' M. TABASSUM AFTAB ALVI, J.---The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following relief is solicited by petitioner:- "It is, therefore, humbly prayed on behalf of petitioner (CWE) that by accepting the instant writ petition the Hon'ble Court may kindly be declared the withdrawal of Letter of Acceptance dated 9- 12-2014, as without lawful authority, against the golden principle of "audi alteram partem" and the same may kindly be set aside. Furthermore it is prayed that the Letter of Acceptance dated 27-8- 2014, may kindly be ordered to restore with the direction to respondents for immediate execution of the National Project. Any other relief which is deemed fit and just may kindly be granted"
2. The summary of the case is that petitioner, China International Water and Electric Corporation
(CWE) Pakistan, is a Company working in different parts of Pakistan on various assignments/contracts. It is averred that the project 48 MW Jaggran-II Hydropower, was approved by Executive Committee of the National Economic Council (ECNEC), on 30-3-2009 and after completion of all necessary procedure, the Hydro Electric Board of AJ&K Published a "Notice for invitation of Bids". The petitioner participated and qualified as lowest bidder, hence, Power Development Organization (PDO), respondent No,1, issued in its favour Letter of Acceptance dated 27-8-2014. However, later on the Power Development Organization (PDO), respondent No,1, withdrew the Letter of Acceptance merely on the ground that petitioner was blacklisted by the World Bank vide impugned letter dated 9-12-2014. It is alleged that the aforesaid impugned letter is illegal and issued against principle of natural justice, without providing an opportunity of hearing, hence, the instant constitution petition.
3. The writ petition has been resisted by respondents Nos.1 to 3 through written statement dated 25-2-2015. It is stated that petitioner is not State Subject of Azad Jammu and Kashmir, therefore, having no locus standi to file the instant writ petition. It is further averred that power-of-attorney executed in favour of petitioner, never authorized him to file writ petition or any legal proceedings in territory of the Azad Jammu and Kashmir. It is maintained that Mushtaq Ahmed Janjua, Advocate, does not pertain legal sanctity who is not power-of-attorney holder, therefore, writ petition is accordingly bad in law. It is averred that as petitioner was blacklisted by the World Bank, hence, Donor Agency i,e, Agence Francaiose de Development (AFD) vide letter dated 17-10-2014, delivered its opinion that Power Development Organization (PDO) Government of Azad Jammu and Kashmir, be cancelled the current bidding process and withdraw Letter of Acceptance issued in favour of (CWE) petitioner. It is also stated that blacklisting of petitioner (CWE), was conveyed to it via official email of AJK Power Development Organization and clarification was also sought, however, no response was received. It is also stated that matter was placed before the Board of Directors of AJ&K Power Development Organization, wherein it was decided to comply with instructions of Donor Agency regarding withdrawal of Letter of Acceptance. It is maintained that due to misconduct of petitioner Donor Agency blacklisted it, therefore, Letter of Acceptance was withdrawn. It is claimed that at the time of filing writ petition, petitioner deliberately concealed the facts of blacklisting, hence, prayed for dismissal of writ petition.
4. Mr. Mushtaq Ahmed Janjua, the learned counsel for petitioner, strenuously argued that after bidding process, as China International Water and Electric Corporation (CWE), was lowest bidder, therefore, Letter of Acceptance was issued by the competent authority i,e, (Power Development Organization) in its favour on 27-8-2014. He further contended that before withdrawal of Letter of Acceptance through the impugned letter dated 9-12-2014, an opportunity of hearing was not provided to petitioner, therefore, the same is liable to be struck down on this solitary ground. The learned counsel pressed into service that petitioner was blacklisted only to the extent of South Africa and not pertaining to Sub-Continent, hence, submitted for acceptance of writ petition. The learned counsel in support of his contentions referred to and relied upon the following case-law:--
(i) Muhammad Khurshid and another v. Secretary Education Schools and 4 others (2011 SCR 175).
