This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan is directed against letter Nos. WII-1(73)/76, dated 30-3-1977 and WII-,4(67)78, dated 18-1-1979 issued by respondent No. 2 to respondent No. 1 and also seeks a direction to the respondents to award execution of work for installation of tube-wells in the northern region by calling for competitive tenders and not through negotiations.
2. The case as set up in this petition, briefly stated, is that the petitioners are companies registered in Pakistan and equipped with latest machinery and equipment for undertaking the installation of tube-wells, foundation piles, sub-soil investigation etc. And had been carrying on the work of respondent No. 1 and other Government agencies and autonomous bodies satisfactorily.
3.It has been further asserted that petitioner No., 2 executed major contracts for installation of about 800 tube-wells at a cost of over rupees Vine hundred and twenty-four lacs for respondent No. 1 during the period 1975-80 and these contracts were awarded to it on the basis of competitive tenders called for by respondent No. 1.
4. The further averment in the petition is that a company styled as National Tube-well Construction Co. Ltd. Was floated in 1974 as a Private Limited Company in which the Federal Government has interest and as this Private Limited Company was not working on profit basis the Chairman of the said company in order to hide the mal-functioning of the Company through a device approached the authorities in the Ministry of Finance, Government of Pakistan and got instructions issued from the Government (respondent No. 2) initially for having the 'contracts placed on Pakistani companies only and thereafter that the capacity of the said National Cons--truction Co. Ltd.
Should be fully utilized and contracts to other Pakistani contractors be given only if that company cannot undertake the work.
5. It has also been alleged that after the issuing of these instructions respondent No. 1 has awarded many contracts to the National Tube-well Construction Co. Ltd. Without calling. For tenders at rates which are higher than the normal contract rates based on the tender system which procedure is against the. Financial Rules framed by respondent No. 1 itself.
6. It has also been asserted that the system of placing contracts with the National Tube-well Construction Co. Ltd. Without calling for tenders has been discontinued its the northern region only, whilst the tender system is being continued in the southern region which -action is a discriminatory step.
7. Initially, a report was called for from the respondents which has since been received and along with the reports para-wise comments have also been submitted by the respondents.
8. The respondents also took permission to fiie addendum to the report and para-wise comments which was granted and ' additional submissions were placed by respondent No.. 1 on the record.
Conies of the reports, para-wise comments as well as the addendum were provided to the learned counsel for the petitioners who was also allowed to file rejoinder if he so chose. The petitioners have, however, not filed rejoinder to the para-wise comments or the addendum.
9. The learned counsel for the petitioners contended that the impugned letters have been issued without lawful authority and are violative of the rules framed by respondent No. 1 for placing of contracts for execution of works by the said respondent No. I as those Rules enjoin upon it to call for tenders first before a contract is awarded to any bidder. In this regard the learned counsel referred to Condition No. I of section 5, at page 17 of the Book of Financial Powers, 1977 and submitted that it is required of respondent No. 1 under the said rule to have given the contract of work through call of tenders and to the lowest tenderer.
10. The learned counsel further argued that even when it is intended to accept a tender other than the lowest, the procedure as given in condition No. 2 on the same page has to be followed.
11. Continuing with the arguments the learned counsel submitted that the non-calling of tenders by respondent No. 1 is therefore wholly without lawful authority and so is the placing of contracts with the National Cons--truction Co. Ltd. Illegal.
12. The learned counsel for the petitioner next argued that when protest was made by the petitioners, respondent No. 1 presumably feeling the illegality of its action of not calling tenders has started the calling of tenders but despite National Tube-well Construction Co. Ltd. 's tender being not the lowest contracts are being awarded to it on the basis of the impugned letters which again is a circumvention of the Rules.
13. The last submission made by the learned counsel for the petitioners was that the contents of the Book of Financial Powers, 1977 has the force of law and it is binding on the WAPDA functionaries. He in this regard relied on Messrs East & West Steamship Company v. Pakistan (1), Bilal Ahmad Malik v.
Secretary, Ministry of Commerce, Government of Pakistan, Rawalpindi (2) and Arsalla Khan v.
Bashir Ahmad Blour and 3 others (3).
