1. ' BASHARAT AHMAD SHAIKH, J.---In the three appeals being decided by this judgment the dispute relates to award of contract in respect of a construction work undertaken by the Public Works Department. The appeals, by leave of the Court, arise out of an order passed by a learned Single Judge in the High Court on two writ petitions filed by Muhammad Fiaz Abbasi, who has been successful in the High Court and a respondent in all the three appeals, and Muhammad Rafique Mughal, who is appellant in Appeal No,53 of 1992. In the order recorded on 27th of October, 1992 the High Court dismissed the writ of Muhammad Rafique Mughal but accepted writ petition filed by Muhammad Fiaz Abbasi and declared that he was the lowest bidder and entitled to the benefits flowing from that position. The High Court also ordered that the officers of the Public Works Department who had, in the estimation of the learned Judge, "mischievously prevaricated the calculation and thus caused loss to Muhammad Fiaz Abbasi and earned a bad name for the department" shall personally pay the costs of the petition which was fixed at Rs,5,000. In the strongly-worded judgment the learned Judge who was seized with the case used the words "hoodwinking", "ignoble manner" and "hoax" in respect of the public functionaries who were arrayed as respondents in the writ petitions, including the Minister for Public Works of the Azad Government of the State of Jammu and Kashmir. One of the grievances raised on behalf of the Government functionaries in Civil Appeal No,54 of 1992 titled Minister for P.W.D. And others v. Muhammad Fiaz Abbasi and others is that these remarks are disparaging and have been recorded without legal justification.
2. ' Through a newspaper advertisement Executive Engineer Buildings Division Mirpur invited item rate tenders from 'A' Class and 'B' Class Contractors enlisted with the Public Works Department for award of contracts for construction of, among others, roads, water supply and sewerage in the Jammu and Kashmir Refugees Colony at Sialkot. The estimated costs of the work was notified as Rs,1,23,19,457. When the tenders had been opened the Executive Engineer prepared a comparative statement of the tendeRs, The tender submitted by Muhammad Rafique Mughal was for Rs,1,16,16,508. According to the order recorded by the Executive Engineer this tender was rejected despite the fact that it was found to be the first lowest tender. The tender submitted by H. Ali Construction Company, a firm, was found to be the second lowest, being for an amount of Rs,1,27,80,137. The tender filed by Muhammad Fiaz Abbasi was shown in the relevant document to be for Rs,1,28,07,996 and third lowest. The Executive Engineer is stated to have obtained a counter offer from H. All Construction Company to decrease the amount of their tender to which the firm agreed and brought it down to Rs,1,16,04,364. It appears that this was done to bring the amount to a figure lower than the figure of Rs,1,16,16,508 which had been quoted by Muhammad Rafique Mughal whose tender had been rejected earlier. Two writ petitions were filed in the High Court separately by Muhammad Rafique Mughal and Muhammad Fiaz Abbasi. As noted earlier, the writ petition filed by Muhammad Rafique Mughal has been dismissed. The reason recorded for the dismissal of the writ petition is that Muhammad Rafique Mughal could only be allotted contract for a work below the value of Rs, 70 lakh. The petition filed by Muhammad Fiaz Abbasi was accepted by holding that one of the entries in it was delibrately misread and thus the bid offered by him was shown to be higher than the bid of Muhammad Rafique Mughal and H. Ali Construction Company. It was held that in item No,3 of the tender cost per cft. Of item No, 3 was .9 (90 paisa) but it was misread as Rs,9 thereby amount of his tender, which was lowest, was artificially increased. Item No,3 is "200550 cft. Of crushed stone". The amount of this item is shown as Rs,1,80,495. This amount works out only if the rate of the item is 90 paisa per cft. And not if it is Rs,9 per cft. It was also held by the learned Judge that tender of Muhammad Fiaz Abbasi was rejected due to the ulterior motives and in order to help H. All Construction Company. Several objections of fundamental nature were raised before the High Court but were rejected.