(ii) Collector Federal Excise and Sales Tax and 4 others v. Messrs Hilton ' Tobacco Company (Pvt.) Ltd., (2011 SCR 93).
' In case of Muhammad Khurshid, supra, it was held by the apex Court that no adverse order can be passed against a Civil Servant without providing an opportunity of hearing. It was further opined that as the impugned order, in the given case, was passed in violation of rule which was void ab initio and such like order can be cancelled or taken away without issuing notice for hearing.
' In case of Collector Federal Excise and Sales Tax and 04 others, ibid, it was held by the august Supreme Court that it is necessarily required to issue notice before any action is taken against any person.
5. Mr. Khalid Rasheed Chaudhry, the learned counsel for contesting respondents, raised a preliminary objection that the instant writ petition has been filed by China International Water and Electric Corporation (CWE), through its General Manager, Li Zhili, who was never authorized by the Board of China International Water and Electric Corporation (CWE) to file writ petition in this Court.
The learned counsel, while referring to the extract of resolution dated 29-10-2014, submitted that the aforesaid Li Zhili, was authorized to file different suits, appeals and all litigations in Pakistan, therefore, writ petition is liable to be dismissed for having been filed without any proper Authority.
He further argued that petitioner has filed the instant writ petition to enforce contractual liability and the same cannot be implemented through writ jurisdiction. He emphasized that petitioner was blacklisted by the World Bank due to its misconduct vide order dated 24-9-2014, whereas the instant writ petition has been filed on 13-1-2015, by suppressing the facts from the Court, hence, Company is not entitled for discretionary relief of writ jurisdiction. He further argued that Letter of Acceptance was withdrawn by the contesting respondents due to advice of Donor Agency (AFD) keeping in view misconduct of petitioner, hence, craved for dismissal of writ petition. The learned counsel in support of his contentions referred to and relied upon the following case-law:--
(i) Manzoor Begum v. Haji Fazal Ellahi (2012 YLR 2152).
(ii) Azad Government and others v. Neelum Flour Mills Muzaffarabad (1992 SCR 381).
(iii) A.K. Trading Corporation v. Messrs Z.H. Construction and 02 others (PLD 1998 SC (AJ&K) 7).
(iv) AJ&K Government and 4 others v. Mohi-ud-Din Islamic University and 2 others (2014 SCR 282).
' In case of Manzoor Begum, supra, it was opined by the apex Court that no authority had been conferred upon the attorney to file suit on behalf of the plaintiff, therefore, attorney in circumstances, was not empowered to file suit on behalf of the plaintiff.
' In case of Azad Government and others, supra, it was held by the apex Court that writ petition cannot be exercised for enforcement of contractual liability.
' In case of A. K. Trading Corporation, ibid, the aforesaid view was reiterated by the apex Court that contractual liability cannot be enforced through writ petition.
' In case of AJ&K Government, ibid, it was opined that factual controversy cannot be resolved in writ jurisdiction.
6. After hearing the learned counsel for parties at great length, we have perused the contents of writ petition, examined the appended documents and have given our earnest thought to the points raised by the learned counsel for parties.
7. A contemplate perusal of record reveals that for execution of 48 MW Jaggran-II Hydropower Project, bids were solicited by Power Development Organization (PDO) Government of Azad Jammu and Kashmir and after due process petitioner, China International Water and Electric Corporation (CWE), was found as lowest bidder, therefore, its bid dated 22-9-2013, for execution of the aforesaid project against the Contract Price in the aggregate of PKR 7,158,936,161.00 (Pak Rupees Seven billion, one hundred and fifty eight million, nine hundred and thirty six thousand and one hundred sixty one only, including foreign currency component of Euro 35,964,200 (Euros, thirty five million, nine hundred sixty four thousand and two hundred only), was accepted through Letter of Acceptance dated 27-8-2014. However, it appears that before execution of contract petitioner was blacklisted by the World Bank due to its misconduct on 24-9-2014, therefore, on the advice of Funding Agency i,e, Agence Francaiose de Development (AFD), Letter of Acceptance was withdrawn by the Power Development Organization, respondent No,1, through the impugned order dated 9-12-2014. The blacklisting of petitioner was not controverted, however, sole point raised on behalf of petitioner is that before passing the impugned order an opportunity of hearing was not provided to it, therefore, the same offended the principal of "audi alteram partem". The assertion of petitioner, however, has been controverted by contesting respondents through written statement. As per record Managing Director Power Development Organization through script dated 19-10-2014, solicited a clarification from petitioner about its blacklisting by the World Bank, however, no response was given by the Company to Organization. The aforesaid letter goes to the route of the case, therefore, same is reproduced as follows:-- "Clarification required regarding blacklisting of (CWE) by World Bank.
