HABIBULLAH ENERGY LIMITED through General-Manager vs WATER AND

' AZIZULLAH M. MEMON, J.---Petitioner made the following prayers in this petition:--

(a) Declare that the petitioner being the most' responsive and lowest bidder was entitled to the grant of the lease of the plant.

(b) Declare that the award of the lease to the respondent No,6 is without lawful authority and of no legal effect or consequence.

(c) Grant any other relief as it may deem appropriate and proper in the circumstances of the case.

' Petitioner claims to be a company duly incorporated under the Companies Ordinance, 1984 and Mr. Nasiruddin Khan, its General Manager, Project Coordination has been duly authorized vide Board Resolution, dated 2nd November, 2006 to submit and file this petition.

2. According to the petitioner, the newspaper advertisement published in English Daily Newspaper Dawn, dated 26th July, 2003 invited applications for pre-qualification/expression of interest in privatization of the 150 MW Fluidized Bed Combustion Coal Fired Power Plant situated at Lakhra near Khanot in the District of Jamshoro, Sindh, by further stating that privatization of the said plant would be undertaken through the Sindh Privatization Commission as per the decision of the Federal Government and, therefore,_ the petitioner submitted its statement of qualification along with a covering letter, dated 27th February, 2004, and was duly found to be qualified and thus entitled to participate as a bidder in the privatization of the plant. It was alleged by the petitioner that Sindh Privatization Commission was totally ignored and bypassed and for some reasons, the privatization of the said plant (which had been taken over by the respondent No,1 WAPDA) was inordinately delayed but then the petitioner came to know on 12th December, 2005, that the then Prime Minister, issued directions to the respondent No,1, WAPDA, through respondent No,2 to undertake and complete the rehabilitation and increase the available capacity of the "Coal Fired Lakhra Power Plant" of 150 MW capacity consisting of three units of the capacity of 50 MW each, designed on the fluidized Bed Combustion. Technology, having been introduced in Pakistan for the first time by the Chinese using the Indigenous Lignite Coal of the Lakhra Field as fuel.

3. According to the petitioner, respondent No,6 (Associated Group) had already been pre-selected for the award of the contract in question and, therefore, in the first week of January, 2006, respondent No,6 approached respondent No,1, WAPDA, that a draft Memorandum of Undertaking for acquiring the said plant on lease for a period of 20 years, and "as an eye wash, the respondent No,1 approached some other "pre-qualified companies" during the month of March, 2006, asking for to submit their technical and financial evaluation by 22nd May, 2006, for leasing out the Lakhra Plant for rehabilitation and operation; petitioner further contends that since they had been pre- qualified earlier during the year 2003/2004, it was also called upon to submit its aforementioned evaluation, but petitioner was shocked and dismayed to know that the respondent No,1 had concealed and had granted to the respondent No,6 the "Right of First Refusal", viz., the right to match the lowest bid/offer, which came to knowledge of the petitioner when the bids/proposals were opened and the bid document submitted by the respondent No,6 was read out on 21st July, 2006, and further that respondent No,6 submitted its bid/proposal, which, inter alia, was expressly conditional upon "right of first refusal"; however, petitioner submitted its technical and financial proposal on 22nd May, 2006.

4. It is further contended that only two parties submitted their bids/proposals, viz. The petitioner and the respondent No,6; petitioner quoted levelised tariff at US Cents 5.17 per KWH based on an investment of US$ 13 million, whereas the respondent No,6 quoted US Cents 5.89 per KWH based on an investment of US$ 34 million; this was US Cents 0.62 higher than the offer of the petitioner and though respondent No,1 having found the proposals of the petitioner to be lowest than that of the respondent No,6, yet both proposals along with the comparative statements were sent to the respondent No,2 and further that one specified reference was also made in the comparison document in order to give weight to the party with experience in power generation, viz., the petitioner. Respondent No,1 held detailed discussions with both the parties on 19th June, 2006, as a result of which the petitioner offered a reduction in its levelised tariff to US Cents 4.994/KWH at 70 per cent plant factor. In the meanwhile, respondent No,2, vide its Secretary Letter, dated 14th June, 2006, advised the respondent No,1 to submit its analysis and recommendation on the two proposals "for apple to apple comparison" was "NEPRA, respondent No,3, and subject cited in such correspondence was "leasing out of Lakhra Coal Fired Power Station to Associated Group" viz., the respondent No,6; respondent No,1 referred the matter to respondent No,3, who refused to entertain the same on the ground that under the NEPRA Law and the Rules, only the Licensee, viz., the respondent No,5 was competent to make such a reference and that the respondent No,1 did not make any such reference; however, both the parties were summoned on 13th July, 2006 apparently for resolution of the matter, during which the Chairman, WAPDA, General Manager WPPO and General Manager Thermal attended and the petitioner offered a further reduction in its tariff by 0.5 Cents bringing it down to 4.494 Cents/KWH, but the matter could not be finally resolved and the respondent No,1 invited revised bidding from both the petitioner and respondent No,6 on 17th July, 2006, and a categorical representation was made in the said letter that the "decision will be based on the lowest levelised offered tariff"; petitioner submitted its revised bid quoting the levelised tariff at 4.432 Cent/ KHW and its bid was unconditional. However, respondent No,6 submitted two different optional and conditional bids at 5.208 Cents/KWH in the same envelop under Option No,1, and for other option he quoted 5.017 Cents/KWH. By further stating "these proposals are submitted without prejudice to our first right of refusal granted by WAPDA vide letter by Chairman WAPDA of May 15, 2006" of which petitioner came to know on 21st July, 2006 when the revised bids were opened and were read out by the General Manager (Thermal) reducing the entire exercise to a farce and nullity. The said General Manager also read out from the bidding papers of the two parties the breakup of the tariff as follows:-- Description of TariffHabibullah GroupAssociated Group Option IAssociated Group Option II Fuel 2.018 2.270 2.270 Var. 0 & M 1.250 1.365 1.001 Return on Equity 0.109 0.138 0.082 Insurance Cost 0.150 0.040 0.023 Fixed O & M 0.717 0.967 0.768 Debt Service 0.188 0.428 0.873 Total Levelized Tariff4.432 5.208 5.017 ' The comparison of the other parameters regarding investment and returns on equity are as under:-- Description Associated Group Option IIHEL Investment (MUSD) 14.604 13 Return on Equity 16% 15% Bonus in excess of 571 GWh 0.25 Cents/KWH Nil WAPDA Labour Cost etc. absorbed90% 100 Custom Duty Pass through Nil 1 US Dollar = Rs. 60 60 Indexation Mechanism Not indicated As per Nepra Guidelines Plant Insurance On AG Assets only Full Plant Taxes Pass through Pass through

5. Petitioner further asserts that the bid offered by him as absolutely clear as well as unconditional, accepting all the parameters as required by WAPDA, and it is also provided standard assumptions sheet made by NEPRA for determination of tariff as allowed by NEPRA which is a Statutory Regulatory Authority for determination of the Tariff to other independent power producers. The standard assumption sheet is as under:--

(a) 5% customs duty on its imports.

(b) 100% WAPDA Staff liability regarding salaries, pension, benefits, gratuity, medical care and free electricity.

(c) Insurance of the entire plant instead of petitioner own assets only.

6. On the other hand, the respondent No,6 submitted as under:--

(a) Treated customs duty as pass through item.

(b) Offered to absorb only 90% staff liability.

(c) Undertook Insurance of its own assets only.

7. Petitioner further asserts that in order to make on "apple to apple comparison" between the two bids, the following costs are to be deducted from the petitioner bid reducing its tariff 4.230 Cents/KWH as compared to respondent No,6' s tariff of 5.208 and 5.199 Cents/KWH under Option I and 5.017 and 4.398 Cents/KWH under Option II.

Description Habibullah GroupAssociated Group Option-IAssociated Group Option-II 10% WAPDA Staff 18.65 0.033 0.054 Insurance of Plant46.50 0.081 0.136 Customs Duty(p.a.)3.98 0.007 0.012 Total 0.18 0.202

8. According to the petitioner, after the deduction of above mentioned cost, petitioner bid tariff becomes US Cent 4.230/KWH, which is far below the quoted tariff of the respondent No,6 either 5.208 and 5.199 as per Option-I and 5.017 and 4.398 as per Option No,II. The petitioner further urges that respondent No,1 having already according to respondent No,6 the "first right of refusal" and somehow or the other manipulated the number and the figures, which were at considerable variance with the offer of respondent No,6. However, the General Manager (Thermal) WAPDA prepared an item note recommending respondent No,6 for award/grant of the lease disputed in this petition and respondent N6.1 confirmed and circulated the minutes of its meeting held on 12th August, 2006, whereby it decided to award the lease to respondent No,6, but such a meeting and the decision taken therein were kept as a very closely guarded secret from the petitioner, notwithstanding several letters including those, dated 9-8-2006, 10-8-2006, 17-8-2006, 23-8-2006, 29-8-2006 and 12-9-2006, and, therefore, the petitioner contends that the award of the lease in dispute of Lakhra Coal Power Plant for a period of 20 years by respondent No,1 to respondent No,6 is unlawful, illegal, tainted with mala fides, irrational and in violation of procedural propriety and duty to act fairly.