3. ' From the record of the case it appears that Muhammad Fiaz Abbasi moved an application before the Minister of Works that his tender was being wrongly rejected and sought the intervention of the Minister in the matter. Thereupon, the Minister for Public Works convened a meeting to consider the complaint. The Chief Engineer, Deputy Accountant-General, Additional Secretary Works, Superintending Engineer, Mirpur and Executive Engineer Mirpur participated in the meeting. Copy of the proceedings of the meetings has been placed on the record. It is stated in the proceedings that Muhammad Fiaz Abbasi had tried through forgery to show that for item No,3 his bid was 90 paisa and not Rs,9. The participants of the meeting recorded the view that this rate was impracticable and also amounted to forgery. The claim was rejected.
4. ' It was vehemently contended before the High Court that the writ petitions filed before the High Court did not lie because they related to enforcement of contractual liabilities. Reliance was placed on a recent judgment of this Court in A.J.K. Government v. Neelum Flour Mills, 1992 SCMR 431 wherein this Court followed the rule of law that a writ petition does not lie if it is based on the violation of a contract. The learned Judge, while overruling this objection, reproduced the following portion from the judgment of the Neelum Flour Mills case:.
5. "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 Refique Mahmood 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."
6. ' After reproducing the above extract the learned Judge proceeded to record the view that in the cases before him the prayer was not that the public functionaries concerned may be directed to fulfil any obligation arising out of a contract, but the petitioners were seeking a direction that the public functionaries should act in accordance to rule 2.65 of the Buildings and Roads Department Code which reads as follows:-- '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."
7. ' The learned Judge then proceeded to make the following two observations:--
(a) In the tender notice a right has been clearly reserved to reject any tender without assigning any reason but the tender has not been rejected in exercise of that right, otherwise the two petitioners before the High Court should have probably no case;
(b) tender of Muhammad Fiaz Abbasi has been rejected on the' ground that he is not the lowest/second lowest bidder, but the calculations made by the department were "arbitrarily wrong" and a result of reading Rs,9 instead of .9, i,e,, 90 paisa.
8. ' Sardar Rafique Mahmood Khan, the learned counsel for Muhammad Mushtaq, raised the objection about competency of the writ petition with great vehemence before us. His argument was two-fold. Firstly, he contended that the Buildings and Roads Department Code, which contains rule 2.65 relied upon in the judgment of the High Court, was not in force in Azad Jammu and Kashmir. He then alternatively contended that rule 2.65 reproduced above relates to the grant of a contract and just as a contractual liability cannot be enforced through a writ petition, a Government functionary cannot be forced to grant a contract to a particular person through such a petition. He argued that grant or refusal of a contract of construction, by its very nature and usage of the Public Works Department, was a matter which lies in the discretionary powers of public functionaries. In this connection he relied on The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service (PLD 1958 SC (Pak.) 437), Muhammad Hussain Munir v. Sikandar and others (PLD 1974 SC 139) and Province of West Pakistan v. S.I. Mahbub, I.S.E., Chief Engineer (PLD 1962 SC 433).
9. ' Mr. Sardar Khan, the learned Advocate-General, in his address also adopted the same reasoning and relied on Moin-ud-Din v. Negotiating Committee for Disinvestment of AKMIDC Units [PLD 1987 SC (AJ&K) 99]. He submitted that when, in light of the dictum of this Court in Neelum Flour Mills' case, a contractual liability cannot be enforced through a writ how logically a pre-contract action can be controlled through this extraordinary constitutional power. However, Mr. Ghulam Mustafa Mughal, the learned counsel for Muhammad Rafique Mughal, drew our attention to the Azad Jammu and Kashmir Delegation of Financial Powers Rules 1983 and submitted that these rules, which have been framed under section 58 of the AJ&K Interim Constitution Act, 1974, lay down the powers and the procedure to he adopted for the acceptance of tendeRs, Mr. Ghulam Mustafa Mughal submitted that violation of statutory rules gives rise to invocation of the writ jurisdiction.
