' SHUJAAT ALI KHAN, J.--- Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan. 1973 the petitioner has impugned the sanctioning of extension in contract for excavating of Khar in the area of Cholistan for the year 2012-2013.
2. Briefly, the facts, as gleaned out from the instant petition, are that Muhammad Zafar Yaseen (respondent No,2) was awarded contract for excavating of Khar for the year 2011-12. On the expiry of the said period instead of re-auctioning of the same through advertisement, respondent No,1 on the application submitted by respondent No,2 on 16-5-2012 offered him extension in period of contract with effect from 1-7-2012 to 30-6-2014. Further vide letter dated 23-5-2012 the respondent No,1 asked respondent No,2 to deposit Rs,1,26,50,000 in lieu of the period with effect from 1-7-2012 to 30-6-2012 within fifteen days and an amount of Rs,1,45,47,500 for the remaining period by 1-7-2013.
Aggrieved by the extension in the said contract the petitioner has approached this court by means of the instant petition:
3. The arguments put forth by the learned counsel for the petitioner can be summed up in the words that respondent No,1 was bound to award the contract through open auction; that respondent No,1 with a view to accommodate respondent No,2 has bypassed all the legal formalities; that respondent No,1 has accommodated respondent No,2 through back door for ulterior motives; that petitioner has already approached the Anti-Corruption Establishment for penal action against the then Managing Director, Cholistan Development Authority; that the petitioner submitted an application to respondent No,1 on 23-5-2012 showing his willingness to accept the contract for the year 2012-2013 on payment of 30% in excess of the lease money for the previous year but his offer has not been accepted; that the petitioner also requested respondent No,1 to put the matter to open auction but of no avail and that due to the act of respondent No,1 the national exchequer is bound to suffer colossal loss.
4. Learned counsel appearing on behalf of respondent No,1, while referring to the report and parawise comments, submits that extension in contract was awarded to respondent No,2 in view of his applications submitted on 25-1-2012 and 16-5-2012; that all the proceedings are conducted in a fair and transparent manner and with a view to safeguard the interest of public exchequer respondent No,2 was granted extension for two years on payment of 15% excess amount as compared to the lease money for the previous year: that Managing Director of the Authority is fully competent to enter into a contract with anybody and that the petitioner has alternate remedy to challenge the impugned contract before the authority, hence this petition is not maintainable.
5. The resume of the arguments advanced by the learned counsel appearing on behalf of respondent No,2 is that due to short span of contract, he could not recover even the expenditures incurred by him as a result he submitted an application for awarding of contract for further two years. The said application was duly processed and the respondent was asked to deposit certain amounts vide order dated 23-5-2012 out of which the petitioner has already paid Rs,1.26,50,000 thus he has a vested right to retain the contract. Further submits that in fact the petitioner, though participated in the auction proceedings conducted in the year 2011 but could not succeed, has filed the instant petition just to harass and blackmail the respondent. Moreover, contractual obligations cannot be enforced or challenged in constitutional petition.
6. Learned counsel for the petitioner while exercising his right of rebuttal submits that even today the petitioner is ready to deposit 30% in excess of the lease for the last year provided the contract is awarded to him.
7. I have heard the learned counsel for the parties at considerable length and have also gone through the documents appended with this petition in addition to have given a serious thought over the offer made by the learned counsel for the petitioner. During the said course, I have observed that respondent No,2 has been awarded extension in contract instead of putting the matter to auction providing an atmosphere of open competition. Respondent No,1, being in league with respondent No,2, illegally granted extension in contract to respondent No,2. Despite repeated queries, learned counsel appearing on behalf of respondent No,1 is unable to refer to any provision of law where-under respondent No,1 had the authority to extend the contract in favour of respondent No,2. The said approach of respondent No,1 being totally illegal and prejudicial to the principles of fairness and transparency cannot be approved rather deserves to be deprecated at all levels with full vigour. The Managing Director, Cholistan Development Authority cannot be allowed to play with the fate of masses. The untoward conduct of respondent No,1 is also manifest from the fact that even today learned counsel appearing on his behalf instead of admitting the fault is defending the total illegal and wholly unlawful act.
8. Further, the auctioning or awarding of contract of national assets through a surreptitious and clandestine manner not only proves to be a bane for the society but also causes loss to the national exchequer worth million of rupees. While dealing with the said situation the apex Court of the country in the case of Malik Atta Muhammad and another v. Government of the Punjab and others (2007 SCM R 178) as inter alia held as follows:--- "* However, the respondents had not been able to place on record any material showing transparency or fairness in the auction proceedings so as to ensure the participation of all the intending bidders. It seems that the auction was held at all the three places in a surreptitious and restricted manner. The auction was required to be conducted by the Municipal Administration in a just, fair and transparent manner so as to ensure that the lease for collection of fee for cattle markets would fetch the maximum public revenue. The petitioner repeated before us there offers of higher bid which they had made before the High Court without dilating upon the matter further and in the peculiar facts and circumstances of the case the proper course would be re- auction of the lease by the Tehsil Municipal Administration in an open, just and transparent manner in order to safeguard the public interest and exchequer" (emphasis provided).
