JUDGMENT : Raja Saeed Akram Khan, J.-- The titled appeals by leave of the Court have been directed against the judgment of the High Court dated 28th March, 2016, whereby the writ petition filed by respondent No.1, herein, in both the appeals, has been accepted. Since both the appeals arise out of the same judgment, therefore, these are being disposed of through this single judgment.
2. Precise facts of the case are that the Executive Engineer Public Health Engineering Department through advertisements published in the newspapers invited tenders for construction of Greater Water Supply Schemes for district Neelum and Hattian Bala. The said advertisements were cancelled on 03.08.2015 and 17.08.2015. A consolidated advertisement on 22.08.2015, was later on issued calling for the tenders for above referred schemes. After necessary proceedings, the work was allotted to the appellant, Sardar Ilyas Alam Construction Company . Due to some complaints, an inquiry was ordered by the Chief Secretary through notification dated 06.10.2015, to scrutinize the tendering process. The said notification was later on withdrawn on 30.11.2015 and a fresh notification dated 16.12.2015 was issued for conducting the inquiry in the matter . Respondent No.1, herein, challenged the notifications dated 30.11.2015 and 16.12.2015, before the High Court by way of writ petition. The learned High Court while accepting the writ petition set aside all the proceedings conducting for awarding the contract for Improvement and Up-gradation of Water Supply Scheme, Authmuqam and Greater Water Supply Scheme, Hattian Bala vide impugned judgment dated 28.03.2016, which is the subject matter of these appeals by leave of the Court.
3. Raja Amjid Ali Khan, Advocate, the learned counsel for the appellants, in both the titled appeals argued that the impugned judgment is against law and the facts of the case which is not sustainable in the eye of law. He contended that respondent No.1, in support of the claim that he approached the concerned officials on 13.08.2015, and moved written application for obtaining the tender forms, however , the same have not been provided to him, failed to bring on record any evidence, but the learned High Court has not considered this aspect of the case. He further added that the tender notice was cancelled on 17.08.2015 and fresh notice was issued on 22.08.2015 but respondent No.1, herein, did not apply for obtaining the tender forms in response to the fresh advertisement published in the newspapers on 22nd August, 2015. In this way, respondent No.1, does not come within the definition of aggrieved person, but the learned High Court erred in law while not taking into consideration this important aspect of the case. He contended that the learned High Court while passing the impugned judgment has travelled beyond the pleadings as respondent No.1, herein, only challenged the notifications dated 30.11.2015 and 16.12.2015, before the High Court, but the learned High Court issued the direction for re- advertisement of the projects. He contended that the learned High Court while passing the impugned judgment mainly relied upon the report of the second inquiry comm ittee without adhering to the fact that the first committee headed by the Chief Engineer PWD has already held that the tendering process was carried out in accordance with the relevant rules. In such scenario, it was improper to constitute second committee headed by another Chief Engineer . Even otherwise, the Chief Secretary has not equipped with the powers to constitute such like committees, therefore, the committee constituted by the Chief Secretary has rightly been dissolved vide notification dated 30.11.2015. He contended that the same tendering process for 5 projects was adopted including the subject matter of appeal and the other three projects are near to completion and no one has raised any objection regarding the non-transparency , but this aspect of the case escaped the notice of the High Court.
4. Mr. Mansoor Pervaiz Khan, the learned Advocate-General while adopting the arguments advanced by Raja Amjid Ali Khan, Advocate, submitted that the learned High Court failed to consider the bona fide of the official respondents as they constituted three committees to scrutinize the matter . He further added that the learned High Court fell in error while not taking into consideration that the allegation in respect of non-advertisement of tender notice in the renowned newspapers having wide circulation, cannot be levelled without impleading the Information Department as party .
5. On the other hand, Kh. Attaulla h Chak, Advocate, the learned counsel for respondent No.1, herein, strongly controverted the arguments advanced by the learned counsel for the appellants. He submitted that the impugned judgment is perfect and legal which does not warrant any interference by this Court. He contend ed that the tendering process was bogus, secret and illegal, therefore, the learned High Court was fully justified to set aside the same. He added that the report of inquiry committee clearly shows that the whole tendering process was conducted in a non-transparent manner . In continuation of the arguments, he submitted that Pakistan Engineering Council Instructions have been adapted by Azad Jammu and Kashmir Government vide notification dated 14.02.2009. It has clearly been mentioned in Instruction No.2, of the said instructions that notice should be published to give the bidder 42 to 154 days for submission of the tenders.
