S. MANZOOR HUSSAIN GILANI, J.-- In both the above Constitutional petitions under Section 44 of Azad Jammu and Kashmir Interim Constitution Act 1974, each of the petitioners (hereinaffer to be called as petitioner No.1 and 2) seeks a declaration of being lowest bidder and a direction to the respondents to issue the work order for construction work notified by the respondent No. 4 through a tender notice published in the Daily 'JANG' dated July 28, 1992. Each of the petitioners contends to be the lowest bidder as against respondent No. 5, who is treated as such by the respondents. As both the petitions raise the common question of fact and law, hence both shall be disposed of together by this single order.
2. The leading facts of the petitions are that through the tender notice referred above, tenders were invited from contractors registered with the Az. Ad Kashmir Public Works Department by respondent No.4 (hereinafter to be referred as Department) for completion of three construction works in Refugee Colonics at Sialkot, Jhelum and Jalalpur Jattan. Besides the petitioners and respondent No.5, many others submitted their tenders for the above notified work. The Department after preparing a comparative statement of all the tenders, found the tender of petitioner No.2 as the lowest, while that of respondent No.5 as the second lowest. However, it was reported with respect to petitioner No.2 that he was not entitled to the work as the limit of his entitlement as 'A'
Class contractor did not exceed Rs.70 lacks, while the notified construction exceeds one hundred million rupee. The Department after obtaining the counter offer from respondent No.5 found him to be the lowest bidder and recommended for approval and entitled to construction work. Petitioner No.1 challenged the correctness of comparative statement through which petitioner No.2 and respondent No.5 were declared as first and the second lowest bidders before the Minister Incharge of the Department, who was pleased to constitute a Committee in this behalf with himself to be its Chairman, to look into the complaint. The Committee also reported that though the petitioner No.2 is the lowest bidder, but his entitlement to obtain the construction work from the Department did not exceed Rs. 70 lacks, hence respondent No.5 alone remains the lowest bidder and entitled to get the said construction work. Challenging the correctness of the comparative statement prepared by the Department and the finding of the Committee before the Court, the petitioner No. 1 alleges that he only is the lowest bidder, but lenders submitted by him have been illegally and malaciously misread, so as to extend illegal largest in favour of respondent No.5. His contention as stated in the affidavit accompanying the petition is that total cost of his bid for the notified work is Rs.
11,183,541.00. The bid tendered by petitioner No.2 as shown in the comparative statement is Rs.1 1,616,508 and that of respondent No.5, who is declared as successful bidder by the Department is Rs. 12,780,137 and his counter offer as Rs. 11,604,364. The Department as well as respondent No.5 and petitioner No.2 have denied the claim of petitioner No.1 to be the lowest bidder through their written statement and affidavits. Petitioner No.2's. Claim of being the lowest bidder is not denied by the Deptt, however his eligibility to obtain the tender work is not accepted on the ground of his limit of entitlement. A list, showing the limits of contractors with the Deptt to obtain the Govt Contracts and an affidavit produced on behalf of Chief Engineer, PWD, reveal that the entitlement limit of petitioner No.2 as 'A' class Contractor is 70 lack rupee. It is also staled in the affidavit by the Chief Engineer that petitioner was prequalified for only one departmental work of University Complex and the certificate allegedly issued by the XEN on the basis of which petitioner No. 2 obtained the tender form is a forged document and has been obtained by fraud. Though the affidavit is contradicted through a counter affidavit by petitioner No. 2, but counter affidavit in itself is no sufficient reason to disbelieve the affidavit of Chief Engineer and list published by the Deptt, showing petitioner No.2's limit of entitlement as 'A' Class Contractor as Rs.70 lacks, In view of above, the pregnant arguments supported by host of authorities advanced by the learned counsel for petitioner No.2, on the assumption of his client's being no limit Contractor, need no mention and consideration, as the petitioner under the above circumstances has no prima facie, case.
