' QAZI MUHAMMAD FAROOQ, J.---The petitioner Messrs Hotel Summer Retreat Nathiagali has filed this Constitutional petition with the prayers that all attempts of respondents Nos.1 to 4, namely, Government of N.-W.F.P. Through Secretary C and W Department, Chief Engineer C & W Department (Works and Buildings) Superintending Engineer C & W Department Abbottabad Circle and Executive, Engineer, Building Division, Abbottabad to negotiate the highest bid offered by the petitioner with Syed Adil Shah, respondent No,5 herein, being unfair, unjust, in violation of obligations, collusive and clandestine may be declared as without lawful authority and of no legal effect on the rights of the petitioner accrued as a result of having been declared as the highest bidder on 15th April, 1998 and that the petitioner being the highest bidder be declared entitled, as of right, to be granted the lease of the New Green Hotel and European Quarter Nos.29 and 30 Nathiagali.
2. Put shortly, the facts giving rise to the petition are these. In response to an advertisement published in various daily Newspapers inviting Tenders for lease of the New Green Hotel Nathiagali alongwith European Quarter Nos.29 and 30 on annual rental basis for a period of 30 years three Tenders in all were submitted by the target date. The Tenders were opened at the office of the Executive Engineer, Building Division, Abbottabad on 15th April, 1998. The respective bids were as under:-- {{TABLE}}
(i) Messrs KNK (Pvt.) Ltd., Rs,30.600 million.
Islamabad
(ii) Messrs MAAK Sons, New Rs,51.200 million.
GWen Town, Lahore.
(iii) Messrs Summer Retreat Hotel, Rs,250.00 million.
Nathiagali. {{TABLE}} ' The bid offered by the petitioner was the highest. However,after completion of the bidding process the petitioner was informed that respondents Nos.1 to 4 intended to negotiate the highest bid with respondent No,5 to enable him to match it for obtaining the lease of the premises. The intention was formally spelt out in the letter, dated 25-4-1998 addressed to the Superintending Engineer C & W Circle Abbottabad.
3. The grievance of the petitioner in brief is that respondents Nos. I to 4 were bound by the terms and conditions of the advertisement whereby the Tenders were invited and obliged to take the highest bid offered by him to its logical conclusion but they were acting in a clandestine and collusive manner in order to deprive him of his valuable rights and benefit respondent No,5 by making him part of the bidding process through the back door.
4. Respondents Nos.1 to 4 in their parawise comments admitted .That the petitioner had offered the highest bid and that the bid was being negotiated with respondent No,5. However, they justified their action by attributing the negotiation to an order passed by the learned Senior Civil Judge, Abbottabad on 26-2-1998 in Suit No,146/1 titled Syed Adil Shah v. Government of N.-W.F.P. Through Secretary C & W Department etc. They further submitted that their action was bona fide and in the best interest of the Government as respondent No,5 had offered lease money 20% higher than that offered by the petitioner plus 5 years lease money in advance.
5. Respondent No,5 Syed Adil Shah, now dead and represented by Syed Usman etc., also filed a written statement. The main thrust of his submission was that the petitioner had no locus standi to file the instant writ petition, the petitioner was neither a 'Hotel' nor was registered with the 'Controller', the petitioner was not eligible to participate in the bidding, the allegations of collusion etc. Were unfounded as the highest bid offered by the petitioner was negotiated with him pursuant to the orders of the Court which respondents Nos.1 to 4 were obliged to comply with and there was no question of acceptance of the bid offered by the petitioner and at any rate mere offer did not offer any right on the petitioner.
6. The learned counsel for the petitioner raised the following points:--
(a) The petitioner was an aggrieved person within the meanings of Article 199 of the Constitution and had the locus standi to file the present petition. The bid offered by the petitioner, who fulfilled the requisite qualifications, was admittedly the highest and the Executive Engineer, Building Division, Abbottabad in his letter, dated 20-4-1998 addressed to the Superintending Engineer C & W Circle Abbottabad had not only given the details of the bids but had also suggested approval of the highest bid. Respondents Nos.1 to 4 by making an attempt to negotiate the highest bid offered by the petitioner with respondent No,5 had acted in an unfair and arbitrary manner and the petitioner had a personal interest in the performance of a legal duty which had not been performed in a manner required by law. Reliance was placed on PLD 1969 SC 223, PLD 1992 Karachi 283, = 1996 MLD 705, PLD 1994 Lahore 70, 1985 CLC 1766 and 2190 and.1987 SCMR 2078.
