' ZIA PERWEZ, J.---Appellant is aggrieved by the impugnedorder of the learned Single Judge, dated 15-7-2005 dismissing an application seeking interim relief under Order XXXIX Rules 1 and 2 read with section 151, C.P.C. (C.M.A. No, 3273 of 2005) filed in Suit No, 604 of 2005.
2. Appellant's claim to be a consultant with experience in the field of advertising, management consultancy and land development. Public notice inviting bids from consultants was issued on 31- 3-2005. Appellants pleaded that in spite of request were not provided with copy of TOR as the same was not ready. On 7-4-2005 defendant No,3 issued TOR, dated 4-4-2005 for development of Phase-I of the said scheme spreading over 2500 Acres. Objections as to legal implications, demand of information and affidavit pertaining to pending litigation and the terms of various clauses were raised by the appellants vide their letter, dated 7-4-2005 followed by reminders. On 18-4-2005 the Executive Engineer forwarded their reply to the appellants. It appears that while the said scheme after formal approval of the Provincial Government was being executed by the City District Government, respondents Nos. 2 and 3, the appellant had also approached the Government of Sindh as a result of which following letter, dated 23-4-2005 was issued with a copy of forwarded to the appellant with reference to his letter, dated 7-4-2005:- "No, S.O. (l&C) HTP/5-30/2005 Government of Sindh Local Government, Katchi Abadis & Special Development Department Karachi, dated the 23rd April, 2005 To, The Project Director, Malir Development Project, City District Govermnent, Karachi.
SUBJECT: TERMS OF REFERENCE (TOR) FOR LAUNCHING OF SCHEME 45 TAISER TOWN THROUGH CONSULTANCY MANAGEMENT MARKETING.
' I am directed to refer to the subject noted above and to state that A.D. Has observed that the T.O.R.
Regarding launching of Taiser Town Scheme 45 leased by MDP CDGK are controversial to the sanctions accorded under this Department's Notification, dated 23-11-2002 and approved summary for Chief Minister Sindh, dated 14-3-2005.
(2) Further Honourable High Court of Sindh has passed order, dated 3-3-2005 in Suit No, 229 of 2005 to maintain status quo (copy of enclosed for ready ref.).
(3) In view of above the following actions be taken immediately to avoid further litigation/enquiries:--
(i) Keep in abeyance the bid of consultancy Management of Sch-45 fixed for 25-4-2005 till review of TOR in accordance with approved summary and notified policy as well lifting of status quo by High Court of Sindh.
(ii) Maintain status quo to honour the Court's order, dated 3-3-2005 in Suit No, 229 of 2005.
(iii) To remain in closc liaison with Advocate-General Sindh to undertake vigorous contest before High Court of Sindh to remove the bar of. Status quo in favor of Scheme-45, otherwise the scheme will be seriously prejudiced.
(4) The above instructions be strictly adhered to.
(Sd.)
(Syed Imdad Ali Shah) Section Officer (Gen) HTP.
' A copy is forwarded for information and necessary action:--
(1) The Advocate-General Sindh, Karachi.
(2) The District Coordination Officer, CDGK, Karachi.
(3) The Chief Executive, Maxim Advertising Co. w.r.t. His letter, dated 7-4-2005.
(Sd.)
(Syed Imdad All Shah) Section Officer (Gen) HTP.
(3) The above letter was followed by another letter of the same date reading as follows:-- "No, S.O. (l&C) HTP/5-30/2005 Government of Sindh Local Government, Katchi Abadis & Special Development Department Karachi, dated the 23rd April, 2005 To, ' The Project Director, ' Malir Development Project, City District Government, Karachi.
SUBJECT: TERMS OF REFERENCE (TOR) FOR LAUNCHING OFSCHEME 45 TAISER TOWN THROUGH CONSULTANCY MANAGEMENT MARKETING.
' In response to this office letter of even number, dated 23rd April, 2005, it is to inform you that the Honourable High Court of Sindh has passed order, dated 3-2-2005 in Suit No, 229 of 2005 to maintain status quo. Copy of the said order has already been sent to your office.
' Please ensure the compliance of the High Court order and an officer may be deputed to liaison with the Advocate-General Sindh to take all appropriate actions to get the status quo vacated at the earliest.
' The progress may please be intimated to this office.
(Sd.)
(Syed Imdad Ali Shah) Section Officer (Gen) HTP.
' A copy is forwarded for information and necessary action:--
(1) The Advocate-General Sindh, Karachi.
(2) The District Coordination Officer, CDGK, Karachi.
(3) The Chief Executive, Maxim Advertising Co. w.r.t. His letter, dated 7-4-2005.
(Sd.)
