KAMRAN HAYAT MIANKHEL, J. This common judgment shall decide the instant as well as connected, VIP No.351-P/2022 titled "Messrs Riaz & Sons v. Secretary, C&W Department, Peshawar and others" as common question of law and facts involved therein. Through these petitions, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has prayed for the following relief:- Prayer in WP No.350-P/2022 It is, therefore, most respectfully prayed that this Hon'ble Court may very graciously be pleased to:
(a) Issue appropriate writ petition;
(b) Declare that qualification of respondent No.6 as successful bidder of "upgradation of Bacha Khan Medical Complex for Teaching Purpose of Gajju Khan Medical College Swabi ADP No.822- 1305892020 (2020-21) (SH: Lift 02)" is ultra vires to the Constitution and tantamount to playing fraud with the Constitution of the Islamic Republic of Pakistan, 1973 and in breach of fundamental rights ensured/ guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973, in derogation/negation of KPPRA Rules and thus void ab initio and of no legal effect;
(c) Declare the Letter No.KPPRAJORR/Appeal /8-79/2021-22 dated 02.12.2021 of respondent No.5 is coram non judice, invalid, void and patently illegal;
(d) Direct the respondents to consider that the petitioner being the lowest qualified bidder be awarded the "Upgradation of Bacha Khan Medical Complex for Teaching Purpose of Gajju Khan Medical College Swabi ADP No.822-1305892020 (2020-21) (SH: Lift 02)"
(e) Any other relief that may be considered appropriate in the circumstances of this case may also be granted.
Prayer in W.P. No.351-P/2022 It is, therefore, most respectfully prayed that this Hon'ble Court may very graciously be pleased to:
(a) Issue appropriate writ petition;
(b) Declare that qualification of respondent No.6 as successful bidder of "Reconstruction of Old DHQ Hospital, Swabi (Phase-1) ADP No.753-1 505 14 (2020-21) (SH:Lift Elevators)" is ultra vires to the constitution and tantamount to playing fraud with the Constitution of the Islamic Republic of Pakistan, 1973 and in breach of fundamental rights ensured/guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973, in derogation/negation of KPPRA Rules and thus void ab initio and of no legal effect;
(c) Declare the Letter No. KPPRA/GRR/Appeal /8-80/2021-22 dated 02.12.2021 of respondent No.5 is coram non judice, invalid, void and patently illegal;
(d) Direct the respondents to consider that the petitioner being the lowest qualified bidder be awarded the "Reconstruction of Old DHQ Hospital, Swabi (Phase-1) ADP No.753-1 505 14 (2020-21)
(SH: Lift Elevators)"
(e) Any other relief that may be considered appropriate in the circumstances of this case may also be granted.
2. Brief facts of W.P. No.350-P/2022 are that the petitioner had applied for E-bidding, duly published by respondent No.3 on 10.01.2021, inviting all the eligible firms/bidders in accordance with KPPRA Rules, 2014 for "Reconstruction of Old DHQ Hospital, Swabi (Phase-1) ADP No.753-1 505 14 (2020- 21) (SH: Lift Elevators). Date of submission of bids was fixed for 04.02.2021. The petitioner while qualifying on technical level, was informed through letter dated 15.07.2021 that bids will be opened on 16.07.20221. Likewise, respondent No.6 has also qualified and was declared as lowest. The respondent while totally ignoring the eligibility criteria duly asserted in Clause IB.2 (2.1) (c) of the "Instructions to bidders" clearly stating that "joint venture arrangement is not applicable and not acceptable" has declared respondent No.6, being in the joint venture, as qualified. The petitioner, in accordance with the provision of KPPRA Rules, approached the concerned respondents for the redressal of his grievance, but to no avail, hence the instant and connected writ petition before this Court. So far as the facts in the connected W.P. No.351-P/2022 are concerned, same are quite similar to the instant petition, which need not to be reiterated."
3. We have heard learned counsel for the parties and have gone through the record.
4. The learned counsel for the petitioner averred that vide publication dated 10.01.2021 by respondent No. 3 B-bidding invitation of tender was invited and the petitioner has applied in the NIT E-bidding system for the above mentioned project, whereas the respondent No.6 MIS Sahil and builders also applied for the same. The financial bids were open on 28.5.2021, the respondent No.6 also qualified and was declared lowest bidder and the tender was awarded to, respondent No.6.
