BASHARAT AHMAD SHAIKH, J. --Project Director Northern Resources Management Programme, N.R.M.P. For brevity, invited bids for construction of N.R.M.P. Roads in different places in the State. For Road No,5 ,bids were, amongst others, filed by the appellant as well as the respondent. Bids were opened on 28th of May, 1997. On 25th of July, 1997 a writ petition was filed in the High Court by the respondent in which it was stated that the respondent being the lowest bidder was entitled to be allotted the work in dispute and that directions should be issued to that effect. It was alleged that the Project Director N.R.M.P. Was interested in giving undue benefit the appellant and he had therefore changed the amount of the appellant's bid and had brought it down to make the appellant the lowest bidder. The writ petition has been accepted and a finding has been recorded by a learned Judge of the High Court that there was tampering of figures in the tender documents filed by the appellant, herein, and also that some of the original entries had been substituted by new figures in light of this conclusion the High Court has quashed the proceedings and has held that the allotment of work in favour of the appellant is of no legal effect. It may be observed that the High Court was in patent error in declaring that the allotment of work was without lawful authority because the work has not yet been allotted to anyone. It has been directed that fresh bids shall be invited or the work may be allotted to the respondent on the lowest price. A.K. Trading Corporation has this appeal with leave of the Court.
2. The facts which are necessary to be noted are that bids were opened on 28th of May, 1997 by the Project Director, N.R.M.P. Immediately after the opening of the bids a document was prepared and signed by the Project Director in which the following entries were recorded:-- S.No,Name of Bidder Bid Price Rs,Bid Security Rs,
1. Z.H. Construction (Pvt.) Ltd. 30,269,556 7,00,000
2. Saadullah Khan & Brothers 40,960,6018,25,000
3. S.M. Azad Khan 31,556,394 8,00,000
4. Azad Kashmir Trading Corporation30,534,189 6,15,000 According to the entries reproduced above the amount quoted by Z.H. Construction (Pvt.) Ltd., the respondent herein, was Rs,30,269,556 while the appellant, A.K. Trading Corporation quoted Rs,3,05,34,189. The other two amounts were higher and are not relevant for the present discussion. It means that the bid of the respondent was the lowest by a margin of Rs,2,64,633. The document prepared on 28th of May, 1997 has been described by the respondent as comparative table but the Project Director and the appellant do not accept it as a comparative table. They state that it only contains the total amount as shown by each bidder. They have produced another document which is known as "Comparative Statement of Responsive Bidders". It is claimed that it was prepared after item-wise checking of each entry. In this document the bid given by the appellant has been shown to be the lowest bid its amount being Rs,3,01,14,245. This amount is different from the amount given in the document which was prepared on the day when the bids were opened.
The difference is of Rs,4,19,944. The amount quoted by the respondent is the same in the comparative statement as was shown in the document prepared earlier. Thus appellant's hid is shown in the comparative statement as being lower to the amount quoted by the respondent by Rs,1,55,311. As mentioned earlier the respondent's case is that the figures given in the bid documents filed by the appellant were changed for giving advantage to the appellant. The case of the appellant as well as of the Project Director and the Government, who are pro forma-respondents before this Court, is that after opening the bids all the documents were made over to Engineering Consultants Int. (Pvt.) Ltd., E.C. For brevity, who had been engaged as consultant for the Northern Resources Management Project. It is stated that E.C. Thoroughly scrutinized all the bids item-wise and also checked whether calculations in the bid documents were arithmetically correct or not.
During the scrutiny certain arithmetic errors were detected and were duly noted. After completing this exercise in respect of all the roads for which the bids were invited by the Project Director, a Bid Evaluation Report was prepared and has been published in a book form. A copy has been produced in this Court along with all the other record which include Conditions of Contract and the original Bid documents filed by the bidders. All these documents were produced before the High Court as is shown in the order recorded by the High Court on 9th of September, 1997. These documents were filed in this Court and were available to both the parties during arguments before us. The calculation carried out in the bid documents of the appellant is claimed to have been done in light of clause 27.1 of Conditions of Contract which runs as follows:-- "27. Correction of Errors: 27.1. Bids determined to be substantially responsive will be checked by arithmetic errors. Errors will be corrected by the employers as follows:--
(a) where there is a discrepancy between the amounts in figures and in words, the amount in words will govern; and
(b) where there is a discrepancy between the unit rate and the line item total resulting from multiplying the unit rate by the quantity, the unit rate as quoted will govern, unless in the opinion of the employer there is an obviously gross misplacement of the decimal point in the unit rate, in which case the line item total as quoted will govern, and the unit rate will be corrected."
