' MAMOON RASHID SHEIKH, J. --- The brief facts giving rise to this petition are to the effect that in the year 2007 respondent No, 2 invited bids for award of contract for collection of parking fee in respect of the Car Park in its premises w.e.f.
16.03.2007 to 15.03.2010.
2. The petitioner participated in the bidding process and was declared successful. As a consequence, he was awarded contract No, 6469/AHF/2007, dated 15.03.2007. By respondent No, 2.
As per the terms of the contract the petitioner was liable to pay Rs, 11,05,000/- per annum to respondent No, 2 for the said period with 10% yearly enhancement. The petitioner was further required to deposit 1/4th of the annual contract amount plus Income Tax in advance within three days of the contract date. The petitioner was also required to deposit Rs, 200,000/- as security in the form of CDRs which was refundable upon successful completion of the contract. Clause 3 of the contract further envisaged that the petitioner shall deposit a sum of Rs, 500,000/- in the shape of CDRs for renovation of the Car Park within two weeks of the award of the contract. The petitioner deposited the security in the sum of Rs, 200,000/- as also Rs, 4,65,000/- towards renovation of the Car Park. The renovation is stated to have been done. In the meantime the then Chief Minister/Govt. Of the Punjab (respondent No, 1) implemented a policy through Notification No, S.O.
(PH)1-10/2008, dated 30.07.2008 by virtue of which free parking was introduced in all Government Health Institutions/Hospitals. As a consequence, the petitioners contract was cancelled by respondent No, 2 w.e.f.
08.08.2008 i.e. 19 months short of 15.03.2010 (the expiry date). As the tenure of the petitioner's contract had not expired and he had spent Rs, 4,65,000/- for renovation of Car Park the petitioner agitated the matter before respondent No,.
2. A committee was formed by respondent No 2 to look into the matter and certain decisions were taken. Thereafter, in the year 2011 the petitioner again agitated the matter. As a consequence an Inquiry Committee ("the Committee") was constituted by the Finance & Planning Committee of respondent No, 2 for inquiring into the matter. And making its recommendations. After deliberating on the petitioner's case the Committee found that the contract amount from 14.03.2007 to 07.08.2008 was Rs, 15,50,069/- while the petitioner deposited Rs, 121,5,834/- , .Therefore, an amount of Rs, 334,235/- was outstanding against the petitioner as at 07.08.2008. The renovation of the Car Park was undertaken and a sum of Rs, 10,50,000/- was spent by the civil contractor. Out of the amount Rs, 465,000/- was paid by the petitioner as against the required amount of. Rs, 500,000/-.
It was further found that the petitioner had spent the amount of Rs, 465,000/- for the period of three -years whereas the contract was cancelled w.e:f.
08.08.2008 i.e. 19 months short of the contract period. It was, therefore, recommended that the sum of Rs, 134,235/- be recovered from the petitioner on account Of short payment and an amount of Rs, 245,416- be refunded to. Him for the period for which he had not received the benefit of the investment made by him for renovation of the Car Park. It was further recommended that in view of thefact that Rs, 111,181/- (i.e. Rs, 245,416/- - Rs, 134,2350 was, liable to be refunded to the petitioner, therefore, the said amount may either be refunded "to the petitioner or he may be allowed' to complete the remaining 19-month9 of his contract period if at any 4ater stage respondent No, 1 decides to change its policy of free parking in Government Health Institutions/Hospitals. The matter remained pending and now the Caretaker Government of the Punjab has decided that parking fee be collected in Government Health Institutions/Hospitals and collection rights of parking fee be auctioned strictly in accordance with the Punjab Procurement Rules, 2009. The said policy decision has been implemented through Notification No, S.0 (PH)1-10/2008, dated 16.04.2013.
3. Grievance is made out that respondent No, 2 has not refunded the said amount to the petitioner and now in pursuance of the latest policy deck., of respondent No, 1 respondent No, 2 has decided to awai..; ine parking fee collection rights of. .The Car. Park through public auction without discharging its liability towards the petitioner and/or perrnitting the petitioner to complete its uneXpired period (19 months) of contract.