14. The learned counsel for the respondents, on the other hand, submitted that the Book of Financial Powers, 1977 is only a guideline for internal use and administration of WAPDA and it does not contain any Rules framed under any law.
15. He further submitted that this Book of Financial Powers, 1977 only gives the delegation of powers and the extent to which a particular functionary of respondent No. I can exercise the powers of the Authority. These, he submitted, can in no manner restrict the actions of the Authority itself which can place contracts in any manner it wants as there is no embargo placed on it under any law or Rules in this regard. He also submitted that the contracts in question are being placed on the National Tube-well Construc--tion Co. Ltd. Under the orders of the Authority itself -and not by any of its functionaries.
(1) PLD 1958 SC (Pak.) 41 (2) PLD 1963 Kar. 981
(3) 11 LD1976SC581
16. The next submission made by the learned counsel for the respon--dents was that no provision of the Statute or any rule framed thereunder has been cited by the petitioners which is being violated by the respondents while placing the contracts with National Tube-well Construction Co.
Ltd. He contended that the remedy of writ would only be available to an aggrieved person in case the impugned action of any Government functionary is violative of any law. He submitted that the petitioners are not "aggrieved persons" within the meaning, of Article 199 of the Constitution.
Reliance was placed by him on Messrs Saadullah Khan & Brothers and another v, The Province of West Pakistan PLD 1971 Quetta 101 In the same context the learned counsel for the respondents submitted that despite specific assertion by the respondents that there is no law being violated by the respondents in not calling for tenders and/or in placing the contracts with the National Tube-well Construction Co. Ltd. As is evident from para. 5 of the para-wise comments and para. 1 of the additional submissions the petitioners despite opportunity given have filed no rejoinder and have also not referred at the bar to any statutory provision which is being violated. He distinguished PLD 1976 SC 581 cited on behalf of the petitioners as not applicable to the case in hand inasmuch as in the cited authority the position is that W. P. Municipal Committees Rules, 1964 framed under the W. P. Municipal Administration Ordinance, 1960 had not been complied with. The learned counsel for respondents also pointed out that the other two authorities cited on behalf of the petitioners also do not apply to the facts of the case in band.
The learned counsel for the respondents also submitted that even the conditions of the Book of Financial Powers, 1977 relied upon by the petitioners have since been amended and after deletion of conditions Nos. 2(c), (d) and (e), Condition No. 2(c) has only been substituted which no longer enjoins even on the functionaries to call for tenders.
19. The learned counsel for the respondents also urged that National Tube-well Construction Co.
Ltd. Is wholly owned by the Federal Govern--ment and it had been floated in 1974 only for the purpose of accelerating the programme of Water-logging and Salinity Control which is a programme launched by the Federal Government itself and is totally financed by it.
He submitted that WAPDA is only an executing agency of the Federal Government's aforementioned Project and as an agent has otherwise to comply with the directions of the Principal for the purposes of completion of the latter's Projects.
On the factual plane, the learned counsel for the respondents refuted the allegations of the petitioners that National Tube-well Construction Co. Ltd. Has been given contracts despite being not the lowest when tenders were called for. He in this regard referred to para. 5 of the para-wise comments submitted by respondent No. 1 to show that out of the four cases in which the National Tube-well Construction Co. Ltd. Took part it was lowest in three of them. He argued that in this context it is fallacious to urge that National Tube-well Construction Co. Ltd. Was being awarded contracts despite the fact that it never was the lowest in the tenders.
The learned counsel for the respondents also submitted that even when the tenders are called for by respondent No. 1 or its functionaries it is specifically mentioned in the Invitation to Tender that the Authority calling for tenders reserves the right not to accept the lowest tender and in this view of the matter- also no grievance can be made by the petitioners who may have submitted that the lowest tender is not being accepted as they submitted their tender under the aforementioned condition knowing the same fully well.