3. When leave was granted by one of us, it was pointed out to both the parties that the dispute appeared to be about a contractual liability and might be hit by the rule that a contract cannot be enforced through writ petition. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant has also raised this objection in the concise statement. During the arguments in the appeal the learned counsel for the parties have made their submissions on this important point. It appears proper to first advert to this fundamental question.
4. There are two judgments of this Court which have been cited at the Bar and are relevant for this question. One is Azad Government v. Neelum Flour Mills, Muzaffarabad 1992 SCM R 431 while the other is Muhammad Mushtaq v. Muhammad Fiaz Abbasi and others 1993 CLC 432. We will be adverting to these cases at the proper stage.
5. Sardar Rafique Mahmood Khan, the learned counsel for the respondent, pleaded that the principle laid down in the Neelum Flour Mills that a writ petition does not lie to enforce a contractual liability is not applicable to the present case. He submitted that the present case has a distinguishing feature that a contract had not come into existence at the time of filing of the writ petition. He stated that contract between Project Director, N.R.M.P. And one of the contesting firms would only come into existence when a bid is accepted. He explained that at the present stage the appellant and the respondent both are bidders and the stage at which the writ petition was filed is a pre-contract stage. He submitted that since there was no contract there was no question of applying the principle that the writ was not maintainable for enforcement of contract. So far as the factual position is concerned the learned counsel was right in contending that no contract has come into existence, but the question is whether this fact makes any substantial difference.
6. The judgment in Neelum Flour Mills is based on an earlier unreported judgment of this Court in Civil Appeal No,49 of 1979 titled Mufti Nazir Hussain v. Azad Government in which a large number of judgments of the Supreme Court of Pakistan were referred and followed. In Neelum Flour Mills' case the dispute was about the payment of "handling charges" which were claimed by Neelum Flour Mills from the Food Department of the Government. Handling charges were being paid but its payment was stopped by the Department. When objection was raised that the writ petition was hit by the rule that contractual liabilities could not be enforced through a writ petition it was contended, as an alternate argument, that through the writ petition filed by Neelum Flour Mills a declaration, along with consequential direction, was sought that the order passed by the Director Food that handling charges would not be paid to the Mills was without lawful authority. This distinction sought to be created on behalf of the Mills was termed as "superficial". It was observed as follows:-- "6. The learned counsel for the respondent vehemently contended that even if the rule that contractual liability is not enforceable through a writ petition is assumed to be correct the present case was not hit by the mischief of this rule. He contended that the appellant did not pray in his writ petition that the contractual liability may be enforced. What was prayed before the High Court was that the order passed by the Director Food that handling charges would not be paid to the Mills and that the amount of handling charges already paid may be recovered from the Mills was without lawful authority. In light of Mufti Nazir Hussain's case and other judgments mentioned in the observations quoted above, the distinction sought to be created by the learned counsel is superficial and has no force. A similar argument was raised in Mufti Nazir Hussain's case but was repelled. 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 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."
7.In the portion of the judgment reproduced above the observation that there was force in the argument of the learned counsel for the Government that phraseology of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 clearly indicates that writ jurisdiction is exercisable if a grievance is based on violation of a law is significant. Under section 44, if an act is without lawful authority a writ can issue to direct the respondent to do that which he is required by law to do or to forbid him from doing an act which he is not allowed by law to do. The requirement clearly is that a grievance raised in a writ petition must be based on law. Writ lies if law has been violated or, in case of a writ of prohibition, when it is apprehended that it will be violated by a Government functionary. The rule that contractual liability cannot be enforced through a writ petition is a natural corollary of this principle because contract is not a law and about a writ based on violation of contract or for enforcement of a contract it cannot be said that it is based on a legal provision.
8. During the arguments in the appeal it became clear that there is no law or set of rules relating to the grant of contract for the N.R.M.P. Roads. It follows that the writ which the respondent wanted to enforce was not based on any legal instrument but was based on a newspaper advertisement and the Conditions of Contract issued by the N.R.M.P. Under the authority of the Azad Government of the State of Jammu and Kashmir. It is also correct that no contract has come into existence on the basis of the tenders submitted by the parties but the fact of the matter is that the bidders are trying to conclude a contract with the Project Director. Thus it can be said that the dispute is not of enforcement of a concluded contract but of enforcement of Conditions of Contract. The distinction undoubtedly is there but in our opinion it is superficial. The matter is clearly connected with a proposed contract for which pre-contract proceeding was being taken. There is no law to govern the actions of the Project Director who is the only authority under the Conditions of Contract to accept or reject the bid without assigning any reason.
