SYED HASAN AZHAR RIZVI J. By this common order I intend to disposed of injunction applications in both these suits as the same controversy is involved in both these suits.
2. The plaintiffs in both suits are engaged in the business of OPS vehicle tracking services operating in different parts of the country. Suit No.40/2021 was filed by Universal Track (Pvt.) Ltd., on 05.01.2021 whereas Suit No.56/2021 was filed by Xtreme Solutions (Pvt.) Ltd., and Al-Shaymaa (Pvt.) Ltd., on 11.01.2021. Both suits are filed for declaration and permanent injunction with the same prayer against Pakistan State Oil Company Limited and others. Defendant No.2 / P.S.O. in both suits is an Oil marketing company having around 9000 oil tankers at its service which provide supply line of petrol / diesel / gasoline to the entire country from its headquarters located in Karachi. Injunction applications in both suits are filed by the plaintiffs seeking restraining orders against the defendant No.2 to nominate / finalize any entity as the official approved GPS tracking vendor on the basis of the impugned assessm ent criteria and to suspend the Logistic Circular No.218 dated 30.11.2020 issued by the defendant No.2 till pendency of the instant suits.
3. Learned counsel for the plaintiffs submitted that the defendant No.2 / PSO is the largest supplier of petroleum products all over the country having around 9000 oil tankers at its service. Per learned counsel for the plaintiffs, the defendant No.3 in Suit No.56/2021 is the Oil Tanker Contractor Association which provides oil tankers to the defendant No.2 for the purpose of fuel transportation and the plaintiffs have installed their GPS trackers in the tankers provided to the defendant No.2 by the defendant No.3. Whereas the defendants Nos.4 and 5 in Suit No.56/2021 are trackers companies engaged in business of GPS Vehicle Tracking Services operating in different parts of the country.
Learned counsel for the plaintiffs further submitted that the oil tankers are not owned by the defendant No.2 themselves but are outsourced to different transporters who are on the approved list of transporters maintained by the defendant No.2. Learned counsel for the plaintiffs has referred to Annexure "B" at page-19 in Suit No.40/2021 'Prequalification Notice' issued by the defendant No.2 whereby the bidders were urged to visit PSO and PPRA websites regularly for any further changes that may be updated by the company from time to time, keeping in view situation caused by the Corona virus (COVID-19). Learned counsel for the plaintiffs then has referred to Circular No.188 dated 19.11.2018 (enclosed as annexure "B/1" at page-21 in Suit No.40/2021) issued by the defendant No.2 wherein names of the companies for installation of trackers were specified and the names of three companies who are plaintiffs in these suits are mentioned in that circular. Learned counsel for the plaintiffs then has referred to Annexure "C" at page-23 in Suit No.40/2021 'Public Notice' issued on 17.09.2020 specified the prequalification criteria. Learned counsel for the plaintiffs has then referred to annexure "C/1" at page-25 revised criteria prevailing since 2020. Learned counsel for the plaintiffs then drawn the attention to page-35 with the plaint in Suit No.40/2021 'Vendor Assessm ent Performa' showing status of firms and their financial position.
4. Learned counsel for the plaintiffs has also referred to Clause-1.4 relating to 'total number of trackers installed till date' and Clause 1.5 relates to 'average annual turnover in last 3 years'.
Learned counsel then has referred to Clause 2.2 regarding 'total number of trackers installed in last 01 year'. Learned counsel for the plaintiffs then has referred to 'Vendor Assessment Performs' available at page-49 in Suit No.40/2021. As per 'Mandatory General Requirements' shown at Sr.No.15 average annual turnover of at least PKR five hundred (500) Million of last one (01) year upto 2020 whereas the same was Rs.50 Million in 2018.
