ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
C.P.No.D-416 of 2009.
DATE ORDER WITH SIGNATURE OF JUDGE
1. For Katcha Peshi.
2. For hearing of MA 1852/09.
Date of hearing: 06.04.2010.
Date of Order: .04.2010.
Mr. Jhamat Jethanand, Advocate for petitioner.
Mr. Anwar H. Ansari, Advocate for AAG.
Mr. Noorul Haq Qureshi, Advocate for respondents No.3 and 4.
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AQEEL AHMED ABBASI, J- Through instant petition, the petitioner has impugned the letter dated 25.6.2009 issued by Director Left Bank Canals AWB Badin on the ground that same is issued without lawful authority.
Brief facts leading to filing of instant petition are that petitioner is a holder of license No.694 Category C-One valid till 31st December 2010 issued by Pakistan Engineering Council Islamabad and carrying the construction business under the name of M/s Pritamdas Civil Engineer Contractor. The respondents invited applications for pre-qualification under Public Procurement Regulatory Authority Rules 2004 for starting the work of Stone Pitching Kazia Branch R.D.39 to 40 both sides and Retaining wall along Kazia Branch RD-40 to 43.3 both sides vide public notice published in newspaper Daily Kawish dated 27.5.2009. The petitioner alongwith other contractors applied for pre-qualification. Since the rates offered by petitioner were lowest, the respondent No.3 recommended to respondent No.2 for sanction of petitioner’s tender vide letter dated 23rd June 2009. (Copy annexed as Annexure ‘J’ at Page 43). Thereafter, respondent No.2 vide order No.4216 dated 24.6.2009 sanctioned the tender of petitioner per total amount of Rs.71,217,585/- (Copy of order is annexed as Annexure ‘K’ at Page 45). Thereafter, the tender agreement was executed which is available as (Annexure ‘L’ at Page 47 to 61). It appears that thereafter inspite of repeated requests by petitioner to respondent No.4 seeking work order, the said respondent did not acceed to such requests and on the contrary issued the impugned letter dated 25th June 2009, intimating cancellation of the tender.
Notices were directed to be issued to the respondents. In response whereof, the respondents No.3 and 4 filed their comments through their counsel Mr. Noorul Haq Qureshi whereas learned State Counsel also filed comments on behalf of respondents No.2,3 and 4.
The learned counsel for the petitioner argued that once the offer is made and accepted and all the codal formalities have been completed, the parties are bound to perform their part of contract and cannot be allowed to wriggle out from their contractual obligation. According to learned counsel for petitioner, the respondents, without assigning any reason, have cancelled the tender in order to accommodate their favourites. On a query of this Court about maintainability of this petition, the learned counsel for petitioner submitted that there is no adequate efficacious remedy except to file this petition. It was further argued that since the respondents are public functionaries hence the instant petition is maintainable whereby this Court can direct the respondents to perform their functions and duties in accordance with law. The learned counsel stated that petitioner had arranged for labour and also called the equipment required at site hence remained pre-occupied in prepatory work and complying with the legal formalities but on account of arbitrary act of respondents, the work could not commence, hence caused serious prejudice and loss to the petitioner. It was argued that the respondents be directed to perform their part of contract and issue work order to the petitioner. In support of his contentions, the learned counsel has placed reliance on the following cases:-
1. Owaisco Vs. Federation of Pakistan and others (PLD 1999 Karachi 472).
2. Messrs Ramna Pipe and General Mills (Pvt.) Limited Vs. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others (2004 SCMR 1274).
3. Messrs Shams and Brothers Vs. Government of Pakistan and others (2007 YLR Karachi 161).
4. Maqsood Khan and others Vs. Province of Sindh and others (2007 YLR Karachi 28).
5. Ayaz Builders through Partner Vs. Karachi Water and Sewerage Board through Managing Director and 2 others (2007 CLC 728).
6. Balochistan Construction Company Vs. Port Qasim Authority (SBLR 2001 Karachi 661).
The learned counsel for respondents No.3 and 4 duly assisted by learned State Counsel vehemently opposed the maintainability of this petition as according to them, the petition is liable to be dismissed on the ground that the contractual rights cannot be enforced through writ petition. It was further contended that specific performance of a contract cannot be enforced in constitutional jurisdiction. Learned counsel further stated that there is no malafide on the part of respondents nor the petitioner has been discriminated or suffered any loss on account of cancellation of tender which could not be acted upon on account of unavoidable circumstances at the preliminary/initial stage. In support of their contentions, reliance has been placed on the following cases:-
1. Messrs Momin Motor Company Vs. The Regional Transport Authority, DACCA and others (PLD 1962 Supreme Court 108).
2. Amir Afzal Vs. Government of Punjab and others (2003 MLD 759).
3. Zonal Manager, U.B.L and another Vs. Mst. Perveen Akhtar (PLD 2007 Supreme Court 298).
4. Shah Wali and others Vs. Ferozuddin and others (2000 SCMR 718).
5. Mst. Kaniz Fatima through Legal Heirs Vs. Muhammad Salim and 27 others (2007 CLC 728).
We have heard learned counsel for the parties, perused the record and examined the case law relied upon by the parties hereinabove.
