Tender was cancelled after issuing of letter of acceptance by govt department.
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| Illegal decision of govt department setaside in writ by lhc |
Zair nazar faisla writ petition main Lahore High Court ne Jari kia
Wapda ke khalaf yeh writ petition ka faisla aaya jiss main petitioner aik construction company thi.
- Petitioner Construction company ne 240 million rupees jama karwai or theka hasil kia.
- Or raqam jama karwane ke baad wapda ki taraf se acceptance letter jari kia gia. 31/1/23 ko boli ko manzoor kia gia or acceptance letter jari kia gia.
- Or mazkoora tendar ko khareedne ke liye iss ke directors ko apni jaidadain bechna parien
- Or yeh ke wapda ne mahda mansookh kar dia or Stay order jari kar dia.
- Wajah yeh bian ki ke transfarmers ko haidel power stationo ki zaroorat hai.
- Or contract ki mansookhi ka faisla majboori ki soorat main kia gia hai.
- Mulak ki soorat haal or تانبے ki adam dastiabi market ma ha. Jiss ki wajah se mehkma ne yeh order jari kia.
- High court ne writ manzoor karte hoe wapda ka order khatam kar dia
- qarar dia ke yeh faisla wapda ka ghair qanooni hai.
- Or qanoon ke mutabaq amaldaramad karne ka hukam dia.
ٹرانسفارمرز کو ہائیڈل پاور سٹیشنوں کے لیے استعمال کرنے کی ضرورت
درخواست گزار کے لیے اسکے وکیل نے عرضی گزار کمپنی کو جمع کرایا
کے ٹینڈر کو نمٹانے کے لیے 240 ملین روپے کی بولی جمع کرائی
لوازمات کے ساتھ ٹرانسفارمر 79-MVA۔ انہوں نے مزید کہا کہ مذکورہ رقم
جواب دہندگان کے حق میں منتقل / انکیش کیا گیا تھا اور اس کے نتیجے میں،
کے حق میں 31.01.2023 کو بولی کی منظوری کا خط جاری کیا گیا۔ (acceptance letter)
درخواست گزار انہوں نے مزید کہا کہ پٹیشنر کمپنی اور اس کے ڈائریکٹرز فروخت کر چکے ہیں اپنی جائیدادیں۔
مذکورہ ٹینڈر جیتنے کے لیے قیمتی جائیدادیں اور اب،
جواب دہندہ اتھارٹی نے درخواست گزار کمپنی کو ایک فیصلےمیں ناک آؤٹ کر دیا ہے۔
غیر قانونی طریقہ، جو درخواست گزار construction companyکے بنیادی حقوق کے خلاف ہے۔
ان کا استدلال ہے کہ ٹینڈر کی منسوخی کی خلاف ورزی ہے۔
غیر مطلوبہ اسٹور کو ٹھکانے لگانے کے لیے ٹینڈر کی عمومی شرائط۔ وہ
2
رٹ پٹیشن نمبر 25808 آف 2023
برقرار رکھتا ہے کہ معاملے کے مادی پہلوؤں کو نظر انداز کیا گیا ہے۔
غیر منقولہ آرڈر پاس کرتے ہوئے، اس لیے، وہی آنکھ میں غیر پائیدار ہے
اور اپنے حق کو ثابت کرنے کے لئیے قانونی فیصلہ جات پیش کیے گۓ۔
قانون کا. حمایت میں، اس نے نیشنل سیونگ سنٹرل پر انحصار کیا ہے۔
ڈائریکٹوریٹ، اسلام آباد بذریعہ ڈی جی اور دوسرا بمقابلہ محمد
فاروق راجہ (2021 CLD 370)۔
3.
