Ghulam Mustafa Mughal, J.--Both the appeals (supra), by leave, are interconnected, therefore, the same have been heard together and being disposed of through the proposed single judgment.
The appeals arise out of the common judgment of the High Court, whereby the writ petition filed by the real respondent, herein, has been accepted with the direction to the Project Director , Project management Unit, to issue the letter of acceptance to the respondent-firm being the lowest successful bidder .
2. The facts forming background of the captioned appeals, briefly stated, are that the Project Director , Project Management Unit for Azad Jammu and Kashmir Legislative Assembly Complex, Muzaffarabad, invited bids for the construction of Legislative Assembly Complex at Muzaf farabad, from eligible bidders, who are in possession of the following qualification: "7. Only eligible bidders with the following qualification should participate in the bidding process, VIZ: a) Has completed at least one (01) contact of similar nature of work, with at least value of PKR 1800.00 million, during the last five (5) years. b) Bank Statement/Audited financial statement showing an average annual construction turnover of minimum Rs.
1000.000 million, during the last 03 years."
Among others, M/s. Z.K. Associates (Private) Limited and M/s. Shahid Builders (Private) Limited respondents, herein, offered their bid, as Joint Venture, and participated in the bidding process. As per record, their bid was declared non-responsive by the competent authority and the contract for construc tion of the complex was warded to the Kingcrete Builders, Respondent No. 7, herein, vide order dated 6.3.2020. The legality and correctness of the order dated 6.3.2020, whereby the bid of the respondents was rejected and work was ordered to be awarded to Respondent No. 7, was challenged throu gh a writ petition before the Azad Jammu and Kashmir High Court on 9.3.2020, by the respondent, herein. After necessary proceedings, through judgm ent dated 6.5.2020, the division bench of the learned High Court accepted the writ petition and set aside the order dated 6.3.2020, with the direction to the Project Director , PMU, to issue the letter of acceptance in favour of the respondent-firm. Both, the Ministry of Kashmir Affairs and Gilgit Baltistan and others as well as the Project Director , PMU, Azad Jammu and Kashmir Legislative Assembly Complex, have challenged the legality of the impu gned judgment dated 6.5.2020, through the separate appeals.
3. M/s. Sajid Ali Bhatti, the learned Additional Attorney-General and Bashir Ahmed Mughal, advocate, appearing on behalf of the appellant in Civil Appeal No. 215/2020, argued with vehemence that the impugned judgment of the High Court of Azad Jammu and Kashmir is without jurisdictional competence. They submitted that under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, a direction can be issued against a person performing functions in connection with the affairs of Azad Jammu and Kashmir or the local authority , whereas, in the case in hand, the direction has been given to Respondents No. 3 and 4, who are performing functions in the affairs of Federation of Pakistan, hence the impugned judgment is not sustainable. The learned counsel further submitted that the project in question has been prepared, finalized and approved by the Government of Pakistan in accordance with the provisions of the constitution of Islamic Republic of Pakistan , 1973, and the same is being executed under the executive authority of the Government of Pakistan, hence, the Azad Jammu and Kashmir High Court has got no jurisdiction in respect of the project and no direction or writ can be issued to Respondent No. 5, who is delegatee of the Principal Accounting Officer, i.e. the Secretary , Ministry of Kashmir Affairs and Gilgit Baltistan. The learned counsel next argued that vide order dated 6.3.2020, the bid of Respondent No. 7 was accepted and the approval was conveyed to the Project Director , PMU, therefore, the learned High Court cannot issue the direction to the delegatee, hence, the writ issued is in-executable. The learned counsel placed reliance on the case reported as Yasir Bashir vs. Saba Yasir & others [PLD 2019 SC (AJ&K) 9]. The learned counsel submitted that the writ petition was also not maintainable on the ground that the petitioner before the High Court was not a State-subject and no any fundamental right of the petitioner before the High Court, guaranteed by the Constitution, was infringed. It was argued that the Government of Azad Jammu and Kashmir or the Council has no concern with the project, therefore, the High Court has no jurisdiction over the matter . The learned counsel maintained that the respondent-firm i.e. M/s. Z.K. Associates has no speciality of ME03 whereas M/s. Shahid Builders was also lacking the specialization under the codes; EE01, EE02, EE03 and ME02, hence both the firms were not eligible. They also argued that the respondent-firm was not fulfilling the criteria of eligibility for the project because one of the conditions was that the bidder should have completed at least one project of similar nature, within the minimum cost of 1800 million Pakistani rupees. They submitted that the respondent did not meet the requirement, as it has never performed any work of such a nature and value. They argued that in order to overcome the discrepancy , they associated M/s. Shahid Builders (Private) Limited as a Joint Venture partners but they failed to furnish the bid security in the name of joint venture, as required by para 3.4 of the Standard Procedure for evaluation of bids for procurement of works. The learned counsel argued that the interference by the High Court was not justified because contractual obligations cannot be enforced while resorting to the writ jurisdiction of the High Court. In support of their submissions, the learned counsel referred to and relied upon the cases reported as Messrs Power Construction Corporation of China Ltd. vs. Pakistan Water and Power Authority etc [PLD 2017 SC 83], Messers Haji Abdul Baqi and others vs. Managing Director , KW&SB and 6 others [2008 YLR 1919 ] and Dilshad Kausar vs. Azad Government & others [2005 PLC (CS) 1048 ].
