LUBNA SALEEM PERVEZ; J.--Petitioner has invoked the Constitutional Jurisdiction of this Court by way of filing instant petition, under Article 199 of the Constitution, seeking direction to the respondents to issue work order in his favour and hand over peaceful possession of the tender work.
2. Brief facts, as per petition, are that Pakistan Mineral Development Corporation Salt Mines Warcha (PMDC) published ihvitation of tender through newspaper for transportation of rock salt from Jansukh section A, B, C & D to Warcha Depot, M/s Olympia Depot and M/s. Olympia Chemical (Direct) as well as from all Kaoryan Mines to Kaoryan Depot to M/s. Olympia Chemical (Direct) for the period of one year at PMDC Salt Mines, Warcha, District, Khushab. It has also been mentioned in the publication of tender that tenders are to be submitted along with bid money @ 5% in the shape of demand draft/pay order in the name of PMDC, Salt Mines, Warchi; up to 1200 hours on 27th February 2020 and Tender will be opened on the same date at 1230 hours in the presence of participants who may desire to attend the tender opening. The petitioner thus offered bid in response to the invitation as per advertisement of tender and also depos ited 5% of the bid money as per requirement to the agency . However , despite the lowest bidder the petitioner was not issued work order to commence the tendered operation. Thus being aggrieved with non-issuance of work order despite being lawful eligible bidder for the contract, present petition has been filed by the petitioner .
3. Learned Counsel for the Petitioner submitted that he has offered bid in accordan ce with the terms and conditions of the tender invited by the respondents by fulfilling all the legal formalities as per PPRA Rule, 2004; that for the purposes of transportation of the Salt he has hired heavy machinery for carrying out the work and due to non- issuance of work order till date he is suffering huge financial loss; that the previous contractor namely Abdul Waheed Khan Niazi is still carrying on the transportation work in connivance with the respondents despite the fact he failed in the bidding process; that tender contract is for one year only hence there is urgency involved in the case; that for issuance of work order the petitioner also submitted application to the respondent which remained unresponsive; that Abdul Waheed Khan Niazi the previous contractor has also filed a civil suit against the respondents for extending the period of contract for this year as well; that while filing written reply in response to the said suit the respondent has categorically stated that no extension of contract has been made in respect of the contract dated 29.03.2019 with Abdul Waheed Khan Niazi and that suit filed by him is based on malafides as he has also filed bid in response to the tender invited for 27th February , 2020 and in the same reply the respondent has also stated that Abdul Waheed Khan Niazi has not satisfactorily performed the earlier contractual work and can earn profit of Rs. 14.55 million through the new contract. Leaned counsel thus, prayed for directions to the respondents for issuance of work tender .
4. Learned Counsel for Respondents conversely objected to the filing of petition while submitting that instant petition is not maintainable as petitioner has no locus standi that issue under consideration is that of contractual- controversy can only be resolved through filing of suit before Civil Court of competent jurisdiction; that the petitioner , working as Raising Contractor at Mine No. 3/72, Salt Mines, Warcha, is found guilty of dishonesty and puncturing mines which caused huge loss to the corporation; that petitioner is the real brother of other contractor who were found guilty of loss of Rs.16.94 2 million to the respondent corporation; that tender of the petitioner was rejected under PPRA Rules, 2004 that under the provisions of Rule 33 of PPRA Rules. 2004 the corporation has the authority to reject the bid or proposal; that the tender for Jansukh Section B&C have been scrapped in view of the fact that the petitioner and his brothers were involved in dishonesty and corruption, therefore, instructions have been issued for re-inviting the bids and has communicated the decision, vide letter dated 21.04.2020; that previous contractor was advised to continue carriage work on the same terms and conditions as per office order dated 04.02.2020; that the trial Court has granted interim injunction in the suit filed by Abdul Waheed Khan Niazi for extension of contract; that process of invitation of fresh bid is in process and that the respondent corporation cannot compromise on the policy of curbing of dishonesty and mal practices. Learned counsel prayed for dismissal of the petition.
5. In rebuttal of the allegations made by the learned counsel for the respondents, learned counsel for the petitioner submitted that the allegation of puncturing the Mine No 72 is misleading as the excavation work contract granted to the petitioner for Mine No. 72 is still under process; that the actions of the responde nts are based on mala fide as it may be seen that the inquiry for raising contractors has been initiated through internal audit, vide letter dated 06.03.2020 which inquiry is also initiated by the respondents after the petitioner qualified to be successful bidder vide tender dated 27.02.2G20, however , this inquiry letter is self-explanatory as no loss to the corporation has been mentioned against the name of the petitioner , thus, involving the petitioner in the alleged illegal act of his brothers is unjustified; that no independent notice for alleged puncturing Mine No.72 has been issued and no inquiry for black listing of the petitioner is in process in this regard; that the present tender is for transportation of Salt, whereas, the contract of Mine No.72 relates to extraction of the Salt. The learned counsel with regard to the maintainability of the petition relied on the decision of the Hon'ble Supreme Court titled as "Sargodha Textile Mills Limited v. Habib Bank Limited" (2007 SCMR 1240 ), whereby , it has been held that 'where a statutory functionary acts mala fide or impartial, unjust and oppressive manner the High Court in exercise of writ jurisdiction, has power to grant relief to the aggrieved party ."