9. The petitioner has further urged that the award of the lease in dispute practically tantamount privatization of the plant on "build, operate and transfer" basis is not at all transparent and that 'the whole such exercise was an eye-wash and based upon deception and concealment of facts and further that in fact decision had already been taken by December, 2005/ January, 2006 to award the lease to the respondent No,6 without due process of law and the permissible procedure as laid down in the Privatization Ordinance and respondent No,1 had no authority under the law or any principle of equity, good conscience, propriety and fairness to grant of respondent No,6 the "first right of refusal" and that the said "first right of refusal" was without knowledge of the petitioner and permitted respondent No,6 to amend, alter or interpolate his bid and further that the tariff mentioned in the decision of WAPDA, dated 17-8-2006 was not quoted either by the respondent or by any other person.

10. According to the petitioner, the bid offered by him was most responsive and lower as compared to the bid of the respondent No,6, which was not only conditional but also optional and the petitioner has vast experience and qualification in running of a power plant as licensee of the biggest Coal Mines at Lakhra (supplies to the plant in dispute); the respondent No,6 was a rank outrider with no track record in the field. Hence the petitioner was entitled to award of the lease.

11: One of the grounds stated in the memo. Of the petition was that "since NEPRA is a statutory regulatory authority with its own rules and procedures and as the respondent No,5 never applied for termination of the tariff, vis-a-vis the grant of lease, NEPRA cannot embark upon a comparison of the two respective tariffs (of the petitioner and respondent No,6)"; however, that "if at all it was the Privatization Commission of Pakistan, which could undertake the entire exercise and further that by ignoring and not involving the Privatization Commission, the respondent No,1 acted without lawful authority rendering its decision of [2/17 August, 2006 as null and void. Hence, above-quoted prayers were made by the petitioner in the memo. Of petition.

12. In their comments offered by respondents Nos.1 and 5, they admitted that public notice was got published in daily newspaper DAWN, with similar publications in some other newspapers and the petitioner responded to the public notice, dated 26th July, 2006, through its letter, dated 27th February, 2004, and further admitted that the petitioner was pre-qualified but only petitioner and respondent No,6 submitted their respective pre-qualification documents by the fixed date, viz. 2nd March, 2004; as the Sindh Privatization Commission had objected to the proposal of rehabilitation, operation, maintenance and management (ROMM) the matter was referred to the Sindh Privatization Commission for privatization of respondent No,5 vide respondent's letter, dated 25-3- 2004 and respondent No,2 conveyed to the other respondents vide, letter, dated 12th December, 2005, as also to the Sindh Privatization Commission about instructions issued by the then Prime Minister that respondent No,1 should complete the rehabilitation of the Lakhra Power General Plant so as to increase its available capacity from 30MW to 84 MW and that respondent No,1 should also facilitate studies by parties, intending to make proposals for lease, rehabilitation and operation of the plant at the risk and cost'of said parties. It is further contended by the said respondent that on 29-6-2006 Sindh Privatization Commission conveyed to respondent No,2 the following decision taken by Sindh Cabinet Committee at its meeting held on 11-5-2006:-- ' "The matter of privatization of Lakhra Power Generation Company (LPGC) and Lakhra Coal Development Company (LCDC) is to be referred back to the Government of Pakistan for privatization through Federal Privatization Commission and Government of Pakistan may request to transfer the share held by Government of Sindh in LCDC put of privatization proceeds."

' And further that on the basis of the said decision, Sindh Privatization Commission referred back to respondent No,2 the matter relating to privatization of respondent No,5. The said respondents Nos.1 and 5 denied any pre-selection of respondent No,6 in the month of January, 2006 or on any later date and that there was no "eyewash", whereas all the parties who had submitted expression of interest in response to public notices issued on 26-7-2006 and 25-3-2006.

13. The said respondents further pleaded that a meeting held to finalize the gas road map on 12th May, 2006, a decision was taken that respondent No,6 should be given the right of first refusal for the lease of the Lakhra Power Generation Company on account of the investment made by respondent No,6 for development the proposals for its rehabilitation, which was informally conveyed by respondent No,1 to respondent No,6 on 13th May, 2006 (and not on 15th May, 2006) vide hand written note, but the final decision in this matter was the one taken at a subsequent meeting held on 13-7-2006, where after both the petitioner and respondent No,6 were asked to give their revised offer on 9 specified technical and financial aspects and both were informed that the decision was to be based on the lowest levelized offered tariff. Further that the comparison made by the petitioner in the memo. Of petition is not of any relevance since it is based on offers made prior to the offers received from both the parties though their respective letters in response to respondent No, l's letter, dated 17-7-2006.

14. With regard to the contents of Para. No,11 of the memo. Of petition, wherein it is alleged that respondent No,1 made a comparison of the two proposals and obviously found the one submitted by the petitioner lower than that of respondent No,6, the respondents have replied that the reference made by respondent No,1 to respondent No,3 is not of any relevance since it was made prior to the aforementioned offers, dated 21-7-2006. With reference to the contents of paras. 10 and 11 of the memo. Of petition, the respondents have pleaded that the reduction in the rates offered by the petitioner vide letter, dated 19-6-2006 were of no relevance because it too was made prior to the offers vide letter, dated 21-7-2006 and further that the tariffs earlier quoted by the both the groups were on the higher side. It is admitted-by the respondent that a meeting was held with both the petitioner and respondent No,6 on 13th July, 2006, in consequence whereof both were asked to give their revised offers based on 9 specified technical and financial aspects vide respondent No, l's letter, dated 17-7-2006, wherein respondent No,1 categorically committed that the "decision will be based on the lowest levelized offered tariff" and this decision was implemented/honoured. It is admitted that in the bid of the respondent No,6, dated 21st July, 2006, they claim the first right of refusal but the said "first right of refusal" was no more available to respondent No,6, as stated in respondent No, l's letter, dated 17th September, 2006, acknowledged by the petitioner itself in Para No,16 of the memo. Of the petition. Further that (in reply to contents of para 20 of the memo. Of the petition), apple to apple comparison of the two bids was carried out on the basis of whereof, respondent No,1 took the final decision, dated 12th August, 2006, and no manipulation of any number/figures at any level of the working/functioning of the respondent No,1 was adopted and that the award of the lease to respondent No,6 is not based on the right of first refusal and the lease was awarded to respondent No,6 because, on "apple to apple comparison" of the two bids, the respondent No,1 came to the clear considered conclusion that the levelized tariff offer of respondent No,6 was lower than that of the petitioner.

15. The said respondents (stated in the clear terms) that decision taken by respondent No,1 on 12th, August 2006, was based on a record "apple to apple comparison" of the two offers of the petitioner and respondent No,6 and there was no secret about such a decision of the respondent No,1 taken on 12th August 2006, and acknowledgement to such an effect of the petitioner is reflected through letter, dated 23rd August, 2006, placed on record itself as Annexure `G/4' thereby acknowledge its awareness that the offer of respondent No,6 had been accepted and that the decision, dated 12th August, 2006 of leasing Lakhra Power Generation Plant to respondent No,6 is not unlawful or illegal or mala fide or irrational or in violation of procedural propriety, which decision was subsequently approved by the Board of Directors of respondent No,5 at the Board's meeting held on 19th August, 2006, and the petitioner participated in the entire process right upto the stage of the final offers, dated 21st July, 2006 in response to respondent No,l's, letter, dated 17th September, 2006, and cannot now urge/ argue that such process was not transparent and the petitioner itself acknowledges that it participated in the final meeting held by respondent No,1 with both the parties on 13th July, 2006 prior to issue of respondent No,l's letter, dated 17-7-2006, which were responded to by both the petitioner and respondent No,6 (vide their offer, dated 21st July, 2006) and the lowest levelized tariff offered by the two competing parties was to be accepted and this decision was honoured/implemented. The said respondents have further pleaded that NEPRA is not involved in the grant of lease to respondent No,6. Further that, Privatization Commission is not involved in the grant of lease to respondent No,6, because privatization of Lakhra Power Generation Plant is not included in the Privatization Commission's approved privatization programme. The respondents have specifically further pleaded that extraordinary constitutional jurisdiction of this Court is not available to decide as to which of the two competing parties is entitled to grant of lease and that the decision taken by the respondent No,1 on 12th August, 2006 is correct decision and within respondent No,l's lawful authority. Further that after respondent No,5 also approved the lease in favour of respondent No,6 on 19th August, 2006, NOC of the Government of Sindh was obtained vide their, letter, dated 24th August, 2006 and thereafter lease agreement was executed between respondents Nos.5 and 6 on 11th September, 2006.

16. The respondent No,6 filed their own comments, which are on the same lines, as submitted by respondents Nos.1 and 5 in their comments. According to respondent No,6 the approach to all pre- qualified companies was not en eye-wash but was to award the contract in question in a transparent manner and after comparison between the pre-qualified companies and the petitioner itself had submitted the final bid documents on 21st July, 2006 on 9 specified technical and financial points along with the respondent No,6 and further that the investment of respondent No,6 in the project is higher than that of the petitioner and that the break up comparison by the petitioner has no significance, as the contract was awarded to respondent No,6 on consideration of cumulative effect of all the nine points/aspects of the bid of the petitioner and respondent No, 6, dated 21-7-2006. Further that the bid offered by respondent No,6 is more beneficial as well as reasonable and the lease granted in favour of respondent No,6 was not on the basis of right of first refusal and there was no manipulations of the figures offered by respondent No,6, and recommendations for grant of lease are based upon objective consideration and calculation of all the figures and facts and that the petitioner was in the full knowledge of the award of the contract in favour of respondent No,6 and without any secrecy having been maintained for any such purpose. After the petitioner was given full opportunity to compete and had fully participated in all such proceedings till its extreme end and that then contract of lease in favour of respondent No,6 is legal, bona fide, reasonable and transparent.