10. ' When the petitions for leave to appeal came up for preliminary hearing the private appellants as well as the officers of the Public Works Department were directed by the Court to find out whether the Buildings and Roads Department Code which had been relied upon in the judgment of the High Court had been enforced in Azad Jammu and Kashmir by legislature or through a Government Order., The Chief Engineer P.W.D. (Buildings) was present in the Court and he informed the Court that he had been unable to find any enactment or Government Order enforcing the said Code. He submitted that it is a long standing practice of the Public Works Department to follow the aforesaid Code and all the business of the Department is being conducted under it. What is available with the Department is a West Pakistan Publication. This position has also been accepted by the learned Advocate-General and the other learned counsel appearing in the appeals. It is well-settled that a writ petition can he based on the violation of law. However, it was argued by Mr. Khalid lqbal Qazi, the learned counsel for Muhammad riaz Abbasi, that in certain decided cases violation of Government Orders and instructions which are of general application have been held to be sufficient to attract writ jurisdiction. In this connection he relied on Arsalla Khan v. Bashir Ahmad Blour (PLD 1976 SC 581) and Mazhar Hussain v. Province of Punjab (PLD 1985 Lah.394). There are certain reported cases in which violation of the charter under which a public functionary is entrusted with certain duties and powers has been found sufficient for invocation of writ jurisdiction. There are some other judgments which lay down the rule that executive powers regarding acceptance of tenders can be controlled through writ jurisdiction. We may refer for instance to Majlis-i-Intizamia v. Secretary to Government (PLD 1975 SC 355), Miss Tahira Mahmooda v. Chairman, Nomination Board (PLD 1975 Azad J and K 108), Miss Uzma Ishaque v. Azad Jammu and Kashmir Nomination Board (PLD 1986 Azad J & K 112), Anjuman-e-Ahmadiya Sargodha v. The Deputy Commissioner, Sargodha (PLD 1966 SC 639), Rashid A. Khan v. West Pakistan Railway Board (PLD 1973 Lah.733) and M/s. Kasturi Lal Lakshmi Reddy v. The State of Jammu and Kashmir (AIR 1980 SC 1992). However, the Code mentioned above is not even an administrative order. The mere fact that it has been followed for a long time does not confer it the status of law or an executive order having the force of law.
11. ' The Azad Jammu and Kashmir Delegation of Financial Powers Rules, 1983, which have been brought to our notice by Mr. Ghulam Mustafa Mughal, decidedly have statutory backing and there is no manner of doubt that a writ petition can be based on their violation. It is clearly stated in the preamble of the Rules that they have been framed in exercise of powers conferred by section 58 of the A J and K Interim Constitution Act, 1974. Section 58 runs as follows:-- "58. Power to make rules.--The President may make rules for carrying out the purposes of this Act."
12. Rule 3 of the rules is to the following effect: "3. Delegation of poweRs,--The powers specified in column 2 of the Second Schedule to these rules shall, to the extent mentioned in Column 4 thereof, be exercised by the authorities specified against such powers in column 3 of the said Schedule: (i)..............
(ii) ......................................................................... 11 In the relevant part dealing with the Communication and Works Department the following provisions deal with the acceptance of the tenders:-- "2. Acceptance of tendeRs,-- {{TABLE}}
(i) Administrative Department. Full poweRs,
(ii) Chief Engineer. Full poweRs,
(iii) Superintending EngineeRs, In High Way Department up to Rs, 50 lacs. In Building Department up to Rs,25 lacs.
(iv) Executive EngineeRs, In High Way Department up to Rs,10 lacs. In Building Department up to Rs,5 lacs. {{TABLE}} ' These powers are subject to the conditions that:-
(i) the normal procedure laid down forinvitation of tenders is followed.
(ii) the rates quoted and/or amounts tendered are such that the total cost of a project/work will not exceed the amount for which the project/work is administratively approved by more than the limit up to which the offer or authority is competent to accord technical sanction;
(iii) Where competitive tenders are to be invited under the rules, in case the lowest tender from an approved contractor is not accepted reason should be recorded and further approval should be obtained from (a) the Chief Engineer for tender up to the value of Rs,5 lacs, (b) the Administrative Department if the value of the tender is more than 5 lacs and (c) the Administrative Department and the Finance Department, if the value of the tender exceeds Rs,10 lacs."