The main grievance of the petitioner is that respondent No.6 is a joint venture and the department has overlooked the fact that in instructions to bidders the eligibility criteria has vividly been asserted/narrated in Clause IB, 2 (2.1) (c) "joint venture is not applicable and not acceptable". The petitioner wrote a letter to respondent No.2 dated 23.7.2021 and recorded his protest against respondent No.3 but no reply was given to the said letter, so the petitioner lodged protest with respondent No.2 and also wrote a reminder on 20.9.2021, the relevant portion of the letter is reproduced below:- This office is afraid of the soaring hike in the foreign exchange and the cost of equipment which is rising on daily basis due to the hike in foreign exchange and the department did not provide the escalation clause in this tender which can offer a relief to us. A full time chance of nearly 4 months period from the opening of the tender up to this day was given to the department but nothing seems to have been taken place and no movement in this regards is being observed also. The delayed actions of concerned offices are intolerable anymore and if a positive response is not received with 7 days after issuance of this letter, this office will certainly approach the KPPRA Authorities and seek the justice against this anomaly."
5. The petitioner when not finding any reply, preferred an appeal to the Authority under section 35(1)(b) of KPPRA Act, 2012 and rules thereunder. The appeal of the petitioner was dismissed and communicated to him vide letter No. KPPRAJ GRIVAppeal/8-79/2021-22 dated 02.12.2021 by respondent No.5 and dismissed the appeal of the petitioner as time barred.
6. Mr. Muhammad Sohail, learned AAG on behalf of respondents Nos.1 to 4 and Mr. Aamir Javed, Advocate for respondent No.5 draw our attention that the appeal of the petitioner was rejected as being time barred. The learned counsel for the respondents directed our attention to the minutes of the pre-bid meeting held on 26.01.2021 at 10.00 A.M. where the question of applicability of joint venture was resolved and decided that joint venture are allowed to take part in the bidding process.
7. Record reveals that petitioner vide letter dated 20.9.2021 has categorically written that the delayed actions of concerned offices are intolerable anymore and if a positive response is not received within 7 days after issuance of this letter, petitioner will certainly approach the KPPRA Authorities and seek the justice against this anomaly. This letter shows that the petitioner was well aware of the KPPRA laws and time for filing the appeal. The law of limitation was a statute of repose and statutes of limitation by their very nature were strict and inflexible. The object of law of limitation was to prevent stale demands and so it ought to be construed strictly. As per Rule 6 of the Khyber Pakhtunkhwa Public Procurement Grievance Redressal Rules, 2017 read with section 35 of KPPRA Act, 2012 there were 15 days for the appellant to lodge appeal to the Authority KPPRA.
Furthermore, Rule 7(c) clearly stipulates that if a Procuring Entity fails to decide the complaint within the stipulated time period, which is eight days as envisaged in Rule 6 of the ORR, an aggrieved bidder may file an appeal with the Authority but the petitioner has filed appeal on 18.11.2021 i.e. more than three months and 23 days, so the appeal of the petitioner was rejected by the Competent Authority.
8. It is now settled law that person who wants to impugn any order must do so within the limitation period and even if the order is void, he has to plead his knowledge and then prove the same through cogent and reliable evidence, so as to legally justify his claim. Reliance is placed on reported judgment of the apex Court 2020 SCMR 2046 titled Haji Wajdad v. Provincial Government through Secretary Board of Revenue Government of Balochistan, Quetta and others. It was opined that:- It has by now been settled that, limitation would run even against void affecting rights of any person. And no one can seek condonation of delay by challenging solely on the said basis. The aggrieved person who files a belated claim against an alleged void order would have to first plead his knowledge thereof, and then prove the same by cogent and reliable evidence, so as to legally justify his such claim to be within the period of limitation from the date of his knowledge.
9. The complaint so filed by the petitioner, on 20.9.2021 clearly depicts that petitioner was well aware of the KAPPRA law. The appeal filed by the petitioner was barred by time and no cogent and convincing reasons were put forth for condonation of delay. The law of limitation is not just merely a technicality as it was based on sound public policy and no one should be deprived of the right he had gained by the law. Reliance is placed on PLD 2016 Supreme Court 872 titled Khushi Muhammad through L.Rs. and others v. Ms Fazal Bibs and others. The relevant portion of the judgment is reproduced below:-
(i) The law of limitation was a statute of repose, designed to quieten title and to bar stale and water-logged disputes and was to be strictly complied with. Statutes of limitation by their very nature were strict and inflexible. Law of limitation does not confer a right; it only regulates the rights of the parties. Such a regulatory enactment could not be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies were fully complied with in letter and spirit. There was no scope in law of limitation for any equitable or ethical construction. Justice, equity and good conscience did not override the law of limitation. Object of law of limitation was to prevent stale demands and so it ought to be construed strictly.
10. So in view of the above deliberation, this and the connected petitions are dismissed.