17. The respondent No,2 filed its comments, admitting therein that public notice was got published in the newspaper of Daily DAWN Karachi, dated 26th July, 2003, and similar notices were got published in other newspapers also. According to respondent No,2, Sindh Privatization Commission informed on June 29, 2006, that Sindh Cabinet Committee on Privatization, and the Sindh Privatization Commission in its meeting held on 11-5-2006, decided that the matter of privatization of Lakhra Power Generation Company and Lakhra Coal Development Company was to be referred back to the Government of Pakistan for privatization through Federal Privatization Commission, Islamabad, and Government of Pakistan may be requested to transfer the shares held by the Government of Sindh in LCDC out of privatization proceeds and the matter was referred to respondent No,2 with the approval of Government of Sindh for further necessary action, and that on a summary moved by respondent No,2, in September, 1993, the Council of Common Interest approved the privatization of the WAPDA Thermal Power Plants in a phased programme, which decision also covers the Lakhra Power Generation Plant owned by the respondent No,5, which is itself a wholly owned subsidiary of WAPDA and further that WAPDA referred the matter to the Sindh Privatization Commission vide letter, dated 25-3-2004 for privatization along with the Lakhra Coal Development Company which is jointly owned by the Government of Sindh, WAPDA and the Pakistan Mineral Development Corporation and in pursuance of the same the Government of Pakistan took a decision on 12-12-2005 for rehabilitation to increase the available capacity of the Lakhra Plant in the public interest. Respondent No,2 has further pleaded in a meeting held to finalize the gas road map on 12-5-2006, a decision was taken by the Federal Government that respondent No,6 should be given the right of first refusal for the lease of the Lakhra Power Generation Company on account of the investment made by respondent No,6 for developing the proposals for its rehabilitation; however, WAPDA on 17-7-2006 gave an opportunity to the petitioner as well as respondent No,6 to submit their revised offers for decision of the competent forum and that the petitioner participated in the entire process right upto the final stage and cannot now be allowed to claim that this process was based on deception etc., simply because his final offer has not been accepted and that, no alterations/interpolations were ever committed as has been alleged by the petitioner and that WAPDA was bound to make an apple to apple comparison of the two offers made by the petitioner and respondent No,6 respectively, which process was carried on in a transparent manner and the Privatization Commission of Pakistan is not involved in the grant of lease to the respondent No,6, as there was no such legal necessity. Respondent No,2 also took the plea that extraordinary constitutional jurisdiction of this Court is not available to decide as to which of the two competing parties is entitled to grant of lease.

18. Respondent No,4 submitted in its parawise comments that the lease in question has not been awarded by it nor any privatization process was ever carried out pertaining to the plant in question.

They submitted that in the month of September, 1993, a summary was submitted by Ministry of Water and Power, Council of Common Interests approved the privatization of WAPDA's Thermal Power Units and distribution of power according to a phased programme. The Lakhra Power Plants, formerly a part of Jamshoro Power Company Limited is one of the Thermal Power Plant of the WAPDA and that in the meeting of the "Task Force on Thar Coal" held on 17th June, 2001, under the Chairmanship of the then Chief Executive Pakistan, inter alia, decision was taken to the effect that Government of Sindh should take necessary action to privatize Lakhra Coal Field and Power Plant in consultation with WAPDA and that tariff issued should be properly resolved and thereafter Lakhra Power Plant was cared out of Jamshoro Power Company Limited in February, 2002, as an independent/separate legal entity namely, "Lakhra Power Generation Company Limited" under the Companies Ordinance, 1984, and that respondent No,1 WAPDA wrote to the respondent No,4, on 20th July, 2006, that WAPDA would lease out the Lakhra plant on the basis of competition and it had approached NEPRA for determination of the tariff and that NEPRA desired to have NOC from the Privatization Commission for the modification of the terms of the license already granted to LPGCL for the purpose of leasing and the NOC to lease out LPGCL for 20 years be accorded; in response of which, the respondent No,4 informed/ inquired from WAPDA/NEPRA vide, letter dated 30-7-2006 that LPGCL was not on the privatization programme of Privatization Commission of Pakistan, as Sindh Privatization Commission was interest in the privatization of the same and that in view of the said fact neither the Sindh Privatization Commission nor Ministry of Water and Power had requested the respondent No,4/Privatization Commission of Pakistan to privatize LPGCL and WAPDA may therefore, enlighten Privatization Commission as to why under such circumstances the NOC was required from Privatization Commission to lease out LPGCL for 20 years, and that while WAPDA did not respond, NEPRA vide, letter, dated 4th September, 2006, informed that no further action was required on the part of the respondent No,4, whereas, Sindh Cabinet Committee on Privatization took decision on 11th May, 2006, to refer back the matter of privatization of Lakhra Power Generation Company and Lakhra Coal Development Company to the Government of Pakistan for Privatization through Federal Privatization Commission, Islamabad; and further that Government of Pakistan may be requested to transfer its share held by the Government of Sindh in Lakhra Coal Development Company out of privatization proceeds; further that such a decision having been taken the same was conveyed to the Ministry of Water and Power on 29th June, 2006, which forwarded the same to respondent No,4 on 21st September, 2006, for favour of necessary action.

19. Respondent No,4 further pleaded that the petitioner had failed to raise valid/legal ground to file the present petition and that the petition merits to be dismissed for having been filed without legal/valid cause of action.

20. We heard learned counsel appearing for the parties.

21. Petition No,C.P.D-441 of 2007 was filed by petitioners Zonal Labour Union, Lakhra and others with the following prayers:--

(a) Declare that the process of leasing of Lakhra Power Plant is in violation of sections 22, 23, 24, 25 and 26 of the Privatization Ordinance No,LII of 2000 and rules made thereunder.

(b) Declare that the process of Privatization adopted by respondents Nos.1 and 6 in respect of sale/lease of management control in the Lakhra Power Plant is illegal, arbitrary, irrational and without any lawful authority.

(c) Restrain the respondents Nos.1 and 6 from carrying through with the privatization/leasing of Lakhra Power Plant without the directions and supervision of CCI.

(d) Direct the respondents to maintain status quo during the pendency of this petition.

(e) Any other relief(s) fit and necessary in the circumstances of this case may also be granted.

22. The said petition was heard in this Court on merits by a learned Division Bench and was dismissed on 28th September, 2008 (sic) with costs; relevant observations appear at Page No,9 of the said judgment, which read as under:-- ' "We have observed that the petition has been filed with the basic contention that the plant/company has been privatized as envisaged by Privatization Ordinance but several sections of the said Ordinance including sessions 22 to 26 have not been followed nor any approval from the Council of Common Interest ("CCI") as required under Article 154 of the Constitution has been obtained to privatize the plant/company, hence grave violation of the Constitution have been committed. In this situation, the question before us is to see as to whether the process and the document of lease, dated 11-9-zu06 is truly a privatization or not and for the said purpose, the intention of the respondents is to be firstly gathered from very much Trumpeted documents i.e,, advertisement in the newspaper, dated 26-7-2003 of which first portion is reproduced as under:-- ' "The 150 MW Fluidized Bed Combustion Coal-fired Power Plant Lakhra, near Khanote, District, Dadu, on the Hyderabad Dadu Road, about 50 KMs from Hyderabad, is to be privatized through the Sindh Privatization Commission (SPC), as per the decision of the Federal Government. This company has determined, in consultation with WAPDA, the major share-holder, PEPCO, the GOP appointed management company, and the SPC, that the plant requires major rehabilitation. For this purpose, it is proposed to appoint an internationally experienced Operator for Rehabilitation, Operation, Maintenance and Management (ROMM). It is expected that ROMM will prove an effective route to privatization, but the final decision will be made in consultation with SPC."

' The said advertisement has been followed by some letter specifically letter, dated 12-12-2005 from Ministry of Water and Power, Government of Pakistan to WAPDA of which contents are as under: -- ' "I am directed to state that the Prime Minister has been pleased to approve that WAPDA to complete rehabilitation to increase the available capacity of the Lakhra plant from 30 MW to 84 MW and be allowed to facilitate studies by parties intending to make proposals for lease, rehabilitation and operation of the plant. Such proposals may be at their risk and cost with no commitment from WAPDA or GOP. Government of Sindh may not pursue the lease option, as it was not included in Chief Executive of Pakistan's directive of Jane 12, 2001.

' It is requested to please take further necessary action in the matter under intimation to this Ministry."

' The letter, dated 24-8-2006 was written by the Government of Sindh to WAPDA giving thereby NOC for lease and para. 2 of the said letter is as follows:-- ' "The Chief Secretary Sindh called a meeting on 21st August, 2006 wherein it was decided that the Government of Sindh has no objection to the leasing out of the Lakhra Power Generation Company Ltd., on the following conditions."

' Another letter is dated, 31st July, 2006 written by Ministry of Privatization and Investment, Government of Pakistan to NEPRA and WAPDA and the last para of the same is as under: "3. In view of the above, WAPDA and NEPRA are requested to kindly enlighten the Privatization Commission as to why a NOC is required from the Privatization Commission to lease out LPGCL for 20 years (reference WAPDA letter, under reference) besides the approval for modification of the terms and conditions of the license including a change in the status of ownership such as proposed leasing of LPGCL as desired by NEPRA vide its Letter No, NEPRA/R/TRD-32/5738-41, dated 6-7-2006 to the Member Power WAPDA."