(b) Respondents Nos.1 to 4 had not challenged the eligibility of the petitioner to participate in the bidding and Syed Adil Shah having not participated in the bidding had no locus standi to raise an objection in this context. Reliance was placed on NLR 1988 Civil 422.
(c) The order, dated 26-2-1998 of the learned Senior Civil Judge, Abbottabad was not mentioned in the advertisement and had surfaced for the first time after opening of the Tenders. The petitioner was not a party to the suit in which the said order was passed. Moreover, the order having flown from an agreement between the parties was a contract pure and simple and being against public policy was void under section 23 of the Contract Act. Reference was made to PLD 1971 Dacca 112, AIR 1933 Patna 306 and AIR 1943 Lahore 268.
(d) The agreement on which the order, dated 26-2-1998 was founded being in personam had come to an end after the demise of Syed Adil Shah. New Green Hotel, Nathiagali was a sole proprietorship and not a Firm and was also not a party to the suit. The bid was not being negotiated with New Green Hotel but with Syed Adil Shah.
(e) Late Syed Adil Shah was not a lease holder but a licensee and as such his rights were neither heritable nor transferable. Reliance was placed on PLD 1968 Karachi 635.
7. The learned counsel for the legal heirs of respondent No,5, on the other hand, contended at the outset that the writ petition was not maintainable as the petitioner was not an aggrieved person within the contemplation of Article 199 of the Constitution. The petitioner had only made an offer which could not be equated with a vested or a legal right. In order to be an aggrieved person it is imperative for a party to show that any of his proprietary or personal right, as recognized by law, had been invaded or denied as observed in PLD 1978 SC 151. The petitioner had failed to show that the right set up by him was recognized by any law. Mere highest bid offered by the petitioner was not enough to cloth him with a right recognized by law. Reliance was placed on PLD 1969 Lahore
823. It was next contended that the petitioner had no locus standi to file the writ petition as he was a tenderer pure and simple, the offer made by him may not have been accepted in view of clause
(10) of the Notice For Leasing Out of Hotel which expressly provided that acceptance of the highest bid shall rest with the Secretary to Government of N.-W.F.P. C & W Department who reserved the right to reject the bid without assigning any reason and legal right would have accrued to him in case of acceptance of the bid. Reliance was placed on 1973 SCMR 342, 1970 SCMR 542, 1971 SCMR 533, PLD 1972 Lahore 847, 1974 SCMR 337, 1972 SCMR 63 and 1984 CLC 1199. It was further contended that Syed Adil Shah was a lease holder and not a licensee and this fact was borne out by clause
(5) of the Notice inviting Tenders wherein it was clearly mentioned that the possession of European Quarter Nos.29 and 30 will be available after expiry of the present lease on 31-5-1999. It was also contended that respondents Nos.1 to 4 were bound to negotiate the highest bid with Syed Adil Shah/his legal heirs in view of the order, dated 26-2-1998 of the learned Senior Civil Judge, Abbottabad which was in the best public interest and not a consent order by any standard. The steps taken by respondents Nos.1 to 4 were not only in line with the order, dated 26-2-1998 but were also motivated by the consideration of public interest of bringing more money to the Exchequer as Syed Adil Shah had offered a sum of Rs,297 million and five years advance rent. It was also contended that the provisions of section 23 of the Contract Act were not attracted and Syed Adil Shah, who had spent a huge amount on renovation of the hotel and was legally entitled to ten year extension in the lease period, was shut out by the Court from participating in the bidding. It was lastly contended that the petitioner was not eligible to particiapte in the bidding because; firstly, the bids were invited from experienced hoteliers whereas the petitioner-Firm having come into existence on 17-5-1992 lacked the requisite experience; secondly, according to the partnership deed the total capital of the Firm was Rs,1,00,000, therefore, it was not possessed of financial resources to upgrade the hotel to the level of a 4-Star Hotel as provided in the Notice for leasing out of Hotel and, thirdly, being a four bed room accommodation it did not meet the requirements of section 2 (g) of Pakistan Hotel and Restaurants Act, 1976 which had prescribed a minimum of ten lettable bed room for a hotel.
