P L D 1973 Lahore 733 (PLP)

The petitioner, who represents an Austrian supplier has, through this petition, impugned the decision of the Railway Board‑respondent No. 1 to award a contract of supply of railway material (steel rails) to the respondent who represents an American supplier. Tenders were invited. Several parties including the petitioner and respondent No. 2 submitted the tenders. The Board has accepted the respondent's tender to which the petitioner's grievance is that this acceptance is, due to various objections mentioned in detail in the petition, against the law including the Railway Code relating to the Stores Department Issued under the authority of the Government of Pakistan, Ministry of Communication (Railway Division) and the Instruc tions for the guidance of the tenderers issued by the Board itself in pursuance of the directions contained in the Code.

2. The Railway Board has submitted a report and parawise comments in which, in addition to some preliminary objection, reply has been given on merits to the objection relating to the acceptance of the tender. On the question of interim relief, notice was issued. At this stage, I have had the advantage of hearing at some length the learned counsel both for the petitioner and the Railway Board. In view of the order that T propose to pass it is not necessary to give findings on the merits of the objections raised by the petitioner to the acceptance of the tender of respondent No. 2. ,

3. Assuming for the sake of argument that there is some substance in the objections the main question that arises is whether under Article 201 of the Interim Constitution the petitioner has a locus standi to file this petition and also` whether the petition is otherwise maintainable as it relates to a contract.

4. Learned counsel for the petitioner has relied on The Province of East Pakistan v. Kahid Dhar Roy and others (P L D 1964 S C 636), Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (P L D 1969 S C 223), Muhammad Ashraf v. Board of Revenue, West Pakistan and an other (P L D 1968 Lah. 1155), Dr. A. N. M. Mahmood v. The Syndicate of the University of Dacca and others (P L D 1970 Dacca 85) and some of the observations in Abida Khatoon v. Mian Ghulam Shabbir, Settlement Commissioner, Multan Division, Multan (P L D 1964 S C 793). In support of his two main conten tions, learned counsel for the Board has relied on Estate Officer, Government of Pakistan v. Syed Tahir Hussain (P L D. 1962 S C 75), Masudul Hassan v. Khadim Hussain and another (P L D 1963 S C 203), Mst. Fahmida Nayyar v. Government of West Pakistan and another (P L D 1963 Lah. 352). S. Sajjad Haider v. Government of West Pakistan and another (P L D 1967 Lah. 938). Messrs Saadullah Khan & Bros. and another v. 7 he Province of West Pakistan and another (P L D 1971 Quetta 101) and the main ruling in the case of Abida Khatoon which has also been cited by the learned counsel for the petitioner.

5. At this limine stage, the stress of the learned counsel for the Board is on two arguments. Firstly, that the petitioner does not fall within the accepted definition of "aggrieved party" the expression used In sub‑Article 2(a) of Article 201 of the Interim Constitution. And secondly, that the Instructions for the submis sion of tenders and for that matter the Railway Code cannot be treated as law with binding effect on the Board and that the Railway Board being the final authority and being a contracting party, its action in this behalf is not amenable to Interference: under Article 201.

6. Both on the F. O. B. and C. & F. basis, the petitioner prima facie is not the lowest tenderer. This position has been specifically asserted in pars. 7 (page 11) of the parawise comments submitted by the respondent‑Board, in the following words:‑ "It is correct that the Austrian firm's tender was not found to~ be suffering from any procedural flaw but it is absolutely incorrect that this firm's offer was the lowest either on C & F or F. O. B. basis. It may be mentioned that the lowest F. O. B. offer was of M/s. Wasiullah & Co., Karachi at U. S. $148.76 whereas the next lower was that of the United Steel Co. of U. S. $159.47 as compared to Austrian firm's offer at U. S. $

163. Similarly on C & H basis, the Austrian firm is the third lowest." Learned counsel for the Board, after consulting the record, gave the C & F figures as 170‑Jaffar Brothers; 177‑Wasiullah & Co.; and 182 the petitioner. On the basis of these facts, it has been argued that there was no chance or hope of the petitioner's tender being accepted; therefore, he has no personal interest whatsoever, in the matter and thus is not an aggrieved party. Learned counsel for the petitioner conceded that if the grievance was only that' the tender of the petitioner should have been accepted then the petitioner has no locus standi to file this petition; but if the attack is on the legality of the action of the respondent on the basis of the alleged contravention of certain rules and instruction& which have the force of law, then the petitioner as a tax‑payer and also as citizen of Pakistan has a locus standi to challenge that action. He also, in the alternative, contended that there are flaws in the tenders submitted by M/s. Wasiullah & Co., and the United Steel Co. and further that Wasiullah's tender is not lower than that of the petitioner) therefore he had a chance of success.