' The above letter were followed by meeting of WAPDA Authority in which leasing was approved.

There came another letter from the Chief Operating Officer of Central Power Purchasing Agency written to NEPRA in which it was pointed out as follows: ' "Keeping in view, the slow pace of Privatization the Prime Minister of Pakistan approved and directed to complete the rehabilitation of Lakhra Power Plant to increase its availability from 30 MW to 84 MW and to facilitate the parties intending to make proposals for lease, rehabilitation and operation of the plant which was conveyed by Ministry of Water and Power vide letter, dated December 12, 2005 to WAPDA."

' In the light of above letter, when one go through the lease-deed, dated 11-9-2006 then it would appear that it is for a specific period of 20 years. In clause (b) of the said lease-deed, on opening page, the intention of the parties do appear, which is as follows: "(b) The Lessee is desirous of obtaining the Demised Premises, on lease from the Lessor, having all the technical know--how and financial capability to upgrade, rehabilitate, re-commission, operate and maintain the plant and generate electricity for sale to the NTDC (the "Permitted Usage")".

' It can also be observed through clause 2 of the said lease-deed that the benefit of the workers in respect of salaries, wages, social and retirement benefits and all actuarial liabilities of the employees for lease period have been guaranteed by the Lessee. By clause 4 of it, minimum annual generation of energy has been guaranteed to 571 Million KWh while annual rent of Rs,28,835,500.00 is undertaken. According to clause 5 of the lease-deed, an amount of Rs,2.00 million is to be reimbursed by Lessee to WAPDA towards spare parts which were ordered by the Lessor in the past towards rehabilitation. As far as termination of the lease is concerned, certain provisions are being inscribed in the lease including the force majeure clause and by virtue of clause 10 at the last page of the lease, it has been agreed as follows:-- "10. It is agreed between the parties that on the expiry of the Lease Period, the Lessee shall forthwith restore physical possession. If the Lessee thereafter, is desirous of taking a further lease, it shall be negotiated afresh."

' It has also been agreed with in case of any dispute, the parties can resort to the arbitration.

' In the light of above documented position as well as explanation by the respondents in writing and the arguments of the learned counsel for the respondents including the learned Attorney- General for Pakistan, we can include nothing but that the arrangement through the lease is not a privatization under the Ordinance No,LII of 2000 but a lease for a specific period on certain terms and conditions. The term of lease can give open impression that it is not only in the interest of the plant/ company but the employees, public and the country as well as Lessee i.e,, respondent No,7 has not been given right to terminate the employment of existing employees within one period which is normal in privatization cases and has been bound to act within the parameter provided under the lease. We have also gathered the documents appearing on record that although it was once desire of the government to privatize the said plant but that was not implemented keeping in view the status and dilapidated condition of the plant and because of the said reason it was decided to rehabilitate the same and thereafter to think over it. The correspondence shows that the Government and the Privatization Commission as well as the Province of Sindh finding it not proper to privatize the plant opted and consented for the lease with the apparent intention to rehabilitate to improve its working and to strengthen it in all respect. In such a situation, when we find that the plant has not been privatized, therefore, any observation on its effect by the relevant Articles of the Constitution as well as provisions of Privatization Law is not warranted. In such a situation, the petition has no force and is misconceived, hence dismissed with cost."

23. Moreover, a copy of lease-deed, agreed to have been executed in favour of respondent No,6 by the Chief Executive Officer, Lakhra Power Generation Company, Lakhra, is placed on the file of this petition clause 6 whereof reads as under:-- ' "The Lessee agrees to pay the lessor the cost of repairing or replacing any damage, arising out of misuse of Demised Premises."

24. So also clause 9 of the lease-deed reads as under:- ' "The lessee agrees to return the demised premises at the end of the term of the lease hereby granted or any extension thereof, in good operating condition and good working order, free from any physical damage subject to normal wear and tear proportionate to the usage, but maintained fully in accordance with the manufacturers' recommendations and prudent utility practices. The lessee and the lessor or their respective agents shall inspect and provide a jointly signed report on the condition of the demised premises.

25. Thus the said clauses of the lease-deed conclusively direct that at the end of the term of the 20 years lease in favour of respondent No,6, the lessee shall return the demised premises to the lessor in good operating condition and good working order, free from any physical damage, facts and circumstances presently available on the record of the petition do not give any indication that the plant has been agreed to be permanently parted with by the Lakhra Power Generation Company in favour of respondent No,6.

26. Learned senior counsel for the petitioner, in support of his arguments, cited Petrosin Products (Pvt.) Ltd. v. Federation of Pakistan 2001 CLC 1412 Lahore, wherein the following observations were recorded in para. 22 as follows:-- "(22) Our system adheres to the theory of the tracheotomy of power. We believe that the Executive Branch of the Government has its own sphere of work which should not be interfered with nor its functions usurped. But the Branch of the Government which has to perform the judicial function i.e,, the Courts have also to ensure that the discretion which is vesting in the Executive Branch of the Government was exercised fairly and not arbitrarily and wherever the discretion by the Executive branch of the Government smacks of arbitrariness, discrimination or unfairness, a need arises for judicial review of administrative actions. The purpose obviously is to control abuse of power and unfairness. Because it is a constitutional guarantee for every citizens that he shall be treated alike fairly and justly and which is the requirement of our faith and of a civilized society.

(23) In the United States Engraved in stone on the Department of Justice Building in Washington where swa rms of bureaucrats and others pass by are the words from William Pitt and these are: "Where law ends tyranny begins". For most of the systems of Government in the civilized world this quotation may not be true. However, it can be said that where law ends, discretion begins and the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness.

(24) What is meaning of discretion and what are the requirements for its just exercise. Discretion is a tool, indispensable for individualization of justice. All governments in history have been governments of laws and of men, rules alone, untampered by discretion, cannot cope with the complexities of modern government and of modern justice. Discretion is our principal source of creativeness in government and in law. Yet every truth extolling discretion may be matched by a truth about its dangers: Discretion is a tool only when properly used; like an axe, it can be a weapon for mayhem or murder.

(25) In the case of Rookke's (1598), 5 Co. Re. (9-b) and as per Lord Halsbury in the case of Sharp v.

Wakefield (1891) A.C. 173, 179, the meaning of discretion was given as:-- ' Discretion means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself.

(26) In an Australian case Shirmpton v. Commonwealth (1945), 69 CLR 613, at page 620, it was described as:-- ' It has been held in this Court in a series of cases, that a discretion or power to grant a licence, though conferred in very general terms, does not entitle the authority to which the discretion is granted, or upon which the power is conferred, to take into account what have been described as extraneous conditions. The discretion must be used and the power exercised bona fide and with the view of achieving ends of objects not outside the purpose for which the discretion or, power is conferred.

(27) The need, therefore, arises for structuring discretion. In the words of Professor Kenneth Culp Davis, an authority on administrative law, a discretion should fulfil the following requirements; (i) open plans; (ii) open policy statement; (iii) open rules; (iv) open finding; (v) open reasons; (vi) open precedent and fair informal procedure. Obviously, when discretion is to be structured, the object is its regularization, its organization and giving it an order.

(28) When the Government aims at privatization, it enters into a commercial world like a private seller. It is bound by the norms of marketing and commercial activity. When it enjoins sale through bidding of its largesse, it has to follow all what market believe in and what public expects.

Obviously, if the result achieved at the time of bidding are not to be approved, there is demand of propriety and also of reasonableness that the successful bidder is informed of the reasons for the non-acceptance of his bid and of providing him an opportunity of any view or explanation that he may be having about the rejection proposal so that his legitimate expectancy gets a satisfactory answer.

(29) In the case of v. Secretary of State for the Home Department, ex parte Khan (1985) ALL ER) on the question of legitimate expectancy, the following words were of the Court of appeal.

' "Where a member of the public affected by a decision of a public authority had a legitimate expectation based on a statement or undertaking by the authority that it would apply certain criteria or follow certain procedures in making its decision, the authority was under a duty to follow those criteria or procedures in reaching its decision, provided that the statement or undertaking in question, provided that the statement or undertaking in question did not conflict with the authority's duty. Thus, where the Secretary of State undertook to allow persons to enter the United Kingdom if certain conditions were met he could not resile from that undertaking without affording interested persons a hearing and then only if the overriding public interest required it. Accordingly, since a recipient of the Home Office Circular, such as the applicant, would have a reasonable expectation that the criteria and procedures there set out would be followed and since (per Dunn, U) those criteria and procedures in effect constituted rules made by the Secretary of State for deciding applications for entry, it followed that, vis-a-vis a recipient of the Circular, the Secretary of State could only apply different criteria and procedures in regard to granting leave to a child to enter for the purpose of its adoption if he first gave the recipient of the Circular a full opportunity of making representations Why in his particular case criteria and procedures different from those set out, in the circular ought not to be followed. In the circumstances, the Secretary of State had acted unfairly and unreasonably in deciding the applicant's application for entry clearance for the child by applying different criteria from those set out in the circular.

' Accordingly, the appeal would be allowed and the refusal of entry clearance quashed."