FROM: Managing Director (md . Heb@hotmail. Corn)
Sent: Sunday, October 19, 2014 2:06:15 p.m. To: CWE Pakistan (cwepakistan@gamail corn)
' Please find attach the links from World Bank website and daily monitor regarding blacklisting of CWE by World Bank. In this regard, please clarify at earliest the actual position of CWE. AJK PDO has already requested you for this clarification via email but till date no response has been received.
Managing Director AJK PDO"
' The aforesaid letter was produced by the contesting respondents through comments and written statement. The plea of "audi alteram partem" was also categorically denied by contesting respondents through paragraph 6 of their written statement, which was not controverted by petitioner in replication dated 10-3-2014. We, therefore, after deep deliberation hold that petitioner despite office e-mail and letter of Power Development Organization (PDO) dated 19-10-2014 failed to appear for the purpose of hearing, hence, principle of "audi alteram partem" is not attracted in the given case.
8. A glance perusal of letter dated 17-10-2015, forwarded by Country Director French Development Agency i,e, Agence Francaiose de Development (AFD), Donor Agency, reveals that due to blacklisting of petitioner by the World Bank, Chief Secretary Azad Jammu and Kashmir Government was informed to re-launch the project through new bids of tenders which is reproduced as under:- - "Attn: Mr. Khizar Hayat Date 17th Gondal, October, 2015 Chief Secretary, Ref. CD- Govt. Of AJ&K 100/14 Muzaffarabad, AJ&K ' Subject: CPK 1022-Jaggran-H Hydropower Project-Award of EPC Contract.
' Ref: AFD letters dated 3rd and 20th February, 5th and 19th March 2014, 2nd and 10th April 2014 and 6th May, 2014 and MoKA&GB letters dated 4th, 24th April, 13th June and 11th August, 2014.
' Dear Mr. Gondal, ' Reference is made to our above-referred letter dated 11th August 2014 regarding the subject project.
' In this respect, we appreciate the efforts by GoAJ&K/PDO for meeting the timelines and issuance of the letter of acceptance of the EPC contract to the substantially responsive and Lowest bidder.
' However, new circumstances have occurred since then: the ongoing legal suit on the one hand; and the recent blacklisting by the World Bank of CWE on the other hand.
' In these circumstances and in consideration of the need for best competition and full transparency, we are of the opinion that the bid of the EPC contract should be relaunched through a new bid of tenders under the following conditions.
' That the PDO/GoAJ&K cancel the current EPC bidding process and also withdraw its acceptance letter issued in favour of Messrs CWE; and ' That the PDO/GoAJ&K negotiate the legal Suit related to the Project.
' However, the project has been severely delayed and as per our Credit Facility Agreement only 03 years and 2 months are left to complete the project (i,e, before 31st December 2017), which is now unrealistic given the time needed for a new bid.
' Provided that we get you response regarding the two above-mentioned issues, we are willing to secure the existing funding, based on a new thorough analysis of the Project- in terms of cost, delays, technical and financial constraints-that would probably need an amendment to our credit facility agreement.
Thanks in advance, Yours sincerely.
