SHAMSHER KHAN & CO. Versus KARACHI WATER AND SWERAGE BOARD

ORDER

AJMAL MIAN.‑‑ The petitioner has prayed for the following relief:-

"In view of the above it is prayed that this Hon'ble Court may be pleased to:‑

(1) Declare that the award/approval of the contract to the Respondent No. 2 is illegal, mala fide and without lawful authority as such is of no legal effect.

(b) Direct that the tenders may be re-invited in accordance with the procedure prescribed under the rules and regulations.

(c) That the respondent No.l tray be restrained from taking any further action in consequence of the award/approval of the contract in favour of the Respondent No.2.

(d) Grant costs of the petition.

(e) Any other relief which this Hon'ble Court may deem fit and appropriate in the circumstances of the case."

2. The brief facts leading to the filing of the above petition are that in response to the advertisement of pre‑qualification the petitioner had applied. to Respondent No.l for the said purpose. The Respondent No.l vide its letter dated 16‑7‑1986 approved the petitioner for the project i.e. pre‑qualified for construction of stand‑by Syphon 19" and 20" . The petitioner alongwith other Contractors submitted his tender for the pre‑stressed cement concrete pipes of Syphon 19" and 20" on 30‑6‑1987. It is the case of the petitioner that his bid was the lowest for the above item but Respondent No.l illegally resolved to award the contract to Respondent No.2 for steel pipes instead of pre‑stressed cement concrete pipes. It has, therefore, been averred that the above act of Respondent No.l is illegal and contrary to the Rules.

3. In support of the. above petition, Mr. A.S. Waswani, learned counsel for the petitioner has urged that since the tenders were invited for the pre‑stressed cement concrete pipes and not of steel pipes, the respondent No.l could not have awarded the contract to respondent No.2 without inviting fresh tenders. The above contention seems to be devoid of any force, inasmuch as it is apparent from para. F‑29 of the tender documents that the contractors were asked to offer other alternative pipes in replacement for pre‑stressed concrete pipes described in the tender documents alongwith specification and all technical details of the pipes and materials. It may also be observed that an emergent meeting of respondent No.1's governing body was held on 7‑9‑1987 at 11.00 a.m. in the conference room which was attended by the Chairman, Members, Secretary and by special invitation also by the Chief Engineer (W/S) KW&SB Chief Engineer (B/S) KW and SB and Director Finance, KW&SB. wherein the tenders submitted by the various tenderers were considered and it was found that three' of the tenderers also quoted for the alternative in terms of above clause F‑29 for the steel pipes fabricated from MS plate of above clause F-29 for the steel pipes fabricated from MS plate of 1/2" thickness and for cogent reasons it was resolved that instead of pre‑stressed cement concrete pipes‑ which have been bursting and causing inconvenience to the public, steel pipes were to be used and since the tender of respondent No.2 was the lowest in respect of the above item, it was resovled to award the contract to him.

In our view the action taken by respondent No.l is apparently a bona fide action for the benefit of the public as it is a matter of common knowledge that in the past frequently pre‑stressed cement, concrete pipes had burst affecting the supply of water, resulting into inconvenience to the public at large.

Mr. Waswani has also referred to the photostat copy of the extract of section 4 of the Central Public Works Department Code and Chapters 9, 11 and 16 of the Central Public Works Account Code in order to canvass at the bar that here has been violation of the above Code by not re-inviting the tenders for the steel pipes. However, he has not been able to cite any provision under which the above Code has the statutory force. Respondent No.l is a corporate body and is not a Government Department, it, is, therefore, a debatable point, whether even if the above Code was to be held to have statutory force for the Government Department. It can be extended to a corporate body in the absence of any statutory provision making it applicable. In our view, the petitioner had no vested right to have his tender accepted. His tender alongwith the other tenders was considered and as he had not quoted for the steel pipes in terms of above para. F‑29, the Respondent No.l has acted in accordance with law by accepting the lowest tender out of the three tenders submitted for the above item.

4. The petition has no merits, and therefore, it is dismissed in limine.

These are the reasons in pursuance of a short order of even date.

A . A . /S‑173/ K Petition dismissed.