Moreover , in Instruction No.6 it has been provided that the date for receipt of bids and opening of bids shall be the same. In the case in hand, both the referred instructions have not been followed by the official respondents. He forcefully submitted that the contention of the learned counsel for the appellants that respondent No.1, has not applied for issuance of tendering documents is not correct as the whole proceedings were kept secret. Although, bids were invited through advertisements made in "Daily Ausaf" on 23.08.2015 and "Muzaf farabad Heights Muzaf farabad" on 22.08.2015, but copies of both the newspapers were not available in the market as all the copies were bought by the appe llant-company . In this way, nobody came forwarded to participate in the tendering process except only four selective contractors.
6. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgment. The perusal of the record shows that the tenders were invited for the projects in question, i.e. Greater Water Supply Schemes, district Neelum and district Hattian Bala. After conducting the necessary proceedings, the work was allotted to the appellant, Sardar Ilyas Alam Construction Company . Respondent No.1, herein, moved an application to the Chief Secretary , the copy of the same was also sent to the Secretary Physical Planning and Housing, for cancellation of the tendering process, on the ground that the same has been made illegally against the prescribed procedure and the relevant rules. The relevant portion of the application is reproduced here which reads as under:- {{URDU TEXT}} On the aforesaid application, the Secretary Physical Planning and Housing constituted a committee consisting of Chief Engineer PHE, XEN PHE and SDO PHE, to examine the matter vide order dated 16.09.2015. The record reveals that the said committee submitted a tentative report on 28.09.2015, while observing that the tendering process has been made in a transparent manner according to law and the rules. The total findings recorded by the said committee read as under:- {{URDU TEXT}} On 06.10.2015, the Chief Secretary constitu ted a committee consisting of Chief Engineer HEP, PDO, Director Structure CDO, Superintending Engineer PEH, Muzaf farabad and Chief PP&H, P&DD, to scrutinize the tendering process of five water supply schemes of Public Health Engineering in which the projects in dispute were also included. It will be relevant to observe here that the argument of the learned counsel for the appellants that the learned High Court relied upon the report of the second inquiry committee without adhering to the fact that the first committee headed by the Chief Engineer PWD had already held that the tendering process was carried out in accordance with the relevant rules and it was improper to constitute second committee headed by another Chief Engineer; has no weight. The appellant-company has not challenged the constitution of the second committee at the relevant time at any forum, even during the inquiry of the said committee they remained mum, when the committee submitted its report against the interest of the appellant-company , then they raised such objections which have no value in the eye of law .
6. It is spelt out from the record that the second committee constituted by the Chief Secretary submitted a detailed report on 26.10.2015. The learned High Court has reproduced the findings recorded in the inquiry report of the second committee, therefore, there is no need to reproduce the same again, however , we deem it proper to reproduce here the concluding part of the report which reads as under:- "Conclusion:- i. The tender notice for the procurement of contract for water supply scheme Hattian was initiated without the technical sanction, approval of bidding documents and tender notice which is violation of PPRA rules and PEC guidelines/PWD code. ii. Shifting of PHE component for execution/tendering of water supply schemes from Haveli and Neelum to Bagh and Muzaf farabad respectively is not justified as scheme was originally prepared by concerned XEN Haveli and Neelum.
Moreover , during the execution it would be very difficult to supervise the schemes in far flung areas from Bagh and Muzaf farabad Divisions. Therefore, it seems malafide and it has no justification. iii. S.E. PHE Muzaf farabad circle well in time indicated the different shortcoming/irregularities in the tendering process of water supply scheme Hattian but XEN Muzaf farabad did not pay any atten tion to that. Moreover , neither the Chief Engineer nor the Secretariat PP&H took any notice of the issues raised by the S.E PHE (Annex-Z). iv. The constitution of different supply scheme in the presence of regular/relevant incumbent S.Es/Eens has no justification as it results in disturbance of chain of command of department leading to manipulations. v. The copies of advertisement, Approvals of technical sanction given by the Chief Engineer were never sent to the concerned S.E PHE Muzaf farabad. vi. The original bids were not provided to committee despite written and verbal requests which prima facie implies that PP&H Department is deliberately concealing the fabricated tendering process. vii. Tender documents were issued to already selected three/four contractors in all the tendered out water supply projects. viii. The Bid Evaluation Report with blank spaces and fictitious entries completely fabricated."