8. The learned Assistant Advocate-General adopted the arguments advanced by the learned counsel for the legal heirs of respondent No,5 and added that it was nowhere mentioned in the order, dated 26-2-1998 of the learned Senior Civil Judge, Abbottabad that it was the outcome of an agreement between the Government and Syed Adil Shah.
9. Before appreciating the rival contentions it will be useful to reproduce the notice, hereinafter referred to as the Notice, whereby the Tenders were invited. It is worded thus:-- "NOTICE FOR LEASING OUT OF HOTEL ' The Communication and Works Department N. -W.F.P., invites bids from the experienced hoteliers for the lease of a hotel at Nathiagali (formerly known as New Green Hotel) alongwith European Quarter Nos.29 and 30 on annual rental basis for a period of 30 years with effect from the date taking over the possession. The bids must reach on or before 15-4-190 in a sealed cover containing on the right side of the envelope the words 'bid for lease of hotel at Nathiagali'.
2. The Hotel, European Quarter Nos.29 and 30 are located on a plot of
(i) New Green Hotel Building:-- ' Total area 20.17 kanals with a built up area of 18185 Sft. Comprising 19 Bed Rooms with toilets, kitchen, dining, T.V. Lounge, office and parking area.
(ii) European Quarter No,29:-- ' Total area 3.10 kanals with a built up area of 3544 Sft. Comprising 2 bed rooms with toilets, kitchen and drawing-cum-dining room.
(iii) European Quarter No,30:-- ' Total area 2.50 kanals with a built up area of 2459 Sft. Comprising 5 bed rooms with toilets, kitchen, drawing-cum-dining and servant rooms.
' Prospective bidders should be evaluated on the basis of highest bid offered, past experience and additional facilities to be offered for the upgradation of the hotel.
3. Only those bidders will be eligible for participation in bid who would furnish to the undersigned a deposit at call of Rs,1,000 million in favour of Eexecutive Engineer Building Division, Abbottabad from any Schedule Bank of Pakistan which in case of higest bid would be retained as security deposit and not adjustable to the lease instalment.
4. A Bank guarantee from the prospective lessee shall be produced assuring the lessor that the lease money shall be punctually and regularly paid during the period of lease.
5. The possession of European Quarter Nos.29 and 30 will be available after expiry of the present lease on 31-5-1999.
6. The bid shall accompany a certificate of financial soundness from a schedule Bank of Pakistan.
7. The bidder shall furnish the details of past experience in hotel industry.
8. The bidder shall provide plan/proposal for the upgradation of hotel to the level of 4-Star Hotel alongwith construction programme.
9. Hoteliers with foreign collaboration will be given preference.
10. The acceptance of the highest bid shall rest with the Secretary to Government of N.-W.F.P. C & W Department, Peshawar who reserve the right to reject the bids without assigning any reason.
11. Other details about the Hotel can be seen in the office of the undersigned on any working days during the office hours.
(Sd.)
(Eng. Jamilur Rehman), Executive Engineer, Building Division, Abbottabad.