13. ' Azad Jammu and Kashmir Delegation of Financial Powers Rules, 1983 were not brought to the notice of the High Court, but it does not make any substantial difference because it is the law of the land and it is duty of this Court to enforce and apply it wherever it is necessary. We, therefore, conclude that writ petitions filed by Muhammad Rafique Mughal and Muhammad Fiaz Abbasi were not hit by the rule of law laid down in Neelum Flom. Mills. The petitions filed before the High court were not to enforce a contractual liability but related to the statutory rules regulating the acceptance C of tendeRs, If these Rules are found to have been violated an appropriate writ can issue.
14. ' We first take up the case of Muhammad Fiaz Abbasi on whose instance the High Court issued the writ prayed for. Mr.Khalid Iqbal Qazi contended that the Executive Engineer miscalculated the figures incorporated in the tender given by Muhammad Fiaz Abbasi and therefore came to a wrong conclusion. He submitted that if a public functionary assumes, by mistake or otherwise, the existence of a certain fact which actually is not in existence a writ petition can be issued to correct such an error. We accept the proposition as correct. If a public functionary is acting under a law or an instruction having the force of law he is bound to record correct conclusions about the facts and if he fails to do so writ jurisdiction would be attracted. We, therefore; hold that the writ petition filed by Muhammad Fiaz Abbasi was maintainable. Same is true about the other writ.
15. ' Let us first take up the case of Muhammad Fiaz Abbasi. Since the questions of facts have to be decided by the Courts of law on the basis of pleadings of the parties, it is necessary to first fmd out what was the case which Muhammad Fiaz Abbasi laid before the Court. Leaving aside the unnecessary details, Muhammad Fiaz Abbasi averred in the writ petition filed by him on 3rd of September, 1992 that out of the tenders in respect of the disputed work his tender was the lowest and that in accordance with law, practice, justice and the Public Works Department Code it was necessary for the respondents to immediately accept his tender and to issue work order to him. It was further stated that the respondents were not issuing the work order to him with mala fide purpose and unclean hands and were planning to allot the work to respondent Ch. Mushtaq. It was further stated that the petitioner had tried to obtain copies of the tender form submitted by the other tenderers, particularly the one filed by Ch. Mushtaq, but the respondents had refused to do so in order to ensure that the petitioner did not approach a Court of law. It was pleaded that the respondents were bound to accept the petitioner's tender and to issue work order for various reasons listed in the writ petition. The reasons so listed were that:--
(i) the petitioner had the fundamental right under the Constitution that his tender should be accepted if he is the lowest bidder;
(ii) it was the requirement of the principle of open competition that the lowest tender should be accepted;that persons placed in similar circumstances were entitled to receive equal treatment and no discrimination was allowed by the relevant Constitutional provisions while treating the tenders under reference;
(iv) that the acceptance of the lowest tender in an open competition was not only in interest of the Government but also in consonance with the public policy; and
(v) on the other hand accepting the tender of higher value in furtherence of personal and political ends based on personal likes and dislikes as well as with mala fide purpose was against the interest of State and public policy.
16. ' Minister of 'Works was arrayed as one of the respondents. It was stated about him that the relevant file was in his office. With the writ petition Muhammad Fiaz Abbasi attached as Annexure the photostat copy of, what he claimed, to be the tender filed by him. Towards the end of the tender there is figure Rs,1,11,17,571 showing the total amount of his tender. He also filed an affidavit that the amount of his tender was Rs,1,11,83,541 while the amount of Muhammad Rafique Mughal's tender was Rs,1,15,88,496 and that his tender was the lowest and the XEN had given the understanding to him on spot that his tender would be accepted but when he went to Muzaffarabad on 31st of August the Chief Engineer (Buildings) and Superintending Engineer (Buildings), Mirpur told him that his tender would be rejected. He stated that he asked for the reasons but they refused to give the reasons in writing. He further deposed that he demanded that he may be supplied with the copies of the 2nd and 3rd highest tenders but this request was also turned down. Another affidavit was filed by him verifying the correctness of the contents of the writ petition. A perusal of the record shows that the contents of the first affidavit were not part of the averments in the writ petition.
