1. ' YAHYA AFRIDI, J.---Through this single judgment, we shall dispose of three constitutional petitions, as common questions of law and facts are involved therein. The particulars of the said petitioners are as follows:-
(i) Messrs Act International v. PERRA and another (Writ Petition No,355-A of 2012).
(ii) Messrs Fazal Karim and Co. And others v. PERRA through Chairman PERRA and others (Writ Petition No,384-A of 2012).
(iii) Shoukat Khan and Company v. Deputy Director PERRA and others (Writ Petition No,386-A of 2012).
2. The brief and essential facts leading to the present petitions, in chronological order, are as follows:-- ' 18-3-2012: that the respondents advertised through public notice, appearing in various national Dailies, tenders for three different works in District Shangla ("Works"); that in the said tenders, the respondents, 'inter alia', expressly stated that the bidding/tender forms were to be obtained from the Office of the Chief Engineer/Deputy Director office of the respondent organization at Abbottabad and the same had to be submitted before 19-4-2012, date set for opening of the bids.
2. ' 11-4-2012: that respondent No,1 issued an 'office order' dated 11-4-2012, which reads as follows; "OFFICE ORDER As requested by the Consultant (Messrs PEPAC) and further agreed and instructed by the employer (The Chief Engineer EQAA, C&W Department Abbottabad), it is hereby notified for information of all the interested bidders/contractors that bidding document for the bids to be opened on 19-4-2012 would be issued from Messrs PEPAC Head Office Islamabad as per previous practice upon fulfilment of requirement mentioned in NIT"
3. ' 19-4-2012 and 23-4-2012: that Messrs Fazal Karim and Company and Shoukat Khan and Company instituted separate civil suits before the Civil Judge, Abbottabad, respectively, wherein Civil Judge was pleased to grant temporary injunction to the effect that; "For the reasons elucidated above, the status quo is hereby granted subject to notice to the defendant and any contrary order by the superior Courts with the direction to the defendants to be present and defend their cause, if they have any objection."
4. ' 3-5-2012: that Messrs Act International instituted Writ Petition No,355-A of 2012. On the same date, this Court adjourned the main petition with notices to the respondents for 8-5-2012 and passed an interim order; Notice. Till the date fixed, the respondents are refrained from opening the Bid/tenders.'
5. 8-5-2012: that this Court adjourned the writ petition to 15-5-2012 and ordered; Till then the valuation may continue, however, no final order shall be passed.
6. 16-5-2012: that Messrs Fazal Karim and Co. And Shoukat Khan and Co. Withdrew their civil suits against the respondents pending before the Civil Courts at Abbottabad and instituted the present Writ Petition No,384-A of 2012 and Writ Petition No,386-A of 2012, respectively.
3. The respondents, in particular respondent No,2, were put to notice. Respondent No,2 rendered his personal counter affidavits to the assertions made by the three present petitioners in the following terms:-- Counter Affidavit in Messrs Act International v. PERRA and another (Writ Petition No,355-A of 2012)
7. "I, Ejaz Hussain Ansari, Deputy Director Procurement IDB Works PERRA Abbottabad hereby declare the following on Oath:
(1) That tenders for the following works were invited on the instructions of PERRA, through proper publicity in the popular Daily Newspapers for 19-4-2012 as per final schedule.
(a) Missing Facilities at DHQ Shangla.
(b) Construction of GGD College, Besham.
(c) Construction of GGD College, Puran.
(2) That 16 firms/persons were issued bidding documents out of whom 12 firms submitted their bids. The petitioner firm neither obtained any biding documents nor attended the pre-bid or bid opening meeting held on 13-4-2012 and 19-4-2012 respectively.
(3) It is further affirmed on oath that no one from the petitioner's side ever visited office of the consultant nor did they visit office of the employees as alleged in Para No,4 of the petition.
(4) It is also submitted on Oath that 12 No's of bidders participate in the process of bidding after following all the conditions and formalities for participating in the bidding process and as such bids were opened on 19-4-2012 at 12-30 p.m. By the Committee and 03 Nos of Financial Bid Opening statements for all the three schemes were duly signed by all the four members of the Committee.
(5) It is also asserted on oath here that the petitioner has grossly misrepresented the facts in his writ petition above and also in the affidavit attested therewith. The matter requires inquiry of facts.
