' AZIZ-UR-REHMAN, J.---By this common judgment we propose to decide both these constitutional petitions bearing Constitutional Petition No.D-2395 of 2013 and Constitutional Petition No.D-2396 of 2013, through which Mr. Saeed Ismail Burero, [petitioner in both C.Ps.] has questioned the two impugned tender notices of 24-4-2013 and 9-5-2013 whereby sealed tenders were invited, from the interested contractors/suppliers/bidders meeting the [SPPRA] required eligibility criteria under the Sindh Public Procurement Regularity Authority Rules, 2010, for procurement of Furniture, Articles/Science Equipment/ Books and Computers with accessories for Education Institutions of Larkana and Sukkar Regions. The prayers sought in both the petitions are common except the dates of tender notices [i.e. 24-4-2013 and 9-5-2013]. The common prayers sought read as follows:-
(1) The impugned tender notice dated 24-4-2013 is issued without any lawful authority and is contrary to the directions issued by caretaker Chief Minister and is liable to be declared as illegal/void.
(2) Restrain the respondents from .Proceedings under the impugned tender notice by awarding any contract for the supply of the articles as contained in the tender notice/documents.
(3) The respondent be directed to follow the SPPRA Rules while reissuing the tender notice/bid for the procurement/supply of the goods.
(4) Any other relief as this Hon'ble Court may be deemed fit and proper may be passed.
2. Succinctly the relevant facts leading to the above prayers are:--
3. That the petitioner in both the petitions, is a registered contractor/supplier with Govt. Of Sindh and per assertion made, is doing business under the name and style of Khalid Scientific Store. Per averments, the contracts previously awarded by Govt. Of Sindh for and regarding supply of different kinds of equipment, goods etc. Have been satisfactorily performed by the petitioner.
4. According to petitioner on 29-3-2013, the Section Officer, Govt. Of Sindh, SGA & Co-ordination Department issued a letter to Addl., Chief Secretary/Home Department, Senior Member BoR, Sindh, all Administrating Secretaries including Member BoR, Secretary Provincial Assembly, Sindh, Karachi, Chairman Enquiries and Anticorruption Establishment, Sindh and other designatories, whereby the directions issued by the Hon'ble Caretaker Chief Minister regarding imposing of a ban on the purchase of new physical assets, [Movable and Immovable] was circulated. In terms of the aforesaid letter, per averments, a request was made to the effect that directions issued by Hon'ble caretaker Chief Minister be implemented immediately in letter and spirit.
5. Pursuant to the above, on 12-4-2013, Account Officer B&F, Govt. Of Sindh, Education and Literacy Deptt., Karachi also issued letter informing amongst others, Chairman Chartered Inspection and Evaluation Committee, Karachi, Director General College, Sindh, Karachi, Director School Education about the imposition of a ban on purchase of all new physical assets [Movable and Immovable] and a request for immediate strict compliance thereof was also made.
6. Per petitioner's version, in utter disregard to the directions of the Hon'ble Caretaker Chief Minister, Sindh, the Director of Schools Education Larkana and Sukkur Regions published the impugned tender notices in daily Newspapers of 21-4-2013 and 9-5-2013 inviting thereby the contractor/supplier/ bidders for the supply of furniture articles, science equipment, computers with accessories, books etc. Accordingly, as claimed in response thereof, on 3-5-2013 tender documents were obtained by the petitioners. On perusal of the tender documents, per petitioner's assertion, the same were found against the SPPRA Rules, therefore, objections were filed by the petitioners.
7. Subsequently, the petitioners approached the Secretary Education, Govt. Of Sindh through letter dated 7-5-2013 which letter, per averments, was received on 14-5-2013. In the said letter it was mentioned/highlighted that the tender documents are defective and also do not depict the true picture/information. The alleged defects as stated were to the following effect:--
(i) No quantity has been mentioned in IT Science and Furniture items, also they did not mention budget amount, so how we calculate the earnest money.
(ii) There were no space for financial proposal, how we put our quotation as the financial documents are not available in tender.
(iii) In evaluation criteria of computer and other equipment Sr. No.1, they have given highest marks for HP/Dell/Fujisto, this is against SPPRA Rule No.13
8. Apart from the above, per petitioners version, SPPRA Rule 13 which pertains to specifications has also been violated.
9. Notwithstanding of petitioners seeking clarification and/or lodging objections, the respondents without permission from the Secretaries/Committee and/or obtaining any relaxation of the ban imposed, published the tender notices and also bids were received in response thereof. The bids so received were opened on 30th May, 2013 at the respondent No.2's office.
10. Per assertions of the petitioner, such hasty and illegal action on part of the respondent No.2 smacks mala fide as, the budget for the current financial year is going to be lapsed by 30th June, 2013. Per petitioner averments, with a view to utilize such budget before lapsing by 30th June, 2013, tenders have been issued/published, in colourful manner. The tender documents, according to the petitioner, show no specifications/quantity as material/BOQ items. Thus there is every likelihood of accepting the bids and awarding of the tenders to blue-eyed boys/person of their own choice which indeed would cause huge losses to the Govt. Exchequer/public money.
11. The petitioners thus are affected persons because of aforesaid illegalities being committed by respondents. The process of inviting the tenders besides against the directives of the caretaker Chief Minister is also in violation of SPPRA Rules, 2010. Hence these petitions.
12. On 30-5-2013, when Constitutional Petition No.D-2395 of 2013, came up before the court, the following order was passed:-- "30-5-2013 ' Mr. Jawed Ahmed Siddiqui, Advocate for Petitioner -x-
(1) Granted.
(2) Granted for the time being subject to all just exceptions.
(3&4) Notice to the respondents as well as learned Advocate-General, Sindh for 10-6-2013, to be issued instantly through all possible modes along with the relevant copies. The contract with regard to the subject tenders shall not be granted till 10-6-2013. It may, however, be noted that the petitioner shall not cause/attempt to delay the matter or else the ad-interim order shall not be extended."
13. Thereafter, record reflects that the 'interim order' passed on 30-5-2013 was never extended.
However, an understanding by Additional AG to the effect that no further action shall be taken till next date of hearing was given and recorded. Order dated 10-6-2013 passed in Constitutional Petition No.D-2395 of 2013 whereby undertaking of A.A.-G. Was recorded reads as follows:-- "10-6-2013 ' Mr. Jawaid Ahmed Siddiqui, Advocate for petitioner ' Mr. Qurban Ali, Advocate Mr. Sarwar Khan, Addl. A.G. Mr. Saifullah, A.A.G.
' Copy of comments has been supplied to learned counsel for the petitioner. By consent, matter is adjourned to 13-6-2013. Let this petition be fixed and heard along with Constitutional Petition No.D- 2475 of 2013. Learned Additional A.G. Undertakes that no further action shall be taken till next date of hearing."