On tentative assessment of record, it appears that contract awarded to the petitioner could not see the light of the day as before the work could be awarded by respondents to the petitioner on the basis of tender issued in favour of petitioner, the same was cancelled vide impugned letter dated 25.6.2009. It will be advantages to reproduce the contents of letter for the sake of brevity and convenience:-
“The tenders were called under this office letter No.Asstt:/G-2/LBCAWB/1815 dated 15.06.2009 from above pre-qualified contractors. The same are now cancelled due to unworkable site conditions and short period left in current financial year 2008-09. The same will again be recalled later on through note-able newspapers.”
On perusal of the above letter, it appears that there were about nine contractors including the petitioner who were awarded tenders which appears to have been cancelled on account of “unworkable site conditions and short period left in current financial year 2008-09”. It has been further mentioned in the said letter that “the same will again be recalled later on”. It appears that on issuance of said letter only the petitioner has felt aggrieved whereas rest of the contractors appears to have not challenged such cancellation before any Court of law. As to a query of this Court, regarding the valuation of damages, if any, to the petitioner on account of cancellation of such tender by respondents, the petitioner states that his reputation has been affected by said cancellation of tender. He further stated that labour and other material was arranged for undertaking such construction. However, the learned counsel could not produce anything on record to show the claim of any damage to the reputation of the petitioner or any financial loss undertaken on this account. On perusal of provision of Section 21 of Specific Relief Act, it appears that there are certain situations visualized by legislation whereby specific performance of contract has been denied. Provisions of Section 21 of Specific Relief Act are hereby reproduced for the sake of brevity and convenience:-
“21. Contracts not specifically enforceable. The following contracts cannot be specifically enforced:
(a) a contract for-performance of which compensation in money is an adequate relief;
(b) a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms;
(c) a contract the terms of which the Court cannot find with reasonable certainty;
(d) a contract which is in its nature revocable;
(e) a contract made by trustees either in excess of their powers or in breach of their trust;
(f) a contract made by or on behalf of a corporation or public company created for special purpose, or by the promoters of such company, which is in excess of its powers;
(g) a contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date;
(h) a contract of which a material part of the subject-matter, supposed by both parties to exist, has, before it has been made, ceased to exist.
Similarly on perusal of provisions of Section 22 of the Specific Relief Act, it emerges that seeking specific performance of a contract is the discretion of the Court. Even in the case where it is lawful to do so. The provisions of Section 22 of Specific Relief Act are reproduced hereunder for the sake of brevity and relevancy:-
“22. Discretion as to decreeing specific performance:- The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.
The following are cases in which the Court may properly exercise a discretion not to decree specific performance:
1. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff’s part.
2. Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff.
3. Where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance”.
In the judgment of Messrs Momin Motor Company Vs. The Regional Transport Authority, DACCA and others (PLD 1962 Supreme Court 108), a full Bench of this Court has held that “contractual rights, if any, are not enforceable by the Courts through writ jurisdiction.” In case of Amir Afzal Vs. Government of Punjab and others (2003 MLD 759), the same principle has been acknowledged. Similarly, in the case reported as PLD 2007 SC 298, the Honourable Apex Court has held that contractual rights and obligations are to be enforced through Courts of ordinary jurisdiction, High Court could not grant relief under Article 199 of the Constitution of Islamic Republic of Pakistan merely for the purpose of enforcing the contractual obligation.
In view of the above said judgments and on perusal of Section 21 and 22 of the Specific Relief Act, we are of the opinion that in absence of any malafide on the part of respondents or any discrimination by respondents while granting or canceling the tender, the contractual obligation cannot be enforced by filing writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan. It is pertinent to mention that before specific performance of the contract could be enforced by either party, the same has been cancelled on the ground of unworkable site condition and short period left in financial year 2008-09. The contract granted to all the participants as mentioned in the impugned letter, was cancelled. It is further pertinent to observe that in the impugned letter, it has been mentioned that said tender has not been awarded to any one else which could possibly cause any prejudice or discrimination to the petitioner. The case laws refered and relied upon by counsel for the petitioner is based on distinguishable facts hence do not apply to the facts of this case, as no malafide or discrimination on the part of respondents has been pleaded nor the same is reflected from the record. Similarly, reference to rule 33 of Public Procurement Rules 2001 by petitioner is also misconceived as it is not a case whereby the bids or proposals have been rejected prior to their acceptance by respondents. On the other hand, this is the case whereby the tender itself has been cancelled on account of some unavoidable circumstances mentioned in the impugned letter. The cancellation of contract appears to have been made on account of non-feasibility and unworkable site condition hence no malafide or abuse of process of law under the circumstances can be attributed to such act of the respondents. Moreover, the petitioner has not been able to make out a case for grant of discretionary relief by this Court in its extra ordinary constitutional jurisdiction.
In view of hereinabove, we are of the opinion that instant petition merits no consideration hence the same is dismissed alongwith listed application with no order as to costs.
JUDGE
JUDGE
Tufail