1985 PLP 178 (CLC)

TANZILUR REHMAN, J. This petition was dismissed by us in limine on 18-7-1984 for the reasons to be recorded later which are as follows:-

2. Briefly, the facts of the case are that in response to an invitation to tender published by the Respondent No.1 in the Daily 'Jang' Karachi dated May 10, 1984 for the supply of Broiler Chicken for the period 1st July, 1984 to 30th June, 1985, the petitioners submitted their tender for the same which was found to be the lowest. Respondent No.1, however, wrongfully awarded the contract to respondent No.2 though their rate was higher than that of the petitioners. Thereupon, the petitioners filed a Civil Suit in the Court of XIV Senior Civil Judge, Karachi being Suit No.2199/84 on 27-6-1984 and were able to obtain an ad interim order of status quo to run until 5-7-1984. The respondent No.1, however, according to the petitioners, violated the status quo order and were continuing to receive their daily supplies from respondent No.2. The petitioners have now chosen to file this Petition on 12-7-1984 in this Court praying therein for the following reliefs:- (a) Declare that the respondent No.l's order/decision/action in assigning the work of brioler chicken supplies to respondent No.2 by respondent No.1 is without lawful authority and to no legal effect and they be further restrained from issuing any requisition such as Purchase/Delivery orders etc. to respondent No.2 for supplying brioler chicken for the specified period. (b) Direct the respondent No.1 to accept the petitioner's tender being the lowest at the closure of the tender for the period 1st July, 1984 to 30th June, 1985 and that the respondent No.1 to take all steps for the purposes of ensuring supplies by the petitioner to the respondent No.1 and to effect all payments for such supplies. (c) A prohibitory injunction to issue to the respondent No.2 restraining them their agents, servants and privies from effecting any supplies under the impugned arrangement, agreement and/or order ostensibly communicated through respondent No.1's letter, dated 28th June, 1984. d) Any other order/direction deems fit and proper in the circumstances of the case alongwith the cost.

3. We have heard Mr.Naseem Farooqui learned counsel for the petitioners. The learned counsel seeks to challenge the action of respondent No.1 to reject the petitioners' tender and to give contract to respondent No.2, claiming that they had the right to be granted the contract for the supply of Brioler Chicken as their bid in tender was the lowest. In this respect the learned counsel has invited our attention to Rule 6.4 at page 2-3 and Rule 3.1 at page 9-1 of P.I.A. Procurement Manual which read as follows:- "6.4. Whenever the lower quotation/tender is rejected and purchase is approved from second or third lowest bidder the reasons for doing so shall be recorded." "3.1. Lowest Tender. The lowest tender will normally be considered for acceptance provided the offered stores are strictly in accordance with the relevant specifications, the offer is complete in all respects, and in case of indigenous manu facture/supply the lowest bidder's capability to produce the goods is not doubtful and the past performance of the firm has been on the whole, satisfactory." On the basis of above rules, the learned counsel for the petitioners contended that no reasons for rejection of their tender were communicated to the petitioners.

4. The contention of the learned counsel for the petitioners has no force. Merely tendering at the lowest rate does not give the petitiners a right justiciable in Court that their tender is to be accepted.

5. In this view of the matter we rely upon the judgment of a Division Bench of this Court reported in P L D 1983 Kar. 340, to which my learned brother K.A.Ghani, J. was a member who while delivering the opinion of the Bench in the case involving the same questions which have arisen in the present petition held as follows:- "............. by giving the lowest bid which was not accepted, the petitioners acquired no legal right to the grant of the contract in view of clause 9 of the 'Invitation of Tender' reproduced above, under which right was expressly reserved by the authorities not to accept the lowest or any other tender. The petitioners thus acquired no legal or vested right as laid down in the case of Rehmat Ali v. The Revenue Board, West Pakistan, Lahore 1973 S C M R 342 and Mohammad Din & Sons v. The Province of West Pakistan P L D 1969 Lah. 823." Repelling the contention raised in that case that under clause 38 of the Sind Purchase Manual, 1977 the authorities were not entitled to accept a tender other than the lowest satisfactory tender without recording reasons for passing over the lowest tender and obtaining the concurrence of the Finance Department/Director of Industries was necessary, it was held that these instructions do not constitute rules or a clause which could be enforced in exercise of the constitutional jurisdiction of the High Court and were in the nature of administrative instructions to its servants how to act in the certain circumstances. Reliance was placed on the case of G.T.Farnandez v. State of Mysore and Others A I R 1967 S C 1753, wherein it was held that the state in its executive powers can give administrative instructions to its servants how to act in certain circumstances and that the instructions contained in the Mysore Works Department Code were mere administrative instructions and not statutory rules and, therefore,even if there was any breach of such executive instructions that would not confer any right on the aggrieved party to apply to the Court for orders in the breach of such instructions. The observation of the learned Calcutta High Court, that rejection of the petitioner's tender which was the lowest was though in contravention of the rules contained in the clauses to the tender form at best comes within the domain of contract, no writ will lie for enforcement of contractual right, was cited with approval.

6. Against the judgment of this Court referred to above, leave to appeal was sought by filing petition (C.P.S.L.A. No. K-330/82). While refusing leave to appeal, the Hon'ble Supreme Court of Pakistan placing reliance on the cases reported as Muhammad Sharif v. Secretary Govenment of Pakistan P L D 1973 S C 497 and Estate Office of Pakistan v. Tahir Hussain P L D 1962 S C 75, held that the regulations made for the internal management and guidance of the Institution/Department has no force of law as statutory rules so that any violation thereof could furnish a cause of action to the petitioners as no claim of statutory right could accrue to the petitioners.