Learned counsel for the plaintiffs has referred to page-67 in Suit No:40/2021 'Vendor Assessment Performa' and shown Clause 1.3 relating to 'total number of active trackers (installed on commercial four wheel vehicles only as well as Clause 1.4 relating to 'average annual turnover in last three (03) years.. Learned counsel has also drawn attention of this Court to Clause 2.3 available at page-69 with the plaint regarding 'total number of trackers installed in last one (01) year (04 wheel commercial vehicles only). Learned counsel for the plaintiffs then has referred to annexure "D" at page-73 in Suit No.40/2021 chart in respect of production and sale of vehicles from 1995 onwards. Learned counsel for the plaintiffs submits that plaintiff in Suit No.40/2021 protested as the criteria was made difficult for the plaintiffs malafidely. Copy of letter of such protest dated 05.10.2020 is enclosed as annexure "E" at page-81 in Suit No.40/2021. Learned counsel for the plaintiffs has then referred to Logistic Circular No.218 dated 30.11.2020 issued by the defendant No.2 / PSO available as annexure "F" at page-83 in Suit No.40/2021 intimated therein that the two companies namely Messrs TPL Trakker and M/s. Tracking World defendants No.4 and 5 in Suit No.56/2021 were selected by the defendant No.2 / PSO for installation of the trackers on the oil tankers. Per learned counsel, on 03.12.2020 plaintiff in Suit No.40/202I lodged complaint to the defendant No.2 in respect of prequalification of tracking companies. Copy thereof is enclosed as annexure "G" at page-85 in Suit No.40/2021. Learned counsel for the plaintiffs then has referred to a letter dated 04.12.2020 issued by the General Secretary of Oil Tanker Contractors Association Karachi / Defendant No.3 in Suit No. 56/2021 protested against the decision of the defendant No.2 for selection of two tracking companies to use their trackers. Photocopy of that letter is enclosed as annexure "H" at page-87 in Suit No.40/2021. Per learned counsel for the plaintiffs, the plaintiff in Suit No.40/2021 has installed 3417 trackers till February, 2020 whereas the plaintiff No.1 in Suit No. 5642021 installed 511 trackers and all were removed whereas the plaintiff No.2 installed 1424 trackers out of those 1159 were deactivated.
5. Learned counsel for the plaintiffs further submitted that the action of the defendant No.2 of obtaining tracking services from two chosen companies i.e. defendants Nos.4 and 5 in Suit No.56/2021 of the defendant No.2 is arbitrary and would result in colossal losses to the plaintiffs and other vendors. Learned counsel for the plaintiffs contended that due to unfair action of the defendant No.2, the oil transporters who have already installed units / trackers of the plaintiffs and other similar vendors would have to spend millions to satisfy the defendant No.2's arbitrary and discriminatory prequalification requirements.
6. Learned counsel for the plaintiffs urged that the plaintiffs have been working with the defendant No.2 for past 11 years and boasts the largest portfolio of around 3000 units for the defendant No.2.
As per learned counsel for the plaintiffs even the plaintiffs could not meet the draconian pre- assessm ent criteria set by the defendant No.2. Per learned counsel, despite of the fact that along with their bid the plaintiffs submitted their grievance dated 05.10.2020, the plaintiffs were not considered qualified under the draconian pre-assessment criteria announced by the defendant No.2 and only companies of defendants Nos.4 and 5 in Suit No.56/2021 were selected through impugned Circular No.217 dated 30.11.2020.
7. Learned counsel for the plaintiffs contended that despite of protest made by the plaintiffs no grievance committee was formed by the defendant No.2 as per Rule 48 of the Public Procurement Rules, 2004 (hereafter referred to as "Rules, .2004). Defendant No.2 has not formed any grievance committee, such act of the defendant No.2 proved that the pre-assessment criteria launched by the defendant No.2 is unlawful and discriminatory and in contravention to Rule 33 of the Rules, 2004.
8. Learned counsel for the plaintiffs stated that actions taken by the defendant No.2 are illegal, unlawful, mala fide and without jurisdiction and are to be struck down by this Court as the same would cause irreparable loss to the plaintiffs. Learned counsel for the plaintiffs submitted that the defendant No.2 despite of not creating grievance committee has issued Circular 220 dated 17.12.2020 whereby directed oil tankers to remove GPS tracking systems from the previous approved vendors and the plaintiffs to install new GPS tracking systems from the only two approved vendors, who are defendants Nos.4 and 5 in Suit No.56/2021.