اس کے برعکس، جواب دہندگان کے لیے وکیل دفاع کہتے ہیں۔
مالیاتی کو مدنظر رکھتے ہوئے یہ استدلال کرتے ہوئے حکم امتناعی
ملک کی صورتحال اور مارکیٹ میں تانبے کی عدم دستیابی،
ٹرانسفارمرز کو ہائیڈل پاور سٹیشنوں کے لیے استعمال کرنے کی ضرورت ہے۔
اور تقسیم کار کمپنیاں، لہٰذا، بولی کی منسوخی کا فیصلہ
انتہائی مشکل صورتحال کی وجہ سے لیا گیا
۔ یہاں تک کہ اس کا دعویٰ ہے۔
بصورت دیگر، فروخت کا معاہدہ کا سہارا لے کر نافذ نہیں کیا جا سکتا
آئین کے آرٹیکل 199 کے تحت آئینی دائرہ اختیار
اسلامی جمہوریہ پاکستان، 1973 ("آئین")۔ حمایت میں،
اس نے میسرز مومن کا حوالہ دیا ہے۔
Stereo. H C J D A-38.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.25808 of 2023
Pir Muhammad Construction Company Private Limited
Versus
Water and Development Authority through its Chairman, Lahore
& others
J U D G M E N T
Date of hearing: 27.07.2023.
Petitioner by:
M/s. Hassan Iqbal Warraich and Arslan
Abbas Buttar, Advocates.
Respondents by: M/s. Salman Mansoor, Muhammad Nadeem
Iqbal Zahid and Abdul Majeed Abid,
Advocates.
Mr. Muhammad Zain Qazi, Assistant
Attorney General along with Ziarukh Jan,
Deputy Director (Legal).
MUHAMMAD SAJID MEHMOOD SETHI, J.:- This
writ petition is directed against order dated 12.04.2023, passed by
respondent No.2 / General Manager (Coordination) Power, WAPDA
House, Lahore, whereby letter of acceptance for tender No.36-
MAT(2022)/TPS opened on 11.01.2023 belonging to Chief Engineer
(Power) Tarbela Power Station, was cancelled.
2.
Learned counsel for petitioner submits that petitioner-company
submitted its bid of Rs.240 Million for the disposal of tender of
transformer 79-MVA with accessories. He adds that the said amount
was transferred / encashed in favour of respondents and consequently,
letter of acceptance of bid dated 31.01.2023 was issued in favour of
petitioner. He adds that petitioner-company and its directors have sold
valuable properties in order to win the aforesaid tender and now,
respondent-authority has knocked out the petitioner-company in an
unlawful manner, which is against the fundamental rights of petitioner.
He argues that impugned cancellation of tender is in violation of
General Conditions of Tender for Disposal of Unwanted Store. He
2
Writ Petition No.25808 of 2023
maintains that material aspects of the matter have been overlooked
while passing impugned order, hence, same is unsustainable in the eye
of law. In support, he has relied upon National Saving Central
Directorate, Islamabad through D.G. and another v. Muhammad
Farooq Raja (2021 CLD 370).
3.
Contrarily, learned counsel for respondents defends the
impugned order by contending that keeping in view the financial
situation in the country and non-availability of copper in the market,
the transformers are required to be utilized for Hydel Power Stations
and distribution companies, therefore, decision of cancellation of bid
was taken due to extreme difficult situation. He contends that even
otherwise, contract of sale cannot be enforced by recourse to
constitutional jurisdiction under Article 199 of the Constitution of the
Islamic Republic of Pakistan, 1973 (“the Constitution”). In support,
he has referred to Messrs Momin Motor Company v. The Regional
Transport Authority, DACCA and others (PLD 1962 Supreme Court
108), State Life Insurance Corporation of Pakistan v. Messrs Pakistan
Tobacco Company Ltd. (PLD 1983 Supreme Court 280), Messrs
Airport Support Services v. The Airport Manager, Quaid-e-Azam
International Airport, Karachi and others (1998 SCMR 2268), Messrs
Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain
Naqvi and others (PLD 2001 Supreme Court 116), Messrs Ramna
Pipe and General Mills (Pvt.) Limited v. Messrs SUI Northern Gas
Pipe Lines (Pvt.) and others (2004 SCMR 1274), Messrs Pacific
Multinational (Pvt.) Ltd. v. Inspector-General of Police, SINDH Police
Headquarters and 2 others (PLD 1992 Karachi 283), Hassan
Associates v. Pakistan Telecommunication Corporation through
Divisional Engineer (Development) Cable Planning, Faisalabad and 5
others (1996 MLD 244), Munir Gul and others v. Administrator,
Municipal Corporation, Peshawar (1998 CLC 898), Messrs United
International Associates through Managing Partner v. Province of the
Punjab and another (1999 MLD 2745), Messrs Mirpurkhas Sugar
Mills Limited and 4 others v. Province of SINDH through Secretary
3
Writ Petition No.25808 of 2023
Irrigation and 4 others (2021 CLC 1801), Pakistan Oilfields Limited
v. Government Holding (Pvt.) Limited and others (2021 CLC 2114)
and Mumtaz Ali Rajpar and Brothers through Managing Partner and
others v. Province of SINDH through Secretary Mines and Minerals
Development and others (2023 PTD 39).
