' B. G. N. KAM, J.-The six petitioners who are 'A' Class (No Limit) contractors with respondent No, 1 under the K.D.A. Enlistment of Contractors Regulation. 1972 have filed the instant petition against the refusal of respondent No, 2 to allow them to participate in the bids for work in Scheme No,
36. It is their case that they had submitted a representation before respondent No, 2 which has remained unre plied and that the impugned action of the respondents is illegal. Mala fide and without any lawful authority inasmuch as the applicants having been once enlisted with the respondents as contractors of a particular category cannot arbitrarily be refused to allow to participate in the bids for contracts. It is further their case that the enlistment of certain conditions, constitutes a binding contract between the parties and the respondents cannot put restrictions upon the petitioner's right to bid for the contracts, specially as the refusal to allow the petitioners to participate in the tenders will be against public interest which the respondents are obliged to protect. The petitiones have contended that the impugned action will be in violation of the petitioners' right to be treated in accordance with law as envisaged by Article 4 of the Constitution of Islamic Republic of Pakistan.
2. The facts briefly stated are as under :
3. The petitioners are enlisted as 'A' class contractors upon fulfilment of conditions requiring investment of substantial amounts and on the basis of their experience and qualifications. It is the case of the petitioners that after enlistment they have satisfactorily completed various works to respondent No, 1 which were granted to them from time to time. Under clause 4 (6) of the Enlistment of Contractors Regulation. 1972 all the contractors are enlisted initially for a year but the respondent No, 2 is empowered to renew the enlistment every year upon deposit of prescribed fee.
It is the case of the petitioners that like all other public functionaries respondent No, 1 also encourages enlistment of contractors for healthy competition. The enlistment of petitioners Nos. 1 to 4 had been renewed for the year 1982-83 which is valid upto 30th June, 1983.
4. The respondents recently invited tenders for various works to be executed for K.D.A. Scheme No, 36 known as Gulistan-e-Jauhar, but contrary; to the established practice no notice for tenders were published in the newspapers. The tenders had been invited to be submitted before 25th of June, 1982 and were scheduled to be opened on 27th day of June, 1982. On coming to know about the invitation of such tenders the petitioners immediately approached the respondent No, 2 and his subordinates for purchase of tender forms. Respondent No, 2,' however, refused to issue the forms and orally informed the petitioners that they will not be allowed to bid for the said work in Scheme No,
36. They sent a telegram dated 15th June, 1982 through their counsel protesting to respondent No, 1 against the refusal of respondent No, 2 to allow them to participate in the bids for work in Scheme No,
36. They also submitted a representation before respondent No, 2 which had remained unreplied. The petitioners considered the action of the respondent to be illegal, mala fide and without lawful authority and, therefore, having no other efficacious and alternate remedy filed the instant petition.
5. Alongwith the petition an application under Order 39, rules 1 and 2, C P.C. Read with Article 9 of the Provisional Constitutional Order was filed on behalf of the petitioners praying that the respondents be directed to allow the petitioners to purchase the tender forms and submit the same or in the alternative to restrain the respondents from opening the tenders without participation of the petitioners during the pendency of the petition.
6. A Division Bench of this Court while admitting the petition ordered issue of notice to the respondents and granted an ad interim relief directing the respondents that tenders received shall not be accepted and the case to come up for hearing of the stay application on 4-7-1982, before which date counter-affidavit and rejoinder, if any, had to be filed.
7. On 4-7-1982, 7-7-1982 and 8-7-1982, the arguments of the learned counsel for the parties were heard and since the points arising out of the application, namely, whether the petitioner had a prima facie case and whether injunction should be issued, were the same which had also to be considered for decision of the main petition, with the consent of the learned counsel for the parties their arguments were considered to be arguments also on the main petition.
8. On behalf of the respondents it is stated that in October, 1979 by Resolution No, 403 of the Governing Body, besides according approval to the K.D.A. Scheme No, 36 at a cost of Rs, 11,700 lacs for onward transmission to the Government it was further resolved that general development to be carried out such as construction of roads and highways, laying of water supply system (Mains and distribution), Sewerage system, S.W. Drainage system and provision of electrification of main roads in the proposed scheme, in anticipation of the Government approval. It was further resolved that the entire project work was to be carried out pre-qualified agencies on, Turn-Key basis. It is the case of the respondents that a press publication was issued in a Karachi Newspaper in November, 1979 with regard to pre qualification of contractors and from amongst the applicants and in response to the aforesaid press publication a list of contractors pre-qualified was issued vide 01M No, CE (D)J WE/Scheme 36/prequly/79/271 dated 12-2-1980. At the same time the competent authority also decided that for works consisting of less than Rs, 10 lacs no pre-qualification of contractors was necessary. The aforesaid order is dated 15-3-1980.
9. During the arguments Mr. S.H. Qizilbash the learned counsel for the respondents after looking at the record took the stand that among others, notices about pre-qualification were issued to the petitioners. Petitioners Nos. 1, 2, 4 and 5 received the pro forma but did not submit it to the respondents as a result of which the said petitioners could not be considered for pre-qualification.