(30) The facts of this case reveal that the decision taken by respondent No,4 i.e,, the Cabinet Committee on Privatization violates the principle of natural justice because while taking a deviation from the recommendations on the basis of the summary submitted to it, it ought to have provided a fair opportunity to the appellant of explanation as to why his bid was cancelled.

(31) It is true that a higher bidder has now come on the scene at the time of the second bid where the appellant was absent for reasons expressed by him. But the question is not only of economic alone. It is also of Government's credibility without which the confidence of the people which they repose in a Government, can get shattered. This can be a bigger rather than an irreparable loss.

Besides, a civilized society does not sacrifice property, the rule of law and of natural justice and norms of business for just some amounts of money. Whereas, every citizen supports the Government's efforts for getting the maximum profit against the sale of its largesse, but the citizens would equally require observance of propriety and norms known to the society.

(32) As the Cabinet Committee for Privatization was taking an aberration from what was recommended to it by the Privatization Commission and the Board of Directors of the Sui Northern Gas Pipelines, the propriety and norms required provision of an opportunity of hearing to the appellant and as this was not done, a wrong has come into being and this calls for correction.

(33) Incidentally, it may be mentioned that although pre-admission notices were issued to the respondent's side, a full-fledged hearing has taken place before this Court and, therefore, we are inclined to dispose of this appeal today.

(34) We are of the view that the matter ought to be referred to the Cabinet Committee for Privatization so that it may provide an opportunity of hearing to the appellant and taking a decision that it may deem fit and proper while keeping in view the principles of fairness and justice.

(35) We, therefore, direct the Cabinet Committee on Privatization i.e,, respondent No,4 for the needful and ask respondent No,2 to arrange for this opportunity with convenient dispatch. The early disposal of the matter, therefore, now rest with respondent No,4. However, it will be in the interest of justice that we further direct that until the appellant is heard and a decision is taken by respondent No,4, respondent No,2 shall not physically pass on the assets of the SNGPL to the highest bidder of the second auction, We have also noticed that in Calicon (Pvt.) Ltd. v. The Federal Government of Pakistan (supra), the leave was not refused on the ground that writ petition was not maintainable but on the ground that it was not agreed "that the petitioner has been dealt with either Unfairness or with arbitrariness".

(36) Under the circumstances, we are of the view that the writ petition in this case was competent and we dispose of the appeal and the writ petition accordingly. There is no order as to costs."

27. Learned Senior Counsel further cited Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police and others PLD 1992 Karachi 283, wherein following observations were recorded at page 290:-- ' "In the case before us the petitioner has alleged that the 'Bell Helicopter' offered by them and respondent No,3 were same in all respects including the specification, while the prices offered by the petitioner were much lower than the prices quoted by respondent No,3. It is also contended by the petitioner that the Purchase Committee constituted by the Government to consider the offers of petitioner and respondent No,3 also found the offer of petitioner much lower than the offer of respondent No,3 and accordingly recommended to the Government to award the contract to the petitioner. On the above premises, it is contended by the petitioner that the award of contract for purchase of Helicopter to Respondent No,3 by the Government in the above circumstances, not only amounted to the denial of the legitimate right of petitioner to obtain the above contract, but it also showed an arbitrary and unfair exercise of discretion by the Government in selecting a contracting party, resulting in loss to the public exchequer. The above allegations of the petitioner do make out a case for consideration by the Court in exercise of its power under Article 199 of the Constitution. We, accordingly, overrule the preliminary objection raised by the respondents and held that the petition is maintainable."

28. Learned Senior Counsel further cited Amanullah Khan and others v. The Federal Government of Pakistan and others PLD 1990 SC 1092, wherein following observations were recorded at para. 62:-- "(62) Not with a view to interpret or to limit or to extend the language of the provisions contained in the Ordinance but with a view to understand how others more entrenched in rule of law, have dealt with the same situation and the same problems, one can refer to similar legislation elsewhere. As pointed out, in the United Kingdom, Prevention of Fraud (Investment) Act, 1958, makes the matter of grant of registration referable to a Tribunal whose recommendation is made binding on the Board of Trade which administers the law. In India, in the Securities Contracts (Regulation) Act, 1956, instead of registration of the stock exchange, the words 'recognition of stock exchanges' have been used and in subsection (4) of section 4 provision is made that "no application for the grant of recognition shall be refused except after giving an opportunity to the stock exchange concerned to be heard in the matter and the reasons for such refusal shall be communicated to the stock exchange in writing"." Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Culp Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow, in our context, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by rules, or policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times."

29. Learned Senior Counsel further cited Chairman, Regional Transport Authority, Rawalpindi v.

Pakistan Mutual Insurance Company Ltd. Rawalpindi PLD 1991 SC 14, wherein following observations were recorded in Paras. Nos. 16 to 23:- "(16) It is not disputed that the statute conferred a power on the Regional Transport Authority under section 49, relatable to the requirement of section 67 of the Ordinance. The nature of such a power and the duties appurtenant to its exercise have been dealt with in American Jurisprudence 2nd Edition Volume 63-A (Public Officers and Employees) sections 7, 308, 315 and 317 in the following words:- ' "A public office is a public agency or trust created in the interest and for the benefit of the people, and since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated to the officer are held in trust for the people and are to be exercised on behalf of the government or of all citizens who may need the intervention of the officer. Such trust extends to all matters within the range of the duties pertaining to the office. In other words, public officers are but the servants of the people and not their rulers. A public officer is amenable to the rule which forbids an agent or trustee to place himself in such an attitude towards the principal or cestui que trust as to have his interest conflict with his duty Where a statute is silent With respect to the time within which an official act must be performed the law contemplates that the duty must be performed within a reasonable time. A public official who undertakes, to perform an act, even an act which is completely discretionary, must do so reasonably and in complete good faith without such delay as would frustrate its ultimate objective One who accepts a public office does so cum onere, or with the burden, and is considered as accepting its burden and obligations with its benefits. He thereby subjects himself to all constitutional and legislative provisions relating thereto and undertakes to perform all the duties of the office, and while he remains in such office the public has the right to demand that he perform such duties. The acceptance of every public office implies an agreement on the part of the officer that he will execute its duties with diligence and fidelity. The duty of the public officer to fulfil the obligations of his office should take precedence over all other matters..Every public officer is bound to use reasonable skill and diligence in the performance of his official duties, particularly where rights of individuals may be jeopardized by his neglect. In other words, he is bond, virtue officii, to bring to the discharge of his duties that prudence, caution, and attention which careful men usually exercise in the management of their own affairs."

(17) Wherever wide-wofded powers conferring discretion are found in statute, there remains always the need and the desirability to structure the discretion and the need for this has been pointed out in the Administrative Law test by Kenneth Culp Davis in the following words:- ' " Structuring discretion means regularizing it, organizing it, , producing order in it, so that decisions will achieve a higher quality of justice ..The seven instruments that are most useful in the structuring of discretionary powers are open plans, open policy statements, open rules, open findings, open reasons, open precedents, and fair informal procedure.. When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules. The movement from vague standards to definite standards to broad principles to rules may be accomplished by policy statements in any form, by adjudicatory opinions, or by exercise of the rulemaking power ........ When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules."

(18) In our context, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the powers and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by rules, or policy statements or Precedents, the Court have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times. The Provincial Government was empowered to frame the rules. It did not.

The authority possessed of the discretion prepared no guidelines informing the public of the manner of the exercise of this power. The discretion of the authority entrusted with the power and its own apathy is clear from the facts narrated that as long as the respondent approached it, and it did by letters, dated 9th July, 1979, 25th February, 1980 and 13th March, 1981, the authority did not even acknowledge it. From the correspondence reproduced, it appears that orally the authority responded calling upon the respondent to get the law amended. It was neither within the power and competence of the respondents/ Insurance Company nor of the Authority itself to have got the law amended. The response amounted to asking the respondent to perform the impossible. It was in this situation that the respondent had no alternative but to go to the higher Authority and it is only when communications were received from the Government that the Authority responded in its own fashion, even then not referring at all to the applications earlier filed by the respondent. It is clear, therefore, that a legal right is created, and it is enforceable at law by the beneficiary, where a public power has been conferred on an Authority and the authority remains silent about its exercise.

(19) It is true that in the absence of the rules, the enacted law of the legislature contains no provision with regard to filing of an application. Such an omission in the substantive law is understandable. In any case, the law does not prohibit the party from filing such application. Article 4(2)(b) of the Constitution guarantees to the citizen that 'no person shall be prevented from or to be hindered in doing that which is not prohibited by law'. It is not for the statutory authority to call upon the respondent to show which provision of the law provides for the filing of such an application, but to deal with it and show itself the law which prohibits making of such an application. The authority was passing on its own burden to the beneficiary of that power.

(20) The discretion exercised by the appellant in this case suffered from two defects. In the first place, it took into consideration the statutory deposit which was required to be made by each Insurance Company at the time of its incorporation and registration.

' That was the requirement of the law. That had to be satisfied. The amount deposited depended on the time when the company was registered. The difference between the amounts was no indication of the solvency of the company. In adopting a yardstick which was wholly irrelevant, unjustified and improper under the law, the appellant reached a conclusion which could not be arrived at if that element had been ignored. Secondly, in exercising discretionary powers, one has to deal without discrimination, fairly, justly and reasonably. On the facts of the case, it is clear that the Regional Transport Authority had two cases to examine. It examined both of them, applied wrong standards and granted relief to one denying to the other. What it ignored was that the respondent had approached it directly. It had done so earlier than the other. It was already so registered and recognized by other Regional Transport Authorities. It had repeated its requires to it directly. It was only when such request remained unresponded for long that it approached the higher authority. The other who came not directly, but through, the higher authority and at a later date, was accommodated more readily than the respondent. Such a treatment negates the very assertion of the appellant that the discretionary power should not be affected by the superiors or quarters non-statutory in character. It is out of compulsion that in this case the respondent had to approach the superiors.