4.
Arguments heard. Available record perused.
5.
Record shows that petitioner’s bid pertaining to subject tender
for the purchase of store i.e. Auto Transformer 79 MVA with
accessories without oil (07 No) was accepted, for which it deposited
CDR No.00169781 dated 09.01.2023 amounting to Rs.24,000,000/- in
the bank account of respondent-office and the balance amount to be
deposited is Rs.284,880,000/-. It was directed that upon payment of
full amount a Release Order will be issued in petitioner’s favour by
respondent-office on the basis of receipt of Bank Deposit Slip to be
furnished by petitioner and confirmation from bank regarding receipt
of the amount for which its tender bid had been accepted. For facility
of reference, letter of acceptance of bid dated 31.01.2023 is reproduced
hereunder:-
Subject:-
LETTER OF ACCEPTANCE FOR TENDER NO.36-
MAT(2022)/TPS OPENED ON 11.01.2023
BELONGING TO CHIEF ENGINEER (POWER)
TARBELA POWER STATION.
Your bid pertaining to the subject tender for the purchase of
following store has been accepted. For this purpose, your deposited
CDR No.00169781 dated 09.01.2023 amounting to Rs.24,000,000/-
has been deposited in this office bank account vide Bank Deposit
Slip No.67783544 dated 18.01.2023.
Lot No.
Survey Report No. & date
Description
of Store
Amount (Rs)
1
CE/Store//4(02)/3/933(Revised)
19.10.2020
Auto Transformer 79
MVA with accessories
without oil (07 No)
240,000,000/-
Sale Tax @ 17%
40,800,000/-
Sub Total
280,800,000/-
Income Tax @ 10%
28,080,000/-
Grand Total
308,880,000/-
Amount already submitted vide above
CDR
24,000,000/-
Balance Amount to be deposited
284,880,000/-
54
Writ Petition No.25808 of 2023
Weight mentioned as above was approximate, only for the
assessment of bid price. Since, the tender is floated on “AS IS
WHERE IS BASIS”, you have already been instructed to inspect
and satisfy regarding the type, quantity and condition of the store.
Failure to inspect the disposable goods will not be advanced as a
plea in any claim.
Kindly arrange to deposit with Habib Bank Limited WAPDA House
Branch Lahore, Account No.05527900561501 either in cash or by
CDR / Bank Draft drawn in favour of the Director General
(Purchase & Disposal) WAPDA for Rs.284,880,000/- (Rupees
Two Hundred Eighty Four Million Eight Hundred & Eighty
Thousand Only) (including all taxes) within 21 working days after
the issue of this letter (Last Date being 01.03.2023) failing which
the Earnest Money for this tender will be forfeited without any further
notice and no claim shall lie or be raised against this decision.
On payment of the full amount a Release Order will be issued in
your favour by this office on the basis of receipt of Bank Deposit slip
to be furnished by you and confirmation from bank regarding receipt
of the amount for which your tender bid has been accepted.
You will be held responsible for any loss due to incomplete /
incorrect or change in postal address as given by you.
6.