After going through the supra conclusion drawn tendering process of both the projects has been conducted in a non- transparent manners. The record further postulates that para-wise comments have been filed separately before the High Court by the respondents, therein. Respondents No.3 and 4, therein, i.e. Additional Chief Secretary (Development) and the Department of the Planning and Development while filing para-wise comments, have fully supported the findings of the second inquiry committee. In such state of affairs, in our estimation, when it was brought on record that the proceedings for the allocation of contracts have been made in a non-transparent manner then no option was left with the Court except to set aside such proceedings.
7. It may be observed here that serious illegalities/irregularities have been pointed out in the tendering process, therefore, the discussion on the other points; whether the Chief Secretary has the powers to constitute such like committees or not; whether in presence of the report of first inquiry committee the other committee could be constituted or not; mere would remain of academic nature. However , we reaffirm the findings recorded by the learned High Court that although the notification for constitution of Committee by the Chief Secretary has been withdrawn but details provided by the said committee cannot be overlooked. It may also be observed here that whenever such like situation arises, the Courts always intervene being custodian of the rights of the people. Same proposition came under consideration of this Court in a case titled M/s Chinar Power (Pvt.) Limited Muzaf farabad v. Azad Govt. & others (civil appeal No. 142 of 2014 decided on 04.07.2014) wherein it has been held that: "10. After discussing the above said points it seems that whole process was not made in the transparent manner . It is the project of national interest and it is very unfortunate aspect of the case that the Government functionaries are not carrying this and make all the effort to award the contract to the persons of their own choice. In such like eventualities the Courts cannot close the eyes and vigilant about the rights of the peoples. Moreover , the principle s or judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism."
In another case titled Messers Friends Technical Engineering Association, Muzaf farabad and other v. Barrister Syed Iftikhar Ali Gilani & others (civil appeal No.305 of 2014, decided on 18.04.2016), while dealing with the proposition this Court has held that: "13. We have reached the conclusion that basic document, i.e., notification dated 12.12.2012, was issued without lawful authority and the same is void ab initio, thus, although there is no need to discuss the point whether the authority adopted the measures in a transparent manners or not; however , as this point is also of public importance, therefore, we intend to discuss the same. To examine the point we have gone through the record. It is spelt out from the record that after issuance of notification dated 12.12.2012, the investors, contractors, companies and firms enlisted in any Govt./semi Govt./autonomous Organization of Pakistan or Azad Jammu and Kashmir and registered with AJ&K Local Government Board in A-class category , were invited through proclamation alleged to have been published in "Daily Sada-i-Chinnar" and "Daily Jammu and Kashmir", to submit their bids for installation of weighing apparatus. The version of the respondents before the High Court as well as this Court is that the advertisements are bogus and fabricated. It appears from the record that the learned High Court requisitioned the said newspapers from Information Department of the Azad Jammu and Kashmir and found that no such advertisements were published in the original newspapers clippings and also recorded the findings in this regard in the impugned judgment. Despite this, the appellants have not placed on record the original newspapers even before this Court. In such scenario, the version of the respondents seems genuine. Even otherwise, the tax was imposed the whole of Azad Jamm u and Kashmir , whereas, the alleged advertisements were published in local newspapers which itself shows that all this has been done with some ulterior motive. Moreover , the record further reveals that in pursuance of said advertisement, only three companies belonging to the same area got themselves registered and participated in the bidding process and nobody other than those came forwarded to compete. Thus, it cannot be said that the process was initiated in a transparent manner rather all these acts show that the Government officials joined hands to complete their personal vendetta and they invent the mechanism to collect the money from public at large while giving the plan a cosmetic touch of public private partn ership. It is the project of national interest, but the whole process has not been conducted in a transparent manner which is very unfortunate, whenever such situation exists, the Courts are always intervened being custodian of the rights of the people."
After minutely appreciating the record and going through the impugned judgment along with the case law referred to hereinabove, we are of the unanimous view, that the learned High Court has not committed any illegality while setting aside the proceedings of allocation of the contracts and directing the concerned authorities to re-advertise the projects as such like contracts which are based on non-transparency , cannot be allowed to remain in field.
In the light of above discussion, we do not find any substance in both the titled appeals, therefore, these are hereby dismissed with no order as to costs.