14. Upon service, in both Constitutional Petitions, comments were filed on behalf of respondent No.2 wherein the assertions/allegations levelled by the petitioners were vehemently denied. Inter alia, it was submitted that various districts of Sindh affected by natural calamity/flood in previous years has resulted in/caused heavy damage/loss to furniture articles, computers, scientific material and books. Under the aforesaid scenario, Govt. Of Sindh considered various schemes under Annual Development Program [ADP] for which funds/budget is/being released by Finance Department for the purchase of furniture, articles, computers with accessories, scientific material and books etc. In financial year 2012-2013.
15. In comments it was specifically denied that there are any restrictions and/or any ban on purchase/procurement of such articles etc. Under development schemes where funds are provided by Finance Department. The bids, therefore, invited by the Directorate of Schools Education, Sukkur and Larkana regions are quite in accordance with SPPRA Rules 2010. [The Sindh Public Procurement Rules, 2010]. Tenders, so invited having been published in widely circulated leading daily newspapers strictly in accordance with SPPRA Rules and no violation of any rule has been committed. The newspapers in which the impugned tender notices have been published are widely circulated newspapers. The details of the newspapers are given below :
(a) Daily The News (English) dated 21 April, 2013
(b) Daily Jang (Urdu) dated 22 April, 2013
(c) Daily Kawish and Sobh (Sindhi) dated 21 April, 2013 and 11 May, 2013
(d) Daily DAWN (English) dated 12 May, 2013.
16. Besides, Tenders and NIT were also hoisted on SPPRA Website, SPPRA ID No.1575211756/2013 S.No.16143. Thus, no illegality and/or irregularity has been committed by respondents in floating/ publishing the tenders in newspapers.
17. Per SPPRA Rules No.18, response time from the date of publication of tenders is 15 days, but the DSE NIT provides 17 days' response time. Last date of purchase of bids was 7th May, 2013 and the date of submission of bids was 8th May, 2013 where Technical Proposals per respondent's assertions were opened on same day in presence of bidders and Procurement Committee's Members. In the case of National Competitive bidding the response time per SPPRA Rule 18 is not less than 45 days from the date of publication notice inviting tender in the newspaper or hoisting on the website as provided in Rule 18(2) of SPPRA Rules, 2010.
18. Even specifications of items were given/mentioned and prepared quite in conformity of Rule 13 of SPPRA Rules 2010. Bidders, were not restricted and space was also provided for submitting specifications of their offered items. Likewise, the legally provided method of procurement in terms of Rule 46(2) of SPPRA Rules, 2010 was followed and bids according to respondent were evaluated per evaluation criteria mentioned in bid documents as given below:--
(a) Bidding Firm's Evaluation (Tax payment behavior, experience and financial capability etc.).
(b) Evaluation of the 'proposals' which were offered in response to the Requirement'.
19. Various bidders per respondent's assertions, participated in tendering process. Financial bids were opened publicly in presence of bidders and purchase committee is members.
20. All bidders who participated in tendering process as above were well aware about the required 'earnest money' mentioned in the bidding documents. Accordingly, all the above bidders submitted their bids along with required 'earnest money'. The petitioners' allegations to this effect were also emphatically denied.
21. The details of bids in tendering process which is subject-matter of Constitutional Petition No.D- 2395 of 2013 is given in the table below:-- BID DESCRIP-TION Furniture ItemsScience Equipment Total Bids received 11 7 Total Bids Rejected 2 1 Bidders Qualified in Technical Evaluation9 6 Reason RejectionOne Bidders NTN and GST Registration was suspendedbyFBRand2 Bidders did not meetthe required evaluation criteria.
Computer and other EquipmentsBooks for LibraryTotal 6 3 27 0 0 03 6 3 24
19. Likewise, details of bids in tendering process which is subject-matter of Constitutional Petition No.D-2396 of 2013 is given in the table below:-- BID DESCRIPITION Furniture ItemsScience Equip-mentComputer Accessories Total Bids received 14 9 6 Total Bids Rejected 3 1 1 Bidders Qualified in Technical Evaluation11 8 5 Reason of Rejection The rejected bidders could not obtain required 70 marks as already communicated in bidding documents.
Sports MaterialMaps and ChartsBooks for LibraryTOTAL 9 10 7 55 1 2 1 9 8 8 6 46
20. Per respondents' stand, either the petitioner did not purchase the tender documents or if, purchased did not submit and/or participate in the process of bidding. Per respondents' version, since the petitioner did not participate in bidding process thus not aggrieved persons. Otherwise, besides, per SPPRA Rule No.31, the aggrieved bidders (if any), may apply to the Procuring Agency's Complaint Redressal Committee which is bound to announce its decision within prescribed time i.e. 07 days. In the event of being unsatisfied with the decision of CRC, an appeal, can be lodged to the Chief Secretary for redressal of the grievance. The alternate remedy so available under SPPRA Rules besides efficacious is time bound. Such remedy available, per respondents' versions, cannot be bypassed at the whims of petitioners and that too on the basis of mere apprehension, flimsy grounds and/or without pinpointing any illegality in the bid process.
24. Per respondent's averments, the funds on the basis of which tenders were floated since coming from Annual Development Program (ADP) inter alia for various schemes of Directorate of Schools Education Larkana and Sukkur Regions thus are exempted from any ban's restrictions. In case the procurement is not made/completed on or before 30th June, 2013, the funds would indeed be lapsed and consequently thousands of students of about 177 schools [in both regions of Larkana and Sukkur] will be deprived from having necessary materials/furniture etc. During the current fiscal year, which, of course, would enhance the miseries of the students manifolds.
25. The status of the petitioners as a registered contractor/supplier as well as petitioners' so-called claim of having satisfactorily performed contracts with the Govt. Of Sindh for supplying different kind of goods, has been vehemently denied as being incorrect by respondents.
26. Regarding directives, issued by SO CTC G&GAD Department through letter dated 29-3-2013 regarding placing ban by the then Hon'ble caretaker Chief Minister Sindh visa-vis purchase of new physical assets, movable and immovable, respondent No.2 has forcefully submitted that ban, if any, imposed by the then Hon'ble caretaker Chief Minister may cover/extend to the procurement of furniture, computers etc. Through non-development budget only. Per averments, the ban is not applicable to the purchase of articles etc. Under ADPs schemes, where funds are released by Finance Department. Such position is also crystal clear from the Letter No.FD/B&E1/2(360)/I/BAN/2012-13 dated 17th May, 2013. [Annexure 'C' to the comments filed by respondent No.2].
