M. TABASSUM AFTAB ALVI, C.J.---The captioned writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution, 1974.
2. Precise facts culminating into filing of the instant writ petition are that petitioner is a Government Contractor and General Order Supplier who being qualified, participated in bidding process for procurement of Lab and Office Equipment for the project "Establishment of POL Quality Control and Weights and Measures Labs with Mobile Unit at Mirpur" which was advertised through tender notice (Annex-"PA"). It is stated that petitioner's bid was accepted who was declared as lowest bidder and the same was approved by Departmental Purchase Committee (DPC) in its meeting dated 18.04.2018, vide bid acceptance letter dated 03.05.2018. The petitioner also deposited performance insurance in the shape of 5% insurance guarantee. It is stated that respondents without providing an opportunity of hearing and any lawful justification, cancelled the aforesaid bid through the impugned script dated 06.06.2018, hence the instant constitution petition.
3. The writ petition has been resisted by respondents through written statement, wherein, it is stated that petitioner has no locus standi to file the instant writ petition. It is claimed that petitioner has failed to comply with the directions issued by respondents, therefore, he is legally stopped by conduct to file the petition. It is further pleaded that petitioner was informed through letter dated 03.05.2018, wherein, it was directed that petitioner should submit work schedule to the office of respondents, execute contract agreement within 05 days and to furnish performance guarantee within 15 days. It is further stated that petitioner was again directed to comply with the terms and condition within 02 days through letter dated 15.05.2018. It is maintained that petitioner submittedperformance guarantee on 01.06.2018, after lapse of 14 days, who also failed to file any schedule of work as well as not executed contract agreement within the prescribed time, hence, submitted for dismissal of writ petition.
4. Barrister Humayun Nawaz Khan, Advocate, appearing on behalf of petitioner strenuously argued that petitioner submitted the performance guarantee well within stipulated time from date of corrigendum dated 07.05.2018, wherein, further 15 days were provided for doing needful, which guarantee was executed on. 15.05.2018, however, respondents failed to issue work order upon which work schedule could be submitted by his client. He further argued that petitioner's bid was accepted, who was declared lowest bidder and the same was approved by Departmental Purchase Committee (DPC), in its meeting dated 18.04.2018, vide bid acceptance letter dated 03.05.2018, therefore, the same could not be revoked against the principle of audi alteram partem.
He further argued that no such specific format was prescribed by respondents and also no such requirement was postulated in tender notice or PPRA Rules, however, petitioner time and again orally as well as in written correspondence intimated the acceptance of offer. The learned counsel pressed into service that there was no fault on the part of petitioner for re-appropriation of funds by Department because petitioner completed his obligation before 22.05.2018, hence, accrued right of petitioner could not be snatched. He further argued that respondents after issuance of acceptance letter could not take plea pertaining to the bid's cost of Rs..36% higher than PC-I cost, hence, craved for acceptance of writ petition. The learned counsel in support of his contentions referred to and relied upon the following case law:-- i. Miss Uzma Ishaque v. Azad Jammu and Kashmir Nomination Board for Professional Colleges and 2 others [PLD 1986 Azad J&K 112]. ii. Sub. Faqirullah Khan v. Muhammad Arif and another [PLD 1985 Azad J&K 1]. iii. Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi [PLD 1969 Supreme Court 407]. iv. Ms. Rasheedan Bibi and others v. Abdul Razzaq [2018 M LD 19].
5. Mr. Muhammad Yaqoob Khan Mughal, Advocate, appearing on behalf of respondents vehemently argued that petitioner was advised to proceed for execution of the said work in accordance with the contract agreement and furnish the performance guarantee of 5% amounting to Rs.59,69,203/- (Rupees Fifty Nine Lac Sixty Nine thousand and Two Hundred Three only) in the form of CDR within 15 days positively, otherwise, as per decision of the DPC, bid would stand cancelled through script dated 0105.2018. He further argued that petitioner was informed through the same script that the formal terms and conditions including detail of supply order shall be determined/issued after getting CDR and the acceptance of this letter from the Firm. He maintained that petitioner was also directed to submit the work schedule to the concerned office within 05 days and sign the contract agreement for further proceedings. The learned counsel emphasized that a corrigendum was also issued in this regard on 07.05.2018, hence, petitioner was again advised to submit acceptance along with work schedule before 17.05.2018, positively, otherwise, it would be assumed that the same stand cancelled vide letter dated 15.05.2018. He further argued that funds werere-appropriatedto other development project of the Department due to delay in procurement process from petitioner side, therefore, the offer submitted by him was rightly cancelled vide script dated 06.06.2018, hence, submitted for dismissal of writ petition.
6. I have perused the contents of writ petition and examined the appended documents made available with utmost care.
7. A perusal of record reveals that petitioner is a Government Contractor and General Order Supplier who being qualified, participated in bidding process for procurement of Lab and Office Equipment for the project "Establishment of POL Quality Control and Weights and Measures Labs with Mobile Unit at Mirpur" which was advertised through tender notice (Annex-"PA"). It further reflects that petitioner's bid was accepted who was declared as lowest bidder and the same was approved by Departmental Purchase Committee (DPC) in its meeting dated 18.04.2018, vide bid acceptance letter dated 03.05.2018. The petitioner was advised to proceed for execution of the said work in accordance with the contract agreement and furnish the performance guarantee of 5% amounting to Rs. 59,69,203/- (Rupees Fifty Nine Lac Sixty Nine thousand and Two Hundred Three only) in the form of CDR within 15 days positively, failing which as per decision of DPC, bid would stand cancelled through script dated 03.05.2018. The petitioner was also informed through the aforesaid script that the formal terms and conditions including detail of supply order shall be determined/issued after getting CDR and the acceptance of letter from the Firm. However, as per application of petitioner for allowing insurance guarantee instead of bank guarantee dated 07.05.2018, a corrigendum dated 07.05.2018, was issued which is reproduced as under:-- "Azad Government of the State of Jammu and Kashmir DIRECTORATE OF INDUSTRIES AND COMMERCE MUZAFFARABAD Lower Chatter Ghazi Chowk Muzaffarabad Azad Kashmir Phone # 05822921237fax 05822921359 No./ 3069-71/IND/2018 Dated: 07.05.2018 CORRIGENDUM.
