Through this writ petition, the petitioners, who are sole proprietors of entities engaged in the business of engineering and construction contracts, challenge the following eligibility criteria in a tender notice published/issued by the Islamabad Electric Supply Company Limited ("IESCO"):-- "(ii) Have a relevant experience with successful completion of at least 03 works of the same type/nature within the last 05 years in any DISCO."
2. Learned counsel for the petitioners submitted that impugned eligibility criteria violates the Public Procurement Rules, 2004, as well as Article 25 of the Constitution; that the impugned eligibility criteria violates IESCO's policy contained in its letter dated 29.06.2016; that the purpose of bidding is to ensure maximum possible participation so that bid price is competitive and best for a procuring agency; that IESCO has introduced the impugned eligibility criteria so as to defeat fair competition and to accommodate pre-selected contractors; that the petitioners had been earlier permitted by IESCO to participate in bidding for construction contracts. Learned counsel for the petitioners prayed for the writ petition to be allowed by directing IESCO to permit the petitioners to participate in the bidding process for the projects in question.
3. On the other hand, learned counsel for Respondents No, 2 to 4/IESCO submitted that the eligibility criteria contained in the tender notices suffers from no infirmity; that the underground ducting is a sophisticated-project which is to be carried out by contractors with experience in such works; that IESCO cannot award a contract to a contractor that it does not know; that the petitioners had earlier invoked the jurisdiction of the civil Court by filing a civil suit; that the said suit was conditionally withdrawn; that there is no impediment before the petitioners to obtain a sub- contract from any of IESCO's contractors and in this way to build their experience; and that the process for bidding initiated by IESCO has culminated in the award of contracts for underground ducting. The learned counsel for Respondents No, 2 to 4/IESCO prayed for the writ petition to be dismissed.
4. I have heard the learned counsel for the contesting parties and have perused the record with their able assistance.
5. The record shows that IESCO published tender notice No, 01&02/2016-2017 inviting bids for the works mentioned therein. These works included the excavation of trenches, and supply of 1st class burnt bricks and sand free of dust (course) road gate path crossing for laying of high tension/low tension underground cables in the jurisdiction of XEN Operation Division No, 1 and II, IESCO, Islamabad. The petitioners were not issued tender documents by IESCO, because they did not fulfil the said eligibility criteria i,e, they did not have the experience of successful completion of at least 03 successfully completed works within the last 05 years in any electricity distribution company.
The petitioners, in the instant petition, have challenged the above mentioned eligibility criteria in the tender notice.
6. The petitioner has filed, along with the writ petition, copies of the Orders dated 22.07.2016 and 25.07.2016, passed in civil suit for declaration and permanent injunction titled "Mls. Aziz Khan etc. Vs. Deputy Manager VEC, IESCO etc" filed before the learned Civil Court. Perusal of the said Order dated 22.07.2016 shows that the plaintiffs in the said suit had sought the issuance of tender documents for participation in the bidding process initiated by !TKO.' IESCO had refused the issuance of the tender documents to the plaintiffs in the in the said suit, because they had not fulfilled the terms and conditions of the tender. The learned Civil Court vide its Order dated 22.07.2016, dismissed the plaintiff's application for temporary injunction in the following terms:-- "... Advertisement has been perused which shows that contractors having experience of five years with three relevant projects in the like nature are shown to be eligible, which the applicants have,no experience at their credit. The requirement of the tender whether justified or not may not be questioned in the instant proceedings, hence, in view of the above circumstances, the reasons for ad interim injunctions are not made out and ad-interim injunctions are declined. The defendant is directed to file written statement on next date of hearing i,e, 27.7.2016."
7. Prior to the next date of hearing before the learned Civil Court, the plaintiffs in the suit filed an application for the withdrawal of the civil suit. In the application for withdrawal, it was pleaded that the plaintiffs had invoked the jurisdiction of the Islamabad High Court by filing a writ petition. On 25.07.2016, the said civil suit was dismissed as withdrawn. This withdrawal took place after the plaintiffs were unable to obtain injunctive relief from the learned Civil Court.