9. Learned counsel for the plaintiffs further submitted that the plaintiffs are entitled to a fair and competitive bidding process however by depriving the plaintiffs to such process the defendant No.2 has caused irreparable loss to the plaintiffs. Learned counsel for the plaintiffs has relied upon the cases reported in PLD 2010 SC 731, PLD 2006 SC 66, PLD 1999 Karachi 472, PLD 2017 Islamabad 29, 1993 MLD 1308, 1999 YLR 1634, 2012 CLD 1445, 2015 MLD 1251 and PLD 1989 Karachi 404.
10. Learned counsel for the defendant No.2 submitted that written statements and counter affidavits of the injunction applications have already been filed in both the suits by the defendant No.2. Per learned counsel for the defendant No.2 both suits are misconceived as there is no violation of PPRA Rules. Learned counsel for the defendant No.2 submitted that no procurement is taking place as defined in the PPRA Rules, 2004. Learned counsel for the defendant No.2 has placed reliance upon Rule 15 of Rules, 2004, which reads as under:- "15. Pre-qualification of suppliers and contractors.-
(1) A procuring agency, prior to the floating of tenders, invitation to proposals or offers in procurement proceedings, may engage in pre-qualification of bidders in case of services, civil works, turnkey projects and in case of procurement of expensive and technically complex equipment to ensure that only technically and financially capable firms having adequate managerial capability are invited to submit bids. Such pre-qualification shall solely be based upon the ability of the interested parties to perform that particular work satisfactorily."
11. Learned counsel for the defendant No.2 has referred to a letter dated 17.02.2016 issued by the Oil and Gas Regulatory Authority (OGRA). Copy thereof is enclosed as annexure "A" with written statements in both the suits wherein it was mentioned that:- "4. Further, OMC (Oil Marketing Companies) are responsible for keeping complete tracker reports record in their premises for verification. As the same will be required for annual audit purposes, failing which IFEM Auditor will disallow such movements."
12. Per learned counsel for the defendant No.2 subsequent to the OGRA Notification as referred to above, the defendant No.2 / PSO required that all independent transporters working with it must use a tracker, this was done without engaging in'-any procurement or prequalification process without complaint or demur by anyone. Plaintiffs were the beneficiary of this system and did not raise any objection. Defendant No.2 / PSO did not engage in any procurement or prequalification under PPRA unequivocally demonstrates that none of the exercise under consideration is either occurring under or bound to occur under the PPRA Rules.
13. Per learned counsel for the defendant No.2, the OGRA Notification is scheme of Government of Pakistan known as the Inland Freight Equalization Margin or IFEM. IFEM allows the government to set a single price of petroleum that is applicable across the entire country. Learned counsel for the defendant No.2 further states that since the oil prices are being regulated by OGRA, IFEM is built into the pricing formula so that where transport ends up resulting in higher costs, the Government equalizes prices by payment of IFEM. The price of any petrol product, after combining all these factors, is always uniform across the country. The purpose of IFEM is to uniformly maintain the prices of all petroleum products.
14. Learned counsel for the defendant No.2 contended that the requirement of prequalification criteria had the need to be changed for the reasons that the defendant No.2 / PSO is heading towards automated queue management system wherein allocation of loads, fleet monitoring and tank lorries scheduling will be dependent on tracker data. For that defendant No.2 / PSO shall be requiring 24x7 tracking services and availability of support staff at various PSO locations to effectively monitor the entire POL movement. He further contended that considering the fragility of this supply chain, it is imperative that companies having good repute as well as suitable personnel and financial capabilities are pre-qualified.
