2017 PLP 467 (MLD)

ALI AKBAR QURESHI, J.

The petitioners, who deals in the business of ginning and pressing cotton and processing cotton seeds into oil and oil cake, in response of an advertisement published in Daily Khabrain Multan, dated 30.10.2014, whereby the Trading Corporation of Pakistan (Private) Limited (herein after referred the TCP) informed to the interested cotton ginners to file applications if they are interested to sell their stock of cotton lint bales to TCP at the rate of Rs.6,864/- per Maund, filed an application on 14.11.2014 for contract of 600 cotton lint bales, the respondent officials visited the premises on the same day and promised to execute the contract for the said purpose. The petitioners had been visiting the office of the respondent corporation, but all the time, an insurance was given to the petitioners to execute the contract, the petitioners waited for a long time and lastly filed an application to the association namely Pakistan Cotton Ginning Association for the redressal of their grievance and lastly prayed as under:-- "In the light of the foregoing submissions, it is mostly humbly prayed that this Honourable Court maybe graciously pleased to: i. Declare that the sudden ban imposed by respondents Nos.1 and 2 not to purchase further cotton lint bales from remaining applicants is illegal, without lawful authority and of no legal effect; and ii. Declare that the unfair and discriminatory acts of respondents Nos.1 to 5 in awarding the contracts to the selected applicants for the purchase of cotton lint bales are illegal, without lawful authority and of no legal effect; and iii. Direct Respondents Nos.2 to 5 to execute the contract of 600 cotton bales with each petitioner according to the initial policy of Respondent No.1; or iv. As an alternate, direct respondents Nos.2 to 5 to cancel the contracts already awarded and divide the total number of contracted bales into all the applicants of Multan region equally, so that every applicant may get equal share; and v. Refrain respondents Nos.2 to 5 from lifting the cotton lint bales which they have already contracted with selected applicants till the disposal of the instant petition; and vi. Direct respondent No.2 and 5 to present relevant directives of Respondent No.1 through which they started procuring cotton lint bales and then imposed a sudden ban for remaining applicants; and vii. Grants costs of this petition to the petitioner; and viii. Grant such other and further relief to which the petitioners are found entitled in the circumstances of the case."

2. Learned counsel for the petitioners contends, that the petitioners timely filed the applications but without any cause and reason, the petitioners have not been given the contract, whereas on the other hand, the respondent has executed a contract with another ginning factory, therefore, discriminatory treatment is being meted out to the petitioners and the petitioners, in any case, are entitled for the relief prayed through this petition.

3. Conversely, the learned Legal Advisor of respondent department contends that, although the petitioner filed application on 14.11.2014, the officers of the respondent corporation visited the premises on 15.11.2014, but because of the ban imposed by the Federal Government through a letter dated 18.11.2014, it is not possible for the respondent department to execute the contract with the petitioners. Further contends, that the writ is not maintainable, as factual disputes and contractual obligation cannot be agitated in the Constitutional petition. Reliance is placed on Messrs SF Engineering Services through Proprietor v. Federation of Pakistan through Secretary, Water and Power, Islamabad and 4 others (PLD 2014 Sindh 378) and Haqbahoo Corporation v. P.I.A. and others (PLD 2003 Karachi 369).

4. Heard, record perused.

5. It is not denied by the respondent corporation that the petitioners filed applications in response of the advertisement issued by the respondent corporation to execute the contract/agreement to sell the cotton lint bales, the official of the respondent corporation visited the premises of the petitioner on the same day or on 15.11.2014, and by this way, the respondent corporation initiated the process to grant the contract, as it is the mandatory requirement as argued by learned counsel for the parties to inspect the premises but thereafter, the respondent corporation refused to execute the contract to sell the cotton lint bales on the ground, that the Federal, Government conveyed instruction telephonically to the General Manager (Cotton) on 18.11.2014, not to sign further contract for purchase of lint cotton, as the government has decided not to purchase further cotton. In this case, the petitioner filed an application well before the instructions conveyed by the federal government i.e. on 18.11.2014, whereby the TCP was restrained to sign any further contract but on the other hand, it cannot be ignored or overlooked that the petitioner filed the application on 14.11.2014, the respondent put the machinery in motion by visiting the premises of the petitioner, to sign the contract, but thereafter, on a lame excuse, and apparently with mala fide intention and ulterior motive, refused to sign the contract, although the respondent corporation had a sufficient time between 14.11.2014 and 18.11.2014. Further, it is observed here, that the instruction whereby the TCP has restrained to sign further contract has prospective effect and the petitioner, in any case, cannot be thrown out on this ground.

6. Letter dated 25.11.2014 issued by the TCP is reproduced as under:-- "No.TCP/cot/67-13/2014-15 November 25, 2014. The Incharge, Trading Corporation of Pakistan, Cotton Procurement Centre, Plot No.26-30, Industrial Estate, MULTAN Reference Management's instructions conveyed to you by G.M. (Cotton) on 18.11.2014 (evening) on phone not to sign further contracts for purchase of lint cotton for TCP.

2. The government has decided not to purchase further cotton. You are therefore advised not to sign any contract beyond 69,000/- Bales for which you have already contracted.

3. You are also advised to complete the process of sampling of the offered contracted lots for evaluation etc. The lots which are in accordance with the contract specification should be dispatched to Pipri Godown, Karachi without any delay. The bills for adhoc-payment of cotton should also, be processed immediately on completion of documents."

7. The contents of the aforesaid letter, particularly paragraph No.3, shows the intention of the authority who issued this letter. In paragraph No.3, it has specifically been advised to the TCP, to complete the process of sampling of the offered contracts and in this case, the petitioners have offered well within time and particularly before the time of alleged ban, made an offer for contract, therefore, the respondent corporation, even under this letter, is bound to complete the process of sampling etc. to sign the contract in favour of the petitioners.

8. It has also been pointed out by learned counsel for the petitioners during the course of arguments, that the respondent corporation has signed a contract with one Farhan Cotton Ginning Factor and Oil Mills Muzaffargarh bearing contract No.TCP/Cont.Pur/ M/C/2014-15/98 dated 15.11.2014 for the purchase of 600 cotton lint bales. It is deplorable, that the government functionaries i.e. officers of the respondent corporation, ignoring the national interests, granting the contract to the person of their own choice or liking, the respondent corporation has failed to point out any disqualification of the petitioner.

9. The learned Legal Advisor of the respondent corporation has also informed, that the TCP has received 186 applications and awarded contract to 115 applicants but has not given the detail of the applicants or the applications and even otherwise, this is no ground to refuse to sign the contract with the petitioner who approached the respondent corporation well within time and fulfilled all the requirements and conditions of the respondent.

10. An application under Order I Rule 10, C.P.C. has also been filed by one Malik Brothers Cotton Ginning Process and Oil Mills Limited, simply on the ground, that because of the interim relief granted by this court, the respondent corporation is not allowing the applicant, to whom the contract has been given, to proceed further.

11. On the last date of hearing, it was made clear that that injunctive order has been granted in favour of the petitioners only to the extent of 1200 cotton lint bales, therefore, this application is not maintainable, as the order passed by this court is clear and explicit in terms.

12. In view of above, this is allowed, it is held that the petitioners are entitled for the relief prayed by them and the respondent corporation is directed to execute the contract of 600 cotton lint bales with each petitioner according to the policy of the respondent No.1 with no order as to cost. SL/M-144/L Petition allowed.