8. Now, even though this writ petition was filed on same very day on which the plaintiffs in the civil suit applied for the withdrawal of the civil suit, I am of the view, that the consequences of an unconditional withdrawal envisaged by Order XXIII, Rule 1 (3), C.P.C., are attracted in this case. The fact remains that the civil suit was withdrawn unconditionally. Whether the writ petition was filed prior to or subsequent to such unconditional withdrawal does not make any difference. The petitioners were precluded from filing or pursuing a suit or a writ petition instituted subsequent to and on the same subject-matter as the earlier suit.
9. Once the learned Civil Court denied injunctive relief to the plaintiff in the suit, they, instead challenging the said Order dated 22.07.2016 decided to try their luck by filing a fresh writ petition before this Court. The petitioners could not be permitted to forum shop in, such a way. The said Order dated 22.07.2016, passed by the learned Civil Court had attained finality, which could not be interfered with in collateral proceedings.
10. The civil suit before the learned Civil Court, and the writ petition before this Court were essentially filed by the same parties. This is apparent from the table below:-- Plaintiffs in the Civil Suit Petitioners in the Writ Petition
1. M/s Aziz Khan and sons resident of Old Main Kashmir Highway, Beside Mehfil Hotel, Sector G-12/1, Mehrabadla Islamabad.1. Sabir Khan S/o Noor Zaman Proprietor Sabir Khan & Company, Plot No, 4, office No, 2-A, Fatima Plaza, F-10 Markaz, Islamabad
2. M/s Sabir Khan resident of Flat No, 4, Office No, 2/A, Fatima Plaza Sector 1-10 Markaz Islamabad2. Aziz-ur-Rehman S/o Hakim Khan Proprietor Aziz Khan & Sons R/o Old main Kashmir Highway near Mehfil Hotel, G12/1 Mehra-abadi, Islamabad
3. M/s Sahib Ullah and brothers Corporation resident of Street No, 06, House No, 1729, Westridge-III, Rawalpindi.3. Liaquat Ali Khan S/o Taj Muhammad Proprietor Liaquat Enterprises, Office No, 3, Sector 4-A, near Qasim Market, Khayaban-e-Sir Syed Rawalpind.
4. M/s Liaqat Enterprises resident of House No, 103, Sector A/4 Mohallah Dhok Najju, Kheyban-e-Sir Syed Rawalpindi4. Aminullah S/o Mgdaar Khan Proprietor M/s Rohail Builders Flat No, 3-N, f 1st Floor, Shaheen Centre, 1-9 Islamabad
5. M/s Rohail Builders resident of House No, 1116, Street No, 95, Sector 1-10/1, Islamabad.5. Sahibullah S/o Nadir Khan Proprietor Sahibullah & Brothers Corporation House No, 50, Street No, 05, Westridge Valley-III, Rawalpindi.
11. It is also noted with dismay that the petitioners chose not to make any mention of the civil suit in the writ petition or the certificate of the advocate for the petitioners. This omission, by itself disentitles the petitioners from discretionary relief in the equitable / constitutional jurisdiction of this Court under Article 199 of the Constitution.
12. Writ jurisdiction has consistently not been exercised in favour of a litigant who has suppressed a material fact from the Court. Reference in this regard may be made to the following cases:--
(i) Ramzan vs. Chief Settlement Commission (PLD 1968 L258);
(ii) Abdur Rashid vs. Pakistan (1969 SCM R 141);
(iii) Principal, King Edward Medical College vs. Ghulam Mustafa (1983 SCM R 196);
(iv) Lahore Development Authority vs. Mst. Shamim Akhtar (2003 M LD 1543);
(v) Nazir Ahmad vs. Faisalabad Development Authority (2003 CLC 359); and
(vi) Dilawar Hussain vs. District Coordination Officer, Okara (2004 CLC 324).
13. In view of the above, without going in to the merits of the case, this petition is dismissed with no order as to costs. The question whether the eligibility criteria (requiring a bidder to have experience of three successfully completed projects with any electricity distribution company in the past five years) is unduly restrictive and in violation of the Public Procurement Rules, 2004, or the Constitution, remains to be decided in competently instituted proceedings.