15. Learned counsel for the defendant No.2 further submitted that prior to introduction of the Circular 217 of 30.11.2020, 8 or 9 separate portals provided by as many service providers were being used. That was too cumbersome process and highly inefficient in monitoring the transport vehicles as the online tracking portals have no cross-compatibility. This resulted in a highly inefficient system of queue management. In simple terms, when a vehicle is within 5 kilometers of a depot, it is placed in a queue depending on when it reached that zone. He further contended that the classification must be seen to rationally achieve the public objective as desired. Learned counsel for the defendant No.2 urged that after confronting several problems including risk, safety and fraud in 2020 for the first time a guideline assessment criteria was introduced by the defendant No.2 and prequalification procedure was used voluntarily to stream line the process. The criteria is not impossible to achieve. He has relied upon the cases reported in 2013 SCMR 526, PLD 2019 Lahore 206 and 2020 CLC 323.
16. Learned counsel for the defendant No.3 in suit No.40/2021 and defendant No.4 in Suit No.56/2021 argued that the plaintiff in suit No.40/2021 is seeking to suspend the Logistic Circular No.218 dated 30.11.2020 issued by the defendant No.2 whereas there is no corresponding prayer in relation to the Logistic Circular No.218 dated 30.11.2020. Learned counsel for the defendant No.3 submitted that it is a well settled principle of law that in a suit where no corresponding perpetual injunction is sought no ad-interim injunction can be granted. He submitted that the injunction application bearing C.M.A. No.228/2021 in suit No.40/2021 is not maintainable and is liable to be dismissed. He placed reliance upon the cases reported in 2019 CLC 994, 2018 YLR 1206, 2019 CLD 920 and 1974 SCMR(sic).
Learned counsel further submitted that through the Logistic Circular No.218 dated 30.11.2020 the defendant No.3 along with M/s. Tracking World / defendant No.5 in Suit No.56/2021 were nominated and finalized as the official approved GPS tracking vendors almost two months prior to filing of the suit therefore, the plaintiff's stay application bearing No.91/2021 in Suit No.40/2021 has become infructuous, is not maintainable and liable to be dismissed. Learned counsel for the defendant No.3 / TPL Trakker further contended that the plaintiff in Suit No.40/2021 has challenged the pre- assessm ent criteria dated 17.09.2020 when the suit was filed on 05.01.2021 after delay of over four months whereas per learned counsel it is settled law that delay in approaching the Court disentitles a litigant to injunctive relief. He relied upon the cases reported in PLD 2003 Karachi 222, 2002 CLD 120 Karachi and 2003 YLR 1442. Learned counsel for the defendant No.3 / TPL Trakker urged that the plaintiff repeatedly pressed for interim relief seeking restraint against removal of their trackers from logistics vehicles but there is no prayer either in the suit or in stay application seeking an injunctive relief against the removal of the plaintiffs trackers. Per learned counsel the owners of the tankers / trucks have not been impleaded in the suit and the plaintiff does not itself own any truck. Plaintiff wants this Court to pass orders compelling vehicle owners to continue using its trackers even though there is no such prayer in the case nor the vehicle owners are before this Court. Hence, per learned counsel for the defendant No.3 injunction application is not maintainable and liable to be dismissed.
17. Heard learned counsel for the parties and perused the pleadings / material already available on record with their assistance.
18. It is settled law that the Courts cannot interfere with the terms and conditions as prescribed in tender/contract documents unless it was established that the same are wholly arbitrary, discriminatory, actuated by malice or contrary to public interest. Reliance is placed upon 2018 CLD 48, 2014 MLD 874 and 2013 SCMR 526. For the sake of convenience, relevant portion of the judgment reported in 2013 SCMR 526 is being reproduced hereunder:- "31. .........We are satisfied that to have the best of the equipment for the vehicles, which ply on road carrying. passengers, the 2nd respondent thought it fit that the criteria for applying for tender for procuring tyres should be at a high standard and thought it fit that only those manufacturers who satisfy the eligibility criteria should be permitted to participate in the tender. As noted in various decisions, the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the Courts would interfere. The Courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair; wiser or logical. In the case in hand, we have already noted that taking into account various aspects including the safety of the passengers and public interest, the CMG consisting of experienced persons, revised the tender conditions. We are satisfied that the said Committee had discussed the subject in detail and for specifying these two conditions regarding pre-qualification criteria and the evaluation criteria. On perusal of all the materials, we are satisfied that the impugned conditions do not, in any way, could be classified as arbitrary, discriminatory or mala fide."
