ZAHID KURBAN ALAVI, J. -- Before dilating upon the facts of the case it would be appropriate to highlight the background of the case. The plaintiff had moved Const. Petition No. D-588 of 1996 before the Lahore High' Court assailing the legality of the Privatisation of the Pak Saudi Fertilizer Project. The Chief Justice of Lahore High Court-by his order dated 7.3.2002 disposed of the petition on the ground that the Project that was to be privatised was situated in the Province of Sindh and, therefore, the plaintiff should file writ petition before the High Court of Sindh, Karachi. Thereafter, the plaintiff filed Const. Petition No. D-479/02 before this Court. Notices were issued whereafter a detailed order was passed on 11.4.2002 whereby a Division Bench of this Court observed that the petition should have been withdrawn as not maintainable but then the counsel for the plaintiff acknowledged and conceded that the issues involved could not be agitated in Const, petition by virtue of the provisions of the Privatization Commission Ordinance, 2000 (Ordinance, 2000). The petition was accordingly disposed of by treating it as a suit and the proceedings were to be conducted on the Original side under section 28 of the Ordinance, 2000.
2. Accordingly, the petition, was converted into a Civil Suit accordingly disposed of by treating it as a Suit and the proceedings were to be conducted on the Original Side under Section 28 of the Ordinance, 2000. but the counsel did not change or alter the body of the Plaintiff/Petition and/or the prayer clauses.
However, at the time of arguments he did concede that Declaration No. 1 was not being pressed including Direction No. 1. He' also does not wish to press Direction No. 2, therefore, for all practical purposes Declarations Nos. 2 and 3 and Directions Nos. 3 and 4 were to be looked into and orders to be passed accordingly.
3. The counsel when asked insisted that since it was a suit and the defendants hod not filed written statement nor issues had been framed, therefore, the arguments that were to be made should be confined and restricted to. CMA 2821/02, which is the application under Order XXXIX, Rules 1 and 2, CPC.
4. The counsel appearing on behalf of the defendants; however, drew my attention to Section 28 of the Ordinance, 2000 and left it to the discretion of the Court to proceed with this matter as this Court .found fit as Section 29 does give the rights to the Courts to exercise its discretion with respect to the facts of the case and if necessary follow summary procedure as nearly as possible as provided under Order XXXVII .bf the CPC.
5. The plaintiff Employees Management Group, Pak Saudi Fertilizers Limited, has filed this suit with the following prayers:- "DECLARATION:
(i) Impugned Ordinance may be declared as repugnant to Constitution;
(ii) All steps taken by the respondent Government pursuant to impugned Ordinance be declared without lawful authority and set aside;
(iii) Elimination of the petitioner group from the auction arena as per impugned memorandum be declared as an act without lawful authority.
DIRECTIONS:
(i) Impugned Ordinance be set aside;
(ii) Respondent Government be permanently restrained from attempting any privatisation exercise unless a proper framework has first been set-up through permanent legislation by regular Parliament;
(iii) Respondent Government be permanently restrained even from setting up a legal framework Which does not conform to Article 154 and other provisions which contemplates participation of the Provinces in formulation of policies and distribution of assets; (iv). In the alternative, petitioner group be held entitled to exercise the right of first refusal on the basis of highest bid elicited through any auction process;
(v) Any other relief deemed appropriate to the peculiar facts of this case be also afforded."
6. The facts of the case are that the Employees Management Group (the plaintiff). has been constituted by virtue of a Resolution and represents about 600. workers and 225 officers of Pak Saudi Fertilizers Company Limited. The plaintiff represents the employees. The defendant No. 4, Pak Saudi Fertilizers Limited, is a public limited company by shares. It is entirely managed and controlled by defendant No. 1, Government of the Pakistan. The defendant No. 3, National Fertilizers Corporation, has been impleaded as this is administrative mechanism. set up by the defendant No. 1 to exercise over the defendant No 4. The defendant No. 5 is the bidder -whose bid of Rs. 7.5 billion has been accepted by defendant No. 2. The Plaint further shows that a common cause of action has arisen to all the persons as per list attached above when defendant No. 1 inserted a Public Advertisement seeking expression of interest in the safe of defendant No: 4, preparatory to soliciting invitations for bid. The defendant No. 1 had issued an information memorandum pursuant to the proposed sale of its shares. This memorandum contains all relevant statistics and data about the defendant No. 4. The defendant No. 1 had thought it fit 'to adopt the procedure for pre- qualification for sale of shares of the defendant No. 4. On 13.7.2000, the plaintiff addressed a - Memorandum to the Secretary of the Privatisation Committee with the request that a letter of pre- qualification be issued in their favour so as to enable them to participate in the bidding process.
