1995 PLP 1809 (CLC)

JAVED IQBAL, J.‑‑‑This is a Constitutional petition preferred under Article 199 of the Constitution of Islamic Republic of Pakistan (Hereinafter referred to as the Constitution) oil behalf of Central Trading (.Private) Limited through Managing Director with the following prayer:‑ "In the circumstances it is respectfully prayed that this Honourable Court play kindly declare: that the grant of contract to the respondent No.3 by consultation but without public notice is in violation of law: Government instruction and public policy, which is depriving the Town Committee. Uthal from a lawful income, if it would have, been notified, it could have enhanced the income. Therefore, the order elated 4th August 1994 passed by respondent No.2 and Reference No.1120‑2,0, dated 30‑7‑1994 by the Assistant Director, Local Government, Lasbella as well the grant and assignment of contract in favour of respondent No.3 is illegal, unlawful, and against public policy and the interest of Town Committee. This Honourable Court may kindly direct the respondents to cancel the contract and invite tenders by public notice against the reserved call of Rs.32,00,

000. The cost of this petition may also be allowed."

2. Briefly stated that the facts of the case as set out hi the petition are that the petitioner is a Trading Private Limited Company having its offices at Karachi, Quetta and Uthal, District Lasbella and one of the major contributor of Revenue received from Octroi received within the territorial limits of Town Committee, Uthal. The Chairman, Town Committee, Uthal advertised Octroi for 1994‑95 on 18‑6‑1994, 26‑6‑1994, 4‑7‑1994 and 14‑7‑1994 with a reserved call of Rs.51,14,000, but no one floated the tender on the said dates as the reserved call was high. It was thus obligatory for the Chairman, Town Committee, Uthal, to make necessary arrangement for the collection of octroi at official level or float the tender again by decreasing the reserved call to a reasonable limit. The Chairman, Town Committee, Uthal and Assistant Director, Local Government, District Lasbella awarded contract to Abid Munir, Octroi Contractor, without resorting to tender and through mutual arrangement the contract was awarded without completion of mandatory pre requisite and in violation of the relevant provisions of law and principle of natural justice, hence this petition.

3. It is mainly contended by Mr. Tahir Muhammad Khan Advocate, on behalf of the petitioner that impugned order dated 4‑8‑1994 (hereinafter referred to as the impugned order) is against facts, law and principles of equity and justice, hence is liable to be set aside. It is next contended that in fact the reserved call was fixed very high and with mala fide intentions so that no one could participate and thus unlawfully facilitated Abid Munir Octroi Contractor for getting the Octroi Contract at a considerable low rates. It is next contended that the octroi contract should have been re‑advertised by decreasing the fixed amount and reserved call enabling all the contractors to participate in the tender, which was not done for the reasons best known to the Chairman, Town Committee Uthal, Assistant Director, Local Government and Secretary, Local Government of Balochistan. Had the reserved price been decreased, petitioner would have offered a higher bid as compared to that of respondent No.3. The arrangement made in between the official respondents and Abid Munir Octroi Contractor, is against public policy and substantial financial loss has been occurred to Government exchequer due to the illegal and unlawful action of the official functionaries concerned. It is also contended that grant of octroi contract without public notice duly published in press is against law, rules, Government instructions as well as public interest, hence the impugned order is illegal and without lawful authority and in contravention of Rules 7 and 8 of West Pakistan Municipal Committee (Contract) Rules, 1960.

4. Syed Ayaz Zahoor, Advocate appeared on behalf of respondent No.3 and strenuously repudiated the position as explained by Mr. Tahir Muhammad Khan, Advocate on behalf of the petitioner, and seriously objected the maintainability of this petition. It is urged emphatically that the petitioner had no locus standi to invoke the provisions of Article 199 of the Constitution, as he was never a participant when the tender was floated on five different occasions and the reserved call was also reduced from Rs.7 lacs to Rs.5 lacs and moreso, the petitioner could have floated his tender by offering a low bid as there teas no legal bat to it. It is further contended that the petitioner could not question the award of contract as no such right vested in him. It is also contended that the contract has, been awarded and executed in accordance with law and no rule or legal provision has been violated and Secretary, Local Government has exercised his lawful authority. It is also pointed out that respondent No.3 had paid more than Rs.12 lacs, in view of contract executed in between the parties and as such, a vested contractual rights has accrued in his favour, which cannot be challenged by way of making this Constitutional petition.