Hence tender documents could not be issued to them since the tenders were invited from pre- qualified contractors/firms through Circular letter dated 19th May, 1982. A perusal of the tender notice would show that tenders were invited on lump sum basis for works from pre-qualified contractors for internal development, block- wise, in K.D.A. Scheme No, 36 and the blocks involved were No 7 Division II, 15 Division I and No, 16 Division I of Scheme No, 36.
10. On behalf of the petitioners their learned counsel, Mr. Khalid M. Ishaque, has raised the following contentions :-
(i) That the petitioners being enlisted as 'A' class (No Limit) contractors with respondent No, 1 under the K.D.A, Enlistment of Contractors Regulation, 1972 were entitled to offer bid and consequently should have been given the tender forms.
(ii) That the aforesaid Regulation for Enlistment of Contractors was made in exercise of powers conferred by Article 15 of the K.D.A. Order, 1957 which, inter alia, lays down that contractors shall be permitted to purchase form and tender for the contracts from Engineering Department, K.D.A.
Within the category/tender limit they are enlisted. It is, therefore, further argued by the learned counsel that any change with regard to enlistment of contractors could be made only by amendment of the Regulation.
(iii) That the petitioners had been given contracts for execution of works in the scheme which have been satisfactorily completed as shown in the certificates produced by the petitioners. The pre- qualification exercise was, therefore, only a rule for keeping out the petitioners from offering the bids and was mala fide.
11. With regard to contentions Nos. (i) and (ii) there can be no doubt about the fact that if any amendment of the Regulation with regard to enlistment of contractors 'was to be made it should have been made by the Authority by amending the same. However, in the instant case as pointed out by Mr. Qizilbash, the learned counsel for the respondents, the enlistment under the Regulation had been considered valid and proper for execution of works with no limit but the respondent reserved the right to pre-qualify well established and more experienced contractors/firms for work in Scheme No, 36 and in other schemes for works of exceptional nature requiring planning, designing, estimating, technical knowhow and organisational set up for the works awarded on Turn-Key basis. It was further pointed out by him that on representation of the various contractors for pre-qualification a pre-qualification formula was issued to about 28 contractors among which 4 of the- petitioners, namely, Nos. 1, 2, 4 and 5 had received the pro forma but did not submit it to the respondents. There can be no doubt about the powers of the governing body under Article 4 of the K.D.A. Order to issue general directions of the nature. In question and the only restriction on those powers is that if question arises as to whether any matter is a matter of policy or not the decision of the Provincial Government shall be final. In the instant case, however, there is nothing to indicate that there were any orders of the Provincial Government with regard to pre-qualification of contractors.
12. With regard to the contention about the mala fides the same has not been specifically alleged and there is only the contention that the petitioners were on purpose kept out of bidding on the projects. The tender documents have since been opened and it is apparent that the total works given are with regard to construction of roads, water supply, sewerage and storm water drains in respect of which a lump sum tender was invited The contract with regard to all the detailed works was on Turn Key basis. The orders with regard to the aforesaid basis appear to have been considered by the governing body to be necessary as obvious if the same contractor is to execute the internal development with regard to items stated, the planning and coordination of work would be easier and the execution of the same swifter.
13. Mr. Khalid M. Ishaque, the learned counsel for the petitioners has pointed out that resolution No, 403 makes it clear that the entire project work of Scheme No, 36 was to be carried through pre- qualified agencies on Turn-Key basis but the certificates produced by M/s. Ibrahim Khan Brothers and M/s. .Haji Fazal Din show that installation of external water supply system along sectors 16, 17 and 18 in Gulistan-eJauhar was given as a separate item and that the work of construction of 200' wide road in the aforesaid division was given to Messrs Haji Fazal Din contractor and was satisfactorily completed. On the other hand Mr. S.H. Qizilbash the learned counsel for the respondents has stated that on the representations of some of the petitioners the competent authority had also decided that all 'A' class (No Limit) contractors enlisted with respondent No, 1 shall be allowed to tender for work upto the cost of no limit but the Authority reserved the right to pre-qualify well established and more experienced contractors for internal development (block- wise) in K.D.A. Scheme No,
36. The tender documents also support this assertion in that the same are for internal development of Blocks Nos. 7, 15 and 16 separately. : The works in respect of which the certificates already mentioned have been shown do not pertain to internal development of any of the blocks.
14. The all important question concerning this writ petition is whether it is maintainable- in the form in which it has been brought. In the memo. In ground (b) thereof it is asserted that the enlistment of petitioners as contractors upon fulfilment of certain conditions, constitutes a binding contract between the parties and the, respondents, therefore, cannot put restrictions upon the petitioner's right to bid for the contracts. The matter being one of contractual relationship between the K.D.A.
And the petitioners it was for the learned counsel for the petitioners to show as to how the writ jurisdiction of this Court was attracted. In a recent decision of this Court in Haji Wali Muhammad and another v. K. D. A. And another (1) it was held that in matters of contract Petition under Article 199 of the Constitution would not lie.
15. We, therefore, dismiss the petition but in the circumstances of the case no orders with, regard to costs are being passed.