ALI AKBAR QURESHI J. Through this Intra Court Appeal the appellant has called in-question the judgment dated 02.06.2015 passed by the learned Judge-in-Chamber in Writ Petition No.1290/2008, whereby the said constitutional petition was dismissed by holding that disputed question of fact regarding submission of document alleged by the appellant whereas denied by the other side barring exercise of writ jurisdiction in such circumstances.
2. The brief facts of the case necessary to adjudicate this matter are that the appellant in response to tender invited through press for supply of 2611 bales of jute bags for storage of wheat for the season 2005-06, had submitted tender No.SOF V(I)/2006 @ Rs.49.75 per bag. The offer of the appellant on account of missing of "Price Reasonability Certificate" in the terms of offer being defected pointed-out by the respondent department by making offer to remove the said deficiency and matter of acceptance kept pending till definite reply regarding its inclusion and ultimately vide letter dated 07.04.2006 the requisite certificate was furnished. Consequently, tender of the appellant was accepted and formal agreement was executed on 12.04.2006. At the time of disbursement of price of total supply of jute bags, it transpired that the appellant had sold-out the same bags to PASSCO @ Rs.46.25 per bag. Accordingly the respondent department made the payment to the appellant for supplied bags at the latter rate thus reduction in rate was called in- question by the appellant through constitutional petition on the ground that the appellant had not supplied any bag to PASSCO after issuance of "Price Reasonability Certificate" dated 07.04.2006, therefore, the deduction from his total amount-price, reducing the rate from Rs.49.75 per bag to Rs.46.25 per bag was illegal, unlawful and without any legal justification. However, the learned Judge-in-Chamber vide paragraph 5 of judgment although decided that the action of the respondents was legal and justified, nevertheless regarding Note-1 it was held that this Note is disputed by the other side; hence, cannot be examined in constitutional jurisdiction.
3. The contention of the learned counsel for the appellant is that the learned Judge-in-Chamber on one hand has not only decided the matter on merits but also dismissed the petition holding that the disputed question of fact cannot be gone through and decided in a constitution petition whereas receiving of note considered to be disputed had not been denied by the respondent department rather admitted reflecting from its letter dated 27.05.2006, therefore, exclusion of the validity of said Note from consideration by the learned Judge-in-Chamber was unwarranted; hence decision is unsustainable in the eye of law. Further contention of the learned counsel on merits of the case is that the Certificate furnished by the appellant on 07.04.2006 had no retrospective effect, hence, on the basis of said Certificate the respondents were not entitled to reduce the rate of bag as per the rate given to PASSCO, which admittedly was I.C.A. No.203/2015 less than the rate offered to the present respondents and this aspect of the case has not been scrutinized by the learned Judge-in-Chamber in its true perspective rendering the impugned judgment unsustainable in the eye of law inasmuch as the action of the respondents is illegal and unlawful.
4. The learned Law Officer has vehemently supported the judgment of the learned Judge-in- Chamber and explained that after issuance of the Certificate on 07.04.2006 appellant's tender was accepted, therefore, it was not a case where said Certificate would be presumed to have not backdated effect.
5. We have heard the learned counsel for the appellant as well as the learned Law Officer and gone through record of the case.
6. The requisite certificate furnished though at later stage by the appellant but it was part of the tender condition submitted by him in response to the invitation made by the respondents; hence it does not mean that its effect would commence from its submission. It is also noticed that the letter dated 07.04.2006 containing the requisite certificate is silent qua its effect and agreement executed between the parties also did not have any explanation regarding its effect. Obviously it was part of the terms and conditions of offered tender without which authority was not inclined to grant contract to the appellant; hence this mandatory condition for submission of 'Price Reasonability Certificate' imposed by the authority was subsequently fulfilled/completed by addition of said certificate. It was just deficit tender which was virtually approved but practically its effect had not commenced on account of non-providing the requisite certificate, therefore, at this stage the appellant has no reason to ask for its effect from the date of its issuance. It was part and parcel of the tender submitted by the appellant which remained pending for provision of requisite certificate/undertaking.
The order of the Hon'ble Supreme Court passed on 28.03.2013 in identical matters bearing Civil Appeal No.22-L of 2011 & C.M.A. No.2051-L of 2009 has also been presented by the learned Law Officer according to which the apex Court refused to accept the similar plea of the supplier of jute bags so, taking benefit of the said verdict of Hon'ble Supreme Court which has binding force in view of Article 189 of Constitution of Islamic Republic of Pakistan, we also conclude that the respondents while deducting the excessive amount claimed by the appellant from the respondents as compared to PASSCO have not travelled beyond their limit prescribed in the terms of tender submitted by the appellant and action of the respondents was withsin parameter of the terms of the tender; hence no interference is warranted.
7. In view of the above, we find no merit in this appeal, which stands dismissed.