9. This aspect has been dealt with in Muhammad Mushtaq's case which has been mentioned earlier. In that case also a dispute was between two contractors for a construction work undertaken by the Public Works Department of the Government. In that case the lowest tender was rejected. The dispute was taken to the High Court through a writ petition. The writ petition was accepted by the High Court and then the matter came up before this Court. The judgment shows that it was pleaded before this Court that the contractual liability was not being enforced but the writ petition was based on the Buildings and Roads Department Code. The Chief Engineer of the Public Works Department informed the Court that the Code mentioned above was being followed by the Public Works Department for a long time and all the business of the department was being conducted under it. However, books available with the department were published by the West Pakistan Government. It was found that the Code had no legal backing as it was neither a law nor a set of rules framed under a law. After a further probe it transpired that the Code had not even been enforced through a Government Order. This Court took the view that since a writ could be based on violation of law, it could not be based on the Code mentioned above as it had no statutory backing. However, it was argued before this Court that it has been held in some cases that violation of a Government Order and instructions having general application was sufficient to attract writ jurisdiction. This Court repelled this argument on the ground that the Code was not even an administrative order and the mere fact that it had been followed for a long time did not confer on it the status of law or an order having the force of law. It will be useful to reproduce the relevant portion of the judgment: "It is well-settled that a writ petition can be based on the violation of law. However, it was argued by Mr. Khalid Iqbal Qazi, the learned counsel for Muhammad Fiaz Abbasi, that in certain decided cases violation of Government orders and instructions which are of general application has been held to be sufficient to attract writ jurisdiction. In this connection he relied on Arsla Khan v. Bashir Ahmed 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 instances of Majlis-i-Intizamia v. Secretary to Government PLD 1975 SC 355; Miss Tahira Mahmood v. Chairman, Nomination Board PLD 1975 Azad J&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 and Rashid A. Khan v. West Pakistan Railway Board PLD 1973 Lah. 733; Messrs Kasturi Lal Lakshmir Reddy v. The State of Jammu and Kashmir AIR 1980 SC 1992. However, the Code mentioned above 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 of an executive order having the force of law."
' In our considered view the view taken above is fully applicable to the present case. There is no law or any Government order of general application which can be pressed into service in the present case. Therefore the writ jurisdiction is not attracted.
10. Muhammad Mushtaq's case has been relied upon by the learned counsel for the respondent to support the argument that a writ petition was maintainable if any tender is wrongfully accepted or rejected. As mentioned above, in Muhammad Mushtaq's case this Court repelled the argument that a writ was maintainable on the basis of the Buildings and Roads Department Code. Then Azad Jammu and Kashmir Delegation of Financial Powers Rules, 1983 were brought to the notice of the Court and it was pointed out that these rules were framed under the rule-making powers of the President under section 58 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. A perusal of the Delegation of Financial Powers shows that in rule 3 it is laid down as follows:-- "(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."
11. In the said Rules different departments are mentioned, the Communication and Works Department being one of them. The portion relating to that Department lays down that powers of acceptance of tenders shall be vested in the Administrative Department as a whole and in the Chief Engineer, Superintending Engineer, and Executive Engineer up to the limits specified therein. It is also laid down therein that these powers are exercisable if the normal procedure for inviting of tenders is followed. It also contains principles as and when the lowest tender may be rejected.
About these Rules this Court held that they decidedly had statutory backing and therefore a writ could be based on their violation. However, the view taken in the present case is not applicable to the present case because Rules mentioned above are not applicable to the N.R.M.P.
12. There is another aspect of the case which militates against maintainability of the writ petition filed by the respondent. When the writ petition was filed on 25th of July, 1997 it was stated that the bid filed by the respondent was the lowest but the Project Director was ignoring the lowest bid with mala fide intentions to give undue benefit to person of their own choice. It was alleged that alterations had been carried out in the bid filed by the present appellant. It was further alleged that the functionaries were "trying to issue the work order". It was stated in para. 5 that the Project Director recommended the bid of the present appellant for final approval of the higher authority i,e, E.C. The firm E.C. Was not impleaded as party. The averment that the Project Director had recommended the case to the E.C. Was on the face of it incorrect and based on misconception.
