ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P.No.D- 944 of 2009

DATE ORDER WITH SIGNATURE OF JUDGE

1. For Katcha Peshi.

2. For hearing of MA 4036/09.

28.4.2010.

Mr. Kamaluddin, Advocate for petitioner.

Mr. Nafees Ahmed Qdureshi, Advocate for respondents No.2 & 3.

Mr. Allah Bachayo Soomro, Additional A.G a/w Fakhir Shakir Siddiqui, Taluka Muncipal Office/Administrator TMA City, Hyderabad.

Through instant petition, the petitioner has challenged the impugned letter dated 1.7.2009 issued by TMA City Hyderabad in favour of respondent No.4 to affect recovery of Advertisement Publicity fees for the year 2009-2010 including Hoarding, Neon Sign, Lighted Board, Companies Shop Boards, Shop Panaflex, Moving Publicity, Commercial Vehicles, Unipoles, Shutter gate, Wall and Glass Painting, Posters, Banners and stall activity etc, as well as letter dated 14^th October 2009 issued by Section Officer-III Sindh Local Government. It is argued that such act of issuing direct award of contract for Advertisement Fees for the financial year 2009-10 in favour of A.J.S Company City, Hyderabad, amounting to Rs.81,15,000/- (Eighty one lac, fifteen thousand) is without lawful authority hence of no legal effect.

The petitioner claims to be a contractor by profession, who having come to know about award of contract to respondent No.4, approached the respondents by making initial offer of Rs. Nine million through letter dated 27.8.2009 (available at Page 21 of the instant petition). It is pertinent to mention that prior to above letter, another letter dated Nil was addressed to Taluka Nazim Hyderabad City on the same subject wherein offer for the same contract was made by the petitioner in the sum of Rs.900,000/- (Nine lac). However, the petitioner vide its letter dated 27.8.2009 referred to hereinabove, intimated the correct offer amounting to Rs.90,000,00/- instead of Rs.900,000/- which according to the petitioner was inadvertently mentioned in the earlier offer letter. In response to offer made by the petitioner, the respondents issued letter dated 9.9.2009 (available at Page 29 of the instant petition) to the petitioner wherein the petitioner was required to deposit 10% of the offer as call deposit within three days for forwarding the same to Government of Sindh for approval. It was further notified that in case of default, the offer shall be rejected. It appears from the record that inspite of having received of such letter from the respondents, the petitioner did not deposit the requisite amount as call deposit hence did not comply with such letter. Resultantly, the respondent No.1 i.e. Secretary Local Government vide its letter dated 14^th October 2009 approved the contract for advertisement fee for the year 2009-10 in favour for of respondent No.4 i.e. M/s A.J.S Company, in the sum of Rs.81,15,000/- only (letter available at Page 37 of the instant petition). The petitioner has impugned such letter on the ground that respondents were not authorized in law to award the contract to the respondent No.4 without resorting to Clause 13 of the guidelines prescribed by Sindh Local Government vide its Notification dated 24^th June 2002.

The learned counsel for the petitioner contended that the said contract can only be awarded through open auction and not directly as done in the instant case. In view of hereinabove, the learned counsel for petitioner states that award given to the respondent No.4 may be declared as illegal and without lawful authority.

Conversely, the learned counsel for respondents duly assisted by learned Additional A.G has vehemently opposed the maintainability of the instant petition on the ground that instant petition has not been filed by the aggrieved person visualized in terms of Article 199 of the Constitutional of Islamic Republic of Pakistan. It is further contended that no vested right accrued to the petitioner who as per contents of the petition itself did not deposit the 10% as a call deposit in terms of the agreement hence cannot seek any discretionary relief by filing the instant petition. The learned counsel has also read out the provisions of Clause 13 of the Notification referred to hereinabove and accordingly referred to Sub-Clause (4) which reads as under:-

“No offer shall be entertained unless accompanied by a bank draft amounting to ten percent of the offered amount drawn in favour of the concerned council.”

It is further contended by learned counsel for the respondents that petitioner did not comply with the rules therefore, has no locus standi to file instant petition. It is further argued that after dissolution of Local Government, it was considered expedient by the Local Government to issue such contract to the contractor who was already performing his contract with Local Government with an increased amount as compared to the contract award for the previous year. It is further contended that there is no malafidy on the part of official respondents and no personal interest or gain whatsoever is involved. The learned counsel further stated that contract is about to conclude as on 30^th June 2010 and no useful purpose is likely to be served by setting aside or by declaring the impugned letter as null and void. It is finally argued that instant petition being misconceived in law and facts has been filed with malafide intention as to blackmail the official respondents hence the same shall be dismissed with costs.

We have heard learned counsel for the parties and perused the record. In the instant petition it appears that petitioner himself having failed to comply with the provisions of Clause 13 of Sindh Local Government Notification No.SOV/MC-V(25)/2000 dated 24.6.2002 , has attempted to get the direct contract from respondents merely by making half hearted correspondence and when his offer was being considered and he was required to deposit 10% of the call deposit amount in terms of the agreement, he failed to comply with such requirement. It is further noted that the award was meant for financial year 2009-10 and is expiring on 30^th June 2010, hence any orders passed in the instant petition by accepting the claim of petitioner would hardly serve any purpose, on the contrary may prejudice the interest of respondents No.1 to 3 and provide an opportunity to drag the matter even to the next financial year.

In view of herein above facts, we are of the opinion that petitioner has not approached this Court with clean hands as he himself attempted to get the direct contract from respondents hence not entitled to any discretionary relief which otherwise is remotely available to him in constitutional jurisdiction. Accordingly, we dismiss the instant petition alongwith listed application with no order as to costs. However, before parting with this order, we would like to clarify that since we have dismissed the instant petition on account of petitioner’s no locus standi to file the same under the facts and circumstances of this case, therefore, we have abstained ourselves from giving any finding as to the propriety of contract awarded by official respondents to M/s A.J.S Company directly without having recourse to the transparent mode of awarding contract by way of public auction in terms of the Sindh Local Government Contract Rules 2001 readwith Auction Policy of S.L.G relating to Award of Contract by Auction. We would however like to observe that the official respondents while awarding further contract for the financial year 2010-2011 shall comply with the legal as well as procedural requirements to ensure transparency in this regard and by way of open auction.

The petition stands disposed of in the above terms.

JUDGE

Tufail