There were several correspondence exchanged between the plaintiff and the defendant No. 1. It is alleged in the plaint that the defendant No. 1 through its Privatisation Commission is conducting the process of sale in such a manner as to ensure that the plaintiff is eliminated effectively from the process of sale. The main reliance of the. plaintiff is on an Agreement dated 9.9.1991 which according to them has statutory force in terms of Protection of Economic Reforms Act, 1992. The plaintiff asserts that it has the right of first refusal in relation to any bid, which may be elicited through auction process. On 27.7.2002 a Memorandum was received by the plaintiff from the defendant No. 1 which inter alia, conveyed that the right of first refusal claimed by the plaintiff will depend upon the competitive bid having been received in accordance with the bid documents. It is on this ground that the bid document and-the conditions contained therein are challenged as actions without lawful authority. On 13.10.2001, a Circular letter was issued to all pre-qualified bidders wherein a pre-bid conference was scheduled for 19.11.2001. The last date for submission of the earnest money together with sale bid and other documents was fixed as 22.11.2001. Earlier, the privatisation process prior to the promulgation of the Ordinance, 2000 had been challenged.
7. Mr. Abdul Mujeeb Pirzada, learned counsel for the plaintiff, at the very outset, contended that his clients had right in the Company that-was supposed to be de-nationalized and to that extent that had put forward their claim to run the Company once it was privatised. When the Company was first advertised for privatisation in the year 1996 they had. put forward their view point with the objective to ensure that the workers would be given their due share in the management and running of the Company, They were even prepared to purchase the Company. In this respect they had moved a petition in the year 1996 before the Lahore High Court which was numbered as Const.
Petition No. D588 of 1996. This petition was heard and disposed of which the following directions:--
(a) that the- petitioners (CBA-Union) have every right to negotiate on the highest bid;
(b) that the petitioners (CBA-Union) shall submit the management plan including financial plan, acceptable to the concerned respondents, within seven days from tomorrow i.e. 30,5.1996: and
(c) that in case, the petitioners (CBA-Union) fail to submit acceptable plan within specified period, they will lose their right of negotiation.
8. The learned counsel claimed that the defendants did not pursue the privatisation and in fact the matter was shelved temporarily. Thereafter, a new law was promulgated which known as Ordinance. LII of 2000, dated 28.9.2000. Through this Ordinance the Government prescribed in detail the ways and means by which privatisation shall be conducted and who shall conduct it including the manner in which it is to be conducted. To that extent learned counsel drew my attention to Part-V. Sections 23, 24, 25 and 26' of the Ordinance, 2000. According to him in respect of this Company i.e. Pak Saudi Fertilizer (Pvt.) Limited (the Company), none of the essentials mentioned in the said Sections had been f0llowed. Counsel first drew my attention to Section 23, which relates to advertisement of privatisation. According to the counsel the Commission was to publish, in at least two English newspapers and two Urdu newspapers in-between seven days the intent of the government to privatise an Organisation. In fact advertisement was also to be placed in a newspaper which has international circulation. Counsel insisted that except for the one add copy of which he had annexed to the Plaint, no other adds. had appeared in the newspapers and, therefore, there was a violation of Section 23. It was his view point that each and every section mentioned in the Ordinance, 2000 were relevant and had to be adhered to as in doing so transparency would be maintained but also to get maximum involvement of bidders so that ultimately , the price that would be obtained would be beneficial to all.
