By this petition filed under Article 199 of the Constitution, the Punjab Text-Book Board is sought to be restrained from inviting/accepting tender for the supply of imported news-print for publishing text- books for the use of school children.
2. The Punjab Text-Book Board had initially invited tenders for the supply of Eight Thousand (8,000) metric tons of white writing paper vide tender notice published on 8th July 1994, for printing of text- books. The petitioner No. 2 was the lowest bidder for the supply of five thousand tons of 60 Gms quality paper. This offer was not accepted and subsequently fresh tender notices were issued on 21-9-1994 and 22-9-1994 for the supply of 8,600 metric tons of whole writing paper. Petitioners Nos.
1 and 2 were the lowest bidders but this bid was also not accepted. Third short tender was invited on 29-12-1994 for the supply of various quantities of printing paper, including 2,05,000 reams of imported news-print. The last date for the submission of the tenders was 4-1-1995. The present writ petition was filed on 2-1-1995, to call in question the legality and bona fides of the respondent- board in inviting the last mentioned tenders for the supply of the imported mechanical news-print for the purpose of the printing text-books used by the students. The matter involved urgency because, the text-books have to be printed before the end of March, 1995, therefore, the Chairman of the Punjab Textbook Board was asked to appear in Court to answer the various questions raised in the writ petition. Subsequently, on 4-1-1995, the tender offers were opened under direction of the Court, in the presence of the Reader. M/s. Falcon Paper, the lowest bidder against the impugned tender dated 29-12-1994, has entered appearance through Mr. Aitzaz Ahsan, Advocate while Mr. Farooq Bedar, Additional Advocate-General appears on behalf of the Punjab Textbook Board. The Pakistan Publishers and Book Sellers Association, Lahore was also impleaded with a view to hear the view point of the Publishers and Book Sellers.
3. Mr. Shahzad Jahangir, Advocate, learned counsel for the petitioners submitted that his clients had given offer of the locally made printing paper but their offer had not been accepted on mala fide grounds, and fresh tenders had been invited for the supply of imported news-print for the ulterior motive of benefiting the particular party who is the stockist of this particular quality of imported news-print: According to him, the demand is tailored one. It is further submitted that instead of purchasing foreign manufactured news-print, it will be in the national interest if locally made white paper is purchased, because on the one hand it will save foreign exchange and on the other, it will help the local industry.
4. Mr. Farooq Bedar, learned Additional Advocate General, submitted that the first tender was not accepted because the price quoted was very high while on the second occasion, only one supplier submitted a complete tender and the price quoted was still higher. He also submitted that the lowest bid of petitioner No.2 was accepted but they declined to execute any agreement for the supply of the tender paper, and, on the contrary, they requested that a fresh tender should be floated. The last para of their letter dated 19-12-1994, is reproduced below:--- "Since the tender validity period has expired on 3-11-1994, no formal agreement has been concluded between us, a lot of time has lapsed and there is no absolute offer and no absolute acceptance by any party, it would 6e just and appropriate if afresh tender is floated by you and oblige us by refunding our Pay Order No.40013 for Rs.1,00,000 as we have not committed any lach for which we could be held responsible".
The contention of Mr. Farooq Bedar is that since the petitioner had refused to supply the paper, the Board had no option but to call for fresh tender. With regard to the objection as to why the imported news-print is sought to be purchased, he submits that the imported news-print of 47 grams will be much cheaper than the locally made paper, and this will result into supplying cheaper books to the students. Petitioner No. 1 has also submitted quotations in response to the impugned tender notice but the lowest bid was offered by M/s. Falcon Paper, Lahore. Their bid was at the rate of Rs.348 per ream. For comparison sake, the lowest bid of Rs. 475 per ream, for 60 grams locally made paper was offered by the petitioner last time. It is on this basis that the Textbook Board claims that the imported news-print is cheaper. Mr. Aitzaz Ahsan, learned counsel for M/s. Falcon Paper, Lahore has placed on record books printed on 47 grams imported news printing, to demonstrate that text--books are quite often printed on news-print and sold in the market for use of students.