27. The floating of tenders by the respondents, no doubt, is well authorized and absolutely proper.
According to the respondents', education of thousands of students is at stakes if the procurement process is not completed within the target period i.e. By 30th June, 2013. Otherwise, the budget would lapse without any purchase of necessary materials/furniture, science equipment etc. For the benefit of students.
28. Per respondents, the petitioner have manipulated the receipt dated 3-5-2013 [Annexure 'P-4' to Constitutional Petition No.D-2395 of 2013] by removing the name of the person/firm who had actually deposited Rs.2000 for obtaining of tender forms/documents. The real applicant of the receipt [Annexure P-4], is Messrs Science and Computer Link, Karachi. The petitioners, besides committing forgery has thus misguided the court for achieving their nefarious designs including disturbing and disrupting the smooth working of Government Departments by obtaining restraining order in the above proceedings.
29. The receipt of alleged letter dated 7-5-2013 addressed to the respondent has been emphatically denied by the respondents. The floating of tenders is lawful, bona fide and also covered by legal and financial proprietary. No doubt, the funds shall stand lapse if, not utilized within the stipulated time which lapse of funds, indeed, would deprive thousands of students, of requisite furniture, computers, science equipment and books etc., of about 177 schools.
30. The petitioners, according to respondents' stand have no locus standi to seek any relief much less by invoking Constitutional jurisdiction under disputed facts and circumstances involved. Per averments, the award of tenders will be subject to scrutiny by the 'Audit Department 'and that too after completion of all 'codal formalities' 'before making payment to the suppliers from Treasury Department of Govt. Of Sindh, According to the respondents, the instant petitions having been filed with ulterior motives are incompetent in law thus liable to be dismissed with cost.
31. We have heard Mr. Jawaid Ahmed Siddiqui along with Mr. Rizwan Nadeem, learned counsel for petitioners, Mr. Qurban Ali Malano, learned counsel for respondent No.3 and Mr. Saifullah, learned A.A.-G. And have also perused the available record with the able assistance of the learned counsel for the parties.
32. Mr. Jawaid Ahmed Siddiqui, learned counsel for petitioners submitted that the petitioner is a registered contractor and supplier with Govt. Of Sindh and have satisfactorily performed previous contracts entered into between the Govt. Of Sindh and the petitioners regarding supply of different kinds of goods etc. Arguing the case, learned counsel further submitted that as is evident from Letter No.CTC(SGA&CD) 3(27)/09 dated 29th March, 2013, [Annexure 'P-1' to Constitutional Petition No. D-2395 of 2013] the Hon'ble caretaker Chief Minister Sindh had imposed a ban on purchase of all new physical assets (Movable and Immovable) with immediate effect. According to the learned counsel, such directions issued by the Hon'ble Caretaker Chief Minister were also circulated.
However, notwithstanding such ban, tenders were invited from the contractors/suppliers/bidders for supply of fuiniture/ articles/ science equipment/ computer with accessories books etc. Such tenders were published and notified in newspapers as provided for in Rule 17 of Sindh Public Procurement Rules, 2010. According to the learned counsel, though the petitioners had obtained tender documents but could not participate in bidding process because the tenders documents were against the SPPRA Rules. Learned counsel for petitioners further contended that the tender documents besides being defective contained incomplete information. Mr. Jawaid Ahmed Siddiqui, learned counsel for petitioners further urged that SPPRA Rule 13 was also violated. Per learned counsel, the petitioners, no doubt, had sought clarification/lodged objections inter alia about imposing ban but never responded positively.
33. Respondent No.2, per learned counsel, without seeking permission from the Secretary/Committee and/or obtaining relaxation regarding ban imposed, published tender notices, inviting the bids. Tenders so published/issued, indeed, in hasty manner smacks/shows mala fide on the part of respondent particularly when schools/educational institutions are closed for summer vacations. Mr. Jawaid Ahmed Siddiqui, Advocate further contended that respondents are quite in hurry to utilize the budge before lapse by 30th June, 2013 ex-facie in a colourful manner and/or in violation of the SPPRA Rules. Per learned counsel despite petitioner's letter dated 7-5-2013, the petitioner did not receive any response instead bids were opened at the office of respondent No.2. Learned counsel finally submitted that if, the process of bidding goes on and contract (s) is/are awarded in such hasty manner then, of course, there would be serious apprehension of corruption on the part of respondents. Thus to avoid such corruption, petitions deserve to be allowed.
34. Mr. Rizwan Nadeem, learned counsel appearing for the petitioners re-contempt application under sections 3-4 of Contempt of Court Act read with section 151, C.P.C. [M.A. No.19445 of 2013] while, adopting the arguments advanced by Mr. Jawaid Ahmed Siddiqui, Advocate, briefly submitted that Mr. J. Ram Das, Director Education, Sukkur has deliberately committed contempt by violating and/or ignoring order dated 30-5-2013 passed by this court.
35. In response to contempt application [C.M.A. No.19445 of 2013] a detailed 'counter-affidavit' has been filed by Mr. J. Ram Das Director Education Sukkur wherein the allegations of contempt have been emphatically denied. In response thereto, it is worth to note, no 'affidavit-in-rejoinder' has been filed on behalf of the petitioners. The averments/assertions, made it the 'counter affidavit' have thus gone unrebutted/unchallenged.
36. Mr. Qurban Ali Malano, learned counsel for respondent No.3 [viz. Insaf Education Trading in Constitutional Petition No.D-2396 of 2013] has seriously opposed the maintainability of the petitions. He forcefully,submitted that respondent No.3 duly participated in the bid process and also stands qualified. Per learned counsel, the petitioners have no lotus standi to file the above petitions as they have neither obtained tender documents nor participated in the bid process. Mr. Qurban Ali Malano, Advocate further contended that despite having knowledge that Insaf Education Trading/respondent No.3 appeared and participated in the bid process and stood qualified but the petitioners seemingly, with 'mala fide intention' avoided and/or ignored to join respondent No.3/Insaf Education Trading as party in Constitutional Petition No.D-2396 of 2013. Insaf Education Trading under circumstances, was compelled to file an application under Order I, Rule 10, C.P.C. [M.A. No.13003 of 2013] for becoming party in the above proceedings and on granting of the application vide order dated 13-6-2013 amended title impleading therein Insaf Education Trading as respondent No.3 was filed in Constitutional Petition No.D-2396 of 2013. Mr. Qurban Ali Malano, Advocate further urged that the petitioner is neither aggrieved person or otherwise, has any vested right to file above petitions. Further the petitioners have not approached this court with clean hands inter alia on account of manipulating the documents annexed with petitions. The petitions besides misconceived and/or misleading are incompetent in law thus liable to be dismissed with heavy cost.