9. Learned counsel then drew my attention to Section 24, which dealt with valuation of property.
Atcording to him .valuation of the property by independent Valuer had not been done and to that effect a property that was very valuable was being offered for sale at a very low price. In this respect learned counsel drew my attention to the wordings of the adds. which according to him was a contradiction as an impression was created through the add that the Company that was to be privatised was financially sound and a look at its performance indicated that it was in the green,10. Learned counsel also drew my attention to Section 25 of the Ordinance, 2000, which dealt with method of .privatisation. According to him sub-section (d) of Section 25 relates to privatisation by management or employee by-outs, by management or employees of a State owned enterprise. Since Rules had not been framed, therefore, the mode mentioned in Section 25 was available and the employees had the right to bid for the Company. He once again drew my attention to the observation of Lahore High Court which did-envisage the plaintiff's right to negotiate on the highest bid. It is envisaged that the plaintiff shall submit management plan including financial plan acceptable to the concerned defendants within seven days from the date of the petition's disposal i.e. 30.5.1996. It also ended by observing that in case if the plan was not submitted then the employees shall loose their right of negotiation, according to the counsel within seven days they had submitted a full-fledged plan.
11. In effect according to the plaintiff even the proceeding fees had been paid as prescribed in the advertisement. The defendants in spite of the plaintiff's fulfilling all the requirements imposed a condition of depositing earnest money of Rs. 250 million. This Rs. 250 million on representation made by the plaintiff was eventually reduced to .Rs. 150 million, However, this Rs. 150 million, the plaintiff was not in a position -to pay resulting in a dispute having been created. The counsel drew my attention to a Memorandum of Agreement (MOA), which was agreed upon between the employees of the management was back in 1991. It is this MOA that the employees are relying upon based upon which their claim that they have a right created under the law not only for bidding but also for having the right of first refusal in case of privatisation.
12. The counsel then assailed the whole actions on the ground that there is a violation of the Constitution of Islamic Republic of Pakistan, 1973. According. to him all such actions which may directly or indirectly effect all or some of the federating units then the issue has to go through the Council of Common Interest (CCI). In this respect he drew my attention to Article 153 of the.
Constitution which deals with the CCI and Article 154 of the Constitution which relates to the functions of CCI, especially, in relation to Part II of the Federal. Legislative List. Counsel has relied upon the case of Muhammad Nawaz Sharif v. President of Pakistan (1993 SC'473) at page .715. hi this case amongst the various points that were brought about in connection with the policies of the then Government, which were considered to he rot correct was the privatisation policy. In connection with this aspect a detailed observation has taken place in the relevant judgment but for the. purposes of this case it would be enough to state that at paragraph 44 sub-para (4) Mr. Justice Ajmal Mian (as he then was) stated that "in my view the Federal Government should have brought the matter of privatisation in respect of the items covered by the above Constitutional provisions before the CCI. The plaintiffs' plea that it was not mandatory is not sustainable". Counsel has also relied on the case of Gadoon Textile Mills v. WAPDA (1997 SCMR 641), where at page 703 Mr. Justice Ajmal Mian (as he then was) observed at paragraphs 28 and 29 held that "the matters referred to .in Part-II of the Federal Legislative List and item No, 34 of the Concurrent Legislative List are to be brought before CCI for formulating and regulating policies'.
13. The counsel, therefore, urged that not only has the defendants failed to comply with the provisions of the new Ordinance but has also failed to comply with certain essentials as provided by the Constitution of Pakistan, 1973. He further concluded that by imposing a condition of payment of earnest money of Rs. 150,000,000/- the defendant has tried to stop the plaintiff from successfully participating in the bid,
14. Syed Muhammad Zaki DAG, drew my attention to the prayer clauses_ According to him after the writ was converted into a suit it was incumbent upon the plaintiff to amend the Plaint especially the prayers to bring it in conformity with a prayer that could be answered in a suit. According to him the declarations and directions that the plaintiff has sought can only be granted or refused while exercising writ jurisdiction by a Division Bench of. this Court. He, thereafter brought before this, Court a document which purportedly was supposed. to be a secret document and it was the Minutes of the CCI which, inter aka, did contain the issue of privatisation and in this list contained at the end the name of defendant No. 4 has been mentioned. According to him the Objection of the plaintiff that the CCI has not taken cognizance of this issue is belied.
15. Learned counsel appearing on behalf of the Federal Government further urged that the bid was made by the plaintiff through a letter dated 27.9.2000. However, the writ was filed , first before the Lahore High Court on 7.3.2002. The petition first -filed in 'Lahore and subsequently in Karachi suffered from (aches and ma/a fide. He further urged that there was total transparency in the entire exercise and complete facility was provided to the plaintiff to bid for the defendant No. 4.