9. Now coming to the objection raised by the learned counsel for respondent No,2 that the matter being past and closed transaction, this petition is not maintainable, I do not find myself in agreement with him on this point for the reason that where the order passed by an Executive authority is patently illegal and unlawful, this court has the ample power B to take judicial notice thereof. While dealing somewhat similar question the Hon'ble Supreme Court of Pakistan in Muhammad Afzal v. Shehzad Asghar Dar and others (2003 SCM R 280) has inter alia observed, as follows:-- "We have considered the contentions advanced by the learned counsel for the parties and have gone through the entire documents placed on record with their assistance. The argument of the learned counsel for the petitioner that the matter, being a past and closed and the petitioner having embarked upon the collection of fee, the High Court under Article 199 of the Constitution did not have any jurisdiction to interfere in the matter, is devoid of any force. It is true that sanctity has to be attached to a concluded contract but the said contract must be transparent and shall have been made keeping in view the overall interest of the leasing body. It should be not tainted with mala fide or through underhand means. The public exchequer shall not be made to suffer due to exercise of power in an arbitrary and unreasonable manner giving extra favour to one side at the cost of others"
' If we adjudge the veracity of the extension of contract, awarded in favour of respondent No,2, on the touchstone of the above quoted judgment of the august Supreme Court of Pakistan, it is a fit case for exercise of jurisdiction vested in this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
10. Insofar as the objection raised by the learned counsel appearing on behalf of respondent No,1 that petitioner has an alternate remedy of filing an appeal before the Cholistan Development Authority is concerned, suffice it to note that void orders cannot be allowed to hold the field just for the reason that the same can be challenged before the departmental authority rather in such matters the court should not hesitate to exercise its constitutional jurisdiction to put such orders at naught. As far as the case in hand is concerned, in my humble opinion the filing of the appeal before the authority would not be as efficacious as these proceedings for the reason that Managing Director, Cholistan Development Authority., who awarded the impugned contract in favour of respondents No,2, is not only one of its members but also acts as Secretary in the said authority under section 4(3) of Cholistan Development Authority Act, 1976.
11. Now adverting to the objection raised by the learned counsel appearing on behalf of the respondents that the subject-matter of the instant petition being contractual in nature, cannot be adjudicated upon in these proceedings, I am of the view that where the departmental process for award of a public contract is laden with personal discretion or infected with personal bias it cannot be termed as transparent, fair or lawful process as mandate by law and jurisdiction of this court cannot be ousted on the mere ground that the dispute between the parties is contractual in nature. The matter in hand is a classical picture of unbridled bureaucratic attitude of respondent No,1, who while accommodating respondent No,2 has put aside all the rules and regulations on the subject, in particular Public Procurement Rules, 2004, which should have been adhered to before awarding of any contract, to make it open and transparent. According to Rule 36 of the said Rules every bid involving financial proposals shall be opened publicly at a time, date and venue announced and communicated to the bidders in advance but in the instant case no such exercise was undertaken by respondent No,1, thus, the impugned act of respondent No,1 cannot be allowed to remain in the field.
12. Now coming to the offer made by the learned counsel for the petitioner I feel that award of contract to petitioner upon payment of 30% of excess amount as compared to the lease money for the last year would amount to legalize the matter of awarding of contract without open auction and same being contrary to the spirit of judgment of the apex court of the country in the case of Malik Atta Muhammad and others (supra) cannot be resorted to. However, if the petitioner deposits the amount in question, his interest can be looked into, while laying down a via media.
13. For what has been discussed above, I feel no hesitation to hold that the act of respondent No,1 to grant extension in contract in favour of respondent No,2 invites serious objections qua the conduct of the said authority and the same cannot be allowed to hold the field for a moment.
Consequently, the impugned extension granted in favour of respondent No,2 vide letter dated 23- 5-2012 and the subsequent contract between respondents Nos.1 and 2 inter se are declared null and void and the same are set aside. Further, the petitioner is directed to deposit 30% in excess of the lease amount for one year with respondent No,1 within one week, who will put the matter to open auction fixing the amount to be deposited by the petitioner as reserve amount of bid. In case, nobody gives a bid higher than the amount to be deposited by the petitioner, respondent No,1 shall award the said contract in favour of the petitioner forthwith.
14. Before parting with the order it is observed that in case the petitioner does not deposit the amount as promised by him, respondent No,1 shall re-auction the matter while fixing the amount of Rs,1,26,50,000 already deposited by respondent No,1 and in case the highest bid does not exceed the said amount, respondent No,2 will be entitled to have a new contract in his favour.