(21) The High Court has not substituted its own discretion. It has indicated the manifest mistake committed in handling the case and entrusted the matter back to the Authority pointing out the standards which had to be adopted.

(22) The learned counsel for the appellant was somewhat sensitive to the observation made that the exercise of power by the Regional Transport Authority and its functionaries was mala fides, taking it to be mala fidcs of fact rather than of law. There was no ground made out nor assertion made to indicate any mala fides of fact against any functionary of Regional Transport Authority. It was mala fides in law which was alleged and found established by the High Court and it is only this finding which has been upheld by this Court.

(23) No merit is found in this appeal and the same is dismissed with costs."

30. Learned Senior Counsel further cited Government of N.-W.F.P. And others v. Mejee Flour and General Mills (Pvt.) Ltd. Mardan and others 1997 SCMR 1804, wherein following observations were recorded at paras 5 to 12.

"(5) As regards the application and effect of discrimination between the business concerns of identical nature, placed under the similar circumstances, reference was again made to the case of Messrs Asif Flour Mills (supra) wherein it had been noticed that "leaving aide the so-called 27 approved Flour Mills 9 others such Mills not included in the so-called approved list were given an out of turn quota." Para. 8 of the aforenoted reported was also referred to emphasize that the policy governing the allotment of wheat quota to the Flour Mills was everything else than objectivity so far as the Government was concerned which in effect had always remained "the subjective will and approach of the authorities"; that the unbridled discretion was guided in this regard by caprice and whims of those who were at the helm of affairs, inasmuch as "sometime the quota was refused to the Mills which they had conceded to them notwithstanding having been placed on approved list while sometimes it was issued to as many as nine Mills aforesaid despite having not been placed on such list". While depreciating the resort of the government to the process of 'pick and choose' the propriety and legality of the impugned notification purportedly issued under section 3 of the Act was disapproved on the premise that "the government in the cases of expediency can have resort to appropriate measures for maintaining supplies of foodstuffs and not withholding the supplies". The rationale derived from it was equitable and not inequitable distribution. In consequence all the writ petitions were accepted and the government functionaries were directed to release wheat quota to the Mills.

(6) Mr. Muhammad Azam Khan, learned Additional Advocate- General, N.-W.F.P. While making reference to Article 25 of the Constitution conceded that "all citizens are equal before law and are entitled to equal protection of law" but urged with vehemence that the State was not prohibited from making reasonable classification for extending such protection. He then invited our attention to Article 18 of the Constitution and maintained that subject to such qualification, if any, as may be prescribed by law, every citizen has the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. In the instant case, according to him, grant of wheat quota to the Mills was sought to be regulated due to acute shortage of wheat which was a bona fide compulsion squarely falling under proviso, (a) to Article 18 of the Constitution.

(7) We are conscious of the settled principle inherent in the clause providing or equality before law that mere differentiation or inequality of treatment does not per se amount to discrimination. But we are in manner of doubt that it is necessary to show that selection or differentiation is not unreasonable or arbitrary. The first question to be considered now is whether the refusal to grant wheat quota was either repugnant to clauses of 'equality before law' and 'equal protection of law' guaranteed by Article 25(1) or was it violative of article 18 of the Constitution.

(8) If the restriction on supply of wheat quota has been equally imposed on the Flour Mills without any discrimination then it could perhaps be legitimately contended that the differentiation was reasonable due to acute shortage of wheat. It is, however, regretful that during almost the same period even those Flour Mills by Mejee Flour Mills in their petition were granted wheat quota which were not on approved list.

(9) Mr. A.K. Brohi, in his treatise Fundamental Law of Pakistan while elaborating his notion of inequality aptly remarked:- "There are, let us note, various kinds of inequalities; inequality amanating, for example, from economic disquilibrium observable in our society, and this inequality in its turn leads up to the denial of equal opportunity for all. Then there is what might be called, political inequality, which leads up to disenfranchisement of a vast section of the people of a given country and thus inevitably involves the deprivation of the right of the people to participate in the political life of the state. The ideal of political equality can only be realized by universal suffrage and free participation in the representative institutions by recourse to which modern democratic states are functioning.

Similarly, there is such a thing as social inequality; the growth of humanism has brought about the liberation of people from the thralldom of slavery and the evil of untouchability and such other social abominable practices which deprive people of an honourable place as free citizens in a democratic society. To this list of inequalities might be added the inequality which results from racial pride; this, again finds its culmination in the dogma that only those who have blue blood in their veins are capable of taking part in the political, civic and economic activities of the State.

' Historically considered, the notion of human equality has arisen as a protest against the practice of magnifying artificial distinctions between man and man based on considerations like wealth, purity of blood and religious superstition and making these as criteria for determining the status of each individual in the total legal order.

' If the judicial administrative organs of the State while applying the law were to discriminate between man and man and exercise what may be characterized as arbitrary authority in singling out some person for discriminatory treatment they \ would be acting counter to the ideal of equality before law which has been proclaimed by the framers of the Constitution in the first part of the clause of Article 5 an Article which declares that all citizens are equal before law."

' It would thus be noticed that notion of human equality had emerged as a reaction to abhorring artificial distinction between man and man or between one class of men and another class based on consideration, inter alia, of personal like and dislikes under the garb of discretion.

(10) In this Treatise 'Discretionary Powers' which is Legal Study of Official Discretion D.J. Galligan has acknowledged that "the general principles that discretionary decisions should be made according to rational reasons means: (a) that there be findings of primary facts based on good evidence, and (b) that decisions about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner". According to the celebrated author, the actions which do not meet these threshold requirements are arbitrary, and may be considered a misuse of powers. In Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092, Shafiur Rahman, J., who was sitting the Full Bench has very ably propounded by now well-known doctrine of 'Structuring the discretion' in the following paragraph of the report at page 1147:- ' "Wherever wide-worded powers conferring discretion exist, there remain always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Culp Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure.

Somehow, in our context, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at time."

(11) The impugned action of the petitioners when placed on the touchstone of structuring the discretion we come to the irresistible conclusion that the cases like the one before us provides ample justification for interference in the illegality and procedural impropriety bordering on the irrationality in an officials action through the judicial review of the impugned action.

12. For the foregoing reasons we are of the considered view that the learned Division Bench in the High Court while granting relief to the respondents has committed no illegality of the nature calling for our interference. The petitions having no merits are accordingly dismissed."

31. Learned Senior Counsel also cited Abid Hassan and others v. PI AC and others 2005 SCMR 25, wherein following observations were recorded at paras. 14 to 19 as under:-

(14) In this Treatise 'Discretionary Powers' which is Legal Study of Officials Discretion D.J. Galligan has acknowledged that "the general principles that discretionary decisions should be made according to rational reasons means: (a) that there be findings of primary facts based on good evidence, and (b) that decision about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner". According to the celebrated author, the .

Actions which do not meet these threshold requirements are arbitrary, and may be considered a misuse of powers. (Emphasis provided).

(15) In Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092 Shafiur Rahman, J., who was sitting in the Full Bench has very ably propounded by now well-known doctrine of 'Structuring the discretion' in the following paragraph of the report at page 1147 "Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Culp Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. (Emphasis provided). Somehow, in our context, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times."

Government of N.-W.F.P. v. Mejee Flour and General Mills (Pvt.) Ltd. 1997 SCMR 1804.

(16) The Judicial consensus seems to be that the functionaries of any organization or establishment cannot be allowed to exercise discretion at their whims, sweet- will or in an arbitrary manner; rather they are bound to act fairly, evenly and justly. Amanullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092, Chairman R.T.A. v. Pakistan Mutual Insurance Company PLD 1991 SC 14, Pacific Multinational (Pvt.) Ltd. I.G. Of Police PLD 1992 Kar. 283, Presson Manufacturing Ltd. v. Secretary, Ministry of Petroleum and Natural Resources 1995 MLD 15, Ramana v. I.A. Authority of India AIR 1979 SC 1628, Dwarka Nath Prasad Atal v.

Ram Rati Devi AIR 1980 SC 1992, Ram and Shyam Company v. State of Haryana AIR 1985 SC 1147 and Nizamuddin v. Civil Aviation Authority 1999 SCMR 467.

(17) The orders, dated 29-10-2003 and 3-11-2003 when examined on the touchstone of criterion as mentioned hereinabove, the only irrefutable conclusion would be that the case in hand provides ample justification for interference in the illegality and procedural improbability bordering on the irrationality in a final action which is justiciable and can be examined to see as to whether the selection for training was made in a transparent and fair manner or otherwise?