37. Learned A.A.-G., Mr. Saifullah, also vehemently opposed the maintainability of the instant petitions. Per learned A.A.-G. There is no ban as alleged by the petitioners on procuring/purchasing the new physical assets [Movable and Immovable]. By the respondents. Per learned A.A.-G., the ban, obviously, has nothing to do with the procurement of movable and immovable equipment etc. Under the Annual Development Scheme [ADP]. In this regard learned A.A.-G. Focused our attention towards Letter No.FD/B&E-1/2(360)/BAN/ 2012-13 dated 17-5-2013 issued by Govt. Of Sindh, Finance Department [Annexure 'C' to respondent No.2 comments] and forcefully argued that in terms of the aforesaid letter even the so-called ban, if any, imposed by the then Hon'ble caretaker Chief Minister Sindh evidently is not applicable to the process of procurement/purchasing of new physical assets [Movable and Immovable] that being purchased under development scheme and for which funds are released by Finance Department. Besides, per learned A.A.-G., the above petitions having been filed merely on the basis of apprehension of corruption are without any foundation as such are liable to be dismissed, Per learned A.A.-G., the petitioners have failed to pinpoint any illegality and/or irregularity in the process of bidding. The purpose of the petitioners ex-facie is aimed at to get the release of funds lapsed by obtaining injunctive orders. Per learned A.A.-G., the tenders have properly and validly invited and the NIT has also got to be published on the authority's website. Learned A.A.-G. Further submitted that all necessary requisite information have been given in the tender documents, of course, strictly in accordance with SPPRA Rules, 2010.
The petitioner being not aggrieved persons have no locus standi to invoke the constitutional jurisdiction of this court on the basis of false and pseudo pleas. Learned A.A.-G. Further contended that since the petitioners have not approached this court with clean hands thus not entitled for any equitable relief.
38. Learned A.A.-G. Further submitted that the financial proposal is always included in the bidding documents separately and not as desired by the petitioners in the tender notices. Arguing the case, learned A.A.-G. Further submitted that in case contract (s) is/are not awarded before 30th June, 2013 the funds would stand lapse and students shall consequently remain deprived of having necessary furniture etc. Further the petitioners being not aggrieved persons have no locus standi and/or vested right to question the tender notices published in 'daily' newspapers quite in accordance with the SPPRA Rules. Learned A.A.-G. Further contended that petitions on account of non-joining of Sindh Public Procurement Regulatory Authority which otherwise, is a necessary and proper party are also not maintainable. He further submitted that floating of tenders inter alia in view of the observations made by Hon'ble Judicial Officers were not only necessary but also proper.
Per learned A.A.-G., the honourable Judicial Officers, in compliance with order passed by honourable Supreme Court of Pakistan on 11-2-2013 in Constitutional Petition No.37 of 2012, duly performed visits to the Govt. Schools and thereafter observed the shortage of various items in Primary, Middle, Secondary and Higher Secondary Schools as follows:--
(a) Furniture Equipment/other necessary material.
(b) Library related material viz. Books/Cup Boards & Chairs/Tables etc.
(c) Laboratory Equipment/Science Material.
(d) Computers/Computer accessories.
39. Learned A.A.-G. In support of his contentions placed reliance on the following cases:--
(i) 1987 SCM R 1577 [Mst. Noor Jehan Begurn v. Dr. Abdus Samad and others
(ii) SBLR 2011 Sindh 1249 [Messrs Iqbal and Sons v. City District Government and others]
(iii) 2011 M LD 1876 [MESSRS KSB Pumps Company Ltd. v. Government of Sindh and others]
(iv) 2007 SCM R 1318 [West Pakistan Tanks Terminal (Pvt.) Ltd., v. Collector (Appraisement)]
40. While concluding arguments, learned A.A.-G. Submitted that the petitions so filed are liable to be dismissed with exemplary cost.
41. While exercising the right of rebuttal learned counsel for petitioners besides reiterating the arguments already advanced by him submitted that the impugned tender notices [dated 24-4- 2013 and 9-5-2013] having been issued without lawful authority and/or in clear violation of the directions issued by Hon'ble caretaker Chief Minister Sindh as contained in Letter No. CTC(SGA&CD)3(27)/09 dated 29-3-2013 issued by Govt. Of Sindh, Services, General Administration and Coordination Department [Annexure 'P-11 to Constitutional Petition No.D-2396 of 2013] are liable to be declared illegal/void. Per learned counsel, otherwise, there are serious apprehensions of corruption if the process, towards granting of contracts, is permitted to go on. If contracts are awarded under aforesaid scenario then, of course, there would be great chances of losses to the public exchequer. Finally, Mr. Jawaid Ahmed Siddiqui, learned counsel for the petitioners urged for allowing of the petitions as prayed.
42. Heard arguments and perused record.
43. As far as contention of Mr. Jawaid Ahmed Siddiqui, learned counsel for the petitioners vis-a-vis ban is concerned, at this stage it would be appropriate and proper to reproduce herein letter bearing No. CTC(SGA&CD)3(27)/09 dated 29-3-2013 issued by Govt, of Sindh, Services, General Administration and Coordination Department [Annexure 'P-1' to Constitutional Petition No.D-2395 of 2013] and No. FD/B&E-1/2(360)/ BAN/2012-13 dated 17-5-2013 issued by Govt. Of Sindh, Finance Department [Annexure 'C' to the comments filed by respondent No.2] around which the dispute in hand mainly revolves. The aforementioned letters read as follows:-- A.
"NO.CTC 9SGA&CD)3(27)/09 - GOVERNMENT OF SINDH SERVICES, GENERAL ADMINISTRATION AND CO-ORDINATION DEPARTMENT Karachi, dated 29th March, 2013 CHIEF MINISTER'S DIRECTIVE To,
1. The Additional Chief Secretaries (Dev), P&D/Home Departments, Government of Sindh, Karachi The Senior Members, Board of Revenue Sindh, Karachi The All Administrative Secretaries in Sindh including Members, B.O.R. Sindh (Secy. Education)
4 The Secretary, Provincial ;Assembly, Sindh, Karachi
5. The Chairman, Enquiries and Anti-Corruption Establishment, Sindh, Karachi
6. The Chairman, Chief Minister's Inspection Team, Karachi
7. The Chairman, Sindh Services Tribunal, Karachi
8. The Chairman, Sindh Public Service Commission, Karachi
9. The Inspector General of Police, Sindh, Karachi
10. The Administrators/Commiss- ioners/Deputy Commissioners in Sindh (All)
' Subject: BAN ON PURCHASE OF ALL PHYSICAL ASSETS ' I am directed to state that Honourable Caretaker Chief Minister, Sindh has directed to impose ban on purchase of all new physical assets (Movable and immovable), immediately.