3. I've heard the learned counsel for the parties at length and gone through the record after hearing the arguments. The precise argument of the learned counsel for petitioner No.1 is that the tender submitted by him has been misread, whereby the total bid offered by him is malaciously shown higher than petitioner No.2 and respondent No.5. Elaborating his argument, the attention of the Court was drawn to item No.3 of the Bill of Quantities/Abstract of Cost (to be referred as Bill of Costs) wherein the cost per cft of the item entered in the bill, as argued by the learned counsel for the petitioner is .9, i.e. 90 paisa, but according to him, it is misread as Rs. 9.0. Thus by illegally misreading the cost of the item, the total cost of the tender is increased, while it is lowest as per the rates tendered. According to the learned counsel, the cost of item No.3, which measures 200550 cft, is entered as .9 per cft, and its total cost comes to Rs. 180495 and this specific amount is entered in the bill of costs; while the Department has misread the figure .9 as Rs. 9.0 and the total cost of the item is calculated as Rs. 1804950 in the comparative statement, as against Rs. 18Q495 which is clearly entered and recorded in the bill of costs. This misreading, according to the learned counsel is deliberate and malafide, so as to favour respondent No.5. A preliminary point raised bv the contesting respondents in both the writ petitions is that petitioners raise the points which involve the enforcement of contractual obligation, for which the alternate remedy by way of civil suit is available to the petitioners and consequently the petitions are not maintainable. It is also argued that as the matter relates to the detailed inquiry into the facts, for which the constitutional remedy by way. Of writ petition is not a proper form. The department has supported the comparative statement and report of the committee prepared in this behalf declaring respondent No.5 as the successful bidder. It is also half heartedly argued that the Department had the right to reject any tender without showing any cause/reason. An objection is also raised against the petition filed by the petitioner No.1 by respondent No.5 that as the bid is offered by H.AH, who is declared as the successful bidder, the petition is filed against Ch. Mushtaque only, who is only a partner of the firm, whereas, according to the learned counsel for the respondents, the firm should have been impleaded as a party.
4. Before dilating upon the actual point in dispute, preliminary points shall be first dealt with. As for the objection that the petitioner No.1 has not impleaded the firm of H.Ali, as a party in the case, it would suffice to say that Ch. Mushtaq, who is respondent No.5 in the case, is a partner of the firm and he alone is duly representing the firm in the other case filed by petitioner No.2, in which H.AH is impleaded as a party and that, as the matters have been consolidated vide order of the Court dated Sep 23, 1992, the parties impleaded in each case shall be read for the other as well.
Moreover, under Order I Rule 10(2) of CPC, which applies in the instant case, a misjoinder or nonjoinder of the parties cannot defeat the petition. As the matters stand already consolidated, respondent No.5 in the petition of petitioner No. 1 shall be as H.Ali.
5. As for the objection that the matter relates to the enforcement of contractual obligations, hence the alternate remedy by way of suit being available, the petitions are liable to be dismissed, the objection does not stand the test of^ law. The matter is still at the stage of acceptance or rejection of tenders as the work order has not been issued, though the recommendation is made in favour of respondent No.5, treating him as the lowest bidder and for acceptance, of his tender. But the fact of the matter is, that advertisement for tender is not a proposal, but is a mere attempt to ascertain whether an offer can be obtained. By the Advertisement, the proposals were invited, but it in itself, is not a proposal. An advertisement for construction or completion of a work is a mere declaration and does not amount to a contract with anyone, who may act upon it. And mere acceptance of proposal does not amount to contract, unless the acceptance is signified by issuance of a work order. Moreover, even issuance of work order would not debar an aggrieved person from calling into question the authority of the person issuing the work order by illegal exercise of jurisdiction. No agreement has been executed with the person who is treated by the department as the lowest bidder i.e. Respondent No.5.