17. ' In the written statement filed on behalf of the official respondents the allegations that an attempt was being made to harm the petitioner and to benefit any tenderers was repudiated. It was pointed out that Muhammad Fiaz Abbasi was enlisted only two days before the date fixed for filing and opening the tendeRs, The tenders were originally to be filed on 13th of August but the date was extended. Ft was pointed out that if the date had not been extended the petitioner would not have been able to bid for work in question at all. On the factual side it was averred that the lowest tender was of Muhammad Rafique Mughal but he could not bid for a work exceeding the value of Rs,70 lakh. The next lowest rate was of Ch. Mushtaq and, being the lowest tender, his tender was being accepted. It was also pointed out that the petitioner had approached the Minister of Works upon which a Committee was constituted which heard the parties and formed the conclusion that Ch. Mushtaq was the lowest bidder. It was vehemently denied that the petitioner ever applied for obtaining a copy of the document or that it was ever refused. It was also pointed out that the copy of the tender attached with the writ, petition was not the same as original. With the written statement, among others, the comparative table of different tenders for the work under reference filed by different contractors, in all numbering 10, was attached. According to comparative table the amount of Muhammad Rafique Mughal's tender is Rs,1,16,16,508. It is noted on the document that this was lowest tender and then is followed by the word 'rejected'. H.Ali Construction Company (represented by Ch. Mushtaq) is shown to be the second lowest bidder with figure of Rs,1,27,80,137.
18. The 3rd lowest tender is shown to be of Muhammadd Fiaz Abbasi of which the total amount is Rs,1,28,07,996. It has already been noted that after rejecting the lowest tender filed by Muhammad Rafique Mughal the total amount of the tender, after negotiations with H. All Construction Company, was reduced to Rs,1,16,04,364 and the XEN recommended that the lowest tender of H. All Construction Co. May be approved. It was duly forwarded with his recommendations by the Superintending Engineer Buildings Circle, Mirpur to the Chief Engineer. The document shows that the Chief Engineer approved the proposal. The other document filed with the written statement contains the proceedings of the meeting presided over by the Minister of Works to which a reference has already been made in the earlier part of the judgment. A photostat copy of the tender submitted by Muhammad Fiaz Abbasi duly certified by the XEN Mirpur was also filed with the written statement.
19. ' A comparison of two copies of Muhammad Fiaz Abbasi's tender, one filed with the writ petition and the other with the written statement of the Public Works Department shows that the two are not the same and are materially different from each other. One material difference is that in the unattested (photo) copy filed by Muhammad Fiaz Abbasi the total amount of the tender (Rs,1,11,12,571) has been incorporated but this amount is missing from the attested (photo) copy. The other important difference is in respect of the rate quoted in the tender in respect of item No,3 (upon which the judgment of the High Court is based). A close look at entry No,3 shows that in the attested. Copy filed by the Department the figure is 9 while in the photostat copy filed by Muhammad Fiaz Abbasi the figure is .9. However, in both the copies the amount of item No,3 which is crush stone of the quantity of 200550 cft. Is Rs,1,80,495. If amount of crush stone is divided by the quantity the rate comes to 90 paisas and not Rs,9. We will deal with the question at the proper place. However, we may note here that every rate in the tender has been written in figures and words by the XEN and has initialled each item. In item No,3 he has written "Rs,9" in figures and "nine only" in words. In his written statement Ch. Muhammad Mushtaq averred that when tenders were opened the rate of Rs,9 for item No,3 was read out but Muhammad Fiaz Abbasi did not raise any objection and it is only when the final calculations were made that he started raising objections.
20. Ch. Muhammad Mushtaq filed an affidavit in support of this averment. Muhammad Fiaz Abbasi filed two separate replications in reply to the written statements and he denied the allegation mentioned above. However, he did not file any affidavit in support thereof.
