1990 PLP 2329 (MLD)

MUNAWAR AHMAD MIRZA, ACTG. C J.‑‑Facts briefly stated are that respondent No.1 invited tenders for supply of Mazri Cloth measuring 8,00,000 meters (eight hundred thousand meters). Specification of cloth was also given in the tender notice. It is the case of petitioner that he submitted tender before the stipulated date i.e. 15‑8‑1989. Respondent No.2 was rival contender who also filed tender within prescribed period. Petitioner has alleged that private respondents were not legally qualified for the grant of contract regarding supplying of Mazri Cloth to respondent No.1. According to him quality of cloth offered by private respondent was much inferior to the samples of petitioner. Despite all these factors, private respondents by means of fraud, misrepresentation and concealment of facts dishonestly through co‑operation of officials from Frontier Corps, manoeuvred the sanction, for supply Mazri Cloth at higher rate than even quoted by them. Petitioner, thus claimed to have been deprived of his legal rights. However, following relief has been prayed for in the petition. "It is prayed, therefore, that the action of the respondent No.1 in accepting the Tender offer of the respondent No.2 in violation of the Applicable Regulations and in violation of the terms of the Tender Notice, may kindly be declared as mala fide, without lawful authority and of no legal effect. It is further prayed that respondent No.1 may kindly be restrained from accepting any Mazri Cloth under such accepted tender from the respondents Nos. 2 and 3 and he may kindly be directed to consider impartially and justly the offer of the qualified tenders, including the petitioners."

2. Petition was vehemently contested by all the 3 respondents. Respondent No.1 in the counter‑affidavit raised preliminary objections that (i) petition suffers from laches, (ii) supply of required Mazri Cloth having already been completed, petition is infructuous, and (iii) petitioner has no locus standi in the matter. Besides, factual aspects were also strongly repudiated. It was explained that quality of the Mazri Cloth obtained from private respondents was superior than offered by the petitioner. Respondents Nos. 2 and 3 also emphatically denied the claim in the petition. It was asserted that there existed disputed questions of fact which could not be resolved through Constitutional petition. It was explained that contract was granted to private respondents purely on merits and without element of fraud or misrepresentation as wrongly alleged in the petition. Referring to Letter No.705‑11/HAM/ORD dated 19‑5‑1990, it was pointed out that required quantity of cloth has been supplied, whereas contract for remaining quantity 49,500 meters, stood revoked, therefore, petition ex‑facie was not maintainable.

3. Mr. Khalid Malik learned counsel for petitioner seriously criticised propriety of awarding contract to private respondents. He emphasised that petitioners were deprived of their legal right for, supplying cloth to respondent No.1 by virtue of dishonest, conduct, fraud, active concealment of facts, and misrepresentation of private respondents as well as, officials of Frontier Corps. He further argued that prescribed procedure for awarding contract and financial rules have also been violated in the matter, merely to provide undue advantage to private respondents.

4. Mr. M. Riaz Ahmad learned Standing Counsel appearing for respondent No.1 strenuously contended that no illegality or impropriety was committed in awarding contract to private respondents. He maintained that according to petitioners' own showings in para. No.4 of petition, the rate of Mazri Cloth per meter supplied by private respondents to respondent No.1 is lower than offered by petitioners. Thus, petitioners have absolutely no locus standi to agitate their grievance through this petition.

5. Mr. Tahir Muhammad Khan learned counsel for private respondents canvassed that petition has become infructuous because subject‑matter of contract has already been supplied and there is nothing now which could be granted to petitioners by this Court.

6. We have carefully considered the arguments advanced by learned counsel for parties in the light of available record.

7. Firstly it may be seen that severs! disputed questions relating to quality of Mazri Cloth or eligibility of petitioners or private respondents for being qualified as contractors for making supplies to Frontier Corps etc. have been raised. It is well‑settled that controversy regarding facts needing inquiry cannot be normally determined by invoking Constitutional jurisdiction.

8. Secondly, it is an admitted position that quantity of Mazri Cloth factually required by respondent No.1 has already been supplied by private respondents. Therefore, relief challenging validity of tender filed by private respondents or irregularity about its acceptance has lost its significance. Similarly direction to consider petitioners for granting said supplies has obviously become infructuous because transaction for supply of Mazri Cloth is past and closed for all intents and purposes.

9. Thirdly, petitioners have merely alleged, mala fide, fraud and misrepresentation on the part of respondents. Evidently onus was entirely upon person making such assertions and no presumption in that behalf can at all be drawn. However, except vague suggestions, there is absolutely nothing on record to establish factum of fraud, misrepresentation or mala fides etc. It is well‑settled that enquiry for ascertaining these aspects cannot be launched while deciding Constitutional petition. In the circumstances relying upon principle discussed in case Federation of Pakistan v. Saeed Ahmad Khan P L D 1974 SC 151 we are inclined to hold that aforesaid contention has no legal force, and must fail.

10. Fourthly, assertions relating to improper procedure adopted by respondent No.1 for granting supplies of Mazri Cloth to private respondents, now remains to be purely, matter of academic discussion. In our opinion when effective relief cannot possibly be granted, mere determination of factual aspect or interpretation of rules or procedure either for academic interest or future prevention of likely violation cannot be sought by invoking Constitutional jurisdiction. Since cause of action has ceased to exist, therefore, question with regard to interpretation need not be gone into.

11. For the aforesaid reasons, we find no force in the petition, which is accordingly dismissed. However, parties are left to bear their own costs.

12. This petition was decided by our short order of even date and above are reasons for the same. A.A./353/Q????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.