In the first case referred to hereinabove, it was observed by the learned Apex Court of Pakistan that the Courts in the exercise of their powers of judicial review, ordinarily , did not interfere with public policy decisions and exercise judicial restraint.
In Messers Haji Abdul Baqi's case referred to hereinabove, it was observed that two disqualified persons on any ground even in cases of joint venture tender would not be qualified by joining hands and each contractor must be qualified in his own right before forming a partnership to tender for a joint venture project.
4. Barrister Humayun Nawaz Khan, advocate, the learned counsel, appearing for the appellant in Civil Appeal No. 216/2020, inter alia submitted that the writ petition was liable to be dismissed on the principle of acquiescence and estoppel, as the respondent, after accepting the addendum issued in pursuance of clause IB-09 of the instructions to the bidders, (annexure `PK'), the undertaking, (annexure `PJ'), the letter dated 16.12.2019, (annexure 'PL') and the undertaking dated 14.12.2019, (annexure `PM'), have participated in the bidding process and in case their bid is declared non-responsive, they have no right to challenge the same at any forum. The learned counsel further placed reliance on annexure `PQ', the check-list, available at page 119 of the paper-book. In support of his submissions, the learned counsel placed reliance on the cases reported as Ghulam Mustafa vs. Azad Government and 2 others [1996 SCR 7], Engineer Muhammad Khalid vs. The University of AJ&K and 8 others [2004 SCR 467] Abdul Qadir vs. Abdul Karim and 4 others [2000 SCR 97] and Chief Engineer Buildings/Public Health vs. Sardar Ilyas Alam [2017 SCR 1609]. The learned counsel further argued that the writ petition was not maintainable, as an alternate efficacious remedy was available to the respondent under Rule 48 of the Public Procurement Rules, 2017, they invoked the extraordinary jurisdiction without exhausting the same.
In this regard, the learned counsel placed reliance on the cases reported as Syeda Shaista Mumtaz vs. Secretary Education and 6 others [2003 SCR 446], Muhammad Munir vs. Chairman/Chair person AJ&K BISE and 3 others [2006 SCR 29], Noman Razzaq vs. Faryad Hussain Ch. and 13 others [2014 SCR 921] and University of AJ&K and 2 others vs. Mohtasib (Ombudsman) and 2 others [2018 SCR 1257]. The learned counsel next argued that the competent authority has rightly declared the bid of respondent-firm as non-responsive, as the security submitted by it, was without ensuring the mandatory joint liability of all the partners of the joint venture, in the light of Conditions No. IB-11.2 and IB-15.03 of the conditions of the contract. The learned counsel submitted that the findings of the learned High Court in this regard are against the record and the relevant instructions. The learned counsel further submitted that the High. Court also fell in error while taking the view that all the formalities including the execution of contract etc. were to be fulfilled after declaring the respo ndent-firm as the lowest bidder .
The learned counsel next argued that the High Court does not have any authority to declare any participant as the lowest bidder , because it is the job of the competent authority , who is in possessio n of special skills and expertise, hence, the declaration of the learned High Court is violative of Rule 2(1)(k) of the Azad Jammu and Kashmir Public Procurement Rules, 2017. The learned counsel argued that the respondent-firm was not in possession of the required qualification, hence, his bid was rightly returned. He submitted that the writ was not maintainable as the project was funded by the Government of Pakistan without any contribution from the Government of Azad Jammu and Kashmir as neither the Governmen t of Pakistan nor the PPH and PMU were impleaded in the line of respondents, therefore, the petition was liable to be dismissed on this sole ground. Reliance was placed on the case reported as Mirza Lal Hussain vs. Custodian of Evacuee Property & 2 others [1992 SCR 214]. The learned counsel lastly argued that the writ was not maintainable for having been filed by unauthorised persan, whose appointment was question before the High Court but the same has not been resolved properly .
5. Raja Amjad Ali Khan, advocate, counsel for the respondent-firm, argued with vehemence that the question of jurisdiction has not been raised before the High Court of Azad Jammu and Kashmir , therefore, this question cannot be raised now by the appellants. The learned counsel submitted that even otherwise the project in question is being executed in Azad Jammu and Kashmir and the whole process of tendering/bidding is being carried out within the territories of Azad