5. During the course of arguments, the petitioners on the one hand and M/s. Falcon Paper, on the other hand, made offers and counter offers for supplying the paper at rates cheaper than the offered rates. In this behalf, petitioners made the offer that they can supply 45 grams locally made white paper at the rate of Rs. 350 per ream. As against that, M/s. Falcon Paper offered that they would supply 47 grams imported news-print at the rate of Rs. 310 per ream instead of Rs. 348 per ream quoted by them in pursuance of the tender notice. It may thus be seen that the imported news-print would be cheaper by Rs. 38 per ream and for the tender quantity, it will mean not saving of about Rs.70,00,000 (Rupees Seven Million) for the Board. The Chairman Text Board showed his preference to accepted the offer of M/s. Falcon Papers, because this paper would be cheaper and will result into supplying cheaper text-books to the students. I invited M/s. Shahzad Jahangir, Malik Muhammad Afzal, Mr. Farooq Bedar, Mr. Faqir Muhammad Khokhar, Advocates and the Chairman of the Punjab Text-Book Board in my Chamber with a view to develop a consensus as to which paper shall serve the best interest of the students. After considering various aspects, it was agreed that purchase of imported news-print at the rate of Rs. 310 per ream would result into supplying of cheaper books to the students.
Some technical objections were raised by Mr. Aitzaz Ahsan, on the question of maintainability of the writ petition. His contention was that neither on the legal nor moral grounds petitioners could challenge the present tender because they were not the aggrieved persons, inasmuch as they had refused to make the supply vide letter dated 29-12-1994 and instead demanded that fresh tender should be floated. He also contended that to frame a policy and to decide what kind of paper should be used for printing the text-books exclusively lay within the executive domain of the Board and this executive discretion cannot be subjected to judicial review in writ jurisdiction. Normally that is correct but it must be observed that this Court can always interfere in the exercise of its jurisdiction under Article 199 of the Constitution, where executive discretion is not found to be bona fide.
M/s. Falcon Paper, Lahore who has now made the lowest offer of Rs.310 per ream of the 47 grams imported news-print, has given a written undertaking that the entire tender quantity shall be supplied as per schedule, within the stipulated time, and without requesting any enhancement of rates in future. They have further undertaken to provide a bank guarantee to the tune of rupees one crore for "the due performance of their part of the contract within the stipulated time and without making any extra demand". It is, therefore. Directed that the Punjab Text-Book Board before placing the order shall obtain the bank guarantee from them.
Although a consensus was developed that it would be in the interest of providing cheaper books to the students if the imported news-print was purchased from M/s. Falcon Paper at the rate of Rs.310 per ream, Mr. Shahzad Jahangir did not feel himself in a position to give clear concession in this behalf. It would, therefore, be proper if some thing is said on the merits of the writ petition.
Petitioners Nos. 1 and 2 were no doubt, the lowest bidders is the previous bids but when these bids were not accepted they never felt aggrieved and did not approach this Court. Moreover, their conduct of refusing to supply the paper vide the afore-quoted letter dated 19-12-1994 disentitles them for the discretionary relief asked for in this petition. They cannot be depended upon for supplying the quantity of paper within the stipulated period It may be mentioned that time is of essence in the present case because Text Books have to be printed and brought in the market for use by the students community by the end of March, 1995. Moreover, the offer made by them, though of locally made paper, is much higher than the price offered by M/s Falcon Paper. The price difference will result into supply of cheaper books to the students. Therefore, the discretionary jurisdiction cannot be exercised u favour of the petitioners. As to the mala fides alleged by the petitioners, it difficult to hold that the conduct of the respondent Board is tainted with male fides.
On the refusal of petitioner No. 2 to supply the paper in pursuance of the lowest bid offered in the previous tender the Board was justified in floating the new tender.
For what has been discussed above, the writ petition is dismissed in limine.
Before parting with the case, I must appreciate the assistance rendered by the learned counsel for the parties, particularly Mr. Shahzad Jahangir, Advocate. It was with their assistance and positive attitude adopted in the Court that the lowest bid was brought down from Rs. 348 per ream to Rs.
310 per ream with additional offer of providing bank guarantee of rupees one crore for the performance of the tender supply. The Punjab Text-Book Board should be thankful to the petitioners because institution of the writ petition has resulted into a not benefit of Rupees Seven Million to the Board. 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.