(Syed Imdad Ali Shah)
Section Officer (Gen) HTP"
4. The appellants' claim that the copy of this letter was received by them on 25-4-2005 at 2-30 p.m. After time fixed for submission of bids had elapsed.
5. Appellants, therefore, instituted suit for declaration and permanent injunction on the original side of this Court seeking declaration to the effect that the bidding process for scheme No:44, Taiser Town, Tapo Songal, Gadap Town, Karachi, (hereinafter referred to as the said scheme) including the Terms of Reference (TOR), dated 4-4-2005, re-start of bidding process without intimation, to the appellants as well as clauses 4, and 8 to 15 and 17 of the TOR be declared as unconstitutional and void, seeking further directions for inviting of fresh bids scraping of earlier bids, allowing the plaintiff to participate in fresh bids after deleting the offending clauses of the TOR objected to by the appellants. They also moved for interim relief by way of application under Order XXXIX, Rules, 1 and 2 read with section 151,C.P.C. The interim relief was declined vide the impugned order, hence this appeal.
6. Mr. Farogh Naseem, learned counsel for the appellants, has contended that the mala fides of the respondents are apparent on the face of documents particularly clause 4 read with clause 7, which provide for an affidavit regarding non-involvement in any legal dispute or controversy as well as the fact of being blacklisted by any Government agency. That clauses 11 and 12 referring to leaseable amenity plots in additional phases of the scheme and clause 17 providing for exposure of similar kind of project at home and abroad are also relied upon by the learned counsel in support of his contention in this regard. He further proceeded to argue that delivery of second letter recalling earlier order, dated 23-4-2005 was deliberately delayed with the object of misguiding the appellants aimed at preventing from submission of their bid. As a direct consequence whereof the entire process of bidding; which took place on 25-4-2005 is defective and illegal. The exercise should be carried on afresh to ensure transparency and fair-play in exercise of its duty by the public functionary. His next contention is that the conditions contained in the TOR which were objected to by the appellants, referred to above, are discriminatory in nature and unenforceable on the ground that the Government of Sindh after communicating their decision through first letter, dated 23-4-2005 exercised its powers. Respondents Nos.' 2 and 3 were subject to such directions and they could not deviate from the directions by accepting the bids as to the second letter withdrawing their earlier letter. Learned counsel argued that the second letter has no legal effect, as it was not communicated to appellants until the time of submission of bids has expired. In support of his contentions, learned counsel has relied upon Rasbihari Panda and others v. State of Orissa (AIR 1969 SC 1081), Gorakhnath Upadhaya v. State of U.P. (AIR 1994 Allahabad 283), Integrated Databases India Ltd., v. Union of India and another (AIR 1996 Delhi 343), Tinkari Modal v. Block Development Officer (AIR 1980 Calcutta 7), Balochistan Construction Company v. Port Qasim Authority 2001 YLR 2716 and Haji Khan v. Government of Sindh (1990 M LD 155).
7. Mr. Malik Muhammad Qayyum, learned counsel for respondent No,4, while opposing the appeal argued that the process of invitation of bids has been in confirming with the TOR. Submission of bids included significant initial deposit of an amount of about 20 Million which the appellants failed to deposit and the entire scheme would be adversely affected in case of delay on account of rising costs and escalation in prices with the efflux of time. Referring to the prayer in this appeal learned counsel pointed out that the same amounted to final relief in suitby way of an interim order. In support of his contentions he has placed reliance on an unreported case of Lahore High Court Rawalpindi Bench passed in W.P. No, 586,of 2005 and on the cases of Shaukat Ali Fancy v.
Federation of Pakistan (2004 CLC 249), Pratap Narain v. District Judge Azamgarh (AIR 1996 SC 111), Premier Paper Mills Ltd. v. N.-W.F.P. Textbook Board (1997 CLC 1288), Haji, Punhoon v. Province of Sindh and others 1986 SCM R 349 and City Schools (Pvt.) Ltd. v. Privatization Commission (2002 SCM R 1150).
8. Mr. Muhammad Akhtar, learned counsel appearing for respondent No,3, and Mr. Ahmed Pirzada, Addl. A.G. And Mr. Manzoor Ahmed, appearing for Government of Sindh and City District Government respectively, while opposing the appeal have adopted the arguments advanced by Mr. Malik Muhammad Qayyum.
9. Bids in pursuance of the TOR were invited by respondent No,3. No postponement or suspension of the date cf bid was declared by respondent No,3 and in the absence of any such action for postponement or suspension for receiving of bids by respondent No,3 appellants had full opportunity to participate in the bidding process subject to their approval to the conditions, the grievance of the appellant that they were misled by communication of respondent No,1, is not supported by facts of the case particularly when the other consultants appeared and tendered their respective bids duly supported by significant amount accompanied as earnest money.