21. ' The details of the written statement, the documents and the replications have been referred in order to show what were the respective stands of the parties. The High Court has held that Muhammad Fiaz Abbasi quoted 90 paisa as the rate for item No,3. However, from a persual of the pleadings it is clear that Muhammad Fiaz Abbasi did not aver in the written statement or the replications that he had incorporated paisas 90 as the rate of item No,3. Since there is no such averment there is no affidavit or any other proof on the file to show that the rate was paisas 90. A persual of the judgment of the High Court shows that it was during the arguments that this contention was placed before the Court by the learned counsel who appeared for Muhammad Fiaz Abbasi. It is mentioned in para. 3 of the judgment that according to the learned counsel for Muhammad Fiaz Abbasi the rate of item No,3 was .9 namely 90 paisas but it was misread as Rs,9. It was also contended that quantity of item No,3 was 200550 cft. And total cost of Rs,1,80,495 is also duly entered. In our considered view questions of fact, particularly the disputed questions of fact, cannot be decided on the basis of submissions made at the bar without there being proper proof on the file. It should go without saying E that the proof follows pleadings. A fact has to be first pleaded and then a proof thereof has to be furnished. If a fact is not pleaded there can be no adjudication. As has already been seen, in the writ petition Muhammad Fiaz Abbasi did not state that his rate in respect of item No,3 had been misread or that he had entered paisas 90. He did not say any such thing in the replications filed by him. In the written statement filed by H. Ali Construction Co. It was averred that Muhammad Fiaz Abbasi did not raise any objection when rate of item No,3 was read out as Rs,9 in his presence. This was supported with an affidavit. Muhammad Fiaz Abbasi even then did not file an affidavit to contradict this averment. He did not even state in the replication that he had entered 90 paisas or .9 as the rate for item No,3. This position of the record F clearly leads us to the conclusion that finding of fact recorded in the judgment of the High Court is not legally sustainable and has to be set aside.
22. ' Even otherwise the finding recorded by the learned Judge in the High Co-tut about the rate of item No,3 seems to be based on unattested copy of Muhammad Fiaz Abbasi's tender which he filed with the writ petition. This copy was unattested and was, as pointed out earlier, materially different from the attested (photo) copy filed with the written statement. Unattested copy shows the rate as .9 but there is no mark of decimal (.) before the figre 9 in the attested copy. Out of the two copies the copy filed alongwith the written statement was clearly preferable because of the fundamental reason that one was attested and the other was not. The second reason is that the copy filed with the written statement came from a Government department and carried presumption of correctness which was never rebutted. Another reason is that the correctness of the copy filed by Muhammad Fiaz Abbasi was challenged by the Government functionaries, who were arrayed as respondents before the High Court, but the correctness of the attested copy was not challenged by Muhammad Fiaz Abbasi. In these circumstances the learned Judge should have discarded the inadmissible unattested (photo) copy and should have relied upon the attested copy. However, it appears that this aspect of the matter escaped notice of the learned Judge who based his finding on misleading entry in the unattested copy of the tender. The judgment of the learned Judge in the High Court was also influenced by the fact that the total amount of item No,3 was also incorporated as Rs,1,80,495 which corresponds to the rate of 90 paisas per cft. However, this single fact cannot have an overriding effect. Since we have found that the quoted rate was Rs,9 per cft. It becomes clear that the total. Shown as Rs,1,80,495 was incorrect. Here there are three factors which must be taken into consideration:-
(a) The rate for this item in the other tenders is quoted by the other contractors as Rs,7, Rs,12.75, Rs,16.51, Rs,11, Rs,12, Rs,10, Rs,12 and Rs,13 which makes the rate of paisas 90 as ridiculously low;
(b) if Muhammad Fiaz Abbasi wanted to quote 90 paisas as the rate, he should have clearly written 90 paisas and not .9, as claimed. 90 paisas is not normally written as .9; and
(c) when against item No,3 Muhammad Fiaz Abbasi entered Rs,1,80,495 as the total amount of this item he did not close the figure as he did in most of other items. Items Nos,2, 3 and 4 are written as follows:-- {{TABLE}} "2: 16,04,400 3: 1,80,495 4: 16,09,400" {{TABLE}} ' The fact that total amount against item No,3 was not closed may mean that figure zero might have been inadvertently omitted or it may mean, as is alleged by the other parties, that it was purposely left open. Whatever the cast may be the fact remians that the figure 1,80, 495 cannot have the effect of changing the figure for Rs,9 to paisas 90 if the overall factors noted earlier are kept in view.