7. In the case reported as Muhammad Sharif v. Secretary to Government of Punjab P L D 1973 S C 497 the Supreme Court refused to give effect to the conditions laid down for promotion to a higher grade of post in an educational institution governed by the Punjab Municipal Act, 1911, on the ground that these conditions for pormotion laid down by the College Governing Council could not be regaded as being in the nature of statutory rules, as the governing council, "could only make regulations for the internal management of the college and such regulations could not acquire the status of statutory rules, so as to be enforced by the High Court in the exercise of its extraordinary jurisdiction under Article 98 of the 1962 Constituion".

8. In the case reported as Estate Office Government of Pakistan v. Tahir Hussain P L D 1962 S C 75 the Supreme Court held that "the Karachi Allocation Rules, 1953 were not statutory rules, but they were internal regulations for the guidance of Estate Office and, therefore, they were mere rules of convenience for the better working of the department. No claim of a vested right could arise out of such rules".

9. In the light of the above authorities of the Supreme Court it is evident that the rules contained in the P.I.A. Procurement Manual have been similarly intended for the internal management of the various offices and the departments of the respondent No.1 and, therefore, have no force of law as statutory rules, so that a violation thereof could furnish a cause of action to the petitioners and moreso in a writ jurisdiction.

10. Moreover, Rule 6.4 at page 2.3 as contained in P.I.A. Manual produced before us, requires that the reasons for rejecting the lowest tender ought to be recorded. It is not the case of the petitioners that no reasons were recorded. Their grievance as submitted before us by the learned counsel for them is only this much that they were not furnished with any reasons. In this respect, we may refer to the advertisement appearing in Daily 'Jang' for inviting tenders. It was clearly stipulated in the said advertisement that the respondent No.1 had a right to reject any or all the tenders "without assigning any reason therefor". Thus, the respondent No.1 was not obliged to assign to the petitioners any reason for rejection of their tender even if it was the lowest. The petitioners cannot, therefore, claim the grant of the contract to them on the basis of their tender being the lowest.

11. The learned counsel for the petitioners relied on a number of cases namely; (1) Arsalla Khan v. Bashir Ahmad Blour and 3 others P L D 1976 S C 581, (2) Haji Noor Muhammad and others v. Karachi Development Authority and 2 others P L D 1975 Kar. 373, (3) Mian Fazal Din v. Lahore Improvement Trust, Lahore and another P L D 1969 S C 223 and (4) Mohammad Akbar v. Mohammad Rafi and others N L R 1981 S C J 292.

12. The first case being Arsalla Khan v. Bashir Ahmed and others has no application to the facts of the present case. In Arsalla's case the question pertained to the illegal exercise of the West Pakistan Municipal Committe Octroi Rules, 1964 whereas in the present case there are no statutory rules which can be said to have a force of law. In fact, the High Court of Lahore had allowed the writ in the said case on the ground of the breach of the statutory provisions namely sub-rule (i) of Rule 225 of the West Pakistan Municipal Committee Octroi Rules, 1964 and the said judgment was upheld by the Supreme Court.

13. The second authority relied upon by the learned counsel for the petitioners in the case of Haji Noor Mohammad v. K.D.A and 2 others has also no relevance to the facts of the present case. In the aforesaid case the Karachi Development Authority Regulations, 1961, framed under the Karachi Development Authority Order V of 1957 were in question. This was thus, a case of the performance of the obligation and function under certain statutory regulations which is not the case here.

14. While relying on the third authority reported as Mian Fazal Din v. Lahore Impovement Trust, Lahore and another P L D 1969 S C 223, the learned counsel invited our attention to the following observations of the learned Judges of the Supreme Court:- "It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilage or liberty or franchise." As we have already observed that the petitioners have not been able to satisfy us that they had a vested or justiciable right and the respondent No.1 were under a legal duty to be performed in a manner required by law which they have failed to perform, the above authority is of no avail to the petitioners.

15. The last cited case namely Mohammad Akbar v. Mohammad Rafi and others is also of no help to the petitioners. The point on which the petition was allowed by the Lahore High Court was that the petitioner was prevented by deceitful means from participating in the auction. This order was challenged in the Supreme Court and leave to appeal was granted by the Supreme Court to determine the jurisdiction exercisable by the High Court under Article 199 of the Constitution.

16. The learned counsel for the petitioners has also challenged the action of the respondent No.1 on the ground of mala fide. The learned counsel for the petitioners has failed to substantiate his contention of mala fide and has failed to produce any material on record to establish a prima facie case for invoking writ jurisdiction on the sole ground of mala fide. Moreover, the question of mala fide on the part of respondent No.1 would have attracted force if the petitioner were able to establish that the action of respondent No.1 was ultra vires to any law or statutory rules and thereby their right had been infringed by respondent No.1. Since the petitioners have failed to establish that there was violation of any statutory rules we refuse to go into the question of mala fide.

17. At the close of his submissions, the learned counsel for the petitioners submitted that the civil Court, where the civil suit is pending, had issued an ad interim injunction against the respondent No.1 which has been flagrantly violated by the respondents. This Court, therefore, in exercise of its inherent jurisdiction should take notice of the breach of the injunction order. In support of his contention he relied on Bakhtawar etc. v. 'Ameen etc. P L D 1980 S C 252.

18. We regret that we are not impressed by his last submission too, and are not inclined to invoke writ jursidiction to redress the alleged grievance. The petitioners, on their own showing, have filed an application under Order XXXIX, rule 2(3), C.P.C. for Contempt of Court which is pending before the same Court who had issued the injunction order and the breach of whose order is complained. Moreover, the petition does not contain any such prayer. Let the procedure laid down in the Code of Civil Procedure, 1908 take its own course.

19. For the aforesaid reason, there is no merit in this petition which has been dismissed by our short order. M.Y.H. Petition dismissed.