As per terms of General Conditions of Tender for Disposal of
Unwanted Store, an invitation of a tender would not constitute any
liability on the part of the Authority until a Letter of Acceptance was
issued. It is nowhere provided that after acceptance of bid, tender could
have been cancelled / withdrawn. Respondents have not cited any
provision of applicable law or placed any document on record to show
that such prerogative was vested with them. Under the celebrated
principle of locus poenitentiae, a right was accrued in petitioner’s
favour, thus, the same could not have been taken away unilaterally by
respondents without associating the petitioner. The reasons for
withdrawal of letter of acceptance provided in the impugned order are
extraneous to bid documents and not plausible as well. Reliance is
placed upon Muhammad Farooq Raja’s case supra, Mian Atta Ullah v.
Lahore Development Authority Tribunal and 5 others (1996 CLC
1943) and Messrs Lucky Cement Limited v. The Central Board of
Revenue and others (PLD 2001 Peshawar 7).
In the case of Muhammad Farooq Raja supra, the Hon’ble
Supreme Court has observed as und
Writ Petition No.25808 of 2023
“6.
We have noticed that the petitioner was under
incumbent duty to scrutinize the status of the respondent
prior to issuing acceptance which has accrued a right in
favour of respondent, any slackness at the part of the
petitioner at belated stage cannot be burdened to the
respondent and the same is hit by principle of locus
poenitentiae. In a similar case reported as (PLD 1992 SC
207) "The Engineer-in-Chief Branch through Ministry of
Defence, Rawalpindi and another v. Jalaluddin" this court
while adjudicating the matter has held which is reproduced
as under:-
"However, as the respondent had received the
amount on the bona fide belief, the appellant is not
entitled to recover the amount drawn by the
respondent during this period when the letter
remained in the field.... We consider that as far as
the recovery of amount in question is concerned,
the principle of locus poenitentiae would be
applicable and the appellants are not entitled to
recover the amount. The appellants have
themselves taken a liberal view and the recovery of
only 12 months is being made"
Otherwise the case of the respondent is also covered by
section 24-A of General Clauses Act, 1897, which clearly
reflect that once a right is accrued, the same cannot be
withdrawn unless and until it is established that the
scheme was obtained by practicing fraud or
misrepresentation. Section 24-A of the General Clauses
Act, 1897, is reproduced as under:-
"24-A. Exercise of power under enactments.-
(1) Where, by or under any enactment, a power to
make any order or give any direction is conferred
on any authority, office or person such power shall
be exercised reasonably, fairly, justly and for the
advancement of the purposes of the enactment.
(2) The authority, office or person making any
order or issuing any direction under the powers
conferred by or under any enactment shall, so for
as necessary or appropriate give reasons for
making the order or, as the case made be for
issuing the direction and shall provide a copy of
the order or as the case may be, the direction to
the person affected prejudicially.”
7.
Law on the subject is very clear that where Government
controlled functionaries made a promise which created a right to
anyone who believed in it and acted under the same, then such
functionaries were precluded from acting detrimental to the rights of
6
Writ Petition No.25808 of 2023
such person/citizen. In the case reported as Pakistan through Ministry
of Finance Economic Affairs and another v. FECTO Belarus Tractors
Limited (PLD 2002 Supreme Court 208), the Hon’ble Supreme Court
while discussing the concept of doctrine of promissory estoppel, has
ruled as under:-
“23.
It will be necessary to Coach the true concept of the
doctrine of promissory estoppel. Before proceeding further
this doctrine has been variously called 'promissory estoppel'
'requisite estoppel', 'quasi estoppel' and 'new estoppel'. It is
a principle evolved by equity to avoid injustice and though
commonly named 'promissory estoppel'. It is neither in the
realm of contract nor in the realm of estoppel. The true
principle of promissory estoppel seems to be that where one
party has by his words or conduct made to the other a clear
and unequivocal promise which is intended to create legal
relations or effect a legal relationship to arise in the future,
knowing or intending that it would be acted upon by the other
party to whom the promise is made and it is in fact so acted
upon by the other party, the promise would be binding on the
party making it and he would not be entitled to go back upon
it, if it would be inequitable to allow him to do so having
regard to the dealings which have taken place between the
parties and this would be so irrespective of whether there is
any pre-existing relationship between the parties or not. The
doctrine of promissory estoppel need not be inhibited by the
same limitation as estoppel in the strict sense of the term. It
is an equitable principle evolved by the Courts for doing
justice and there is no reason why it should be given only a
limited application by way of defence. There is no reason in
logic or principle why promissory estoppel should also not be
available as a cause of action.”