6. It is a self-restraint imposed upon itself by the High Court, not to entertain the constitutional petitions in contractual cases, otherwise, it is not a statutory rule. The reason behind is that in such like cases a detailed inquiry into the terms of contract and enforcement of terms of agreement is involved, which need evidence and elaborate inquiry. The High Court may restrain itself by not enforcing the terms of agreement, but when the authority of the Govt of any of its Department in granting the contracts is challenged or brought into dispute, the High Court cannot be inhibited from examining the validity of the action of Govt or of its department, in its extraordinary jurisdiction. The authority cited by the learned counsel for respondents in this behalf ie. 1992 Pakistan Supreme Court Cases-198 (Azad Kashmir Govt v. Neelam Floor Mills and others) is of no help to him. The report of this case reveals that in clause of agreement, the Neelam Floor Mill was entitled to the handling charges. Subsequently the Director Food refused to pay the charges and also issued an order that the charges already paid shall be refunded from the Mill. The order was successfully challenged before the High Court through a writ petition, but the Supreme Court was pleased to set the order aside through the above referred judgment, and the part of the judgment, relevant for the purpose in the, instant case is reproduced as below: "The -simple question before us is this: under what authority the Mills claims that handling charges should be paid to it? There is no law which provides for payment of handling charges. It is only the contract between the parties which provides for the payment of handling charges. Therefore, it is a simple case of enforcement of contractual liability. We find force in the argument of Sardar Rafique Mehmood Khan, the learned counsel for the appellants, that the phraseology of Section 44 of the Azad Jammu and Kashmir Interim Constitution Act 1974 clearly indicates that jurisdiction conferred by that section is exercisable only if the petitioner before the High Court bases his grievance on violation of a law and thus any grievance which is based on violation of a contract is clearly excluded".
7. The petitioner in the instant case seeks a direction of the Court to the Department to act in accordance with rule 2.56 of the Building and Roads Department Code, which reads as: "2.65 Usually the lowest tender should be accepted, unless there be some objection to the capability of the contractors, the security offered by him or his execution of former work. Subject to the provision of clauses 3 to 4 the acceptance or rejection of tenders is left entirely to the discretion of the officer to whom the duty is entrusted, and no explanation can be demanded of the cause of the rejection of his offer by any person making a tender. Such an explanation may be called for by superior authority, if considered necessary." The Department, no doubt, has in the tender notice clearly reserved a right with itself to refuse any tender without assigning any reason and this right is supported by above quoted rule. Had the case of the Department been that the tender of the petitioner Nod- is refused in exercise of reserved right, by the department, then, the petitioner probably would have no cause to plead before the Court. The tender of the petitioner has not been refused in exercise of that right, but, on the ground that he is not the lowest or even second lowest bidder. I have examined the file of the Department as well, which docs not spell out any thing else, nor is any other objection raised during the course of arguments. Under the circumstances, it is not a contractual obligation which petitioner wants to enforce through this constitutional petition, but the statutory duty imposed upon the respondents 1 to 4, to do that which they are bound under above rule to do, and the High Court, in exercise of its powers under section 44(2)(a)(i) is empowered to direct the respondents-to do that which they are required Under law to do. In the instant case, besides the general law of common sense, the above quoted provision of the Code obliged the Department to accept the tender of the person, who is the lowest, unless, of course, it, in its reserved discretion, refuses to accept the tender. The grant of contract, if not regulated by express provisions of law and rule, remain an administrative function of the Government or of any of its departments and in that case, the judicial control cannot be substituted for administrative action and the merits or expediency of official decisions. Nor are the Judges responsible for the official working of the Departments. But when a cause is brought before the Courts, they have to ensure that the decisions made on the administrative or even on political grounds, which effect public at large or even an individual, it must conform at least to the abstract law or rule available on the subject or at least to the basic standard of fair play and procedure. In construing an official or administrative decision, the extent of judicial control depends upon a variety of factors eg; power in question and its statutory context, the agency in whom the power is vested, exitance of means of appealing or challenging the decision, the effect of the decision on the individual who seeks a remedy from the Court etc. Etc. Viewing from any angle, the case in hand relates to a statutory provision which confers a restricted right upon the petitioner No.1 and an arbitrary authority in the respondents, and in view of the nature of the decision, it becomes obligatory for the Court to look into the propriety and legality of the decision.