8. The writ petition is therefore liable to be dismissed for want of jurisdiction, misrepresentation of the facts and also that the funds for the above schemes are being provided by foreign agency (Islamic Development Bank) for Earthquake Affected Area of the province, which is a time bound activity and in case of further litigation there is every likelihood of an abandonment of all the schemes.
9. ' It is also affirmed on Oath that all the contents of the aforementioned affidavit are true and correct to the best of my knowledge and belief and nothing has been. Concealed from this honourable Court."
10. (Emphasis provided)
11. Counter Affidavits in Messrs Fazal Kareem and Co. And others v. PERRA through Chairman PERRA and others (Writ Petition No,384-A of 2012) and in Messrs Shoukat Khan and Company v. Deputy Director PERRA and others. (Writ Petition No,386-A of 2012)
12. "I, Ejaz Hussain Ansari, Deputy Diretor Procurement IDB Works PERRA Abbottabad hereby declare the following on Oath: ' That tenders for the following works were invited on the instructions of PERRA, through proper publicity in the popular Daily Newspapers for 19-4-2012 as per final schedule.
(a) Missing Facilities at DHQ Shangla.
(b) Construction of GGD College, Besham.
(c) Construction of GGD College, Pura I n.
(2) That 16 firms/persons were issued bidding documents out of whom 12 firms submitted their bids. The petitioner firm neither obtained any biding documents nor attended the pre-bid or bid opening meeting held on 13-4-2012 and 19-4-2012 respectively.
(3) It is further affirmed on oath that no one from the petitioner's side ever visited office of the consultant nor did they visit office of the employees as alleged in Para No,4 of the petition.
(4) It is also submitted on Oath that 12 No's of bidders participate in the process of bidding after following all the conditions and formalities for participating in the bidding process and as such bids were opened on 19-4-2012 at 12-30 p.Nz. By the committee and 3 Nos of Financial Bid Opening statements for all the three schemes were duly signed by all the four members of the committee.
(5) It is also asserted on oath here that the petitioner has grossly misrepresented the facts in his writ petition above and also in the affidavit attested therewith. The writ petition has been filed with malicious attention to subvert the bidding process and cause withdrawal of fund supplied by a foreign agency on an arrangement with the Govt. Of Pakistan.
(6) That the matter essentially involves inquiry into multifarious facts which is not permissible for this Honourable Court to do in its with jurisdiction.
(7) That the petitioner has brought the above petition with pure malice after having failed to perpetrate restraining orders from the Civil Court, as status quo granted earlier was not extended and hence the petitioner after withdrawing his suit from the Civil Court has now filed the instant writ petition without any lawful rights in law to do so, hence the act of the petitioner falls within the definition of contempt as envisaged in Article 204 of the Constitution of the Islamic Republic of Pakistan. It is also asserted that the funds for the above schemes are being provided by foreign agency (Islamic Development Bank) for Earthquake Affected Area of the province, which is a time bound activity and in case of further litigation there is every likelihood of an abandonment of all the schemes."
13. (Emphasis provided)
4. In essence, the most essential dispute raised by respondent No,2 in his counter affidavit was that neither he, as respondent No,2, Deputy Director PERRA, Abbottabad nor the consultant Messrs PEPAC at Islamabad received any application from any of the three petitioners for the bidding forms for the works, so advertised by the respondents.
5. The matter became more grave, as various applications were filed by the present petitioners countering the assertions made by the respondent No,2 in his personal counter affidavit. The main thrust of the learned counsel for the petitioners was that their rights to be treated in accordance with law had been grossly violated, as they had been denied the right to participate in the bidding process of public works. It was further contented that respondents had committed contempt of Court for violating the orders of the Civil Court dated 19-4-2012.
6. The learned counsel for the respondent department and respondent No,2 in person, vehemently opposed the contentions of the learned counsel for the three petitioners and forcefully asserted that tenders were duly advertised, sixteen applications were received for bidding documents by prospective bidders and thereafter twelve bidders submitted their bids, which were opened on 19- 4-2012, as expressly stipulated in the advertisement. Hence, no illegality had been committed by them in the bidding process. As far as the assertions of the petitioners regarding applying for the bidding document, the same was clearly opposed by the respondents, being factually incorrect. As to the allegation of the contempt of Court by respondents for violating the orders of Civil Court dated 19-4-2012, the respondents contended that bidding documents had been opened prior to the receipt of the orders of Civil Court.
7. Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
8. The term 'right' has been a matter of jurisprudential discourse of our superior Courts. To start with, in Montgomery Flour Mill's case (PLD 1957 (W.P) Lahore 914), it was held that:-- "Whenever an enactment empowers a public officer to pass orders that benefit or harm a citizen, the citizen gets a right that, in a matter in which he is concerned, an order be passed in accordance with law. This too is a right that can be enforced by the Court in the exercise of its jurisdiction under Article 170 of the Constitution of Pakistan. "
14. ' The matter was also taken up by the Supreme Court of Pakistan in Ikram Bus Service's case (PLD 1963 SC 564) and observed that:-- "Even an administrative body such as an R. T.A., is under legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body should determine the matter with whose decision it is charged, in accordance with the law."
15. ' An eloquently legal discussion was also rendered by the apex Court in Fazaldin's case (PLD 1969 SC 223), wherein it was held that:- "A scheme was introduced by the Lahore Improvement Trust for housing in Gulberg area. In the said scheme, there was an area earmarked for a market. Subsequently the area earmarked for the market was altered and was allotted for the construction of a religious school. The petitioner applied for a plot next to the market as he intended to open a shop for his steel business in the said market. He claimed that the said market was the main attraction for buying the said plot.
16. After the said scheme was altered, the petitioner filed a writ petition.
17. ' The issue in the said case was whether any right could arise from a scheme and whether the expectation to have a market built under the said scheme could give the petitioner the grievance to file a constitutional petition.
18. ' The Court held that a right is nor to be envisaged in the strict sensu and the courts are only to show some personal benefit or advantage or curtailment of a privilege or liberty or franchise.
19. Furthermore, representation in the scheme that a facility was to be provided and the deprivation of the said facility confers a sufficiently valuable right."
20. ' Later the Supreme Court of Pakistan in Mian Raft-ud-Din's case (PLD 1971 SC 252) had observed that:- "A 'vested right', an 'accrued right' or a 'substantive right' does not mean only title to property or office; a right, benefit or an advantage conferred by a statute, availed of by doing a thing as required by the statute, is also a right of this kind. Again, if a right, benefit or advantage conferred by a statute is dependent on the happening of a contingency, then, the same becomes a 'vested or accrued right' after the contingency has happened."
21. ' More recently, matter was again taken up by the Supreme Court in Dr. Abdur Raufs case (1991 SCMR 483), wherein it was held that:- "Right entitling for maintaining a Constitutional petition was not necessarily a right in the strict juristic sense, but sufficiency of such right was enough if applicant disclosed that he had personal interest in the performance of legal duty which had not been performed in manner required by law."
22. In view of the above legal discourse, a 'right' is a dynamic legal concept, which cannot be restricted to a static form; it may be a benefit, advantage, or protection, which a person derives from a clear enactment or rules made thereunder; the representation or an offer, 'oral' or written' , of another including the executive organ of the State.
23. ' We, in Pakistan are blessed because our Constitution, unlike some other .Jurisdictions, have express rights, known as 'fundamental rights' enshrined therein. The force of these 'fundamental rights' provided in Articles 9 to 28 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") are so powerful that any action of the executive or an enactment of the parliament can be struck down on the touch stone of any violation of the 'fundamental rights'
24. ' Our superior Courts have even recognized and enforced 'rights', which do not attain or strictly fall within the domain of 'fundamental rights' provided in the Constitution. In this regard, rights can be categorized into three categories.
25. Category No,I Fundamental Rights.
26. ' These are clear 'fundamental rights' which are provided in the Constitution.
27. Category No,II Vested Rights.
28. ' These are rights, which derived their source from an Act of the Parliament, other than the Constitution.
29. Category No,III Rights ' These are rights which a person may acquire from any representation, action or inaction of another person, which may include the Executive organ of the State. These rights, though inferior to the 'Fundamental' or 'vested rights', are recognized and enforced by Courts of law.
30. ' In view of the above discussion, this Court finds that the present petitioners are seeking 'rights' enumerated in Category No,III, discussed hereinabove.