23. ' We may observe that the very fact that Muhammad Fiaz Abbasi filed a copy which did not contain the correct entries should have been sufficient to reject the writ petition in the equitable jurisdiction conferred by section 44 of the Azad Jammu and Kashmir Interim Constitution Act. A person who does not come with clean hands to the Court disentitles himself to any relief even if it is otherwise due to him. By filing the incorrect copy with misleading entries Muhammad Fiaz Abbasi was guilty of unbecoming conduct and if other factors did not go against him this itself was sufficient ground on which we would have vacated the order passed by the High Court.
24. ' Now we take up the case of Muhammad Rafique Mughal. His tender was admittedly the lowest but was rejected. While doing so no reason was recorded by the Executive Engineer and he just wrote the word 'rejected'. This is a clear violation of the Azad Jammu and Kashmir Delegation of Financial Powers Rules, 1983, the relevant part of which has already been reproduced above. It is clearly laid down therein that if lowest tender is not accepted reasons should be recorded. Where a provision of law enjoins upon a functionary to record reasons before taking a particular action the obvious purpose is that it must be known as to why that action has been taken and if the grounds are not reasonable and just the action may be set aside by the higher functionaries. This provision is intended to ensure that the action would be taken in public interest and should not be arbitrary, mala fide or whimsical. This provision must be held to be mandatory if it has to achieve the purpose for which it is enacted. If the reason is not recorded it is a clear illegality which vitiates the action. We, therefore, conclude that the rejection of tender filed by Muhammad Rafique Mughal was illegal. Admittedly he is an approved contractor and his tender was the lowest.
25. ' The reason for rejection was not recorded by the Executive Engineer or subsequently by the Superintending Engineer or the Chief Engineer but it was subsequently disclosed in the written statement when Muhammad Rafique Mughal filed the writ petition in the High Court. He averred in the writ petition that the comparative table drawn up by the Department showed him as the lowest bidder but he understood that his tender had been rejected without assisgning any reason. He submitted that this was being done for illegally benefitting H. Ali Construction Co. It was contended that lowest tender could not be rejected without hearing and without assigning any reason. In the written statement filed by the respondents, namely, Azad Government of the State of J & K, Secretary Works, Chief Engineer (Buildings), XEN (Buildings), Mirpur, it was claimed that Muhammad Rafique Mughal was not a no-limit contractor but was in the category of those contractors who could be allotted construction work up to the value of Rs,70 lakh. An uncertified photostat copy of an application filed by Muhammad Rafique Mughal praying that his limit should be raised from one crore to no-limit was attached with the written statement. No other proof was adduced.
26. However, after the arguments had been heard an affidavit was filed by the Chief Engineer which was met by a counter-affidavit. Since the reason for rejecting the tender has been disclosed we are of the view that it will be in the interest of justice to adjudicate upon the legality or otherwise of this reason rather than remanding the matter to the Executive Engineer. If the matter goes back' to him the Executive Engineer would record the reason which has already been brought on the record.
27. Therefore, it would be a wasteful exercise.
28. ' Admittedly Muhammad Rafique Mughal is an "A" Class Contractor. When the Department pleaded in the written statement that in spite of being placed in the "A" Class he could not bid for a work beyond Rs,70 lakh the onus of proving that fact was on the respondents but they failed to discharge their onus. The order by which the said contractor had been approved upto the maximum limit of Rs,70 lakh was not filed in the Court. On the other hand an unattested (photo) copy of an application said to have been filed by Muhammad Rafique Mughal was filed in the Court. In that application a prayer was made that his capacity may be raised from Rupees one crore to no-limit. If this document has to be relied upon it clearly does not support the case of the Department that the contractor's limit was Rs,70 lakh. During arguments before us a request was made that the Government Order on the subject as well as the list of approved Contractors showing that for each Contractor a limit had been fixed may be considered by this Court. We normally do not allow fresh material to be brought on record. But since the Government Order on the subject is in the nature of instructions of general application under which categorisation of contractors is done by the officers of the Public Works Department and the other order fixing the limit of contractors is also a public document we allowed the Department to place these documents on the record. A perusal of the order passed by the Chief Engineer shows that "A" Class contractors have been placed in two broad categories. In one category are no-limit contractors while those falling in the other category can bid for a specified amount shown against each name.