19. Under Rule 48(2) of the Public Procurement Rules, 2004 any bidder aggrieved by any act of the procuring agency can lodge a grievance complaint within 15 days after the announcement of the bid evaluation. Admittedly the plaintiff sent a letter to, defendant No.2 on 05.10.2020 after 18 days after pre-assessm ent criteria was announced. Grievance complaint is simply a letter addressed to the defendant No.2 therefore, the plaintiff is not entitled for any relief in the present suits.
20. It is matter of record that the defendant No.2 / PSO does not own any of the trucks / tankers and instead entered into contracts with various contractors who provide their vehicles for logistics purposes and the cost of these tracking services was borne by contractors and not by the defendant No.2 / PSO. Tracking companies such as the plaintiff or the defendant No.3 are paid for their services by contractors and not by the defendant No.2 and the contractors sent bills to the defendant No.2 on journey basis, therefore, there is absolutely no additional cost and / or loss to the defendant No.2 if contractors use a different tracking company such as the defendant No.3 instead of the plaintiff. Plaintiff was aware of the Logistic Circular No.218 dated 30.11.2020 but neither challenged said circular nor sought any relief in relation to it. It is settled law that if a party omits to include a claim / relief then such claim / relief shall be deemed to be relinquished and the party shall be barred from re-agitating the same under Order II, Rule 2, C.P.C. It is apparent that the plaintiff has relinquished his claim in relation to the Logistic Circular No.218 dated 30.11.2020 hence they are barred from raising any claim in relation to said Logistic Circular in these suits. Reliance is placed upon the cases reported in 2012 SCMR 280, 2013 CLC 702, 2013 SCMR 238 and 2012 SCMR
930. For ready reference, relevant portion of the judgment reported in 2013 SCMR 238 is being reproduced hereunder:- "According to Order II, Rule 2, C.P.C. the splitting of claim and/or relief is prohibited and that is a mandatory pro vision of law, with the consequence that if a claim/ relief which a person is entitled to on the basis of a cause of action, but omits and relinquish the same, such person/party shall be precluded to sue for the claim/relief so omitted. I do not find that the claim/relief now structured by the respondents is on a distinct cause of action. In my view, therefore, the bar of Order II, Rule 2 is also attracted to the case in hand."
In the case reported in 2012 SCMR 930 it is held that:- "When confronted with this situation, the learned counsel for the appellants could not offer any plausible explanation except that he contended that the appellants had the right to file a separate suit for possession. Even this argument is without substance. The law does not permit a second suit a right to the plaintiff is available at the time of filing of the suit. A second suit in such- like situation is otherwise barred under Rule 2, Order II, C.P.C."
21. This Court cannot effectually and completely adjudicate upon questions regarding any alleged violation of the Public Procurement Rules, 2004 in absence of the Public Procurement Regulatory Authority which is not a party in these suits.
22. Judgments relied upon by the learned counsel for the plaintiffs are not applicable as 1993 MLD 1308 does not pertain to the Public Procurement Regulatory Authority Ordinance, 2002 or the Public Procurement Rules, 2004. Secondly, the plaintiff in the above judgment was a pre-qualified contractor and had challenged the award of the contract which the plaintiff in the present case has failed to do so. With regard to the 2012 CLD 1445 cited by the learned counsel for the plaintiffs the plaintiff in that judgment had challenged the award of the contract which the plaintiffs in the present case have failed to do so. Secondly, the judgment is on the proposition that directing the parties to maintain status-quo would not amount to granting main relief nor would it create a new situation. 1999 YLR 1634 and 2015 MLD 1251 are on the proposition that grant of interim relief cannot be withheld merely on the ground that final relief would stand granted. In PLD 2017 Islamabad 29 the petitioner had challenged the re-procurement contract after being initially awarded the contract. Whereas in PLD 2006 SC 66 Leave to Appeal was granted to consider whether a suit for declaration seeking ownership was competent on the basis of an agreement to sell and does not pertain to the public Procurement Regularity Authority Ordinance, 2002 or the Public Procurement Rules, 2004.