6. Arguments heard, record perused.
7. So far as maintainability of the petition is concerned, the respondent, Pakistan Mineral Development Corporation is an autonomous body in the administrative control of Ministry of Petroleum, and Natural Resources which announce invitation of tenders in accordance with the Public Procurement Regulatory Authority, 2002 and Rules 2004 thereunder. Thus any violation of law and unjust and partial practice of the respondents which adversely affect the rights of the citizen for lawful participation of obtaining contracts through general tender would be unconstitutional and the jurisdiction under Article 199 of the Constitution can be invoked in such cases, therefore, keeping in view the dictum laid down in the judgment cited by the learned counsel for the petitioner in "Sargodha Textile Mills Limited v. Habib Bank Limited" (2007 SCMR 1240 ) instant petition is held to be maintainable.
8. The petitioner in response to tender for transportation of Rock Salt from Jansukh Sector B & C has filed bid and admittedly since, it was on the lowest rate, therefore, under the rules the petitioner was legally eligible and entitled for the contract as per advertisement regarding tender . The contention of the learned counsel for the respondent that tender of Jansukh Section B&C has been scrapped, vide letter dated 21.04.2020, in the light of recommendation of Chief Internal Auditor letter dated 06.03.2020 appears to be afterthought as the process of bidding completed on 27.02.2020 and as per terms, conditions and rules petitioner , being the lowest rate bidder , is lawfully eligible for contract of transportation of rock salt from Jansukh section B & C so any such proceedings or letter would tantamount to fishing reasons for debarring the petitioner from availin g the lawfully acquired contract.
Further , scrutiny of the letter dated 06.03.2020 revealed that it has been issued with regard to the inquiry proceedings in relation to the liability of loss incurred for puncturing of mines by Rahat Iqbal, Shahid Iqbal and Ahmer Iqbal (petitioner) happened to be real brothers, however , according to this letter loss of Rs. 16.942 million have been determined against-Rahat Iqbal and Shahid Iqbal but no amount has been mentioned against the name of the petitioner in respect of mine 3/72, thus contention of the petitioner seems to be correct that no loss has been caused by the petitioner during the excavation for extraction work carried out by the petitioner at mine No.72. The learned counsel for the respondents could not put forth any documentary evidence regarding any independent inquiry for puncturing of mine or non-satisfactory work against the petitioner . Learned counsel for the respondent also relied on Rule 33 of the PPRA Rules, 2004 relating to rejection of bid and submitted that the procuring agency has the discretion to reject any bid or proposal, however , perusal of Rule 33 reveals that the procuring agency can reject the bid or proposal any time prior to the acceptance of a bid or proposal. For convenience same is reproduced as under:- "33. Rejection of bids.-
(1) The procuring agency may reject all bids or proposals at any time prior to the acceptance of a bid or proposal [Emphasis Provided]. The procuring agency shall upon request communicate to any supplier or contractor who submitted a bid or proposal, the grounds for its rejection of all bids or proposals, but is not required to justify those grounds.
(2) The procuring agency shall incur no liability , solely by virtue of its invoking sub-rule (1) towards suppliers or contractors who have submitted bids or proposals.
(3) Notice of the rejection of all bids or proposals shall be given promptly to all suppliers or contractors that submitted bids or proposals.".
Thus, if at all the respondent has rejected the bid under the provisions of Rule ibid, then that too is in violation of the said Rule as according to the rule Procuring agency though is not required to justify the grounds of rejection of bid or proposal but it is mandatory on the agency to communicate reasons of rejec tion that too prior to acceptance of the bid or proposal, hence, rejection of bid after declaring the petitioner as successful, being lowest rate bidder and securing the earnest money , would be unlawful and illegal. It has been observed the earnest money received in respect of the contract has not been returned nor any letter containing the grounds for rejection of the bid has been communicated to the petitioner . The contention of the respondents is also contradictory with regard to the suit filed by Abdul Waheed Khan Niazi the previous contractor , who is still continuing with the work of transportation of Rock Salt, as on the one hand the respondent is contesting the suit by stating in his written statement that the previous contractor has not satisfactorily performed the work vide contract dated 27.03.2019 and that from the new contract the Government will earn profit of Rs. 14.55 million and on the other hand has not restrained him from carrying out the work for which they have invited and opened the tender on 27.02.2020, in accordance with law.
Instead Respondents have withheld the work order of the lowest bidder for transportation of Rock Salt from Jansukh Sector B&C without any lawful excuse and justification. The respondents have also acted illegally by not replying the petitioner letter dated 23-02-2020, whereby , requested for issuance of work order was made. As such, keeping mum over the legal right of lawful entitlement of the contract is mala fide and perverse. The respondent through their conduct has unlawfully and unduly favored the previous contractor , despite admitting his unsatisfactory performance in the previous contract period. Although Respondents have contended that the petitioner is guilty of dishonesty and misconduct, but, learned counsel could not prove this allegation through a single document in this contract. I have also gone through the provision of Rule 19 of PPRA Rules, 2004 which provides for black listing of supplier and contractor if the petitioner , as alleged, has been dishonest and involved in mal practices. The law provides proceed ings under Section 19 for black listing of the petitioner but the learned counsel for the respondents is unable to show any such proceedings against the petitioner . Learned counsel, during the course of hearing, placed before the Court the restraining order dated 20.02.2020 issued by the learned trial Court in the suit filed by Abdul Waheed Khan Niazi and argued that this Court should refrain from passing any order in view of the order dated 20.02.2020 passed by the trial Court. The contention of the learned counsel is quite strange as he is not aware of the basic fact that any order of the trial Court is not at all binding on the High Court and, as such, are only meant for parties of the case.
8. In view of the above discussion, instant petition is allowed and respondents are directed to issue the work order to the petitioner in accordance with terms and conditions of the tender document.