8.
Even otherwise, there is no force in the contention of learned
counsel for respondent-WAPDA that there was no concluded contract
between the parties. It is a common ground between them that the offer
made by respondent-WAPDA through the tender was accepted by the
petitioner. It is also evident on the face of the record that in
implementation of the contract, petitioner even deposited CDR dated
09.01.2023 amounting to Rs.24,000,000/-. Even otherwise, once an
offer has been accepted, a concluded contract has come into being and
it is not open in the person who has accepted the offer to retract from
the same as provided by the Contract Act, 1872. Reliance is placed
7
Writ Petition No.25808 of 2023
upon Messrs O.K. Agencies v. Chief Controller and others (2000 YLR
1867).
9.
It is well settled law with the mandate of the dictums of the
superior courts of the country that inaction, slackness and dubious acts
of executive functionaries cannot be accorded approval by the superior
courts more particularly when suchlike actions on face of it are besides
the law, mandate of the constitution and principle of natural justice.
The other defect from which the impugned order suffers is that the
petitioner was not granted any opportunity of showing cause or of
hearing before passing the impugned order, which is against the global
principle of natural justice i.e. “Audi Alteram Parterm”. Reference is
made to Pakistan State Oil Company Ltd. through General Attorney v.
National Highway Authority through Chairman and another (PLD
2012 Islamabad 50).
10.
So far as the objection regarding maintainability of instant
petition for enforcement of concluded contract is concerned,
admittedly the High Court in exercise of its Constitutional jurisdiction
is possessed of power to examine the validity of the order in regard to
grant of a concluded contract and strike it down on the grounds of
mala fide, arbitrary exercise of discretionary power, lack of
transparency, discrimination and unfairness etc. provided the challenge
is made promptly and contentious questions of fact are not involved. It
has consistently been held that while routine contractual disputes
between private parties and public functionaries are not open to
scrutiny under the Constitutional jurisdiction, breaches of such
contracts, which do not entail inquiry into or examination of minute or
controversial questions of fact can adequately be addressed. In this
case, no factual dispute exists between the parties with regard to
floating of tender, acceptance of offer and partial payment by
petitioner. Needless to say that remedy of Constitutional petition would
be permitted to be resorted to in cases involving contract between
private persons and State statutory functionary for such remedy was
considered to be more efficacious and speedy remedy as compared to
8
Writ Petition No.25808 of 2023
civil suit or arbitration proceedings. Reliance can be placed upon
Messrs Airport Support Services v. The Airport Manager, Quaid-eAzam International Airport, Karachi and others (1998 SCMR 2268),
Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem
Hussain Naqvi and others (PLD 2001 Supreme Court 116) and
Messrs SIEYUAN-NEIE-NAEEM & Company v. The Federation of
Pakistan through Secretary, Ministry of Water and Power and others
(2022 CLC 516).
The case law cited by learned counsel for respondent-WAPDA
in this regard, having distinguishable facts and circumstances, is not
attracted to this case.
11. The stance of respondents that transformers in question are
required to cope with acute shortage of copper has no strong footing
to cancel the acceptance letter as respondents themselves are
offering tenders for disposal of other transformers, which is evident
from documents attached with C.M. No.3 of 2023 at its pages 4, 5
& 6.
12. For the reasons recorded above, instant petition is allowed and
impugned order is declared to be illegal and without lawful authority.
Respondents are directed to proceed in the matter of tender in question
as per applicable law / rules / procedure and finalize the same at the
earliest.
(Muhammad Sajid Mehmood Sethi)
Judge
APPROVED FOR REPORTING
Judge
*A.H.S
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