' Denis CASSAT Country Director French Development Agency (AFD)"
' After receiving the aforesaid letter Power Development Organization-respondent, referred the matter to Board of Directors of AJK PDO and decided to comply with instructions of Donor Agency regarding withdrawal of Letter of Acceptance issued in favour of petitioner. It appears that PDO also solicited guidance from Pakistan Engineering Council (PEC) vide letter Dated 17-12-2014. The Pakistan Engineering Council through its letter dated 6-1-2015 advised that, the best option is to go for re-tendering. The decision was, therefore, made by respondents on the basis of advice of Donor Agency (AFD), Pakistan Engineering Council (PEC) and Board of Directors of Power Development Organization, however, neither AFD or PEC nor Board of Directors have been impleaded parties in the line of respondents. According to our considered view, AFD, PEC and Board of Directors are necessary parties in the writ petition. It is settled principle of law that in absence of necessary party no adjudication can be made. An identical point came under consideration before the apex Court in case titled Mirza Lal Husain v. Custodian of Evacuee Property and others (1992 SCR 214). At page 223 of the report, it was opined as under:-- "14. This point was not raised before the High Court and has not been raised in concise statement filed in this Court, but once it has been brought to our notice the question is whether we should pass an order behind the back of a Government functionary without hearing him. I am quite clear in my mind the answer to this question has to be in the negative. If a necessary party is absent there can be no adjudication. The situation in the aforementioned case was also the same and in fact this point was noticed by the Court itself. Therefore, the writ petition, filed by Mirza Lal Hussain can be dismissed on that score alone."
' The same view was reiterated by the apex Court in case titled Kh. Ghulam Qadir and 5 others v.
Divisional Forest Officer Demarcation and 3 others (1996 SCR 161), wherein at page 164 of the precedent case, it was observed as follows:-- "We have also noticed that the appellants before the High Court did not array Board of Revenue as one of the respondents. Member Board of Revenue was however, arrayed as one of the respondents in the writ petition. In our view the writ petition filed before the High Court by the appellants was not competent on account of non-joinder of necessary parties. Our aforesaid view is fortified by case reported as Muhammad Ashraf v. Azad Govt. Of the State of Jammu and Kashmir (PLD 1985 SC (AJ&K) 102) and an unreported case of this Court titled Syed Muhammad Akram Shah v. Chairman Allotment Committee (Civil Appeal No, 7 of 1995 decided on 24-7-1995).
In the latter referred case it was observed that the Allotment Committee had the powers to make allotments under the relevant law, the same was a legal person within the meaning of Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It was observed that as the Committee was not impleaded as a party the writ petition was incompetent and was dismissed, despite the fact that no objection was raised in that regard, from the opposite side; it was also observed that such an objection can be gone into by the Court suo motu without any objection from the opposite party."
9. The contention of the learned counsel for petitioner that Company was blacklisted by the World Bank to the extent of South Africa and not pertaining to territory of Sub-Continent is without any substance. A perusal of writ petition reveals that the aforesaid point was not raised in writ petition, therefore, a party cannot be allowed to argue case against its pleadings. The aforesaid point was considered by the apex Court in case titled Azad Government and others v. Qamar-uz-Zaman Khan Niazi (1993 SCR 9). At page 13 of the report, it was held as follows:-- "Before going into the merits of case we would like to dispose of this application. The application has been filed under rule 6 of Order IX read with Order XLIII of the Supreme Court Rules and is basically aimed at seeking permission of the Court to file affidavits of the Additional Chief Secretary (General) and the counsel for the appellants. However, a closer look at the contents of the application as well as affidavit shows that practically the appellants are seeking to set up a new case which is entirely inconsistent with the case before the Service Tribunal. As has already been noted, before the Service Tribunal the application which was claimed to have been filed by Qamar-uz-Zaman Niazi containing the conditions of thirty years pension and move-over to grade 19 had been accepted as genuine. In fact it had been clearly stated in the written statement that the Government 'acted in accordance with law by acceding to the request for retirement as it was authorized by law to pass an order of retirement but did not accept the conditions imposed by Qamar-uzZaman Niazi, because the same were illegal and could not have been legally accepted.