8. The objection of the learned counsel that case involves the detailed inquiry into the facts which requires evidence, hence is out of purview of the extraordinary jurisdiction of the Court; can also not be accepted in the instant case. The case in hand, prima facie, relates to the enforcement of a legal right which does not require any evidence and inquiry if at all needed, relates to application of mind to documents (ie. Bill of Costs and comparative statement) which are admitted by the parties and are placed on the record. The only question which requires the determination by the Court with respect to the documents is, as to whether the Department and the Committee appointed under the Chairmanship of the Minister of Public Works Department has rightly construed the documents and entries therein or misread the same? If the Court can have a true perception of documents by application of mind or of common knowledge, the matter would not require the inquiry or proof. In the instant case, a single particular item is in dispute, and that only is to be looked into, as to whether it has rightly been read or prevaricatiously misread by the authorities concerned. If the parties in this case, are left to have the exercise in the civil court through a civil suit, the alternate remedy will Neither be expeditious nor unexpensive. It is settled by the superior courts that alternate remedy even if available, remedy by way writ cannot in every case be denied, unless such remedy is unexpensive, expeditious and beneficial. Reference may be made to PLD 1985 SCAJ&K-56. Even in case of contract, the Supreme Court has not accepted the notion of exclusion of constitutional jurisdiction for the reason of alternate remedy. I'm supported by PLD 1984 SCAJ&K-77, which reads as: "14. Next is the point with regard to the availability of an alternate remedy. The adequacy of this remedy ought to be viewed or judged in the terms of comparative speed, expenses, convenience and effectiveness involved in case relief is allowed by the High Court in exercise of its constitutional jurisdiction. The High Court would generally decline to issue the high prerogative writs in cases where alternative and equally efficacious remedies are available. But then it does not mean that there is any constitutional bar to the High Court in exercising such a jurisdiction or authority. Nor is the rule of alternate remedy inflexible. The fact that the High Court will ordinarily decline to step in where the alternate remedy is available is not due to their want of jurisdiction but for the reasons of expediency. Each case is to be decided in light of its accompanying facts and circumstances. The High Court will not hesitate to exercise its extraordinary constitutional jurisdiction where refusal to do so, in its estimation, would prolong the agony. In view of the peculiar circumstances of this case and considering the nature of the relief claimed therein rejection of the appellants' writ petitions by the learned High Court was a wrongful exercise of the jurisdiction vested in it under law".
8. Though there is a plethora of authorities on the point as well that the High Court shall not invoke its extraordinary jurisdiction in the cases where complicated questions of facts are involved and such like matters are left to be resolved by the Civil Courts. Reference may be made to PLD 1985 SCAJ&K-113. Series of other authorities are also referred by the learned counsel for the respondents, which need not be reproduced, as circumstances and facts, under which the point of law was laid in those authorities, are altogether different and glaringly distinguishable. On the other hand, if the error of fact is so apparent and self speaking that the discretion or power exercised by the subordinate authority seems perverse, vicious and. Capricious, the High Court intervenes in its constitutional jurisdiction to correct it. I'm supported by PLD 1986 SCAJ&K-120: "We have given our due consideration to the question as to under what circumstances the finding given by a Tribunal of special jurisdiction can be assailed by invoking the writ jurisdiction of the High Court. It is correct that there is marked difference between the appellate and the writ jurisdiction of the High Court. The High Court while exercising the writ jurisdiction should not assume the role of a court of appeal but all the same findings of the Tribunal of special jurisdiction are open to challenge in writ jurisdiction if the findings are patently wrong or based on inadmissible evidence or there is gross nonreading or misreading of evidence. In such cases the error would be "error of law" and the same can be reclined in exercise of writ jurisdiction. The view that in Tribunal which has the jurisdiction to decide a matter is competent to decide it rightly or wrongly would hold good only in case which involves deep scrutiny of the evidence or requires an extensive and deep probe into a statutory provision of law for its interpretation. None of the authorities cited by the learned counsel for the appellant supports the proposition that the findings of fact based on inadmissible evidence or gross misreading or nonreading of the evidence are immune from challenge in writ jurisdiction. Therefore, the contention that as the Chief Election Commissioner was the sole authority to decide the matter in controversy, the writ was not competent is not tenable because the findings of a Tribunal of special jurisdiction can be disturbed if the same suffer from any of the infirmities mentioned above". (Under lining is mine).