5. Learned Advocate‑General has outrightly pointed out that the petitioner cannot be termed as aggrieved person and as such cannot question the validity of the contract by filing Constitutional petition under Article 199 of the Constitution. He also mentioned various relevant prevalent laws and contended that no violation whatsoever was made by the official respondents. He also challenged the maintainability of this petition on the ground that alternate remedy was available and appeal could have been filed under section 149 of Balochistan Local Government Ordinance, 1980. He has also referred West Pakistan Municipal Committee (Appeal) Rules, 1960, West Pakistan Municipal Committee (Contract) Rules, 1960 and West Pakistan Municipal Committee (Octroi) Rules, 1964 with the submissions that the relevant provisions of abovementioned Rules should have been invoked instead of filing a Constitutional petition. It is next contended that the agreement has already been executed in between Abid Munir, Octroi Contractor and Chairman, Town Committee, Uthal, as such the existing arrangement may not be disturbed. It is also pointed out that conduct of the petitioner is not justified as he had never participated and offered any bid nor shown his willingness to offer some lower bid as specified in the tender floated by the respondent, and as such, now at this belated stage he cannot file any Constitutional petition as no` legal right accruing in his favour has been infringed and in fact he is stranger for all practical purposes. It is urged emphatically that in spite of various opportunities no bid was offered and as such, by no stretch of imagination he can be termed as "aggrieved person". It is also argued that Secretary, Local Government, has approved the action of the Chairman, Town Committee Uthal, and marriage of convenience has been performed in between the parties and the management made under the compelling circumstances has neither caused any damage to the Government nor problem for the masses. It is also pointed out that contract can be assigned without calling tenders in view of the provisions as contemplated in Rule 7 (3) of the West Pakistan Municipal Committees (Octroi) Rules, 1960.

6. We have carefully examined the respective contentions of the parties in the light of relevant provisions of law and record made available. The pivotal question , requires to be determined first is as. to whether the provisions as contemplated under Article 199 of the Constitution can be invoked by the petitioner?. It is first to be seen whether he is aggrieved person? and further whether any alternate remedy is available to him. It is well settled by now and there are plethora of authorities in support of the view that a `person aggrieved` must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of some thing or wrongfully refused something, which he has a right to demand or wrongfully affected his title in something. (1984 CLC .1146 (D

7. We have also embarked upon the issue as to whether any efficacious convenient and speedy alternate remedy was available to the petitioner or otherwise? In order to find out the answer we have thrashed out the following laws:‑‑ (i) THE BALOCHISTAN LOCAL GOVERNMENT ORDINANCE. 1980 Chapter XXII deals with Miscellaneous matters and section 149 whereof deals with "APPEALS" which is reproduced hereinunder for ready reference:‑‑ "149.‑‑(1) Any person aggrieved by an order passed by a Local Council or its Chairman in pursuance of the Ordinance or the rules or bye laws, may appeal to such authority, in such manner and within such period as may be prescribed. (2) Any order passed in appeal shall be final." (ii) THE W P MUNICIPAL COMMITTEE (OCTROI) RULES, 1964 Chapter XXVIII deals with Appeal and Rule 216 being relevant is reproduced hereinunder at the cost of repetition:‑‑ "

216. Notwithstanding anything to the contrary contained in the West Pakistan Municipal Committee (Appeal) Rules, 1960, appeals against the assessments made and Orders issued under these rules shall lie as specified in Appendix `G'. It would also be useful to reproduce Appendix G:‑‑ "APPENDIX `G` (See Rule 216) Serial No. Authority making the order under Appellate, Authority. appeal.

1. Any assessment made or any Taxation Officer order issued under these rules by an Octroi Clerk, Octroi Inspector, Assistant Octroi Superintendent or Octroi Superintendent

2. Any assessment made or any Chairman. order issued under these rules by the Taxation Officer

3. Any assessment made or any Controlling Authority. order issued under these rules by the Chairman. (iii) . THE W.P. MUNICIPAL COMMITTFE (APPEAL RULES. 1960 Rule 2 deals with the Appellate Authority which runs as follows:‑‑ "

2. Appellate Authority: Unless otherwise provided, appeals against the orders of the authorities specified in column 1 of the schedule annexed to these rules shall lie to the authorities specified in column 2 thereof."