2. It is requested that above directive may kindly be implemented in letter and spirit. SD/- (Mirza Muhammad Aamir Baig) Section Officer (CTC)
Copy is forwarded for information to :
1. PS to Principal Secretary/Military Secretary to Governor Sindh
2. PS to Principal Secretary to Chief Minister, Sindh, Karachi
3. PS to Chief Secretary, Sindh
4. PS to Secretary (GA), SGA&CD (Mirza Muhammad Aamir Baig) Section Officer (CTC)"
B. "CHIEF MINISTER'S DIRECTIVES NO.FD/B&E-1/2(360)/BAN/2012-13 GOVERNMENT OF SINDH FINANCE DEPARTEMNT Karachi, Dated 17th May, 2013 SINDH EDUCATION AND LITERACY DEPARTMENT ' To,
1. The Administrative Secretaries to Government of Sindh (ALL)
2. The Accountant General, Sindh, Karachi
3. The District Accounts Officers/ Treasury Officer in Sindh ' Subject: BAN ON PURCHASE OF ALL PHYSICAL ASSETS ' I am directed to refer to Services, General Administration and Co-ordinating Department, Government of Sindh's Circular Letter No.CTC(SCA&CD)13(27)09 dated 29th March, 2013, on the subject noted above.
2. The honourable Chief Minister, Sindh, has been pleased to further direct that:
(a) There shall be a complete ban on procurement of vehicles of all categories and luxury items like Air-conditioners etc.
(b) There shall be a complete ban on procurement of furniture, computers etc. From non- development budget.
(c) There shall be no ban on procurement under a development scheme where Finance Department releases funds.
3. The ban under 2(a) and 2(b) above shall only be relaxed by the orders of the Chief Minister.
SD/- (ASIF JAHANGIR)
Additional Finance Secretary (B&E)
' No :FD(B&F-I)/2(360)/BAN/2012-13 Karachi dated 17th May, 2013 A copy is forwarded for the:-
1. The Principal Secretary to Chief Minister, Sindh
2. The Deputy Secretary (Staff) to Chief Secretary, Sindh
3. The PS to Minister for Finance, Sindh
4. The PS to Finance Secretary, Sindh
5. The PS to Special Finance Secretary (B&E/Res)/(Dev/SR)
6. All Officers in Finance Department."
44. Mere perusal of the aforesaid letter No.CTC (SGA&CD)3(27)/09 dated 29-3-2013 [Annexure 'P-1' to Constitutional Petition No.D-2395/13] would show that the ban imposed by the Hon'ble caretaker Chief Minister Sindh is only regarding purchase of all new physical assets [Movable and rmmovable] but evidently such ban does not cover/extend to the grant of contracts where purchases, are made under Annual Development Programme [ADP] through funds released by Finance Department. Clarification in this regard has also been notified/given in letter dated 17-5- 2013 [Annexure 'C' to the comments filed on behalf of respondent No.2]. Under clause 'c' of letter dated 17-5-2013 it has been clarified that there shall be no ban on procurement under a development scheme where finance department releases funds. [emphasis supplied].
In view of such position the contention of the learned counsel for petitioners besides misconceived seems without any substance.
45. Apart from the above, admittedly the petitioners have either not obtained the tender documents or participated in the bid process. In view of such position the petitioners have no locus standi to invoke the Constitutional jurisdiction of this court. Besides tender is merely an invitation for making an offer and does not by itself vest any right in a person until and unlesi the same is accepted. On this aspect of the matter reference can be made to the following case-laws:--
(A) 2006 SCM R 721 [MESSRS M.A. KHAN & CO. THROUGH SOLE PROPRIETOR MUHAMMAD ALI KHAN V.
MESSRS PAKISTAN RAILWAY EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD. THROUGH PRINCIPAL OFFICER/SECRETARY, KARACHI] "The tender notice is an invitation which is extended for making offer and it is not an offer or proposal and similarly offer made by a person without acceptance does not create any promise or agreement but acceptance of an offer or proposal by the person who called for tender would constitute an agreement. The acceptance of the offer may be expressed or implied or it can be gathered from the conduct of parties and the circumstance, of the case. The acceptance of an offer would give rise to an agreement which if is enforceable in law is a valid contract and the contract is complete as soon as the offer is accepted and the terms of contract required to be reduced in writing would be only incidental to the completion of contract. In a contract by correspondence if the acceptance of offer is established through the letters, the non-execution of the formal agreement would not be essential to constitute a valid contract. The letters of offer and acceptance indicating the term agreed upon by the parties would constitute a valid contract which would not be affected by subsequent negotiation and the terms of the contract would necessarily be judged from the letter of acceptance."
(B) 2002 SCM R 1150 [CITY SCHOOLS (PVT.) LTD., LAHORE CANTT V. PRIVATIZATION COMMISSION, GOVERNMENT OF PAKISTAN and others] "11. Perusal of different provisions of the Contract Act reveals that a tender notice is merely an invitation for making an offer and not by itself an offer or proposal. The advertisement does not constitute a proposal. Only by acceptance of offer or proposal by the person calling for tender it becomes a promise or agreement. When offer of tenderer is not accepted by the relevant authority, no .Legal right accrues to such tenderer. An agreement enforceable by law becomes a contract. The true test for deciding whether a valid contract is made between the parties or not is to ascertain if the parties were of one mind on all the material terms at the time it is said to have been finalized and whether they intended that the matter was closed and concluded between them. For this purpose, the correspondence exchanged between the parties is also to be looked into."
46. The learned counsel for the respondonts have rightly argued that the petitioners, are not aggrieved persons, as contemplated under Article 199 (1)(a) of Constitution of Islamic Republic of Pakistan, 1973 as neither they have obtained tender documents and/or participated in tender process. Otherwise, also the petitioners have failed to establish any violation of law and rules thus are not aggrieved persons as envisaged under Article 199 of the Constitution thus could not make a recourse to the High Court under its Constitutional jurisdiction. It is sine qua non for invoking jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 that the petitioner must be an aggrieved person and also have locus standi. For convenience purposes Article 199 is reproduced as under:-- "199. Jurisdiction of High Court.-,-(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, -
(a) on the application of any aggrieved party, make an order?
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he,claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter-1 of Part-11.
(2) Subject to the Constitution, the right YO move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.
11(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.] 2[(3A)] Omitted. 2[(3B)] Omitted. 21(3C)] Omitted. (4) Where -
(a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and
(b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to the public interest 3[or State property] or of impeding the assessm ent or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order?
(i) would not have such effect as aforesaid; or
(ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.