10. The scheme for development of Taiser Town is under implementation by respondents Nos. 2 and 3 who are empowered to take decision according to law within the scope of their authority.
Contention of Mr. Farogh Naseem that the Government of Sindh exercised its powers by issuing letter, dated 23-4-2005 suspending the bids in view of provisions of section 4 of the Sindh Local Government Ordinance, 2001 do not find any support from the said provisions. Learned counsel could not refer to any violation of a provincial law in this regard to show that the respondents Nos. 2 and 3 impeded or prejudiced the exercises of executive authority of the Government as envisaged under section 4(2) or failed to adhere to function within the Provincial framework as provided under sections 127 and 128 of the Sindh Local Government Ordinance, 2001.
11. The Indian case-law cited by the learned counsel for the appellant does not pertain to demand of information from the consultants in any of these Indian cases as required under present TOR, hence the same are distinguishable from the present case.
12. In the case of Haji Khan (supra) statutory requirements of therules regarding publication of the notice in newspaper was violated and the holding of public auction in violation of the rules was examined. It was observed by Single Judge of this Court that the crucial point in the case was the question of irreparable loss. Since money was involved and loss, if any, to the plaintiffs could have been assessed in terms of money, question of irreparable loss hardly arose but all that the learned Judge said on the subject was that "valuable right has been created in favor of the plaintiffs, by the said contract, therefore, in my humble opinion breach of the said contract cannot be adequately compensated in terms of money". Manifestly, contracts involving collection of monetary benefits, which themselves have been obtained on specific monetary considerations, on A principle, cannot involve irreparable loss because such loss, inherently, means and implies only such loss as is incapable of being calculated on the yardstick of money. Unless all the required ingredients of prima facie case, balance of convenience and irreparable loss to the aggrieved party are found to subsist, no injunction under Order 39, B Rules 1 and 2, C.P.C. Can issue. The trial Judge was, therefore, in error in coming to a different conclusion. In the same context, no notice was taken of alleged previous conduct of the petitioners or to patent corresponding loss to Government revenue an element relevant to the concept of balance of convenience, muchless to resultant interference with functions of the Government, all of which were weighty matters.
13. In the case of the Balochistan Construction Company (supra) the lowest bid submitted by the petitioner was accepted and in consequence thereof the Port Qasim Authority awarded the contract to the petitioner. However, subsequently the Board reviewed its decision and decided to re-tender the work. The Division Bench of this Court observed that the prescribed condition added in the subsequent tender having no direct nexus with the performance of the work sought to be performed by the contractors will depend upon the facts of each case. The additional condition prescribed in the second tender wastherefore; set aside which is distinguishable from the present case. The conditions stipulated in TOR have not been shown to be without nexus to the work of consultancy, involved.
14. While reasonableness and transparency is required in acts of public actions, the same yardstick can always be extended. To the consultants attached to such functionaries. Though mere filing of a suit or pending litigation involving a reasonable cause which arises frequently in such cases involving payments claimed on account of extra work, modifications in schemes, extra items cannot be made a basis to deny participation to bid for the contract. The tendencyfor frivolous litigation and conditions involving blacklisting, if any, are required to be examined in a rational manner on merits of each case.
15. In view of the above we are of the opinion that the information as to pending litigations or the event of blacklisting by any other government agency cannot be withheld by a participant rather the public functionary would be failing in its duty to function in an honest, transparent and reasonable manner, if requisite information is not collected in a prudent, manner before awarding the work of public importance. Invitation to tender is merely an invitation for offer. It does E not amount to a contract. The Honourable Supreme Court in the case of City Schools (Pvt.) ltd. v.
Privatization Commission (Supra) has held as under:-- "Perusal of different provisions of the Contract Act reveals that a tender notice is merely an invitation for making an offer and not by itself an offer of proposal. The advertisement does not constitute a proposal. Only by acceptance of offer or proposal by the person calling for tender it becomes a promise or agreement. When offer of tender is not accepted by the relevant authority, no legal right accrues to such tendered. An agreement enforceable by law becomes a contract.
The true test for deciding whether a valid contract is made between the parties or not is to ascertain if the parties were of one mind on all the material terms of the item it is said to have been finalized and whether they intended that the matter was closed and concluded between them. For this purpose, the correspondence exchanged between the parties is also to be looked into".
16. The objection raised by Mr. Malik Muhammad Qayyum that the grant of interim relief in a suit and the relief sought in the present appeal would amount to grant of the final relief by way of an interim order and would jeopardize the entire project due to escalation and it makes out a clear case of balance of convenience and irreparable loss in favor of the defendants/respondents. For the foregoing reasons, we do not find any merit in this appeal and the same is dismissed along with "listed application.
17. Above are the reasons for our short order, dated 2-8-2005.
THE END