However, as the plaintiff was not in a position to pay the earnest money, therefore, he had filed this petition. He further pointed out that the bona fide of the defendants Nos. 1 and 2 can be seen from the fact that at the request of the plaintiffs the amount of earnest money was reduced to Rs. 150 million so as to enable the plaintiff to participate irr the bid. According to him this suit needs to be dismissed as the bid of defendant No. 5 has been accepted by the defendant No. 1 and progress has been made towards finalization of the same.
16. Mr. Munir A. Malik, Advocate, appeared on behalf of defendant'No. 2. According to him in '1996 when the privatisation was first offered' for defendant No. 4, 80% of the shares were offered for sale.
Now _90% of the shares were offered. First time the face price was fixed at Rs. 83/- per share, now it is Rs. 136/-per share. In the year 1996 the plaintiff did submit earnest money. This time round in spite of reduction in the earnest money they filed to provide the same. Learned counsel also relied on Section 3 sub-section (4) of the Ordinance, 2000, where in it was stated that all rules, regulations, notifications, orders or instructions in force immediately before the commencement of this Ordinance shall so far as they are not inconsistent with any of the provisions of the Ordinance as continued to be in force until repelled or altered by Rules or Regulations made under. this Ordinance, 2000, To that extent he also drew my attention to SRO 563(1)/01 dated 31.7.2001 and SRO 878(I)/01, dated 11.12.2001, which dealt with modes and procedure, rules as well as valuation of property rules.
17. Learned counsel drew my attention to a letter of the plaintiff dated 12.11.2001 wherein the plaintiff had sought indulgence of the privatisation committee and requested them for reducing the earnest money. They further requested for extension of date for bidding so that they would be prepared. They also wanted the Company to be handed over to them and then they would guarantee the payment the amount within four years. Learned counsel drew my attention to the financial statement enclosed with the Plaint under the heading of financial problems and balance sheet for the year 1998-99. According to the counsel this belies the statement of the plaintiff that. the defendant No.. 4 was making a lot of money and, therefore, it was being "undervalued and under sold with mala fide intention" Counsel also wanted this Court to consider the counter- affidavit that was filed by him in which the defendant No. 2 has refuted the allegations of the plaintiff. According to him the procedures mentioned in the new Ordinance were - strictly followed,.
The privatisation of defendant No. 4 was advertised as required under Section 23 of the Ordinance, 2000. Counsel undertook to provide all the cutting of the newspapers which he has done so subsequently to vindicate the position taken by him in the counter-affidavit. Counsel also stated that the provisions of Section 24 was strictly followed and independent reputed firms of Chartered Accountants were on the panel. There were a total-number of 16 firms, Out of the 16 firms M/s. Sidat Hyder Morshed Associates was involved for the purpose of valuation. The counter-affidavit also shows the methodology adopted for valuation and in fact recommended price that was approved was on-the basis of the higher price that could be fetched. The counsel went to a great extent to highlight the fact that the amount demanded as advance was only 1.69% of the offered price. The basis of calculation could not be disclosed as it would not have maintained secrecy. According to the counsel the mode adopted under Section 25 was through sale of shares through public auction and or tender i.e. "2.5-8. Through this mode reputed organisations directly and indirectly involved with fertilizer had put in their bid and., therefore, the Company which had come 'up with the best bid wee then invited to take over. According to the counsel a great emphasis has been placed by the plaintiff on the right of first refusal. This right.of first refusal has arisen from the so-called MOA.
However, he has drawn my attention to Packet C in the same MOA which in turn has been discussed at length by the Lahore High Court in their judgment dated 29.5.1996. Counsel wanted to refer to sub-section (3) of Package C which dealt with all bids made by the employees will have to be competitive-and in accordance with the bid documents. According to the counsel right of first refusal is only-available when a person participate in the bid. If you did not participate then you have no right of first refusal. Counsel in this respect relied on the case of Millat Tractors Employees Trust Government of Pakistan (PLD 1992 Lahore 68). At page 73 notified Package C has been mentioned which includes sub-section (3) where also it is clearly stipulated that all bids made by the employees will have to be competitive and in accordance with the bid documents. Whilst disposing of this matter the learned Single Judge observed that "where the shares/assets of the State Management Units are sold through. auction the employees will have a right of negotiation on the highest bid only if the bid is competitive and in accordance with the bid documents".
