as to disputed questions of facts entailing factual inquiry and recording of evidence cannot appropriately be the function of the Court in writ jurisdiction. In the present case it has been noted that the very basic facts are in dispute.
As a result direction in the nature of writ of mandamus to respondents Nos.1 and 2 "to execute and implement the formal contract" with the petitioner cannot be issued. Since the petitioner has not been found entitled to maintain his petition against respondents No,1 and 2 no relief can be granted against respondent No,3, The petition is dismissed accordingly with no order as to costs.