2012 PLP 743 (CLC)

NISAR HUSSAIN KHAN, J.

Through this common judgment, I propose to decide two Civil Revisions, bearing No. 285 of 2011, titled "Anwar Khan v. Lal Qadir" and C.R. No. 327 of 2011, titled "Provincial Government v. Lal Qadir", arising out of the two judgments of learned Additional District Judge, Karak, dated 14-9-2011, based on same facts, whereby both the appeals filed by Anwar Khan and the Provincial Government, through Secretary Government against same order of Civil Judge-I, Karak, dated 18-8-2011, were dismissed.

2. The stated facts of the case are that Tehsil Municipal Administration, District Karak, invited tenders for auction of contract of collection of taxes in different disciplines from the qualified contractors, through publication in newspaper. In pursuance of this advertisement, Lal Qadir Respondent No.1 along with others participated in the auction of contract for collection of taxes of "load-unload". One Naimatullah being top bidder was declared as successful bidder and was directed to deposit 15% of the total amount of the contract in advance, but he did not comply with. Thus Lal Qadir being second top bidder was declared as successful bidder, who complied with all the terms and conditions of the contract and as consequence, was issued work order, vide letter No.1199-TMA, dated 24-6-2011, and then vide Order No.1210-TMA/KK, dated 30-6-2011. In pursuance of these orders, Lal Qadir took charge and started operational work of his contract. Later on, the same contract was given to Anwar Khan, petitioner, vide Order No. AO-II/LCV/ 9/25/2011, dated 23-7-2011, while he did not participate in the auction proceedings of 24-6-2011. Against this order of the Provincial Government Lal Qadir filed a suit for declaration, perpetual and mandatory injunction. He also filed an application for issuance of temporary injunction along with plaint for restraining the defendants from implementation of order in favour of Anwar Khan and interference in the order issued in his favour. The defendants Anwar Khan and TMA filed their written statements and replication. After hearing the arguments of the parties, learned trial Court accepted the application of plaintiff for grant of temporary injunction. Against this order, Provincial Government and TMA filed Appeal No.66/13, while Anwar Khan filed a separate appeal registered as 15/14. Both these appeals were dismissed by the learned appellate Court on 14-9-2011. Hence, the instant Civil Revision Petitions.

3. Learned counsel for the petitioner argued that petitioner was restrained from participation in auction proceedings by "Khattak Ittehad" that is why he submitted an affidavit, on the basis of which the said contract was allotted to him against enhanced bid of Rs.3000000/- (Thirty Lac) against Rs.2370000/- offered by plaintiff. He further contends that TMA has followed the Local Council Contract Rule 1980, which were later on adopted by the Tehsil Municipal Administration. Thus both the Courts below have granted temporary injunction in violation of S.54 of Specific Relief Act.

4. Learned counsel for the Govt. of K.P.K and the TMA argued that the order of TMO, in favour of plaintiff now respondent, dated 30-6-2011 is indicative of the fact that it was operative till further order. So it was rightly superseded by issuance of order in favour of the petitioner Anwar Khan. He further argued that no agreement in pursuance of bid of Lal Qadir was executed between the competent authority and Lal Qadir and till yet no tax has been paid by the Lal Qadir. So he has got no right to collect Taxes of "Load-unload"; the approval letter dated 23-7-2011 has rightly been issued in favour of Anwar Khan, who offered higher amount, than that of Lal Qadir; that the subject-matter involved in the instant case was a money matter, which does not come within the ambit of irreparable loss. So, both the Courts below have committed gross illegality by issuing orders of temporary injunction, when pre requisite of prima facie case, balance of convenience or irreparable loss do not co-exist. Hence, the impugned orders are liable to be set aside.

5. Learned counsel for the respondent, while controverting the arguments of learned counsel for petitioners in both the C.Rs., argued that the whole amount of taxes has been deposited. In this regard he produced receipts. Learned counsel further argued that Lal Qadir plaintiff, now respondent was entitled to the contract being the second highest bidder of the contract, who participated in auction proceedings, as the top bidder Naimatullah refused to enter into the contract. While the authorities have wrongly and illegally granted the contract to Anwar Khan, who did not participate in the auction proceedings at all. So, it was a deal made under the table, which could not have been sanctioned by the Court. Thus orders have been legally and lawfully passed by restraining the petitioner from interference in the contract of Lal Qadir respondent.