18. Learned counsel'also drew my attention to para 3 of the counter-affidavit, filed by the defendant No. 2, which also highlighted the fact that no financial plan was submitted by the plaintiff No. 1 purely on the grounds that since they already have a right of first refusal, therefore, by using that right they will submit the financial plan accordingly. By letter dated 27.7.2001 the plaintiff was put to notice that in relation to their assertion as to the right of first refusal the plaintiff was obligated to bid competitively and in accordance with the bid documents.
19. Counsel also relied on the case of Amin Ahmad Ministry of Production, Government of Pakistan (PLD 1996 Karachi 27). In this case a Division Bench of this Court while disposing of the Petition had differentiated between the words "developed" and "dispose". They had referred to the Federal Legislative List, Part-II, and have also dealt with the Council of Common Interest (Articles 153 and 154 of the Constitution). They had come to the conclusion that this Council was created to safe- guard the interest of federating units and to establish good relation between the government, federation and the provinces. The Council had two main functions, i.e. to formulate and regulate policies and to exercise supervision and control over related institutions. Part-11 of the Federal Legislative List, especially Entry No. 3 was relevant for that case which discussed development of industries. They were of the view that the Council would have power to formulate and regulate policies when the basic question of development of industries and its development by the Federal Government was considered to be expedient in the public interest. However, in the case in issue the controversial point was not about development of industries but disposal of property vested in the government. In the present case similar is the position as it relates to disposal of shares of a factory which is at present moment owned by the Government.
20. The counsel further pointed out that an application for status quo had been filed in the Lahore High Court after this case had been filed. That status quo application was dismissed.
21. Mr. Sajid Zahid, learned counsel appeared on behalf of defendant No. 5, identified three main issues that could be discussed and the matter could be disposed of: (a) whether the matter could be referred to CCl, (b) whether procedure mentioned in the .Ordinance was followed and (c) whether the plaintiff was given right to participate.
22. Learned counsel also urged that his client had acquired a vested right by virtue of the fact that Letter of Acceptance had been issued to his bid. He drew my attention to letter dated 7.3.2002 in which at the last Minute by hand the value of the share for which the bidding was to be done" was mentioned. He also drew my attention to a letter dated 1'1.3.2002 which was addressed to the Managing Director of defendant No. 4 by the defendant No. 2 who stated therein that the Cabinet Committee of Privatisation had made and had approved the bid of the defendant No. 5. Letter of Acceptance was being issued. Counsel, therefore, felt that since this has already been done prima facie he has a case in his favour and since 11.3.2002 lot of progress has been made and as such the balance of convenience now stands in his favour. irreparable loss and damage would occur to him if at this stage the prayers of the plaintiff is accepted and/or the application for injunction is granted. Learned counsel drew my attention to the add. that was given in the newspapers Which has been annexed by the counsel for the plaintiff with his plaint. According to the counsel a plain reading of the Preamble would clearly show that the Government of Pakistan invited "Expression of interest" from prospective investors for pre-qualification to participate in the privatisation process of defendant No. 2. Counsel emphasised the fact that this was not a hid for the Company. In fact it was an Expression of Interest to purchase the :Company and, therefore, any body who showed interest had to seek pre-qualification before. they could be considered for qualification. Counsel, also drew my attention to the negotiations of the plaintiff where they have clearly stated that they shall not submit a financial plan since they have a right of first refusal. He also argued that after two years the plaintiff has come to Court and, 'therefore it was total mala fide on their part in fact it was an attempt to delay the privatisation of the Project. Counsel also drew my attention to the bid documents' which have been placed on record by the defendant No. 5. The procedure for bidding price and general requirements have been mentioned from page 2 onwards. Counsel pointed out that not only was the procedure as well expenditure as mentioned in the bid documents were mentioned at page 4 but it also dealt with offer of the Employees of the Management Group (EMG). It is clearly stated that if the EMG has completed the requirements of step 1 of Section 4 then the bid of the highest bidder in step 2 shall immediately be put in presence of all the bidders to the EMG. The EMG shall then have the right to make the bid equivalent or greater than the highest bid. If the EMG does this then they shall be declared the highest bidder.
