2009 PLP 1994 (YLR)

IQBAL HAMEED-UR-RAHMAN, J.

Through this petition, the petitioner has called in question the tender issued on 28-3-2009 by respondents Nos. 1 to 3.

2. It is contended by learned counsel for the petitioner that the petitioner and others are registered contracts of Tehsil Municipal Administration Sheikhupura, and respondents Nos.1 and 2 invited tenders for development program for the year 2008-2009 vide Daily Express dated 19-3-2009 for 28-3-2009 but it is alleged that on the said date, no tender was issued to any one and the same is stated to be reflected through Annexure-B report regarding tendering process of TMA Sheikhupura by the District Officer Co-ordination Office, Sheikhupura; that On the said date, not a single tender. was issued by the officer of the T.O. (I & S) and in view of the same, the petitioner seeks the cancellation of the tendering process held on 28-3-2009 by respondents Nos.1 to 3 on the ground that the said tenders had been issued to favourites on political basis against heavy cost, which is in violation of the rules of the Local Government, thus, depriving the petitioner and others of their genuine and lawful rights. It is further contended that in fact no tender had been issued on that date, as is apparent from para 3 of the comments filed by respondent No.5, wherein it is stated that the tenders had been delayed till 2-15 p.m. on 28-3-2009 and that the tenders were also opened on 30-3-2009 and the said admission fortifies the stand of the petitioner.

3. On the other hand, the contentions of learned counsel for the petitioner have been opposed by learned counsel for the respondents. It is stated that in the early hours of 28-3-2009, a rumour was spread that a party had filed a suit and obtained an injunctive order and in view of the same, the tender was delayed in order to avoid complications and when it was confirmed that no stay order has been granted, the tendering process was duly started at 2-15 p.m. on 28-3-2009 and continued uptil 5-00 p.m. It is further stated that 1360 tenders were filed along with the deposits and 920 tenders were made and the petitioner had also duly participated in the same and made signatures on the list of attendance of the contractors and submitted tenders along with the deposit of money and the receipts in original along with the tender submitted by the petitioner have been produced before this Court. It is further stated that the petitioner fully participated in the proceedings and on account of being on the higher side, his tenders were rejected and on rejection of the said tenders, the petitioner filed instant petition with mala fide intention in order to frustrate the same. It is further stated that according to section 190 of the Punjab Local Government Ordinance, 2001, appeal is provided within 30 days and the petitioner instead of filing appeal has filed this writ petition, as such, the same is not maintainable and the petitioner had the alternative remedy of filing an appeal within 30 days but he failed to do so and that the instant writ petition had been filed exactly after the expiry of 30 days, as such, other participants have earned vested right. It is further stated that the matter has attained finality due to the non-filing of the appeal, as such, this has become a past and closed transaction and without impleading 920 participants in the instant writ petition, no relief can be given to the petitioner, as such, prayer sought for by the petitioner cannot be granted at this stage as it will start a chain of litigations and this will be a precedent and would adversely affect the development works being carried out by the respondents.

4. I have heard learned counsel for the parties as well as the learned A.A-G. and have also perused the material available on the file.

5. It is quite clear that the petitioner duly participated in the tenders, as is evident from the deposit receipt as well as the tender forms submitted by the petitioner and the list of the attendance of the contractors, on which the petitioner had signed, therefore, the assertion of the petitioner that no tenders were issued on 28-3-2009 completely falls to the ground when the petitioner himself has participated in the said proceedings, as such, he has not approached this Court with clean hands and he has made 'material concealment from this Court. It is apparent that the tender proceedings were duly initiated on 28-3-2009 and tenders forms were issued after the rumours regarding the injunctive order by the Court had been found to be false alarm and thereafter, the tender proceedings were duly conducted on 28-3-2009 uptil 5-00 p.m. and on30-3-2009 works orders were issued to 920I.0 participants.

6. In view of the above, the petitioner has participated in the tenders. He had the remedy of filing an appeal under section 190 of the Punjab Local Government Ordinance, 2001. The petitioner had not filed any such appeal and it is after the expiry of a period of 30 days, as prescribed in rule 3 of schedule 1 of column 3 of the Punjab Local Government (Appeal) Rules, 2002, that the instant writ petition has been filed. This writ petition is not maintainable in view of the alternative remedy available to the petitioner. Moreover, the petitioner has not challenged through this writ petitioner any violation of law and only factual controversies have been disputed and such controversies cannot be taken up in the constitutional jurisdiction of this Court. 6-A. In view of the above perspective, this writ petition being not maintainable and having no merits, is dismissed. M.Y./J-21/L Petition dismissed.