Phone No,0992/33012 "
'
10. The explicit provisions of Article 199 of the Constitution make it manifest that in order to have the locus standi to invoke Mandamus/Certiorari jurisdiction the petitioner must be an aggrieved person. The question then is, whether the petitioner in this case is an aggrieved person. Admittedly, the bid offered by the petitioner was the highest and was also not rejected by the Secretary to Government of N.-W.F.P. C & W Department in exercise of the powers conferred on him by clause 10 of the Notice but the authorities concerned instead of performing their legal duty of accepting the bid side-lined the petitioner and made an attempt to implement a clandestine plan of negotiating the highest bid with a person, who had not participated in the tendering process, on the strength of a manipulated and mimed order, dated 26-2-1998 of the learned Senior Civil Judge, Abbottabad which was suppressed and not disclosed in the Notice and was passed by consent of the parties in a suit in which the petitioner was not a party. Needless to mention that public functionaries are legally and morally bound to perform their functions justly and transparently and any deviation therefrom would certainly make the affectee an aggrieved person. The methodology adopted by respondents Nos.1 to 4 was indubitably shady, unfair, arbitrary and discriminatory. In this intriguing and unsavoury backdrop there can be no dispute with the proposition that the petitioner is an aggrieved person. The view gets ample support for the case-law cited by the learned counsel for the petitioner. It was held in Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223) that the right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. This progressive view was reiterated in Muhammad Fazal and others v. Government of Pakistan and others (1987 SCMR 2078) and Messrs.
Capri Cinema v. Government of Sindh through its Chief Secretary, Karachi and 5 others (1985 CLC 1766). In Muhammad Saad Shibli v. Commissioner Appellate Election Authority, Hyderabad and others (1985 CLC 2190) it was held that an aggrieved person is a person against whom a decision has been pronounced which has wrongly deprived him of something or wrongly refused him something or wrongly affected his title to something. In Calicon (Pvt.) Ltd. v Federal Government of Pakistan etc. (1996 MLD 705) it was held that right considered sufficient for maintaining writ petition is not necessarily a right in strict juristic sense. Writ petition by tenderer against rejection of his tender would be competent and maintainable as he would have locus standi and would be an aggrieved party. In Ch. Anwar Muhammad Khan and 6 others v. The Director Industries and Mineral Development, Government of Pakistan, Islamabad Capital Territory, Islamabad and another (PLD 1994 Lahore 70) it was observed that every person has a right to come to Court in Constitutional jurisdiction for issuance of a direction to public functionaries to act strictly in accordance with law and the order passed by public functionaries in flagrant violation of statute and not even in accordance with basic norms of justice could not be protected merely because same had been passed for public welfare. In Messrs Pacific Multinational (Pvt.) Ltd. Inspector-General of Police, Sindh Police Headquarters and 2 others (PLD 1992 Karachi 283) a new dimension was given to the concept in the following words:-- ' "There could be no cavil with the proposition that enforcement of a purely contractual obligation could not properly form the subject-matter of proceedings under Article 199 of the Constitution.
However, it could not be ignored that the State had a Constitutional obligation to act fairly even when performing an administrative function. Therefore, when a party complained before the Court that the State while awarding a contract to a party had acted in an unfair or arbitrary manner or had discriminated against one of the parties who contested for the award of the contract, such grievance could be looked into by Superior Court in exercise of its powers of judicial review under Article 199 of the Constitution and if the Court was satisfied that the Government while entering into a contract had acted arbitrarily or in an unfair manner or had discriminated between the parties before it in matter of awarding the contract, it could interfere and strike down such action."
11. Adverting to the two authorities cited by the learned counsel for respondent No,5 we find that the same cannot stand in the way of the petitioner. In the first authority reported as Messrs Associated Cement Companies Limited v. Pakistan through The Commissioner of Income Tax Lahore Range, Lahore and 7 others (PLD 1978 SC 151) it was held that in order to be an aggrieved person it would be imperative for a party to show that any of his proprietary or personal right, as recognised by the laws of the country, has been invaded or denied to him. The right of the petitioner to maintain the writ petition is not only recognised by the Constitutional provisions dealing with right of individuals to be dealt with in accordance with law and equality of citizens but also by the law laid down by the Supreme Court of Pakistan in Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1996 SC 223) and Muhammad Afzal and others v. Government of Pakistan and others (1987 SCMR 2078). In the second authority reported as Muhammad Din & Sons Shandara Mills Lahore v.