23. With regard to Suit No.56/2021 the plaintiffs in this suit have challenged the pre-assessment criteria dated 17.09.2020 whereas Suit No.56/2021 was instituted on 11.01.2021 after four months of the announcement of the pre-assessm ent criteria. Logistic Circular No.218 dated 30.11.2020 issued by the defendant No.2 whereby the defendants Nos.4 and were nominated and appointed as the official GPS tracking vendors has been challenged in the injunction application bearing CMA No.375/2021. Plaintiffs in the injunction application bearing CMA No.375/2021 sought suspension of aforesaid Logistic Circular however, there is no corresponding prayer in respect of Logistic Circular No.218 dated 30.11.2020 in the prayer clause of the memo of Suit No.56/2021. Where no corresponding perpetual injunction is sought no question of granting ad-interim injunction can be entertained. Reliance was placed by the learned counsel for the defendants upon PLD 2003 Karachi 222, 2002 CLD 120 Karachi and 2003 YLR 1442. In the case reported in PLD 2003 Karachi
222. It has been observed that:- "11. We have heard the arguments of learned counsel for the parties and perused the record. In order to seek injunction, a party has to be vigilant and should approach the Court without loss of time to show its bona tide. The delay in such matters normally disentitles the party from seeking relief of injunction...........
In the case reported in 2002 CLD 120 it is held that:- "It is well-settled principle of law that grant of injunction is a discretionary relief and the Courts while considering the question of grant of such relief have to see the co-existence of prima facie case, balance of convenience and irreparable loss and injury in favour of a party seeking such relief. While dilating upon the merits of a case on these parameters the Courts can also take into consideration the overall conduct of a party i.e.:
(a) Whether he has approached the Court with considerable delay and not acted vigilantly and promptly?
(b) Whether he has not approached the Court with clean hands?
(c) Whether grant of injunction wilt be against public interest/public policy?
(d) Whether grant of injunction will place a party in an undue advantage which will perpetuate injustice?
(e) Whether the loss/damages likely to be suffered by a party due to refusal of injunction will be calculable in terms of money?
(f) Whether party approaching the Court for injunction has suppressed material facts and acted in a mala fide manner?
If answer to any of these queries is in affirmative, the relief of injunction being discretionary in nature can be declined having regard to the facts of each case."
24. Plaintiffs repeatedly pressed for interim reliefs for restraining the defendants from removal of trackers from logistic vehicles / tankers but there is no prayer in the injunction application bearing CMA No.475/2021 seeking such injunctive relief for removal of the trackers. Owners of the tankers / trucks whose trackers are to be removed have not been impleaded in both these suits as a party by the plaintiffs. Plaintiffs not themselves owned any of the trucks / tankers. Plaintiffs through these injunction applications are seeking orders from this Court compelling vehicles owners to continue using trackers even though there is no such prayer in the plaint or injunction applications nor vehicles owners are before this court.
25. Defendant No.2 / PSO does not owned any of the trucks / tankers but entered into contract with various contractors who provided their vehicles for logistic purposes and cost of these tracking services is borne by the contractors and not by the defendant No.2 / PSO. Tracking companies such as the plaintiffs or defendants Nos.4 and 5 have paid for their services by the contractors and not by the defendant No.2 / PSO directly.
26. Plaintiffs in both these suits have no good prima facie case and even no irreparable loss shall be caused to them if reliefs sought in the injunctions applications are refused. Balance of inconvenience do not lie in injunction applications of the plaintiffs.
27. For the reasons and grounds enumerated above all the three listed injunction applications are hereby dismissed.