7. The position taken in the alternative has not been specifically taken in the petition and is an afterthought. That is probably why Wasiullah and United Steel Co. have not been impleaded as respondents. Moreover, the decision on this alternative contention needs elaborate scrutiny of tenders and other evidence. The petitioner cannot succeed on the basis of this contention in writ jurisdiction. I, therefore, overrule the same.

8. It is interesting to note that on the question of locus standi the position taken by the petitioner in writing in the rejoinder is as follows:‑ "The petitioner is not asking for the acceptance of his tender. He is merely asking for the consideration of all valid tenders and for the exclusion of such offers which are not in accordance with the instructions. (Para. 3, page 6). It may also be pointed out that the loan is not the personal property of the Railway Board nor is it a gift by the World Hank. The Loan is repayable with interest, and it is burden which is to fall on the shoulders of the common citizen. Every person interested in the proper utilization of this loan shall therefore, be entitled to object to the illegal methods adopted by the Railway Board for the utilization of funds. (Para. 4 (c), page 9). Petitioner is not seeking for the acceptance of his tender. His case is that Messrs Jaffer Brothers had not submitted a tender in accordance with law and therefore, no question of' acceptance or rejection of this tender arises. The petitioner asserts that Messrs Jaffer Brothers respondent No. 2, must be excluded from the list of tenderers in this case and the valid tenders should alone be considered by the concerned authori ties." (Para. 4 (f), page 13).

9. Their Lordships of the Supreme Court were pleased to observe in the case of Mian Fazal Din "that the right considered sufficient for maintaining the proceedings of this nature is not necessarily a right in the strict juristic sense but it is enough if the appellant discloses that he had a personal interest in the performance of the legal duty which if not performed or per formed 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". Leaving aside the distinction in so far as the facts are concerned, the governing principle in the matter of locus standi under Article 98 of the 1962‑Constitution of Art. 201 of the Interim Constitution) to file a writ petition has been laid down in this ruling in no uncertain terms. In my view, their Lordships have, to the extent it was possible, given the widest interpretation of the expression "aggrieved party" On the face of the assertions made in this case, the petitioner is not the lowest tenderer and unless his position is so, he cannot claim any benefit nor can he hope that his tender would be accepted. It cannot be said that he has suffered the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. It is not necessary to discuss the other authorities on this point. I, therefore, hold that the petitioner not being an aggrieved party has no locus standi under Article 201 to file this petition. It merits dismissal in limine and I order accordingly.

10. In view of the decision on the question of locus standi, it is not necessary to discuss in detail the second argument raised by the learned counsel for the Railway Board. It, however, should not be assumed that I have even indirectly accepted the argument; namely that even if the criticism on the acceptance of the tender of respondent No. 2 by the Board on factual side were valid, this Court would not have any jurisdiction under Article 201 simply because the Board was acting under any instructions which it could change and or that it was a matter of discretion with the Board to enter into a contract with one or the other party or, for that matter, the final approval of the World Bank on the acceptance of the tender having been obtained In this case, the Courts in Pakistan could not interfere. There is sufficient Case -law on the point that some instructions, even If not framed or Issued in the form of rules and in spite of their being subject to change or amendment, can be binding on the State function aries as rules/law. The change of such instructions for the) purpose of one case may not be entirely legal. The action or a State functionary entering into an ordinary contract with a party in any matter concerning the Government is different from enter ing into a contract through the process of tenders. The basic concept of financial dealing in the latter case is different from the former. Any serious contravention of the rules/instructions in the latter case might set at naught the entire concept. When rights are involved, such contravention may not be accepted as a lawful act or as falling within the discretion of the State functionary; as it would lead to most serious consequences both legal? and factual. The functionaries would be well‑advised in their own interest not to contravene the rules and Instructions which have been laid down with care to safeguard the interests of the State (public exchequer) and the citizens including the dealing parties. In proper competently instituted proceedings, the Court will not hesitate to interfere particularly if in addition to the contravention of the above type, there is allegation of mala fides. And in the latter case, it may be neither unlawful nor improper for the Court, while interfering for the purpose of correcting the error, to further direct that the loss suffered by the public exchequer and/or by a citizen be compensated personally by the defaulting public functionaries. With these remarks and with the above order, this petition stands dismissed.

11. Copy, if applied for, shall be supplied immediately. K. B. A. Petition dismissed.