The Province of West Pakistan and others (PLD 1969 Lahore 823) it was held that mere highest bid at Government auction does not vest bidding party with a right to purchase auction property and such party is not an aggrieved party if his bid is rejected. The authority is obviously distinguishable because in that case the bid was made at an open auction and was also rejected whereas in the present case the highest bid offered by the petitioner was made through a sealed tender and was not formally rejected but was submitted by the Executive Engineer concerned to the Superintending Engineer C & W Circle Abbottabad, vide his letter, dated 20-4-1998, for approval after sorting out legal implications caused by the order, dated 26-2-1998 of the learned Senior Civil Judge, Abbottabad.
12. The expression 'locus standi' and 'aggrieved person' are interlinked and I complementary. The petitioner is an aggrieved person within the contemplation of Article 199 of the Constitution and no other legal remedy is available to him, therefore, his locus standi to invoke writ jurisdiction is unassailable. The authorities, namely, Babu Parvez Qureshi v. Settlement Commissioner Multan and Bahawalpur Division Multan and 2 others (1974 SCMR 337), Rehmat Ali and 2 others v. The Revenue Board West Pakistan Lahore and another (1973 SCMR 342), Munshi Muhammad and another v.
Faizanul Haq and another (1971 SCMR 533), Meraj Din v. Noor Muhammad and 3 others (1970 SCMR 542), Muhammad Sharif v. Sharifuddin and 3 others (1972 SCMR 63), Ch. Muhammad Yunas v. The Islamic Republic of Pakistan and 3 others (PLD 1972 Lahore 847) and Muhammad Hussain and others v. Punjab Province (1984 CLC 1199) cited by the learned counsel for the legal heirs of respondent No,5 to lend support to the challenge thrown to locus standi of the petitioner are distinguishable because some pertain to right of bid at an open auction and some deal with non- confirmation of bids made at an open auction without assigning any reason. An open auction cannot be equated with bidding through a sealed tender because in the former any common person can participate but the latter requires fulfilment of certain pre-conditions like call deposit etc. Needless to mention that the bid offered by the petitioner despite being the highest was neither accepted nor rejected on any specific ground or without assigning any reason by invoking clause (10) of the Notice.
13. This brings us to the order, dated 26-2-1998 of the learned Senior Civil Judge, Abbottabad in Civil Suit No,146/1 of 1997 on the basis whereof respondents Nos.1 to 4 are making attempts to negotiate the highest bid offered by the petitioner with respondent No,5. The relevant portion of the said order reads as under:-- ' "The learned counsel for the defendant has stated at the bar during the course of arguments that defendant is not interested in any person but is only interested to get more and more money should come to Government Treasury for the interest of public so plaintiff being the sitting lessee should be given preferential rights than others. The plaintiff intends to construct 3 storey building over the site on his own risk and cost and the value of the site should definitely be increased and in future it will also go in the interest of the defendant and Tourism should also be developed in the area.
' Therefore, as discussed above, plaintiff being the sitting lessee and has incurred a huge amount on the renovation and addition of the hotel, has increased the value of the site and has made attraction for the tourist in the area and the plaintiff has not sought for the compensation of the amount incurred on the renovation and addition. Neither he sought for lease on the previous lease amount but has stated that it may be leased out in favour of the plaintiff on the new terms and conditions for which he is ready for the enhanced amount. Similarly the defendant has invited tenders for the lease of the hotel if reached to the office of the defendant that should be opened and thereafter, the lease money should be negotiated with the plaintiff above than the higher bidder on the fresh terms and conditions in this way more money would come to the Government Treasury which will be in the interest of the public or if the bids is not reached defendant should re- advertise the tenders in the prominent Newspaper and after opening the bids defendant should negotiate lease money with the plaintiff above than the higher bidder, if the plaintiff refused to accept lease money above than the higher bidder the defendant will be at liberty to lease out the same to the higher bidder.
' So, in this way the interest of public will be safeguarded and more amount would come to the Government Treasury.
' So, the application is disposed of accordingly."