Now before us the Government wants us to hold that the application submitted by Qamar-uz- Zaman Niazi imposing the conditions mentioned above had been returned and another application claimed to have been filed by Qamar-uz-Zaman Niazi was subsequently processed and in this application Qamar-uz-Zaman Niazi had asked for retirement on completion of 25 years of service. It is well settled that no party can be allowed to set up a case dffferent from a case which had been set up in the pleadings. Apart from that the point at issue is a pure question of fact which can only be decided after taking of fresh evidence. It is equally well settled that a question of fact cannot be raised for the first time in this Court. Without commenting on genuineness or otherwise of the application claimed by the Government to have been filed subsequently by Qamar-uz-Zaman Niazi, we may point out that the copy placed on the record of this Court is a photo copy and is not attested by any officer of the Government. It is only attested by counsel for the appellants. In law a copy can only be issued and certified by a person who has custody of the original document. Admittedly the learned counsel for the appellants is not such a person. Even in the Government file the original, if any, is not available. It cannot, therefore, be positively proved that this application was in fact filed"
' The same view was reiterated by the apex Court in case titled Muhammad Hussain v. Abdul Majid and others (1993 SCR 319), wherein at page 321 of the report, it was opined as under:- "It may be stated that this is well settled principle of law that the parties cannot depart from the case as set up in their pleadings and vary the same subsequently at the appellate stage. The parties are bound by their pleadings and even if evidence is led in support of a plea which was not set up in the pleadings, such evidence cannot be looked into. Thus, the High Court has not committed any error in holding that the appellant cannot be permitted to put up altogether a different case from the one which he had set up in the plaint. It may be stated that according to the plaint, each of the contesting parties was entitled to equal share, i,e, 1/3 each, and the mutation was also attested in the year 1958 in accordance to the terms of the decree of the Deputy Custodian. Thus, it does not lie in the mouth of the appellant at the appellate stage to change his stand and argue that he was entitled to more than 1/3 share which he had according to the decree of the Deputy Custodian on the basis of which mutation was also attested."
' The aforesaid view was again highlighted by august Supreme Court in case titled Sheikh Javed Iabal v. Muhammad Bashir and 5 others {2010 SCR 208). At page 214 of the report, it was observed as follows:-- "It is celebrated principle of law that no party can travel beyond its pleadings. Respondent No,1 has categorically taken a stand in para 9 of memo of appeal before the Service Tribunal that no adverse order was communicated to him and he got knowledge of all the orders passed by the departmental authorities on service of order dated 18-9-2009. This factual assertion of the respondent has not been denied by the present appellant and pro forma respondents."
' Therefore, argument of the learned counsel for petitioner that China International Water and Electric Corporation (CWE) was not blacklisted to the extent of territory of Sub-Continent, is against principle of pleadings, hence, the same is hereby turned down.
10. The petitioner was admittedly blacklisted by the World Bank, due to its misconduct vide order dated 29-9-2014. The petitioner failed to challenge the vires of the aforesaid order before any forum, which has attained finality under law. If the order was against facts or contrary to law, then it was essential for petitioner to challenge the same before appropriate forum to get rid of its effects.
As petitioner failed to challenge the validity of the aforesaid order before any competent forum, therefore, according to our considered view, the Company loses its credibility and confidence of the Donor Agency plus Power Development Organization, therefore, we are not inclined to set aside the impugned order.
11. The contention of the learned counsel for respondents that writ petition has been filed by an un- authorized person, while referring letter dated 29-10-2014 is, however, devoid of force. Before commenting on the point, it seems appropriate that the aforesaid Power-of-Attorney may be reproduced, which speaks as follows:-- "CHINA INTERNATIONAL WATER AND ELECTRIC CORP. PAKISTAN ' Date: October 17, 2014 To whom it may Concerned POWER-OF-ATTORNEY ' By this power-of-attorney, I Mr. Li Zhili, general manager of the China International Water and Electric Corp. (CWC) Pakistan distt: Islamabad do herby appoint to Mr. Mushtaq Ahmed (I.D. Card No,82202-0637285-3), as my attorney and delegate full powers for me and on my behalf to appear before the High Court of Azad Jammu and Kashmir, Muzaffarabad, under the Title: Tariq Farooq VRS. Power Development Organization Azad Jammu and Kashmir and others.