4. The learned counsel for the petitioner whilst reiterating the facts .Narrated above submits that the petitioner has a vested right to be given the contract for the collection of parking fee vis-a vis the Car Park for the unexpired 19 months period of his original contract. The petitioner as a concession is willing to take- the contract for one year according to the= rates notified by the 'Lahore Parking Company as mentioned in Notification dated 16.04.2013.
5. The report and. ,parawise comments have been filed by respondent No,
2. Wherein whilst not denying thefactum of award of the contract to the petitioner and the cancellation thereof in pursuance of the policy decision of respondent No, 1, it is, however, maintained that in view of the instructions contained' in the Notification dated 16.04.2013 and the provisions of the Pules, jbid,, the contracts for parking fee in Government Health Institutions/Hospitals can only be awarded through public auction.
6. It is further maintained that the petitioner remained silent for refund of the amount in question.
For a number of years, therefore, not only the petitioners claim for refund but also the contract cannot be awarded to him for the balance period as of right..
7. It is further submitted that the petitioner may participate in the impugned-"auction and his bid shall be considered oh merits.
8. The learned counsel for respondent No, 2 whilst reiterating the contents of the report and parawise comments has questioned the maintainability of the petition by, inter alia, submitting that the petitioner is guilty of concealment of material facts. Further submits that the recommendation of the Committee for refunding the amount in question or awarding the contract to the petitioner for the un-expired 19-months period as and when the, policy of respondent No 1 was changed was not at any time approved by the Board of Management of despondent No 2. As such the petitioner does not have a vested to right the relief prayed for in the petition.
9. Further submits that the petitioner's claim has become barred by time. Contends that the petit* is even' otherwise liable to be dismissed as the petitioner at no point in time challenged the 2008 Policy Decision of respondent No, 1 before any Court of law. Further contends that the matter is beyond the control of respondent No, 2 as neither it nor the petitioner can ignore the provisions of the. Rules, ibid, which are mandatory in nature.
10. The learned counsel for the petitioner in rebuttal controverts the stance of respondent No, 2 and submits that at no point in time did respondent No, 2 deny the petitioner's right.
11. The learned Addl. A-G submits that the petition is hit by !Aches inasmuch as the petitioner did not, challegge the decision of respondent No, 2 for cancellation of its contract at the relevant time nor did the petitioner file a suit for recovery of the amount in question. Moreover, the petitioner did not challenge the Notification dated 30.07.2008 at the relevant time and even not through the instant petition. The claim of the petitioner has, even otherwise, become barred by time. Further submits that parties cannot contract out of statute. In the instant case they are bound by the provisions of the Rules, ibid. Moreover, respondent No, 2 has acted in pursuance of the Policy Decisions of respondent No,
1. Policy Decisions cannot be challenged by way of Constitutional petitions.
12. I have considered ine ar...Oents of the learned counsel for the parties and the !Earned Addl. A-G, and have also gone through the record. It is an Admitted fact that the contract for collection of parking .Fee vis-a-vis the Car Park was awarded to the petitioner for a period of three years i.e. From 16.03.2007 to 1.5.03.2010. On 30.07.2008 respondent No, 1 promulgated a new policy through .Notification No, S,O(PH)1-10/2008 whereby a direction was issued to all Government Health Institutions/Hospitals (including respondent No, 2) to have adequate parking facilities for the general public/visitors to Hospitals and to ensure that free parking is provided and the parking stands should be duly manned and guarded by the. Hospital staff. The Government Health Institutions/Hospitals were further directed to coordinate with the Local Traffic Police Authorities for ensuring smooth flow of traffic in and around the health facilities. As a consequence respondent No, 2 took steps to provide free parking to the general publithisitors to the Hospital (respondent No, 2). In this respect a committee was formed and in its meeting held on 12.08.2008 the committee discussed the modalities for ensuring free parking to the general public. The, contract of the .Petitioner also came under discussion and in view of the fact that the petitioner had invested the sum of Rs, 4,65,000/- for renovation of the Car Park, it was felt that the petitioner should be accommodated by way of adjustment of the contract price. Thereafter the matter seems to have gone into cold storage. However, in the year, 2011 the petitioner agitated the matter again. As a consequence the Committee was constituted by the Finance and Planning Committee of respondent No, 2 in its meeting held on 08.08.2011. The Committee after going through the facts of the case came ,to the following conclusion and recommended as under:---