' A bare reading of the order would show that it was passed pursuant to an agreement between the parties. It palpably smacks of machination aimed at awarding fresh lease to an ex-lease holder without his participation in the tendering process. However, we have not been able to persuade ourselves to agree with the learned counsel for the petitioner that being against public policy it is void under section 23 of the Contract Act. The matter does not end here because the order is being used by respondents Nos.1 to 4 as a springboard of awarding the lease of the hotel to a person who had not taken the risk of participating in the bidding process. It is, therefore, necessary to observe that having not been disclosed in the Notice at all it can have no bearing on the rights of the petitioner and the authorities responsible for suppressing it and creating the imbroglio by not reserving the right to negotiate the highest bid with a third party in the Notice must thank themselves alone for the consequences.
14. The next point for determination pertains to the locus standi of respondent No,5 and his legal heirs to question the eligibility of the petitioner to participate in the bidding. Respondent No,5 had not participated in the tendering process, therefore, there is no difficulty in holding that he and his legal heirs cannot challenge the eligibility of the petitioner on any ground. It was held in Malik Muhammad Imtiaz v. Cantonment Board etc. (NLR 1988 Civil 422) that a person who does not take part in the auction and sits simply as an onlooker at a respectable distance cannot challenge auction proceedings. It is hardly necessary to mention that eligibility of the petitioner was not challenged by the authority concerned, namely, Executive Engineer Building Division Abbottabad who had invited, opened and scrutinized the Tenders. The relevant portion of the summary of bids submitted by him to the Superintending Engineer C & W Circle Abbottabad, vide letter No,2083/331- M, dated 20-4-1998, may be reproduced advantageously:-- ' "Since Syed Adil Shah has not participated in the bid and has not fulfilled the preconditions of becoming a bona fide bidder as required under the Notice inviting lease bids by firstly, not offering the bid though there was no specific direction by the Court not to participate in the bid and secondly by not depositing the required earnest money of Rs,1,000 million, thus, entering into negotiation does not seem to be a legal binding on the department. Moreover as Messrs Hotel Summer Retreat have also offered that their bid is also negotiable within reasonable limits, this fact has to be kept in view while deciding whether to make any negotiation with Syed Adil Shah.
' This aspect has to be legally examined as to whether under the prevailing situation the department can or cannot negotiate with Syed Adil Shah in light of the fact that he has not submitted his bid viz-a-viz the Court order. Notwithstanding the Court order the highest bid of Messrs Hotel Summer Retreat amounting to Rs,250,00 million for 30 years i.e, Rs,83,33,333 per annum (average for 30 years) and Rs,94,06,250 (for 32 years) in much higher than Rs,73,12,603 (for 32 years) offered by Syed Adil Shah while requesting for the extension of his lease period.
' The highest bid offered by Messrs Hotel Summer Retreat is quite handsome, it can be approved subject to the condition that legal implications are first sorted out."
' Besides, respondents Nos.1 to 4 have not raised any objection in this context in their comments.
15. We are not impressed by the remaining two contentions raised by the learned counsel for the petitioner in regard to the status of Syed Adil Shah in Suit No,146/1 and the restricted scope of the order, dated 26-2-1998. Both the contentions are peripheral and apart from that it is evident from the copy of the plaint in Suit No,146/1 of 1997 and copy of the lease deed annexed therewith as also the Notice that late Syed Adil Shah was ex-lease holder of the New Green Hotel Nathiagali, the lease having expired on 15-9-1997, and lease holder of European Quarter Nos.29 and 30 upto 31-5- 1999. The civil suit in which the order, dated 26-2-1998 was passed is admittedly pending, therefore, the legal heirs of Syed Adil Shah have stepped into his shoes.
16. For the foregoing reasons, the writ petition is accepted, the attempts of respondents Nos.1 to 4 to negotiate the highest bid offered by the petitioner on 15th April, 1998 with respondent No,5/his legal heirs are hereby declared as without lawful authority and of no legal effect on the rights of the petitioner who is declared entitled to be granted the lease of the property as a consequence of the highest bid submitted on 15th April, 1998. Parties to bear their own costs.