' He is fully authorized to file applications, petitions, evidence or documents to the Court, to withdraw and receive documents. He is also authorized to conduct the cases and do all other lawful acts, things in connection with cases, as effectively as I could do the same if I was personally present.
' The power of attorney will be valid until further notice.
' With best regards, To be Authorized Authorized by Specimen Signature Li Zhili Mushtaq Ahmed General Manager CWE Pakistan ' A perusal of power of attorney supra reveals that General Manager of China International Water and Electric Corp. (CWC) appointed Mr. Mushtaq Ahmed and authorized him to file applications, petitions, evidence or documents to this Court, to withdraw and receive documents, who is also authorized to conduct the cases and other lawful acts, things in connection with cases, therefore, the aforesaid preliminary objection is overruled.
12. The next contention of the learned counsel for respondents that contractual liability cannot be enforced through writ jurisdiction. Admittedly, contesting respondents are Government institutions and latest judicial pronouncements are that when an obligation or duty vests in a public functionary or a statutory body, performing functions in relation to the affairs of the State or Local Authority, constitutional jurisdiction of the High Court can be invoked. The aforesaid view was considered by the Lahore High Court, in case titled Javed lqbal v. PASSCO and another (2004 CLC 478). At page 479 of the report, it was opined as under:-- "On principle, contractual rights and obligations have to be enforced through Courts of ordinary jurisdiction. However, where rights are based on statute, law or rules framed thereunder or when an obligation or duty vests in a public functionary or a statutory body, performing function in relation to the affairs of the Federation or a Province or a local authority, Constitutional jurisdiction can be attracted. In such and . Allied situations even contractual rights and obligations may be enforced. In Constitutional jurisdiction. This, however, is subject to the important rider of corresponding absence of an adequate remedy.
' Thus, merely, because a contract is involved in a Constitutional petition is not by itself sufficient to oust the Constitutional jurisdiction under Article 199 of the Constitution."
Similar view was expressed in case titled Government of Pakistan v. Messrs Shoaib Bilal Corporation and 2 others (2004 CLC 1104), wherein at page 1118 of the report, it was held as under:- "It is settled by this time that power of judicial review do vest in this Court especially in the case, where an order is attacked on the ground that it was wholly without authority. Where a statutory functionary acts in an unjust and oppressive manner the High Court in its exercise of Learned counsel for the respondents has rightly referred to the judgments in the cases of Anjuman-e- Ahmadiya, Sargodha, the Murree Brewery Co.Ltd., Mst. Kalsoom Malik and others and Gatron (Industries) Limited (supra). In all these cases, it was held that rule about invoking Constitutional jurisdiction under Article 199 of the Constitution, is rule of convenience and discretion, by which Court regulates its proceedings and is not a rule of law. All the material facts emerging out of the contract between the parties, including both the agreements, dated 12-1-1984 and 18-3-1985, terms thereunder, payment of price, transfer of possession of part of land, facing of difficulties by the respondents of taking over possession of the entire land under occupation of the encroachers, security of sale by the Honorable Ombudsman and inquiry by the Anti-Corruption, Committee of the National Assembly, are not disputed between the parties. Comparative study of the writ petition and para wise, comments, reveals that all the salient facts between the parties are not disputed."
' The petitioner, therefore, has got no alternate and efficacious remedy in the given case, hence, the aforesaid preliminary objection is overruled.
13. he crux of above discussion is that finding no substance in the instant writ petition, the same is hereby dismissed. However, as national project of great public importance has already been delayed, therefore, we are inclined to direct respondents Nos. 1 to 3 to retender the same and complete bidding process as soon as possible. The costs shall follow the eventuality.