1. The contract of Car Parking was candelled w.e.f.
08.08.2008 and the contractor deposited Rs,415,834/- (including amount of security) as contract money against due amount of Rs, 1,550,069/- from 14.03.2007 to 07.08.2008. The amount less deposited Rs, 134,235/- may be recovered from the contractor.
2.
3. The contractor of Car Parking has invested Rs, 465,000/- for three years but he obtained benefit of investment for one years and five months. An amount of Rs, 245,416/- is refundable to the contractor for the period he had not obtained the benefit of his investment 'which to be refunded or he -may be altowed to complete his remaining contract period if at later stage government decided to auction Car Parking with charges of parking...,
13. In the year 2012 the Finance and Planning Committee of respondent No, 2 reviewed the above- mentioned recommendations of the Committee and in its Meeting on 011:.10.2012 decided as under:7-- "Agenda Item No, 13 of Finance & Planning Committee meeting dated 08.11.2010. Regarding Contract of Car Parking and Cycle Stand.
' The matter was discussed in detail: It was deCided that the mount of Rs, 5,93,795/- as finalized in the report of the inquiry committee may after due , verification, be paid to the Contractor from Receiptscof 'Allied Hospital. His request to allow him to complete the remaining contract period of one year and seven months at .a later stage. When Government might decide to resume auctioning of Car Parking on payment basis was not deemed tenable. Flowever, if such an eventuality does ever occur in future, his request might be considered on merit."
14. It is, however, not clear' from the record whether these recommendations were accepted by the Board' of Management of respondent No, 2 or not. The fact, however, remains'that the amount in question (Rs, 111,181/ ) was not refunded to the petitioner and since the policy of respondent No, 1 for providing free parking to the general public/visitors to hospitals remained unchanged no,progress was made in the natter.
15. Subsequently, due to the National Elections of 2013 when the Caretaker Government of the Punjab was formed it chan,ged the policy of providing free parking to hospital visitors.
Consequently, through. Notification No,- S.0.(PH)1-10/2008, dated 16.04.2013, Government Health InStitutions/Hospitals were directed as under:--- "The competent Authority has been pleased to withdraw facility of free car/motorcycle/cycle parking in 'all the Government Hospitals .As circulate by the. Government. Vide Notification of even number dated July. 30, 2008,September, 25, 2008, DeCember 18, March*11,. 2009 and February 22, 201.0.
2. All Hospital administrations are directed to imniediately take necessary action for auction of the parking stands/lots. Available in the premises of hosPitals/medical colleges strictly in accordance with the PPRA Rules.
3 The competent authority has further been pleased to approve.The parking rates as notified by the Lahore Parking Company from time to time for thr/motorcycle/cycle parking in all Government Hospitals/Medical Colleges with immediate effect.
4. All measures for safety of the vehicles in lieu of The service charges be taken."
16. Upon .Corning ". To know of the "change yin respondent No, 1's Policy the petitioner contends that he re-agitated the matter with respondent No, 2 and demanded that he may be allowed to complete the remaining 19 months of his contract. Respondent Np. 2, however, declined to do so and,has advertised the auction of the rights of colleCtion of parking fee of Car Park through the impugned advertisement published in various dailies including. The dgily "Nawa-i-Waqt" of d8.05.2013. The impugned auctiori is scheduled to be held on 22.05.2013.