6. Arguments of learned counsel for the parties heard at length and record perused with their valuable assistance.

7. The perusal of the record transpires that an advertisement was floated in the news paper, whereby tenders were invited from duly qualified contractors for auction of collection of taxes of different disciplines by T.M.A, Karak. In pursuance of this advertisement, Lal Qadir plaintiff, now respondent, Naimatullah and others participated in the auction proceedings, after due compliance of terms and conditions of the bidding. It appears that Naimatullah was the highest bidder of collection of taxes of "load-unload", while Lal Qadir was second highest bidder. When Naimatullah refused to honour his own bid, then Lal Qadir was offered the contract, being highest bidder, after Naimatullah, which was accepted by him. In pursuance thereof, he fulfilled all the legal formalities by depositing the required amount for obtaining the contract, as a consequence whereof, Letter bearing No. 1199/ TMA/ KK, dated 24-6-2011, was sent to the Secretary Local Council Board, K.P.K, Peshawar, by T.M.O/ Administrator, TMA, Karak with the remarks that the official bidding was Rs.20,00,000/- and the Lal Qadir has offered bid of Rs.2370000/-, which is 18.5% above the official bid, which is reasonable, so was recommended for approval. Lal Qadir, respondent was informed vide Letter No.1210/TMA/KK, dated 30-6-2011, that he should take over the charge of contract of collection of taxes of "load-unload" from 1-7-2011, positively, being highest bidder, by T.M.O, Karak. So, he complied with the said direction, took over the charge and started collection of the tax of "load-unload", which is still under his charge as per statement of the counsel of the parties at the Bar. It appears from the record that Anwar Khan, petitioner submitted an affidavit on 12-7-2011, on the basis of which letter of approval of contract for collection of Tax of "load-unload" for the year 2011 -12 was issued by the Deputy Secretary-III, Local Council Board on 23-7-2011, in his favour. There is nothing on the record to substantiate that under which provision of law and under what circumstances, the whole process of auction of the said contract was upset and Anwar Khan was granted contract on the basis of a simple affidavit, who did not even participate in the auction proceedings. The only circumstance, which can be gathered from the documents is that he has been granted contract against an amount of Rs.30,00,000/-(thirty lac) higher than the bid of Lal Qadir, respondent. If it was so, the competent authority could have better re-advertise the contract and allow all the concerned interested parties to participate in the open auction and then to assign the contract in favour of highest bidder. But the authority has adopted a novel way, which has got no blessing of their own rules of business. Likewise, it is also against all the norms of natural justice, equity, fairplay, good conscious and openness. Article-II, of the Model Terms and Conditions for the contracts issued by the Govt. of KPK, Local Government Department to all the D.C.O's and T.M.Os on 21-4-2011, vide Letter No.AO-II/LCB/6/11/2011, clearly provides that, if no reasonable bid is offered, then another advertisement be got published in renowned and widely circulated newspapers for auction of the contract. Which has been clearly violated by the authorities by granting contract to Anwar Khan, petitioner. Likewise, Article (XIV) of the same terms and conditions stipulates that private negotiations of offers with the contractors, in the local council, on fall of hammer, after completion of auction proceedings shall be avoided. But authorities also did not adhere to this condition, imposed by the competent authority and circulated to all concerned. In this view of the matter, letter of approval issued in favour of the petitioner does not enjoy the legal sanctity.

8. The plaintiff/respondent, in light of the above mentioned legal and factual position, has got a good prima facie case. It is admitted at the bar that he had taken over the charge since 1-7-2011 and collecting the taxes in pursuance thereof and has also deposited all the dues of TMA till date, so balance of convenience also leans in his favour. He being the registered contractor has participated in the auction proceedings and has succeeded in obtaining contract after due compliance of all the codal formalities. A valuable right has accrued in favour of plaintiff, after taking a decisive step of issuance of work order and taking over charge by the plaintiff. Which cannot be taken away by the authority on the principle of locus poenitentiae. The plaintiff is collecting taxes of "load-unload" for last six months and has also deposited the agreed taxes and thereby has discharged the contractual obligation. Award of contract to the petitioner in the circumstances is vividly colourful exercise of powers, which cannot be approved on any ground whatsoever. While almost half of the period of contract of respondent has already expired. So, at this stage, by dislodging him from his present position would tarnish his image of a professional contractor, for the cause of a person, who has not participated in auction proceedings at all. This would cause him an irreparable loss of his goodwill, which cannot be compensated in terms of money. So both the Courts below have rightly passed the orders of temporary injunction.

9. For what has been discussed above, both these petitions fail, as no misreading and non-reading of evidence or any illegality or material irregularity has been pointed out, which may warrant interference of this Court. As such, both the petitions are hereby dismissed, with no order as to costs. M.H./300/P Revision dismissed.