M/S "Mubashar Aziz Qadari, 79-B, Upper Chatter, Housing Scheme Muzaffarabad, Azad Kashmir.
Subject: Letter of Acceptance for Procurement of Lab and Office Equipment againstthe Development Scheme "Establishment of POL Quality Control and Weights and Measure Labs with Mobile Unit at Mirpur".
In compliance of directions of the Secretary Industries and Commerce (Chairman DPC) made on application of your Firm (Messrs "Mubashar Aziz Qadari") vide No.5114 dated 07.05.2018; the 2nd and 3rd paragraphs of the acceptance letter issued vide this office No.2994-96 dated 03.05.2018, may please be read as below:- "You are hereby advised to proceed for execution of the said work in accordance with the contract agreement and furnish the performance guarantee of 5% amounting to Rs.59,69,203/- (Rupees Fifty Nine Lac Sixty Nine thousands and Two Hundred Three only) within Fifteen days positively.
Otherwise, as per decision of the DPC, your bid shall be stand cancelled".
"The formal terms and conditions including detail of supply order shall be determined/issued after getting performance guarantee and the acceptance of this letter from your Firm".
Director Industries and Commerce GoAJK Muzaffarabad."
8. From reading of the aforesaid script dated 07.05.2018, it is crystal clear that 15 days period i.e. upto 22.05.2018, was provided for furnishing the performance guarantee, which was submitted by petitioner well within time on 15.05.2018. Even furnishing of performance guarantee was within time from letter dated 03.05.2018. The cancellation of bid, therefore, vide the impugned order dated 06.06.2018, is accordingly bad in law.
9. It reflects from the record that firstly respondents granted 15 days for submitting performance guarantee to petitioner through corrigendum order dated 07.05.2018, upto 22.05.2018, and then again fixed it by a reminder dated 15.05.2018 upto 17.05.2018, which shows a vice-versa stance laid down in corrigendum order dated 07.05.2018, hence, contention of the learned counsel for respondents that guarantee supra was provided by petitioner after prescribed date belied from the record. It further reflects that there is no fault on part of petitioner for re-appropriation of funds by Department because he completed his obligation before 22.05.2018 by submitting his performance guarantee within 15 days, hence, bid acceptance could not be recalled by respondents. C According to my considered view, respondents after issuance of acceptance letter could also not take plea pertaining to the bid's cost as Rs.36% higher than PC-I cost, hence, petitioner is entitled to equitable relief of writ jurisdiction.
10. The petitioner specifically pleaded in paragraph No.5(c), of writ petition that the impugned script dated 06.06.2018, was issued by violating settled principle of audi-alteram-partem. The contents of the aforesaid paragraph No.5(c), have not been categorically denied by respondents in their written statement. The denial if any, shall be deemed as evasive, therefore, the impugned order was issued against the principle of audi-alteram-partem. It is reiterated at the cost of repetition that petitioner was accepted as lowest bidder whose bid was accepted by DPC in its meeting held on 18.04.2018, vide bid acceptance letter dated 03.05.2018, which created a valuable right in his favour, hence, the impugned order dated 06.06.2018, is liable to be set-at-naught, even from this angle. The principle of audi-alteram-partem, in a similar case, was considered by this Court in case titled "Paragon Construction (Pvt.) Ltd. through Attorney and 2 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 3 others" [2011 CLC 469], wherein, at page 475, it was held as under:-- "In the case in hand, the petitioners were pre-qualified for the project and were declared as the lowest bidder as is evident from the letter dated 18-10-2010. It is also amply proved from the record that they have consented to carry out the work against the reduced amount but without providing a right of hearing they have been deprived from award of the contract. The reasons listed by the respondents are Whimsical, flimsy, irrational, unreasonable and arbitrary because the subsequent advertisement has been issued against the same amount without any change in the specification of the work. Therefore, the refusal on the part of the respondents to issue the formal work order and execution of the contract in this case can not be approved in view of law laid down by the apex Court of Azad Jammu and Kashmir. In Muhammad Mushtaq's case [1993 CLC 432], the lowest bid was not accepted and no reasons were given in support of the rejection order by the Chief Engineer. The actionwas challenged unsuccessfully before this Court but on appeal the apex Court of Azad Jammu and Kashmir opined that while rejecting the lowest bid it was enjoined upon the respondents to record reasons. The relevant observation of their lordships is recorded at page 112 of the report. The apex Court ordered to award the contract to the lowest bidder in this case."
The impugned order/script dated 06.06.2018, was, therefore, issued without providing an opportunity of hearing to petitioner and all the reasons enlisted by respondents are prima-facie whimsical and flimsy, hence, the aforesaid order merits abrogation accordingly.
11. The crux of above discussion is that by accepting the instant writ petition, the impugned order dated 06.06.2018, is hereby declared as without lawful authority, hence, having no legal effect. The respondents are hereby directed to issue formal work order and execute contract forthwith in favour of petitioner by accepting the bid acceptance letter dated 03.05.2018. The cost shall follow the eventuality. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.