2007 PLP 423 (MLD)

IJAZ AHMED CHAUDHRY, J

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner seeks cancellation of the grant of contract for collection of Excise Duty on Minerals of Tehsil D.G. Khan for a period of one year w.e.f. 5-4-2005 to 4-4-2006 made in favour of respondent No.6 vide letter dated 4-4-2005 for a total sum of Rs.35,00,000 as according to him it has been done in a surreptitious clandestine manner and has made an offer to the tune of Rs.70,00,000.

2. The grievance of the petitioner is that previously on 30-1 1-2004 for the same leasing contract one Zabta Khan had offered an amount of Rs. fifty lac, but the same was not accepted. Then on 15-12-2004 one Isa Khan had offered Rs.fifty one lac and also deposited 1/10th of the bid amount, which still is lying with the Department, but the same was also not honoured. Thereafter, on 29-12-2004 one Abdul Ghafoor Khan remained the highest bidder to the tune of Rs.55,20,000 but that too was not accepted. However, respondent No.6 has now been awarded the same contract on a meagre price of Rs.35,00,000, who even is charging high rates other than provided in the Schedule and according to the petitioner he is ready and willing to obtain the said contract at the cost of Rs.70 lac.

3. The parawise comments have been filed by respondents Nos.f, 2 and 4 according to which the area of Tehsil D.G. Khan excluding Zinda Pir Area was to be leased out for the collection of Excise Duty through open auction for the period from 8-1-2005 to 7-1-2006 and for this purpose the area was put to auction 5 times to achieve an appropriate hid after advertisement in the National Press. Initially three persons, namely, Dildar Khan on 30-11-2004, Nisar Ahmad on 15-12-2004 and Hameedullah Khan on 29-1-2004 stood the highest bidder with Rs.50 lac, 51 lac and 55.25 lac respectively, but none of them deposited 10% security with the fall of hammer as per requirement of Rules and defaulted themselves. Resultantly the earnest money of Rs.50,000 each was forfeited by the Government. According to the respondents due to this situation the amount of earnest money was enhanced from Rs.50,000 to Rs.2,00,000 and now the contract has been granted to respondent No.6 being the highest bidder through open auction conducted on 26-3-2005 for a consideration of Rs.35 lac after completion of all the codal formalities regarding deposit of 10% of the bid money with the fall of hammer, deposit of 50% after approval/confirmation by the Government and execution of agreement.

4. Learned counsel for the petitioner contends that all the proceedings were conducted with collusiveness for awarding the contract to a person of choice at low rates and in this way heavy loss has been caused to the public exchequer. According to the learned counsel either the contract may be granted to the petitioner for a sum of Rs.70 lac or it may be re-auctioned. Reliance has been placed on the decisions of the Hon'ble Supreme Court of Pakistan in C.Ps. Nos. 2404/04, 2405/04 and 2406/2004, C.P. No.116/2003 and 2003 SCMR 280.

5. On the other hand learned Addl. A.G. has contended that the contract has been awarded through open public auction to respondent No.6, who stood highest bidder, after completing all the codal formalities in accordance with the rules and regulations w.e.f. 5-4-2005 while the petitioner should have taken part in the auction proceedings by offering bid of Rs.70 lac at the appropriate time, who has no locus standi to agitate the matter at this belated stage. Also contends that during the previous year the bid was for Rs.15.30 lac only and it cannot be said that any substantial loss has been caused to the public exchequer as the persons who offered high rates earlier had not come forward to obtain the contract and even their earnest money was forfeited by the Government. Relies upon PLD 2001 SC 116 to contend that offer by an outsider after conclusion of the auction cannot be accepted.

6. Learned counsel for respondent No.6 has contended that the contract has been. awarded to him in a transparent manner through open auction and the allegation of underhand deal is incorrect. Also contends that the petitioner has filed this writ petition with mala fide intention and ulterior motive who according to his version is dealing in the business of selling and purchase stones and crush etc. to be charged by the petitioner as per contract and wanted to bow down respondent No.6 against their illegal demand. However, on the query of this Court whether respondent No.6 is ready to enhance the amount of the contract, he has got recorded his statement on separate sheet raising the amount of contract to Rs.60 lac instead of Rs.35 lac.