The correct position, which was known to all concerned from the beginning, is that the power to accept or reject a bid is vested in the Project Director. He is the functionary who invited bids from the contractors. Not only in the newspaper advertisements but also in all the relevant printed documents it is clear that E.C. Is the consultant while the Authority is the Project Director. The correct position is that, the E.C. Had scrutinized the bids and made recommendations which were published in book form known as Bids Evaluation Report. The correct position therefore was that when the writ was filed recommendations had been made by the E.C. And the matter was pending with the Project Director. The first prayer made in the writ petition was that the recommendations made by the Project Director in favour of A.K. Trading Corporation be declared as being without lawful authority. This prayer was based on misconception that the Project Director had made the recommendations. It means that the respondent had challenged report of the Project Director which was not in existence nor indeed it was ever to be, because the Project Director was to accept or reject the tenders and was not to write any report. An objection was raised by Mr. M. Tabbassum Aftab Alvi, the learned counsel for the appellant, that the respondent had challenged the recommendations which had been made by the E.C. But E.C. Was not made a party. He, therefore, vehemently contended that the writ petition was liable to be dismissed on that ground alone. It was contended by Mr. M. Tabbassum Aftab Alvi that there was a long chain of authorities of this Court in which it had been laid down that an action or decision cannot be challenged if the authority which had taken an action or made a decision is not impleaded as respondent. On this point he relied on the latest judgment of this Court reported as Liaqat Ali Qureshi v. Hafiz Muhammad Ishaq 1997 SCR 239. The learned counsel for the respondent met this argument by submitting that E.C. Is a private limited company and is not a Government functionary and therefore he could not be impleaded as a party. In this connection he relied on a judgment of this Court reported as Muhammad Razzaq v. Alam Din 1993 SCR 61 in which it has been laid down that a writ does not lie against a private person. After due consideration we are of the view that the proposition that a writ does not lie against a private person does not favour the respondent. The legal position that a writ does not lie against a private person means that a writ cannot lie at all, it does not mean that action of a private person can be challenged in a writ petition without making him a party. If the respondent wanted to challenge the action of a private person it could be challenged by filing a civil suit and not by filing a writ petition. However in the present case the position was totally different. The recommendation of the Project Director was challenged by respondent but the fact was that there was no such recommendation in existence. It follows that a writ was filed to challenge an action of a Government functionary which did not exist and it was, therefore, liable to be dismissed on that ground. The learned Judge in the High Court did not become cognizant of this fact although, as already noted, the averment made in para.5 of the writ petition that "the Project Director had submitted a report to the E.C. Which was the higher authority" was on the face of it incorrect. The record which before the High Court clearly shows that the report was filed by the E.C. To the Project Director. While accepting the writ petition the High Court quashed the proceedings/action of the authorities concerned and held that allotment of work in favour of the present appellant was of no legal effect. This part of the relief is unsustainable on two grounds. Firstly there was no proceeding or action taken by the Project Director and therefore, nothing could be quashed. There was only recommendation of the E.C. Which is not a Government functionary and was not impleaded as a respondent. Secondly, the allotment of work had not so far been ordered but the High Court has quashed it. Thus, the judgment stands vitiated.
13. After reaching the conclusions that the writ petition was not maintainable and the main relief granted by the High Court is unsustainable, the appeal has to be accepted. However, the High Court has given a clear cut finding on tampering and mala fides. We would like to reproduce para. 11 of the judgment of the High Court: "11. In the matter of the statement prepared on May 28, 1997, I have observed that figures shown in this statement stood recorded at the time of the opening of the bids which clearly shows that the bid-price of the petitioner was lower than that of bid-price of the respondent No,3. These figures also tally with the tender documents of respondent No,3, as given on page 1. There are various cuttings on pages 1, 3, 5 and 9. Even on page 2 there is some variation. This tampering of the figures cannot lie ignored by this Court lightly and there is a strong presumption that all these changes were made later on. On page 9, the original entries have been tampered with and new figures have been substituted. On page 3, again the original figures have been substituted and the total has been brought down by about Rs,10,00,000. It is, thus, clear that the original entries have been tampered with, in order to bring the bid-price of respondent No,3 at lower level than that of the petitioner. Since the proceedings for allotment of contract on the basis of these figures are mala fide act of the concerned authorities and all subsequent actions are thus mala fide."
Since the appeal is being accepted and the judgment of the High Court is being vacated the observations made in para. 11 and elsewhere will also be stand vacated. However some observations seem to be necessary. We have seen the cuttings and variations pointed out by the High Court. The learned Judge in the High Court has assumed that the cuttings or variations show tampering. Cuttings and variations can be innocent in one case and can amount to tampering in another case. It is, therefore, a question of fact and the finding on it can only be given on cogent evidence. The High Court fell in error in holding that "there is a strong presumption that all these cuttings were made later on". There is no such presumption in law and we have no hesitation in observing that these observations recorded by the High Court do not reflect the correct legal position. The correct legal position is that the Court has to raise a presumption that all official acts have been regularly performed. There is also a legal maxim that there is a presumption against fraud. Clearly, the finding that the changes were made later on when the documents were in possession of the Government functionaries is based on no evidence. We may also point out that cuttings and variations are in the same ink and hand as the original. We also note that all these cuttings and variations have been duly initialed by the bidder.
14. The result is that the judgment under appeal has to be vacated and the respondent's writ petition has to be dismissed. The result would be that the matter will be considered and decided by the Project Director in light of the laid down guidelines. He has the authority to reject or accept the bids in light of these guidelines. While doing so he has to act fairly and justly. If the appellant, or any other person, raises objection of any nature affecting the bids the Project Director will be bound to attend to it.
As a result of the foregoing the appeal is accepted with costs.