29. The other document is a Government Order passed on 22nd September, 1985. The Order notifies the approval of the President of Azad Jammu and Kashmir to the revised ceiling of contractors who were entitled to tender for Government works. There are four categories which are mentioned in the order, namely, "A" Class, "B" Class, "C" Class and "D" Class. It is specifically stated in the order that contractors in "A" Class can bid for works beyond Rs,15 lakh.
30. ' Now the position that emerges is the order issued in the name of the President lays down that "A"
31. Class contractor can be allotted work beyond Rs,15 lakh. The order does not fix the higher limit which means that every "A" Class contractor is a no-limit contractor. On the other hand the order of the Chief Engineer lays down that an "A" Class contractor can bid only up to the limit fixed by that officer and not beyond it. The order of the Chief Engineer clearly runs counter to the Government Order and is invalid. If it is necessary in the public interest to further classify the "A" Class contractors according to their capacity. This can be done by getting the Government Order amended and not by issuing an inconsistent order. Thus, it is clear that the limit fixed in respect of Muhammad Rafique Mughal is void and inoperative and we hold accordingly. Consequently we find that he is an "A" Class contractor and could bid for any work beyond Rs,15 lakh. This was the only requirement which was notified by the Executive Engineer in the advertisement inviting tenders for the work in dispute and he duly fulfilled it.
32. ' There is another aspect of the matter which needs to be noticed. The work in dispute was awarded by the Department to H. Ali Construction Co. But when Mr. Muhammad Fiaz Abbasi filed the writ petition, he did not implead the aforementioned firm as respondent and instead arrayed Ch. Mushtaq amongst respondents. An objection was raised before the High Court that the writ petition should be dismissed because the firm; which was a necessary party, had not been impleaded, This objection was overruled by the High Court on the ground that two writ petitions, one filed by Muhammad Fiaz Abbasi and the other filed by Muhammad Rafique Mughal in which H.
33. All Construction Co. Was arrayed as respondent, had been consolidated, therefore, respondent No,5 in the writ petition filed by Muhammad Fiaz Abbasi shall be read as H. Al Construction Co.
34. Instead of Ch. Mushtaq. This point has not been raised before us. We are not called upon to decide whether in the absence of H. All Construction Co. From the line of respondents, the writ petition was liable to be dismissed on that point. However, we deem it appropriate to observe that the view recorded in the judgment under appeal on the subject of consolidation is not the correct 'exposition of law. There were two separate writ petitions filed before the High Court but they were heard and disposed of together. In our view defect of non-impleadment of necessary party in one of the writ petitions is not cured merely because two writ petitions are heard and disposed of together.
35. ' We may now advert to the prayer of the learned Advocate-General, Mr. Sardar Khan, with regard to expunction of certain remarks recorded by the learned Judge in the High Court. The learned Judge had found action of the respondents to be actuated by malice and meant to help a particular contractor. Since we have reached conclusions which are different from the conclusions recorded by the learned Judge the remarks under question become without foundation. Even otherwise we feel that there was no material on the basis of which these remarks could be recorded. However, since the order passed by the learned Judge is being vacated, a formal order of expunction of remarks is not necessary. This is in accordance with the practice of this Court as may be evident by a case reported as AJ&K Government v. Zaman All Shah PLD 1991 SC (AJ&K) 57.
36. ' The upshot of the above discussion is that Civil Appeal No,51 of 1992 Muhammad Mushtaq v.
37. Muhammad Fiaz and others is dismissed with no order as to costs. Civil Appeal No,53 of 1992 Muhammad Rafique Mughal v. Azad Government of the State of Jammu and Kashmir and others succeeds with no order as to costs and consequently the writ petiton filed by Muhammad Rafique Mughal is accepted in terms that rejection of his tender is held to be writhout lawful authority and of no legal effect and Public Works Departement is directed to allot the work in dispute in accordance with law and fmdings of this Court. Civil Appeal No, 54 of 1992 Minister for Public Works v. Muhammad Fiaz and others stands disposed of in terms of the judgment in respect of other two appeals. 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.