7. I have heard the learned counsel for the parties, and perused the contents of this petition along with the documents attached therewith as well as the parawise comments filed by the respondents. Admittedly. the petitioner had never participated in the proceedings conducted by the Department for the auction of the contract and only has come in this Court with the claim to obtain the same contract at Rs.70,00,000 after the completion of the proceedings in favour of respondent No.6. The cognizance in this case was taken by this Court as the allegation was levelled that earlier same contract was leased out at more than Rs.55 lac, but the said bid was not finalized and later on its was auctioned at the bid of Rs.35 lac in favour of respondent No.6, which has also been finalized. However, this situation has been made clear by the respondents in their comments that the earlier bidders, namely, Dildar Khan on 30-11-2004, Nisar Ahmad on 15-12-2004 and Hameedullah Khan on 29-1-2004, who stood the highest with Rs.50 lac, 51 lac and 55.25 lac respectively, had not deposited 10% security with the fall of hammer as per requirement of Rules and defaulted themselves. Resultantly the earnest money of Rs.50,000 each was forfeited by the Government. According to the respondents due to this situation the amount of earnest money was enhanced from Rs.50,000 to Rs.2,00,000 and now the contract has been granted to respondent No.6 being the highest bidder through open auction conducted on 26-3-2005 for a consideration of Rs.35 lac after completion of all the codal formalities regarding deposit of 10% .of the bid money with the fall of hammer, deposit of 50% after approval/confirmation by the Government and execution of agreement.

8. The petitioner has failed to give any reasonable explanation that how he was aggrieved by the action of the official respondents for awarding contract to respondent No.6 or the proceedings were tainted with mala fides except that it was auctioned at low rates and he is ready to offer Rs.70,00,000 for the same. On the other hand respondent No.6 has enhanced the bid amount to a reasonable extent at Rs.60,00,000 which is more than earlier offered by the other bidders, who according to the respondents later on had not come forward for finalization of the contract. It has been held by the Hon'ble Supreme Court of Pakistan in PLD 2001 SC 116 that though the offer made by the outsider after the conclusion of the auction was quite attractive, yet its acceptance would have not only made a mockery of the procedure prescribed for awarding the contracts, but also opened floodgate of litigation being a blatant abuse of discretion. It has been further held that impugned administrative decision challenged by the party having neither been lacked transparency nor tainted with mala fides, unfair, and unjust or unreasonable nor based on bias or favouritism and the discretion vested in the Authority had been properly exercised structured by reference to objective standards cannot declare to have been performed arbitrarily. The case-law relied upon by the petitioner is not applicable to the facts and circumstances of the present case as in 2003 SCMR 280 the case was that auction for 11 months for the last year was Rs. 11,25,000 while the impugned lease rights were given for Rs.8,25,000 with a net loss of about Rs.4 lac to public exchequer, which was cancelled by the High Court in writ jurisdiction with direction to hold afresh with reserved price of Rs.14 lac and the said decision was upheld by the Hon'ble Supreme Court whereas now due to the changed situation that respondent No.6 has enhanced the bid amount, it cannot be said that any substantial loss is likely to be caused to the public exchequer by the awarding of contract to respondent No.6 as compared to the previous rates. Moreover, it has been explained by the respondents that the rate of the said contract for the previous year was Rs.15.33 lac only.

9. Keeping in view the above dictum laid down by the Hon'ble Supreme Court of Pakistan and also that respondent No.6 has enhanced the bid amount to Rs.60 lac, I dot not find any reason to proceed further with this writ petition, which is dismissed. However, it is directed that now the bid in the name of respondent No.6 shall be finalized at Rs.60 lac. S.M.B./F-48/L Petition dismissed.