Similarly in PLD 1986 AJ&K-l, it is held that: "-Art.44. High Court, in its constitutional jurisdiction, held, would not ordinarily interfere in a Tribunal's findings but findings of Tribunal could not be regarded as sacrosanct or untouchable- Findings of Tribunal either on question of fact or law or both when were found to be perverse, illegal and such defects were apparent on face of record or were without consideration of proper material, High Court, of course, would interfere".
I will not be doing justice to the case, if the observations recorded by Justice Qadeeruddin Ahmed (As his Lordship then was) in PLD 1969 K 401 are not \ reproduced here:- "A mistake of fact does not ordinarily make an order open to attack, under Article 98 of the Constitution, as without lawful authority and of no legal effect, unless the error is of such a glaring character as to lead to the conclusion that the ostensible exercise of jurisdiction was in reality no exercise. Such an error can be said to have been committed if a material part of the opinion is formed on the assumption that a material piece of evidence exists while it does not, or is formed in disregard of an existing and material piece of evidence, or is formed on the basis of a piece of evidence which was so understood and used as may amount to failure to take the existing evidence into consideration and to taking into consideration of ~ evidence which does not exist, proved the error is so glaring and patent that it may not be acceptable as an error of judgment.
The reason is that beyond a certain point of lack of care and understanding in respect of facts, negligence and misunderstanding become question of law and jurisdiction, because no authority is expected to exercise jurisdiction in such a manner as to make it a force."
10. Now, testing the instant case on the scale of above yardstick of law, the error of fact pointed out by petitioner No.1, is so glaring and self speaking that action of the respondents seems to be based upon prevarication.
The petitioner had offered different rates for different items shown in the bill of costs. The only item misread by hoodwinking of the bill of costs, is item No.3 which is as follows.
"200550 cft 3. P/L base course of crushed stone agg. 1 1/2 to 2" of approved quality and grade and supply and spreading of stone screening and filling voids with stand/granular material i/c placing mixing spreading compaction of base course to required depth camber and grade to achieve 100% maximum' modified .AASHO dry density i/c carriage, of all material to site. Or work i/c hire fuel running and maint. Charges of machinery compacted thickness"." This item measures 200550 cft and the cost for this item is entered as .9 per cft by the petitioner No.1 which matches with the total dost calculated in the proforma itself ie. Rs.180495; but the Department and the Committee headed by the Minister, read it as Rs.9.0, without giving any explanation of the fact that if it was Rs.
9.0 then how the total calculated cost could be Rs. 180495? It is a matter of average sense, not to speak of common sense even, that k)0550 cft multiplied by Rs. 9.0 are equal to Rs. 1804950; while 200550 cft multiplied by .9 (ie. 90 paisa) is equal to Rs. 180495, which is unambiguously entered by the petitioner in proforma i.e. Bill of costs. Let,*us judge the proposition from another . Mathematical angle; Total amount of cost of work attributed tb petitioner No.1 ie. Rs. 12,807,996 minus Rs. 1804950 (the cost of item No.3, calculated at the rate of Rs. 9.0) the sum comes down to Rs. 11003046; and when the cost of item No.3 calculated at the rate of .9 i.e. Rs. 180495 is added to the above cost (ie.
Rs. 11003046) the total amount of bid becomes Rs. Tl 183541 and this is the total cost tendered by petitioner No.1; which is the lowest of all the tenders. What transpires from the record is that the department as well as the high level committee headed by a Minister has tried to favour respondent No.5, but in an ignoble manner, which is tantamount to malafide. Pity the nation whose statement are a hoax.
11. In view of above, the writ petition is accepted and it is declared .That petitioner No.1 is the lowest bidder and entitled to the benefits arising out of the lowest bid. The officers of the Department, who have mischievously prevaricated the calculation and thus caused loss, to the petitioner No.1 and earned a bad name for the department shall pay the costs of the petition personally which are fixed as Rs. 5000/00. Petition filed by petitioner No.2 is dismissed without any order as to costs.