4[(4A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in part-I of the First Schedule or relates to, or is connected with, 5[State Property or] assessm ent or collection of public revenues shall cease to have effect on the expiration of a period of 5[six months] following the day on which it is made, 6[provided that the matter shall be finally decided by the High Court within six months from the date on which the interim order is made].
7[(4B)] Omitted
(5) In this Article, unless the context otherwise requires, - "person" includes anybody politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan; and "prescribed law officer" means?
(a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and
(b) in any other case, the Advocate-General for the Province in which the application is made.
47. Since in terms of clause 1(a) of Article 199 of Constitution of Islamic Republic of Pakistan, 1973 the petitioners are not aggrieved party as envisaged under Article 199 of the Constitution thus could not competently make a resort to the High Court under its Constitutional Jurisdiction. It is worth to mention that the petitioners have no locus standi for availing such a jurisdiction. The word 'aggrieved' or 'aggrieved party' has not been defined in the Constitution, however, from time to time it has been interpreted by the superior Courts in the given circumstance of the case.
48. Regarding this aspect of the matter reliance is placed on the following cases:--
(A) PLD 2007 SUPREME COURT 386 [PROVINCE OF BALOCHISTAN THROUGH SECRETARY EXCISE AND TAXATION DEPARTMENT CIVIL SECRETARIAT, QUETTA AND 2 OTHERS V. MURREE BREWERY COMPANY LTD.
THROUGH SECRETARY]: "8. In the case of Messrs Associated Cement Companies Ltd. v. Pakistan, through the Commissioner of Income Tax, Lahore Range, Lahore and 7 others PLD 1978 SC 151; it was observed that Writ Petition can be maintained by a person provided he be an "aggrieved person" and in order to be an aggrieved person imperative for him to show any of his proprietary or personal right, as recognized by law, to be invaded or denied. Person unable to show any of his rights as recognized by law to be invaded or denied has no cause of action to seek any relief. In the case of Nisar Ahmed and 2 others v. Additional Secretary, Food and Agriculture, Government of Pakistan and 3 others 1979 SCMR 299; [also reported in 1979 SCMR 3891 it was held that the petitioner in order to avail such jurisdiction must establish direct or indirect injury to himself and substantial interest in the subject-matter of proceeding. The case of Nisar Ahmed (supra) was followed in the case of Anjuman Araian Bhera v. Abdul Rashid and others PLD 1982 SC 308 wherein it was endorsed that a party must show some interest in property to which some legal sanctity was attached in order to bring itself within the ambit of the definition of "aggrieved party". In the case of Mst. Noor Jehan Begum v. Dr. Abdus Samad and others 1987 SCMR 1577; it was held that mere possibility that a person can obtain property by making highest bid if a property is disposed of by public auction does not give such a potential bidder a vested right in property. Such person is not an aggrieved person and has no right to maintain a constitutional petition. In the case of Mian Muhammad Nawaz Sharif v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan. Islamabad and 8 others 1994 CLC 2318 it was observed that a person could not be held to be an aggrieved person unless he had a right in the performance of statutory functions by a person performing functions in connection with the affairs of the Federation or Province in respect of any right which he may have in relation to the performance of the said functions and if he did not have any right directly in the matter had no locus standi to maintain constitutional petition. Relief sought must be in relation to grievance of said aggrieved person and not the grievance of any third person. In the case of Dalmia Cement Ltd. v. District Local Board, Karachi and 2 others PLD 1958 (W.P.) Karachi 211 the High Court of West Pakistan at Karachi, after making reference to a number of judgments i.e., the judgment of Supreme Court of India in case of Charanjit Lal v. Union India, wherein it was held that:- "It has been held in a number of cases in the United States of America that no one except those whose rights are directly affected by a law can raise the question of the constitutionality of that law. This principle has been very clearly stated by Huges J. In McCabe v. Atchison (1914) 235 U.S. 151 in these words:-- ' It is an elementary principle that in order to justify the granting of the extraordinary the complainant's need of it and the absence of an adequate remedy at law must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact clearly--established of injury to the complainant---not to others---which justifies judicial interference."
(B) 1979 SCM R 299/301 NISAR AHMAD AND 2 OTHERS V. ADDITIONAL SECRETARY, FOOD AND AGRICULTURE, GOVERNMENT OF PAKISTAN AND 3 OTHERS "We find that the learned Judge in the High Court has in a well-reasoned order and after discussing the judgments for and against on the point of the petitioner's locus standi held that the writ petition was not maintainable at their instance and we have not been persuaded to take a different view. Clearly, it is a sine qua non for invoking the writ jurisdiction of the High Court under Article 199 that the petitioner should be an aggrieved person. He must, therefore, establish a direct or indirect injury to himself and substantial interest in the subject-matter of the proceedings. The stand of the petitioners throughout has been that they were tenants paying rent to the Evacuee Trust Board and never claimed the transfer of the property and indeed in law they were not so entitled. Their writ petition was, therefore, rightly dismissed by the High Court and no ground for interference exists. This petition accordingly fails and is dismissed hereby."
49. With regard to the contention of Mr. Jawaid Ahmed Siddiqui, learned counsel for petitioners, that Rule 13 of SPPRA Rules, 2010 [which speaks about specifications] has been violated, learned counsel for the petitioners despite time and again queries of the court could not pinpoint any specific violation of Rule 13. Alleged violations have been seriously disputed by the respondent.
Under circumstances, while exercising Constitutional jurisdiction, the disputed questions/factual controversies particularly of general and evasive nature cannot be looked into appropriately without making resort to recording of evidence which drill in our view, cannot be undertaken by this court while exercising Constitutional jurisdiction. Rule 13 reads as follows:-- "13. Specifications.--(1) Specification shall allow the widest possible competition and shall not favour any single contractor or supplier nor put others at a disadvantage. Specifications shall be generic and shall not include references to brand names, model numbers, catalogue numbers or similar classifications. However, if the Procuring Agency is convinced that the use of a reference to a brand name or a catalogue number is essential to complete and otherwise incomplete specification, such use or reference shall be qualified with the words "or equivalent".
(2) Procurement of used or reconditioned equipment, plant or machinery is not permissible in any case, whatsoever."
50. Upon perusal of Rule 13 in juxtaposition of the tender documents, we are convinced that no violation of material - nature, lest not permissible under law, has been committed by the respondents.
51. Even otherwise, for redressal of such objections an elaborate mechanism has been provided in rule 31 of Sindh Public Procurement Rules, 2010 which reads as follows: "31. Mechanism for Redressal of Grievances.---(1) The procuring agency shall constitute a committee for complaint redressal comprising odd number of persons, with appropriate powers and authorizations, to address the complaints of bidders that may occur during the procurement proceedings.