(18) We are,in agreement with Mr. Raja Qureshi, learned Advocate Supreme Court on behalf of petitioners that the impugned order is designed to deprive the petitioners of their valuable vested and substantive right to proceed on training on Boeing 777 which is professionally higher in category with better technology than Airbus-310, which would certainly result in heavy professional and financial loss to the petitioner. By now 27 Pilots out of 34 have been sent for training on Boeing 777 in U.S.A. In accordance with the Training Policy and seniority and the petitioners cannot be deprived from such training without any reason which would have substantial bearing on their future prospects. We may point out here that there is need to rescind all discretionary powers in the hands of those enjoying authority in P.I.A.C. Which should be exercised in accordance with Rules and Regulations which have no element of arbitrariness in them. In future such selection must be fair, transparent and in accordance with the Training Policy and not behind screen of secrecy and doubts which would be in the interest of P.I.A.C., itself as whimsical and arbitrary action create acute feeling of dismay, despair, despondency and deprivation which could affect the performance of P.I.A.C. In our considered view such selection must be made on merit/fitness and seniority.

(17) These are the reasons for our short order, dated 14-9-2004 which is reproduced hereinbelow for ready reference:- ' "For the reasons to be recorded later on, these petitions are converted into appeals and the same are allowed. The impugned judgment, dated 30-1-2004 of Federal Service Tribunal, Islamabad, is set aside and these appeals are decided in the following term:- ' "The respondents Nos.1 to 5 shall consider the nomination of appellants for training on Boeing 777 at USA in the next training course there."

32. Learned Senior Counsel further cited Watan Party v. Federation of Pakistan and others PLD 2006 SC 697, wherein following observations were recorded at Page No,718 Paras 22 to 27:-- "(22) Now we turn to the question relating to availability of alternate remedy to petitioner in terms of sections 27 and 28 of the Privatization Commission Ordinance, 2000. For facility of reference both these sections are reproduced hereinbelow:-- "27. Investigations.----(1) The Federal Government any of its agencies authorized by it, may of its own or on a complaint oversee, scrutinize or investigate any privatization transaction within one year of the completion of the privatization.

(2) After the expiry of the period referred to in subsection (1), the Federal Government or any of its agencies shall not be empowered to carry out any such scrutiny or investigation.

28. Jurisdiction of High Courts.----Notwithstanding anything contained in any other law for the time being in force, the High Court shall exercise exclusive civil and criminal jurisdiction---

(a) to adjudicate and settle all matters related to, arising from or under or in connection with this Ordinance;

(b) to adjudicate and settle all matters transferred pursuant to section 31; and

(c) to try offences punishable under this Ordinance."

(23) Learned counsel Mr. Abdul Mujeeb Pirzada contended that the Federal Government itself is petitioner in one of the petitions (C.P. No,394 of 2006), in the memo. Of the petition it is supporting the process of privatization as prayer has been made for the dismissal of petition filed on behalf of the Workers Union before the High Court bearing C.P. No,D-240 of 2006. Besides from day one when the proceedings started the matter was discussed at considerable length wherein number of omissions and commissions in the privatization of the project under consideration have been pointed out which according to him were sufficient to annul the Letter of Acceptance (LOA), dated 31st, March, 2006 and the subsequent Share Purchase Agreement between the parties, dated 24th April, 2006. But no concern was shown at all on its behalf, therefore, under these circumstances availing an opportunity to lodge complaint before the Federal Government in terms of section 27 of the Ordinance would be nothing but a futile exercise. In this behalf he has placed reliance on Anjuman-eAhmadiya, Sargodha v. The Dy. Commissioner Sargodha PLD 1966 SC 639 and The Murree Brewery Co. Ltd. v. Pakistan through The Secretary to Government of Pakistan Works Division PLD 1972 SC 279. He also submitted that because he is challenging the very vires of the Ordinance, he cannot be compelled to avail the so-called remedies.

(24) Syed Sharif ud Din Pirzada, learned Advocate Supreme Court for the Privatization Commission opposed the arguments put forwarded by Mr. Abdul Mujeeb Pirzada learned Advocate Supreme Court and stated that in presence of a statutory remedy the petition under Article 199 or Article 184(3) of the Constitution is not maintainable.

(25)Learned Attorney-General contended by relying on the principles laid down in the Chairman East Pak Railway Board Chittagong and others v. Abdul Majid Sardar, Ticket Collector Pak Eastern Railway Laksam PLD 1966 SC 725 and Lahore Improvement Trust, Lahore through its Chairman v.

The Custodian Evacuee Property West Pakistan Lahore PLD 1971 SC 811 that "the Court to explore possibility of every possible explanation for the validity of an order passed by public authority," suggested resort to section 27 of the Ordinance by making reference to the Federal Government for the purpose of further probe into the case to examine the legality and validity of transaction.

(26) It is important to note that as far as the principle of law discussed in the cases of Anjuman-e- Ahmadiya, Sargodha and Lahore Improvement Trust ibid is concerned, there is no cavil with the same and we with utmost respect approve the same. But at the same time, we have also to keep in mind another very important principle of law enunciated by this Court in the case of Syed Ali Abbas v. Vishan Singh PLD 1967 SC 294, i.e,, petitioner cannot be refused relief and penalized for not throwing himself again (by way of revision of review) on mercy of authorities who are responsible for such excesses. This principle has to be read along with the principle laid down in the case of Anjuman-eAhmadiya, Sargodha ibid wherein it has been held that if an adequate remedy provided by law is less convenient, beneficial and effective in case of a legal right to performance of a legal duty, the jurisdiction of the High Court can be invoked. Similarly this principle has been reiterated in the Murree Brewery's case ibid wherein it has been held if a statutory functionary acts mala fide or in a partial, unjust and oppressive manner the High Court in exercise of its writ jurisdiction has power to grant relief to the aggrieved party.

(27) Thus we are of the opinion that under the circumstances of the case, it would not be in the interest of justice to push the petitioners back to the authority who had already exercised the jurisdiction and is insisting that the action so taken by it is not only in accordance with law as it suffers from no legal discrepancy or infirmity but is also transparent. Therefore, under the circumstances, referring the case of the petitioner to the Federal Government or this Court directing investigation under section 27 of the Ordinance would be inappropriate and an exercise in futility and it would also not serve the interest of justice."

33. Thus, in accordance with the settled principle of law, the latest trend of the superior Courts in Pakistan is to enlarge the scope of judicial review and, therefore, the availability of an alternate remedy for matter involving contractual obligations should not impose a hurdle in the exercise of powers of judicial review under Art. 199 of the Constitution, as it is too wide and 'sweeping to be adopted in every case; further that if in a particular case both parties admit the factual aspects which give rise to the dispute and the Court feels that matter is of such urgent nature that the very remedy would get frustrated if the aggrieved party is directed to seek redress through an alternate remedy available under the law, then, in that case it would be proper for the Court to entertain the writ petition. So also, it is further a settled principle of law that if it. 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 the very purpose of law under which the competent Courts are established and vested with jurisdiction under the law.

34. It is also a settled principle of law that discretionary decision should be made according to rational reasons, and there should be finding of primary facts based on good evidence, and the decisions about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner, and very actions which do not make the threshold requirements as B mentioned in discretionary decisions, the same became arbitrary and may be considered as misuse of power.

34-A. The document available on the file of this petition are clearly indicative of the facts that the matter was referred by the Sindh Privatization Commission for privatization of respondent No,5, and respondent No,2 conveyed to the other respondents also about instructions to complete the rehabilitation of the Lakhra Power Generation Plant (LPGP), so as to increase its available capacity from 30 MW to 84 MW, and the respondent No,1 was to facilitate studies of the same by parties who intended to make proposals for lease, rehabilitation and operation of the plant at the risk and cost of said parties. Further that the matter of privatization of Lakhra Power Generation Company

(LPGC) and Lakhra Coal Development Company (LCDC) was referred back by the Government of Sindh to the Government of Pakistan for privatization. Through Federal Privatization Commission and Government of Pakistan was requested to transfer the share held by Government of Sindh in LCDC out of privatization proceeds.

35. The respondents have denied in clear terms of any pre-selection of respondent No,6 in the month of January, 2006 or on any later date to give them "right of first refusal" for the lease of Lakhra Power Generation Company". On the other hand it is the case of the respondents that, "for the reason that respondent No,6 had earlier made investments for developing the proposals with rehabilitation of the said project and, therefore, thaf the first instance was offered some incentives for the purpose of leasing out of the plant in question, but the final decision in the matter was the one taken at a subsequent meeting held on 13th July, 2006, whereafter, both the petitioner as well as respondent No,6 were asked to give their revised offers, respectively, on specified technical and financial aspects, informing both of them that decision to be taken was to be baud on lowest levelized offer tariff; further that the tariff earlier quoted by both the petitioner and respondent No,6 were on the higher side and a meeting was held on 13th July, 2006, whereby both were asked to give their revised offers, and respondent No,1 categorically issued commitment that the decision will be based on the lowest levelized offer tariff and that the same was taken accordingly, and that the "first right of refusal" was no more available to respondent No,6; further respondent No,1 carried out "an apple to apple comparison" of the two bids offered by the petitioner as well as respondent No,6 and took the final decision on 12th August, 2006 on such a basis, and that no manipulation of any number/figures at any level of the working/functioning of the respondent No,1 was adopted; it is further pleaded that the award of the lease in favour of respondent No,6 was not based on "right of first refusal", but only for the reason that levelized tariff offer of respondent No,6 was found lower than that of the petitioner.

36. The documents available on the file of this petition clearly indicate that the plaint in question was not yielding the required fruits and therefore, at the first instance, the Sindh Government as well as the Government of Pakistan had taken steps towards privatization of the said plant, but the Government of Sindh could not achieve required objectives and, therefore, the Sindh Cabinet Committee on Privatization took the decision on 11th May, 2006, to refer back the privatization of the Lakhra Power Generation Company and Lakhra Coal Development Company to the Government of Pakistan for privatization through Federal Privatization Commission, Islamabad, by further making a request to transfer the shares held by the Government of Sindh therein to them and the matter was referred to respondent No,2 accordingly.