Counsel felt that nothing could be more transparent and clear then this document, therefore, for the plaintiff to now urge that they were stopped or circumstances were created to prevent them from joining in is a statement that is far from the truth. Learned counsel then drew my attention to page 9 of the bid documents and 10 which even dealt with the fact that the balance 10% shares would be available for the amount purchased by the workers. Counsel also drew my attention to a letter dated 21.2.2002 which was addressed to the plaintiff. It is stated very clearly that the plaintiff was required to submit documents seven days before the bidding. All other bidders had completed the formalities over a year ago. The plaintiff was continuously requested to finalise all documents and various meetings were held in that respect so that they would be in a position to complete all the three qualification formalities. They have failed to do so. They were, therefore, given upto 2.3.2002 to complete the formalities so that they would be in a position to participate in the bidding process. According `to the counsel they failed to do the needful.
23. Counsel has also taken the plea of the doctrine of Estoppel as according to him once .a Letter of Acceptance has been issued in his name he has acquired a vested right and thereafter any order that was made that particular right should be considered a nullity in the eyes of law. Counsel has also relied on the Minutes of the Meeting held on 25.9.2001. He has tried to bring through this document the fact that the participants in the Meeting were clearly all those various organisations that had shown their interest to purchase the defendant No. 4. The list of the participants were also given. Counsel has also relied on various Minutes of the Meeting that have been annexed with the counter-affidavit filed by defendant No. 5. Perhaps the over all emphasised is on the fact that it was an open discussion and clearly transparent. Learned counsel has re-emphasis the fact that the time was given to the plaintiff to complete the formalities but they have failed to do so. Counsel has also relied upon various other documents which have been annexed with his counter-affidavit, which one need not go through as they are merely reflective of and indicative -of all the persons who participated in the deliberations which are reflected in the Minutes. Counsel has also pointed out that besides the various other documents .which have been brought on record and which in effect clearly show the 'apathy of the plaintiff in pursuing his objective in spite of repeated request to the effect another facet of the plaintiff can be seen from the 'letter dated 26.4.2002, addressed to the Country Manager, ABN Amro Bank, complaining and protesting against the financing arrangement for purchase of defendant No. 4. Inference has been made therein that in case if the Bank goes ahead with the financing of the project the Bank shall lose all that they have invested.
Allegations have also been levelled which according, to the counsel reflects the ma/a fide on 'the part of the 'plaintiff. Learned counsel has also claimed that the suit suffers from laches. In this respect he has relied on the case of Muhammad Yaqub Khan v. Board of Revenue (1984 SCMR 940). On the question of vested right and Estoppel learned counsel has relied upon the case of Belarus Bela Tractors Limited v. Pakistan (PTD 2001 Page 1.829 at page 1842). Lastly the counsel urged that injunction need not be granted in those cases where damages is the remedy available.
24, In reply Mr. Abdul Mujeeb Pirzada, once again insisted that the advertisements were not produced. However, counsel for the defendant No. 2 undertook to produce the same which he has done at the time of writing of this judgment. He once again complained that the entire exercise was pre-planned, engineered and the offers of all other companies were fake.
25. I have heard the learned counsel at length, gone through the documents produced and would like to take up the points raised so that they could be answered. On the issue whether the defendant No. 2 has followed a laid down procedure or not. My answer is in the affirmative: It is apparent from the very detailed narration of the facts mentioned above as well as the. documents that have been produced by all the sides concerned and the counter-affidavits that have been brought on record by the defendants Nos. 2 and 5. Detailed factual position has been given and even the computation of the value of the shares has also been shown. There is no doubt that Section 23 has been followed and advertisement has been made in all the leading newspapers including foreign ones by the defendants Nos, 1 and 2. The valuation of the property has been made and to that extent the relevant paragraphs of the counter-affidavit are to be looked into especially since no .rejoinders have been filed by the plaintiff, therefore, for all practical purposes they stand proved, Counter-affidavit of one Hidayatullah son of Rahim Shah, the Deputy Director, Privatisation Commission, has been filed on 26.4.2000. This counter-affidavit relates to answers and queries of the plaintiff especially in relation to Sections 23 . and -24 of the Ordinance, 2000.