17. The petitioner has contended that he has a vested right 'to be awarded the contract so that he can complete the unexpired period of his earlier contract as per the recommendations of the Committee. It is the case of the. Petitioner that he has been denied the benefits of investment for a number of years and a promise was held out to him that as soon as 'the, policy of respondent No, 1 changes he would be awarded the contract for the remaining period.
18. On the other hand it is the case of respondent No, 2 that they are bound by the provisions of the Rules, Mid, Which provisions are mandatory. Respondent No, 2 is, therefore, required to award the rights of collection of parking fee only by way of calling for fresh tenders by public auction. No contract can therefore, be awarded to the petitioner. It has been further contended that since, the petitioner remained silent for a number. Of years and did not agitate the matter, therefore, his claims become barred by time.
19. The controversy pertains to procurement of goods and services in the public sector. The Federal as well as the Provincial Governments in order to ensure transparency and accountability in matters of public procurement of goods as well as services have promulgated various laws viz. The Public Procurement Regulatory Authority Ordinance, 2002 and the Public Procurement Rules, 2004 at the Federal level and the Punjab Procurement Regulatory Authority Act, 2009, and the Rules, ibid, in the Province of the Punjab. All Procuring Agencies as defined by Section 2(1) of the Act, ibid, are required to follow the Act and the Rules, ibid for public procurement as defined under Section 2(n) of the Act, ibid. To better appreciate the position both provisions of law are being reproduced ,hereunder--- "2(1) "Procuring Agency" means--
(i) A department or office of the Government;
(ii) A district government; or
(iii) An authority, corporation, program, project, body or organization established by or under a Provincial law or which is owned or controlled by Government of the Punjab."
2(n) "Public procurement" means acquisition of goods, services or rendering of works financed wholly or partly out of the Public Fund, unless excluded by the Government;"
20. Rules 3 & 4 of the Rules, ibid, provide as under:- "3. 'Scope and applicability.---Save as otherwise provided, these rules shall apply to all procurements made by all procuring agencies of the Government of the Punjab Whether within or outside the Punjab.
4. Principles of procurements.---Procuring agencies, while engaging in procurements, shall ensure that the procurements are conducted in a fair and transparent manner, the object of procurement brings value for money to the agency and the procurement process is efficient and economical."
21. As will be evident respondent No, 1 is a Procuring Agency within the meaning of Section 2(1) of the Act, ibid. The provisions of the Act and the Rules, 'bid, are mandatory in nature for all Procuring Agencies. Respondent No, 2 is, therefore, bound to follow the procedure as laid down in the Act and the Rules, ibid, in matters of public procurement. The method of procurement has been spelled out in great detail in the Rules, ibid, which inter alia provide for public advertisement and envisage a process of open bidding. There is no provision for negotiation or award of contract by ,way of private negotiations. Reliance in this -regard is placed on a judgment of the Hon'ble Supreme Court .Reported as "Mujahid Muzaffar and others v. Federation of Pakistan and others" (2012 SCM R 1651).
22. Even Otherwise, it is settled law that parties carrot contract out of statute. Moreover, there is nothing on the record to show that the recommendations of the Committee or the Finance and Planning Committee of respondent No, 2 were approved by the Board of Management of respondent No,.
2.
23. In view of the above, the petitioner's claim for award of the contract for collection of parking fee in respect, of the Car Park for the balance 19 months of his earlier contract is neither sustainable nor tenable.
24. This Court, however, cannot ignore the fact that the petitioner has been out of pocket for a number of years to- the extent of Rs, 111,1 181/-. Respondent No, 2 has not refunded this amount to the petitioner, therefore, whilst holding that the petitioner is not entitled to be given the contract for collection of pairking fee in respect of the Car Park for the balance 19 months of his earlier contract, as of right, it is directed that respondent No, 2 shall refund the amount of Rs, 11,181/- to the petitioner, after due verification, plus mark-up at the bank rate forthwith.
25. It is, however, observed that the petitioner may participate in the impugned auction, if so advised, and respondent No, 2 shall not reject the petitioner's bid in view of his past history.
26. The petition is accordingly disposed of in the above terms with, no order as to costs.