37. Further that it was then found necessary to first make arrangements for rehabilitation of the said plant to increase the available capacity of the Lakhra Plant in the public interest and, therefore, the lease in question was thereby awarded in favour of respondent No,6 through the due process of law. It has also come on the record that NEPRA was also approached for the determination of the tariff but NEPRA replied that only licensee would be competent to make such a reference for fixation of the tariff and, therefore, the decision from NEPRA could not be obtained.

38. In this regard, learned counsel for the respondents Nos.1 and 5 placed on file a statement regarding comparison of the offers made by the petitioner Habibullah Energy Limited and respondent No,6 Associated Group, the contents of which read as under:-- ' "On basis of production and sale/purchase of 571,000,000 Kwh of electricity and exchange rate of US $ 1.00 = Rs .60.00

(1) AG's (ostensible) offer as per letter, dated 21-7-2006 was 4.398 cents/kwh I . e . 4 .398/100 x 571,000,000 x 60 = Rs.150,67,54,800 which was corrected to 4.468 cents/kwh as per item note, dated 8-8-2006 i.e, 4.468/100 x 571,000,000 x 60 = Rs.153,07,36,800.

2. HEL's (ostensible) offer as per letter, dated 21-7-2006 was 4.432 cents/kwh i.e, 4.432/100 x 571,000,000 x 60 = Rs .151 , 84 ,03, 200 which was corrected to 4.646 or 4.493 cents/kwh on basis of 5% or 2% devaluation i. e . 4 .646/100 x 571,000,000 x 60 = Rs.159,17,17,600.

OR 4.493/100 x 571,000,000 x 60 = Rs.153,93,01,800

(3) A.G's. (ostensible) offer, dated 21-7-2006 was better than HEL's (ostensible) offer, dated 21-7- 2006. Similarly AG's corrected offer was/is better than HEL's corrected offer (item note, dated 8-8- 2006 refers).

(4) In May, 2006 both HEL and AG had quoted 5.173 cents/kwh (with different conditions) i.e, 5.173/100 x 571,000,000 x 60 = Rs.177,22,69,800 [Saving of over Rs.20 crore p.a.; Rs.480.500 Cr. In 20 years] ' Note: Ans 2006 Rs.60.00 = $ 1.00 April, 2008, Rs.63.00 = 1.00 5% devaluation in less than 2 years."

39. Learned counsel for respondents Nos.1 and 6 argued that the technical scrutiny of the above stated rates offered by the petitioner on the one hand and the respondent No,6 on the other would show that the offer submitted by the respondent No,6 was beneficial to the respondent No,5, which was at a lower rate than the one made by the petitioner.

40. In this regard, learned counsel for the said respondents has placed reliance on Meraj Din v. Noor Muhammad and others 1970 SCMR 542, Munshi Muhammad and another v. Faizanul Haq and others 1971 SCMR 533, Javaid Iqbal Abbasi & Company v. Province of Punjab and others 1996 SCMR 1433 and Rashid Mehmood v. Administrator, District Council PLD 1997 Lah. 407 to argue that a loosing bidder has no vested right and non-acceptance of the bid offered by him does not cause prejudice to him.

41. Learned counsel further argued that WAPDA neither approved by the proposal nor signed the Memorandum of understanding presented by the respondent No,6 vide their letter, dated 6-1-2006 and instead vide, letter dated 25-3-2006, WAPDA wrote a letter to six other parties who had earlier expressed interest in the rehabilitation, leasing etc., of the plant in question, and the petitioner was also issued the said letter to submit their proposals, but no response was received by the respondent No,1 and WAPDA did not thereupon accept the offer of the respondent No,6 and instead, issued a letter, dated 21-4-2006 to all the six parties, inclusive the petitioner, to submit their proposals and finally the petitioner responded to WAPDA's request as per proposal, dated 22nd May, 2006. Further that the proposal of the petitioner on the one hand and the respondent No,6 on the other were referred to NEPRA vide WAPDA's letter, dated 2-6-2006, along with a comparison chart and no tilt was shown towards respondent No,6, as NEPRA was specifically informed "WAPDA is keen to lease out this plant whereas tariff quoted by both the groups seems to be on higher side which may be reviewed keeping in view our analysis/ recommendations"; NEPRA declined to give its views/recommendations vide its letter, dated 7-7-2006 because its jurisdiction is to be exercised only when a licensee applies for modification of its tariff in accordance with the NEPRA (Tariff Standard and Procedure) Rules, 1998.

42. The respondents have taken a very clear stand that WAPDA's final decision, dated 12th August, 2006, on the two competing bids, was based on "the lowest levelized offered tariff" and offer of respondent No,6 was correctly adjudged to be on the lower side, and was granted the lease, dated 11th September, 2006, not after holding that offer the petitioner was lower nor giving respondent No,6 the "first right of refusal" but on the correct finding that offer of respondent No,6 was on the lower side and that "right of first refusal" given to the respondent No,6 on 13th May, 2006 played no part whatsoever in the final decision, dated 12th August, 2006.

' The comparison-chart of the offers of the contesting parties would be as under:-- HEL Rs/KwhUS Cent/kwh 1Fuel Cost 1.211 2.018 2Variable O & M 0.7501.250 3.Energy Purchase price (1 + 2)1.961 3.268 4.Fixed O&M 0.4300.717 5.,Insurance Cost 0.0900.150 6.Return on equity 0.0650.109 7.Escalable component (4+5+6)0.5850.976 8Debt Service 0.113 0.188 9.Capacity purchase price(7+8)0.6981.164 10Total Levelized Tariff 2.6594.432 11Adjusted levelized Tariff 2.6964.493* AG Group Rs./KwhUS Cents/Kwh 1.362 2.270 0.601 1.061 1.963 3.271 0.0461 0.768 0.014 0.023 0.049 0.082 0.524 0.873 0.152 0.254 0.676 1.127 2.639 4.398 2.681 4.468+ ' An assumption of 2% per annum depreciation in value of rupee (relevant to debt service) for next 20 years. + After including impact of customs duty, WAPDA plant insurance and 100% WAPDA staff."

43. As per section 8(2)(vii) read with explanation to section 8(2)(5) a decision is to be passed by WAPDA, it being its statutory function, to decide the matter of leasing of its properties and in this behalf to decide which of the two competing bids was in the best interest of WAPDA, and under section 2(f) of Public Regulatory Authority Ordinance, 2002, and Public Procurement Rules, 2004 framed thereunder, it is for the procurement agency to decide which the two bids was to be accepted, and also to properly appreciate rule 47 of the said rules and the relevant documents relating to evaluation of bids was made basis for acceptance of offer of the respondent No,6 which was found to be in the best interest of public/WAPDA.

44. It is further argued that the petitioner had alternate remedy under rule 48 for redressal of their grievance, but they did not avail the same and the NEPRA had no function/power to decide which of the two competing bids for lease of the Power Plant is better one and the NEPRA comes into the picture only after the new lessee had signed the Power Purchase Agreement with WAPDA's National Transmission Dispatch Company (NTDC) and after the lessee takes over possession of the Plant, whereafter NEPRA has to be approached by the new lessee/,licensee for fixation of D tariff.

45. It appears that the difference between the two offers made by the competing parties was small but the offer of the respondent No,6 was found to be better one for the reason that on an annual basis offer of respondent No,6 US Cents 4.468/kwh, worked out as 4.468/100 x 571,000,000 x Rs.60 = 1.53,07,36,800 payable for guaranteed supply of 571 million Kwh of electricity, while offer of the petitioner of US Cents 4.493/Kwh would, have" involved 4,493/100 x 571,000,000 x Rs.60 = Rs.1,53,93,01,800 and the difference between the said two figures is claimed by the respondents to be saving of public money of Rs.85,65,000 per annum or Rs.17,13,00,000 over the period of 20 years of the lease.

44. It is the case of the respondents that by not taking a decision on the basis of offers as they stood on 22nd May, 2006, (which were referred to NEPRA on the said date) and instead taking the matter to the presidency and inviting revised offers vide WAPDA, letter, dated 17-7-2006, WAPDA managed reduction (in offered rates) from 5.173 US cent/Kwh to finally accepted Tate of 4.468 US Cents/Kwh on an annual basis a reduction in electricity purchase expenditure would be from Rs.1,77,24,00,000 to Rs.1,53,07,36,000 and thus the annual saving is claimed to be Rs.483.33 Crores over the period of 20 ID years. In addition thereto guaranteed supply of 571 million Kwh of electricity (100 MW against 25 -- 30 MW at present) would be achieved; furthermore, rental income Rs.34.60 Crore per annum would be earned and investment of US $14.604 Million for rehabilitation of the plant in question (in the form of machinery etc.) will become property of the LPGCL/WAPDA, free of cost, on termination of lease, and further that four times more electricity would be generated at one-fourth of current costs.

45. Thus, disputed questions of facts are involved in this petition, which cannot be resolved by means of proceedings in the petition under Article 199 of the Constitution.

46. Under the circumstances, this constitutional petition does not carry merits therein and the same is hereby dismissed in limine, along with the listed application.

' Interim order passed therein is hereby recalled.