7. It would be appropriate to reproduce the schedule as is mentioned in Rule 2 of W.P. Municipal Committee (Appeal) Rules, 1960:‑‑ SCHEDULE (Rule 2) Authority making the order under appeal. Appellate Authority. 1. 2. (1) Municipal Committee, its Chairman or Commissioner. Vice‑Chairman. (2) An officer or servant of a Municipal Committee or any other person, authorized in this behalf or to whome the power to pass orders have been delegated Chairman. by the Chairman of the Municipal Committee.

8. The learned counsel for the petitioner could not explain that as to why the remedies as mentioned hereinabove could not be availed. It is pertinent to note that the Balochistan Local Government Ordinance, 1980 has been promulgated to provide for the constitution and continuance of Local Government Institution in the Province of Balochistan to consolidate and amend certain enactment relating to Local Government and to provide for certain matters connected therewith. The said Ordinance is capable enough to meet any situation and thus there appears to be no reason that as to why the relevant provisions and prescribed procedure mentioned therein should be ignored or be passed by invoking the provisions as contained in Article 199 of the Constitution without any justification. The alternate remedy was very much available which could not be invoked for the reasons best known to the petitioner.

9. We have also examined the compelling circumstances, wherein the contract was awarded to Abid Munir, Octroi Contractor (respondent No.3), it has come on record that auction tenders were floated on five different occasions and on 5th occasion the surety amount was also reduced from Rs.7 lacs to that of Rs.5 lacs, but in spite of it, no one has come forward including the petitioner, who had never offered any bid when the auction notices were published far five times on different occasions and with intervals, and as such now he cannot question the validity of the contract executed subsequently in between Abid Munir, Octroi Contractor and that of Chairman, Town Committee, Uthal. The petitioner has been watching the floating of auction notices, as a silent spectators and woke up all of a sudden with unfounded plea that contract should have been awarded to him being sister concern of Dawood Yamah, which is the principal Industrial concern at Industrial Estate Uthal, which fact alone hardly renders any assistance to his case. The petitioner bas not came forward at opportune moment and at this belated stage, we are afraid, no relief can be given to him. The action of Local Government Authorities cannot be declared ab initio void in view of provisions as contained in Rule 7 of the W.P. Municipal Committee (Contract) Rules, 1960 which is reproduced hereinbelow at the cost of repetition:‑‑ "

7. Tenders when to be invited.‑‑(1) Subject to the provisions of sub rule (2), the Chairman shall, at least seven days before entering into a contract involving an expenditure exceeding the amount specified for the Municipal Committee in Schedule II, give a public notice inviting tenders for such contract and may accept any of the tenders so made which appears to him, upon a view of all the circumstances, to be the. most advantageous: Provided that:‑‑ (i) if he rejects the lowest tender or all the tenders made in pursuance of the public notice, the reason;, for his so doing shall be recorded; and (ii) if it is contract entered into with the approval of the Municipal Committee or the Controlling Authority, the approval of the Municipal Committee or the Controlling‑Authority, as the case may be, shall be obtained before rejecting the lowest tender; and (iii) the Chairman may in case of a calamity or any other emergency and with the previous sanction of the Controlling Authority, dispense with the formality of inviting tenders, and enter into a contract with any person for the execution of any work or the provision of any or the provisions of any supplies with due regard tp the quality of work or supplies and speedy execution of the contract. Explanation.‑‑The Controlling Authority shall be the sole authority to determine whether there has occurred any calamity or other emergency and his decision in this behalf shall be final. (2) The Municipal Committee may, in case where the question of securing competitive prices or rates is not involved, authorise the Chairman to enter into a contract without inviting tenders."

10. A bare perusal would indicate that under the compelling circumstances and to meet certain eventualities the controlling authority has been authorized to determine whether there has occurred calamity or other emergency and his decision in this behalf shall be final. It is further provided in an un‑ambiguous manner that the Chairman may in case of calamity or any other emergency dispense with the formality of inviting tenders, as such the impugned order cannot be declared as unlawful or illegal.

11. In the light of what has been stated above, we are not inclined to accept this petition, which is accordingly rejected. It is, however, observed that the concerned Local Government Authorities should observe the Rules and Regulation available on the subject and the decision of this case should not be made a precedent for future, which is based on peculiar circumstances and the then prevalent situation. There is no order as to cost. M.BA./545/Q Petition dismissed.