20. Taking the first contention raised on behalf of the petitioners into consideration, it may be observed that no statutory provision of WAPDA Act or any Rules framed thereunder has been referred by the 'petitioners in their petition or cited at the bar by their learned counsel which restricts the Authority of respondent No. 1 to award. Contracts only by calling of tenders. The only thing referred by them is the condition contained in the Book of Delegation of Powers issued by the respondent No. 1 Authority. It is stated in the preface of this book that "it is the delegation of financial powers (WAPDA and Power Wing) and is intended to have a- maximum decentralization of powers and responsibilities to be exercised and shared by the functionaries of respondent No. 1 Authority". This delegation of powers appears to have been made by respondent No. 1 under section 20 of WAPDA Act.
21. From the above it is clear that the contents of this book are'in n manner intended to place restrictions on the powers of the WAPDA Authority as such which appears to have been left free to make its own decisions for the conduct of its functions and works. The conditions and limitations laid down by a delegator for exercise of the delegated powers by the delegatee cannot obviously operate so as to limit the power of delegator himself when he exercises the same in his own right. It may be observe that it is the case of respondent No. 1 that the : National Tube-well Construc--tion Co. Ltd. Is being awarded the contracts by the respondent Authority itself.
22. Apart altogether from the above position even if it be assumed that the contracts have been awarded to the National Tube-well Construction Co. Ltd. By a delegatee of respondent No. 1 no case will be trade out for the petitioners as the condition relied upon by the petitioners viz. Condition No. 1 of Section V appearing at page 17 of the Book of Financial Powers, 1977 only provides that lowest tender of work shall "normally" be accepted The use of the - word "normally" necessarily implies that the condition I not of absolute binding nature. .
23. Again, the following condition No 2(c) which was substituted by deletion of Conditions Nos. 2(c),
(d) and (e) as they originally existed by virtue of Circular No. OSD/IMP/MF-4/80i 19790-19990, dated 29-11-1980 itself empowers even a functionary that where it is 'considered in the interest of the Authority to enter into negotiations without calling any tender he can do so by a prior approval of the next higher authority. It is nowhere asserted by the petitioners that any functionary who had placed contracts on 'National Tube-well Construction Co. Ltd. By not calling for tenders did not obtain the approval of the next higher authority. The first contention raised on behalf of the petitioners therefore has no merit and the writ petition is not maintainable.
24. The second contention raised on behalf of the petitioners. In the light of the above discussion has also no force as the substituted rule 2(c) is a complete answer to this contention in addition to the fact that when the tenders are invited there is a specific condition that it is not obligatory on the Authority calling the tender to accept the lowest bid.
25. Adverting now to the third contention raised by the learned counsel for the petitioners, suffice -it. To-say - that it is she delegation of powers and the extent thereof in respect of various functionaries of respondent No. I which is contained in the Book of Financial Powers. The contents of this Book of Delegation of Powers, as already discussed above, cannot in any manner be extended so as to bind the acts of the respondent-Authority itself. These obviously cannot be termed as "Statutory Rules" for the' purposes of the functioning of the WAPDA Authority distinctively from' the functioning of its members, Officers etc.
26. Before parting with the case, - it may also be pertinently observed that the contention raised on behalf of the petitioners that now the respondent has started calling for tenders but despite calling of tenders is not awarding the contracts to the lowest tenderer is not a ground taken by the petitioners in their writ petition and the only grievance made therein is that the contracts are being awarded to the National Tube-well Construction Co. Ltd. Without calling for tenders which action of respondent No. 1; as pointed out above, is not contrary to any law or rule on the subject and even if the contract is awarded by a subordinate functionary of the Authority he could do so by virtue of Condition No. 2(c) ibid. The act of the petitioners' participating in the calling of tenders with a condition therein that the right not to -award tender to the lowest tenderer has been reserved by the Authority also precludes the petitioners. From challenging the award of contract to a tenderer other than the lowest, as they submit the tender knowing full well the aforesaid condition. .
27. Yet another factor which has persuaded me to dismiss this petition is the belated challenge made by the petitioners to the act of the respon--dents. The letters in question had been issued in March, 1977 and January, 1979 and the writ petition has been filed almost two years after the issuing of the last letter i.e. in December,. 1980. The petition, therefore, suffers from mil as well.
28. In view of the foregoing discussion, I find no merit in this petition which is accordingly dismissed.
There will, however, be no order as to costs.