(2) The committee shall be headed by head of the procuring agency or an official of the procuring agency, at least one rank senior to the head of the procurement committee and shall include the following;
(a) District Accounts Officer, or his representative, in case of the local governments or provincial line departments at district level, or a representative of the Accountant General, Sindh in case of Government departments at the provincial level;
(b) an independent professional, from the relevant field concerning the procurement process in question, to be nominated by the head of procuring agency;
(3) Any bidder being aggrieved by any act or decision of the procuring agency during procurement proceedings may lodge a written complaint after the decision causing the grievance has been announced;
(4) The complaint redressal committee upon receiving a complaint from an aggrieved bidder may, if satisfied;
(a) prohibit the procurement committee from acting or deciding in a manner, inconsistent with these rules and regulations;
(b) annul in whole or in part, any unauthorized act or decision of the Procurement Committee; and
(c) reverse any decision of the Procurement Committee or substitute its own decision for such a decision; Provided that the complaint redressal committee shall not make any decision to award the contract.
(5) The committee shall announce its decision within seven days. The decision shall be intimated to the bidder and the Authority within three working days by Procuring Agency. In case of failure of the committee to decide the complaint, the Procuring Agency shall not award the contract.
(6) The Procuring Agency shall award the contract after the decision of the complaint redressal committee;
(7) Mere fact of lodging of a complaint shall not warrant suspension of the procurement proceedings;
(8) A bidder not satisfied with decision of the Procuring Agency's complaints' redressal committee may lodge an appeal to the Chief Secretary through the Authority, who shall refer the matter to a Review Panel as per Rule 32;
(9) A bidder may file an appeal to the Chief Secretary provided;
(a) that the bidder has exhausted his complaint to the complaint redressal committee; and
(b) 'that he has not withdrawn the bid security deposited by him during the procurement process.
(10) The bidder must submit the appeal to the Chief Secretary with the following documents:
(a) a letter stating his wish to appeal to the Review Panel and the nature of complaint;
(b) a copy of the complaint earlier submitted to the complaint redressal committee of the Department and all supporting documents in a sealed envelope; and
(c) non-refundable complaint registration fee in the form of a Pay Order in favour of the Authority in the amount specified in Appendix A.
(11) Upon receipt of an appeal and registration fee, the Chief Secretary shall select a Review Panel to examine the complaint. Simultaneously, the Authority shall inform the bidder and the Head of the concerned Department of the action taken by the Chief Secretary.
(12) On receipt of reference from the Chief Secretary, the Chairperson of the Review Panel shall convene a meeting of the review panel within, five working days.
(13) Unless the Review Panel recommends dismissal of the complaint being frivolous, in which case the bidder shall loose the bid security deposite.d with the procuring agency, the Review Panel may:
(a) propose rejection of the complaint, stating its reasons;
(b) state the rules or principles that govern the subject-matter of the complaint;
(c) point out the infirmities and breach of rules and regulations by the procuring agencies;
(d) suggest annulment in whole or in part of a non-compliant act or decision of a procuring agency, other than any act or decision bringing the procurement contract into force;
(e) if the procuring agency is in breach of its obligations under the Act, Rules or Regulations, suggest the payment of compensation by the officer(s) responsible for misprocurement for cost incurred by the bidder on preparation of bid, including the cost of the complaint registration fee paid by the complainant; or
(f) recommends that the procurement proceedings may be terminated, in case the procurement contract has not been signed.
(14) It shall be mandatory for both, the complainant and the procuring agency to appear before the Review Panel as and when called and produce documents, when so required. The Review Panel shall issue the notice of appearance to the Head of the Department for its service who shall ensure the attendance of the Head of Procuring Agency along with relevant record. In case of failure of Head of Procuring Agency to appear before Review Panel despite service, the Authority shall bring the matter to the notice of Chief Secretary. In case the complainant fails to appear twice, despite service the reference may be decided ex parte. The Review Panel shall hear the parties and give its recommendations to the Authority within thirty days of receipt of reference. In case, more time is required, the Review Panel may seek extension from the Chief Secretary through the Authority enumerating the reasons for delay. The Authority shall submit these recommendations to the Chief Secretary who shall decide the appeal keeping in view the recommendations of the Review Panel; Provided that the Chief Secretary may refer the matter back to the Review Panel, if there is some ambiguity or vagueness in the recommendations and a clarification is to be sought. The Review Panel shall clarify the matter within seven calendar days, following which the Chief Secretary would decide the matter;
(15) The decision of the Chief Secretary shall be final and the procuring agency shall act upon such findings. After the decision has been issued, the complaint and the decision shall be hoisted by the Authority on its website within three working days; Provided that no information shall be disclosed if its disclosure would be against the public interest or may jeopardize national security.
52. Upon perusal of the provisions of Rule 31 ibid the petitioners have suitable/ efficacious alternate remedy by way of presentation, appeal and review by a review panel. In the case in hand there exists no exceptional circumstances which can justify/warrant exercise of extraordinary jurisdiction of this court by invoking Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. On this score the instant petitions, in our view, also fail.
53. On this aspect of the matter reliance is placed, on the cases as under:--
(A) SBLR 2011 SINDH 1249/1261 (PARA 16 AND 17) [Messrs IQBAL AND SONS V. CITY. DISTRICT GOVERNEMNT AND OTHERS] wherein it was observed as follows: "16. On perusal of the provision of rule 31, as reproduced above, it appears that "to address the complaints of bidders that may occur during the procurement proceedings, elaborate mechanism has been provided, whereby the Procuring Agency (i.e. CDGK in instant case), is required to constitute a Complaint Redressal Committee (CRC), comprising odd number of persons, with appropriate powers and authorizations including authority to, prohibit the procurement committee from the acting or deciding in a manner, inconsistent with procurement rules and regulation or annul in whole or in part, any unauthorized act or decision of the procurement committee and reverse any decision of the procurement committee or substitute its own decision for such a decision. However CRC has no power to award the contract. It further appears that a time bound mechanism has been provided for the CRC to proceed and decide the complaint. In event the bidder is still dissatisfied with decision of the remedy by way of appeal to the Chief Secretary, has been provided in terms of sub-rules 8 and 9 of Rule 31 ibld. Upon receipt of an appeal and registration fee, the Chief Secretary is required to select a review panel, comprised of expertise in relevant field, to examine the complaint. Review Panel has vast power, including rejection of complaint entailing forfeiture of bid security, annulment in whole or in part of non complaint at or decision and make recommendation to the Chief Secretary, who shall finally decide the controversy. The decision of the Chief Secretary is final and Procuring Agency is under obligation to act upon such finding.