Alongwith this counter-affidavit summary of valuation has been' filed which shoWs that M/s, Sidat Hyder Morshed Associates in association with Iqbal Nanjee and Company, Valuer and Haidermota & Company, Legal Advisor, were appointed to evaluate fair value of the company. The methodology adopted for coming to a fair assumption has been given in detail in this document. Section 25 of the Ordinance, 2000 sub-section (b) has also been carried out as the shares were offered for sale by inviting tenders from the general public. including the plaintiff. In the advertisement the methodology of pre-qualification and ultimately being in a position to bid for the shares was given The fact that the plaintiff did not qualify for the bid perhaps is a reason why a plea has been taken that the modes provided have not been followed.
26. Whether the act of privatisation is hit by the provisions of the Constitution of Islamic Republic of Pakistan, 1973, especially in relation to the Council of Common Interest. This issue has also become redundant by the very fact that the DAG had produced a document which was Minutes of the CCI where amongst various things discussed, a list of organisations that were going to be privatised: was also annexed. In this list the name of Pak Saudi Fertilizer was mentioned. Therefore, to state that the matter was not referred to the CCI has now become meaningless. It is, however, necessary to note that while the CCI under Article 154 of the Constitution is supposed to formulate and regulate policies in relation to matters in Part-II of the Federal Legislative List and insofar as it is in relation to the affairs of the Federation the matter in Entry 34 in the Concurrent List has been specifically mentioned. Based upon this objection the learned counsel had relied on the two cases mentioned above which both relate to a subject-matter which was going to be privatised and where the interest of different Provinces were going to be in conflict unless and until their view points were solicited and consensus was agreed upon. In this case a fertilizer company located in Sindh does not necessarily come within the ambit of those matters which the CCI would be willing to look into or should look into as provided by the Constitution. Since the Sale is on all Pakistan level, therefore. there would not be a conflict of interest of the other provinces.
27. Whether the plaintiff was given right to participate. This is answered in the affirmative. It is quite clear that not only the plaintiffs were given all the encouragement to participate at various stages but a casual glance at a Memorandum that had been prepared and documented repeatedly a concern has been shown as regards the workers are concerned. The right_ of the workers has also been satisfied by the Lahore High Court but with certain basic qualifications. it is evident that these basic qualifications which were essential for the plaintiff to pre-qualify were not fulfilled. To take a plea that there was mala fide on the part of the Privatisation Commission to demand bid money would not hold water. This is evident from the fact that the Privatisation-Commission at the behest of the plaintiffs reduced the amount of bid money and in spite of the reduction the plaintiffs failed to pre-qualify. In fact in spite of the orders of the Lahore High Court they refused/failed to submit a financial plan by insisting that since they have a right of first refusal, therefore, after using this right in the bidding process they would submit their financial plan. It would be necessary to appreciate that while disposing of the matter the Lahore High Court had made an observation that financial plan and submission was essential for the consideration of the plaintiffs' right to negotiate on the highest bid. The High Court had also looked at Package C of the Memorandum of Agreement which talked of all bids made by the employees will have to be competitive and in accordance with the bid documents. Once this observation has been read then one can refer to the letter dated 21.2.2002, issued by the Privatisation Commission, which stated in paragraph 3 that the PSEU (Pak Saudi Employees Union and Pak Saudi Executive Union) has been associated at all working level meeting in finalisation of various documents required in the bidding and sale of the Unit. At all such meetings repeatedly they were requested time and again to .complete the pre-qualification formalities which they failed to do so.
28.. It is also apparent that "the Letter of Acceptance has been issued to defendant No. 5 and steps have been taken both by the defendant No. 2 and by defendant No. 5 to finalise the privatisation,
29. Under the circumstances the plaintiffs have not been able to show that prima facie they have a case for getting an injunction. After having initiated the privatisation the balance of convenience is shifted to the defendant No. 5 and at this juncture no irreparable loss or injury shall be caused to the plaintiffs as they have failed to show either in writing or through their arguments that in case if the injunction application was not granted they would suffer irreparable loss and injury. In fact the grounds mentioned in the application under Order XXXIX, Rules 1 and 2, CPC relate to the decision of the Lahore High Court which has been dealt with and answered and also have challenged the privatisation process as according to them this is in violation of Articles 153 and 154 of the Constitution, 1973 as well as the law laid down in the two judgments referred above. This ground has also been answered and discussed. The third ground relates to following the procedure and that also has been answered.
30. Under these circumstances I am of the view that there is no substance in application under Order XXXIX, Rules 1 and 2, CPC, filed by the plaintiffs. It is accordingly dismissed.