31. ' There remains no doubt, that a 'right' did accrue in favour of the petitioners to be considered in accordance with the terms of the advertised representation of the respondents to the public at large. However, the said 'right' would have legally matured, only if the petitioners had taken steps in pursuance thereof and applied for the Works by seeking the bidding documents in terms of the requirement stipulated in the advertisement made by the respondents.
32. ' Had the said 'right' matured in favour of the petitioners, any action' or 'inaction' on the part of the respondents, which may have curtailed or hampered the same, would have surely been justicable in constitutional jurisdiction of this Court.
33. This is where a serious factual dispute arose between the parties. The petitioners alleged that they applied for the bidding documents of the Works, while the respondents blatantly denied the same.
34. Both versions are backed by affidavits on oath. The initial presumption would surely be in favour of official versions unless it is proved otherwise. But that would require producing and recording of evidence.
35. ' In this regard, we seek guidance from the judgment of the august Supreme Court of Pakistan in Ghulam Nabi's case (PLD 2001 SC 415) wherein it was held that; "It hardly needs any elaboration that the superior Courts should not involve themselves into evidence. This can more appropriately be done in the ordinary Civil Procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts."
36. (Emphasis provided)
37. ' Similarly, in Shamim Khan's case (PLD 2005 SC 792), the Full Bench of the apex Court has observed that; "Controversial question of facts requiring adjudication on the basis of evidence could not be undertaken by the High Court under its Constitutionaljurisdiction where the material facts were admitted by the respondent, High Court interfere."
38. (Emphasis provided)
39. ' This was followed by the apex Court in Muhammad Sadiq v. Ilahi Bukhsh (2006 SCMR 12) and has held that:-- "High Court in exercise of its constitutional jurisdiction is not suppose to dilate upon the controversial questions of facts and interfere in the concurrent findings on such question in the writ jurisdiction but it is settled law that if findings of facts are based on misreading or non- reading of evidence or not supported by any evidence, the High Court without any hesi- tation can interfere in the matter in its constitutional jurisdiction."
40. Controversies, which are based on contentious dispute fact, should not be entertained and adjudicated in constitutional jurisdiction.
41. ' However, the aforementioned general principle has exceptions, which may be formulated as under:-
(i) The illegality impugned can be established without elaborate inquiry;
(ii) The illegality challenged is apparent from the admitted facts or documents available on the record;
(iii) The illegality attacked in the petition is based on misreading or non-reading of evidence for no evidence at all.
42. ' When we reviewed the entire record of the present case, it was noted that there was no official record, which contradicted the assertion of respondent No,2 made' in his counter affidavits filed by him in his personal capacity in the three petitions. However, the serious challenge made to the same by the present petitioners can be agitated and proved otherwise by the petitioners by producing evidence at an appropriate legal forum, but not in constitutional jurisdiction, that too, with the available record.
43. And finally, the Supreme Court has reiterated the above principles in Watan Party's case (PLD 2012 SC 292).
44. ' In view of the 'ratio decidendi' laid down in .The above judgments of the apex Court, it is clear that as a general principle;
9. Before parting with the judgment, this Court would like to point out that the action of the respondents to change or alter the venue of receiving and submissions of bidding documents through ' Office Order' dated 11-4-2012 was illegal and without lawful authority. It is settled by now that once an advertisement and representation is made to the public at large by the executive authority, the terms mentioned therein cannot be altered to the disadvantage of the prospective applicant through an 'Office Order' .
45. ' We have given serious consideration to the grievance of the petitioners, in the light of the above mentioned illegality committed by the respondents, and we find that the petitioners were not prejudiced or put at a disadvantage or were deprived from applying due to the said illegal alteration introduced vide order dated 11-4-2012. Infact, the petitioners had not taken any steps, in pursuance of the representation made by the respondents in the public advertisement to be deprived of any advantage or benefit due to the said illegality committed by the respondents. The petitioners had to first establish their 'right' and thereafter seek and challenge the illegal 'action' and 'inactions' of the respondents.
10. Accordingly, for the reasons stated hereinabove, this Court holds that:--
(I) All the three petitions being devoid of merit are dismissed;
(II) The petitioners may, if so advised, seek their remedy before an appropriate legal forum;
(III) The Courts that have taken cognizance of contempt proceedings filed by Messrs Fazal Karim and Co., shall continue to proceed with the same in accordance with law in an expeditious manner and to conclude the same within a period of three months.
46. ' No order as to costs.