17. High Court before exercising its extraordinary jurisdiction must be satisfied about the non- availability, or inefficacy of alternate remedy provided under law and once it is shown to the satisfaction of the High Court that alternate remedy is expedient, effective, then courts would be reluctant to exercise writ jurisdiction, which is not meant to bypass such authority to render such hierarchy as redundant superfluous. Apex court in number of cases has deprecated tendency to invoke writ jurisdiction, by passing remedy provided under relevant statute, one may refer to case of Match Company Ltd. v. Authority under Payment of Wages Act, 2003 SCMR 1492."
(B) 1989 SCM R 1892/1896 (PAKISTAN BURMAH SHELL LTD. V. MRS. NASREEN IRSHAD AND OTHERS) wherein it was observed as follows:-- "7. Where the law takes notice of a particular situation and makes a: provision of it then the legislative intent must be given effect to and respected. The interim orders which decide questions which do not conclude the proceedings or have the finality cannot under the Scheme of the Act be appealed against. If all these questions touching jurisdiction are allowed to be raised by Constitutional petitions, then the same authority which has jurisdiction in appeal would be deciding those questions in Constitutional petitions when it has been precluded from questioning them in appeal. This will amount to defeating the manifest intention of the law as such. In the case of Mumtaz Hussain alias Bhutta v Chief Administrator of Auqaf, Punjab, Lahore and another 1976 SCMR 450 such a recourse was not approved because it was held that it would defeat the express provisions of the statutory law."
54. Also the petitioners have failed to implead Sindh Public Procurement Authority [SPPRA] as respondent in the instant petitions which in our view is a necessary party. Under section 3(2) of Sindh Public Procurement Act, 2009, Authority can sue and be sued. Section 3(2) of the Act reads as follows:-- "3. Establishment of Authority.--- (1) There shall be established an Authority to be called the Sindh Public Procurement Regulatory Authority for carrying out the purposes of this Act.
(2) The Authority shall be a body corporate, having perpetual succession and a common seal, with powers subject to the provisions of this Act, to acquire and hold property, both movable and immovable, and, sue and be sued by the name assigned to it by subsection (1).
(3) The headquarters of the authority shall be at Karachi and it may establish its offices at such other place or places in the Province of Sindh, as it may consider appropriate.
' In this regard reliance is placed on the case of AKHTAR ALI KHAN AND ANOTHER V. SETTLEMENT COMMISSIONER, PESHAWAR and 4 others [1989 SCM R 506] wherein it was observed as under:-- ' The appellants' Writ Petition failed in the High Court on grounds of (1) laches; and (2) appellants' failure to implead the purchaser from respondent No.5, a, necessary party.
' We have heard the learned counsel for the appellants. His explanation regarding Point No.2 is that the absent party being a son of respondent No.5 she could have protected his interests..
Notwithstanding this, he has admitted that in cases like the present one, the High Court could refuse relief in its writ jurisdiction if all the necessary parties were not impleaded.
' The respondents' written statement was enough notice to the appellants that the second transferee was a necessary party. In the circumstances of the case, appellants' writ petition having rightly been discussed, this appeal is also dismissed with no order as to costs."
55. It is worth to note that in absence of a necessary party no effective order can be passed. Be that as it may, the instant petitions are not competent for want of necessary party as well.
56. Further the petitioners have filed above petitions merely on the basis of apprehension. Per petitioners' stand/ arguments as advanced at bar, if bidding process goes on then there will be serious chances/possibilities of corruption on the part of the respondents. Such apprehensions besides being hypothetical are without foundation. Such baseless apprehensions, of course, provide no cause of action and/or ground for filing of Constitutional petitions. Be that as it may the petitions are liable to be dismissed in limine. Relevant in this regard is the case of HUNDAL DASS V.
DISTRICT NAZIM AND OTHERS [2004 YLR 2131], wherein it was held as under:-- "It is the case of the petitioner that his goods were illegally taken away by the staff of the K.M.C.
Which he has been able to recover from them. This Constitutional petition has been filed on the apprehension and fear that in future the same thing will be done by the K.M.C. Or by the authority having replaced it and that a direction should be issued to them not to act contrary td and against the law in causing harassment to the petitioner.
' The petition is absolutely frivolous and without any substance as no direction can be issued on mere apprehension and fear of the petitioner. Accordingly, the petition stands dismissed in limine along with the listed-application."
57. Evidently, the petitioners have not approached this court with clean hands. Since the petitioners inter alia have manipulated tender documents receipt dated 3-5-2013 [Annexure 'P-4' to Constitutional Petition No.D-2395 of 2013] by removing the name of the person/firm who had deposited Rs.2000 for issuance of tender documents, therefore, on this ground also the petitions are liable to be dismissed. On scrutiny, it reveals that Annexure 'P-4' to Constitutional Petition No.D- 2395 of 2013 is the document of Messrs Science and Computer Link, Karachi and not of Messrs Khalid Science Store under whose name the petitioners are carrying on business. In this regard reliance is placed on the case of WEST PAKISTAN TANKS TERMINAL (PVT.) LTD. v. COLLECTOR (APPRAISEMENT) [2007 SCM R 1318] relevant para reads as under:-- "14. Furthermore in law, the petitioner seeking leave to appeal against the High Court order is not entitled to the discretionary and equitable relief from this court in the exercise of constitutional jurisdiction as he has not approached this Court or the fora prescribed under the ConstitutiOn and the law with clean hands. One who seeks equity must have equities in his favour. In the present case we are firmly of the opinion that the equities do not lean in favour of the petitioner therefore in our considered view the impugned judgment does not warrant any interference by this Court."
58. As far as the contempt application [C.M.A. No.19445 of 2013] is concerned, mere perusal of order dated 30-5-2013 would show that no violation/defiance of the aforesaid order has been committed. 'It is worth to note that regarding subject tenders no contract(s) has/have been awarded so far. For proper appreciation the relevant part of the order dated 30-5-2013 is reproduced as below:-- ' The contract with regard to the subject tenders shall not be granted till 10-6-2013. It may, however, be noted that the petitioner shall not cause/attempt to delay the matter or else the ad- interim order shall not be extended. " [emphasis supplied].
59. It is worth to note that no 'affidavit-in-rejoinder' in response to the 'counter affidavit' filed in answer to the contempt application, has been filed by the petitioners thus specific assertions/denials of any contempt by the alleged contemnor have gone unchallenged/unrebutted. In view of such position, the contempt application [C.M.A. No.19445 of 2013] deserves dismissal as well.
60. Upon reaching the conclusion that both the above petitions are without any substance/merits, therefore, we dismissed the same along with listed applications vide short order dated 24-6-2013.
Foregoing are the reasons for our short order.