SYED SHAHID BAHAR, J. The titled writ petition has been filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby the petitioners are soliciting following relief:-- "i. That the decision of the redressal committee dated 26.03.2021 through which the petitioners' Firm is declared non-responsive for the package of link road construction work No.(i) Link Road Pahul to Lani length 2 kilometer (ii) Link Road Bakal to main Pahul Length 1.5 kilometer total length 3.5 kilometer LA.28 by declaring null and void may be set-aside. It is further submitted that fresh decision of grievance redressal committee dated 17.06.2022 being without law backing, capricious, unjust, whereby the previous decision of grievance redressal committee is upheld in respect of disputed construction work by declaring null and void and same may also be set-aside. ii. The acceptance letter issued by the respondent No.4 through which directed the respondent No.5 to furnish the performance security in respect of the disputed construction work may also be set-aside. iii. The work order dated 19.04.2021 issued in favour of the respondent No.7 may also be declared null and void and same may be set aside. iv. The official respondent may also be directed to award issue the work order in favour of the petitioners in respect of the disputed construction work in light of the letter dated 23.02.2021 issued by the respondent No.4 in favour of the petitioners for the safe administration of justice."
2. Precise facts of the case of the petitioners are that respondent No.5 invited bids in accordance with Azad Jammu and Kashmir PPRA, Rules, 2017 single stage one envelop bidding procedure from the eligible Firms/contractors/Persons licensed by the Pakistan Engineering Council (PEC) with specialization code CE-1 for the construction of different link roads construction work through advertisement dated 11.01.2021. It is contended that the petitioner No.1, a registered construction Firm/company named M/S Raja Zain Akbar Khan with Pakistan Engineering Council under license No.2078 in category C/4 under by laws of the Pakistan Engineering Council (1987). The petitioner No.2 is a registered construction Firm namely Messrs Raja Awais Rasheed with Pakistan Engineering Council under license No.20886 in Category C/4. It is averred that the petitioners being Govt.
Contractors completed number of construction works within the territory of Azad Jammu and Kashmir in an efficient manner within specified duration. It is also averred that petitioners applied against the advertised Construction Work i.e. (i) Link Road Pahul to Lahni length 2 kilometer (ii) Link Road Bakat to Main Pahul, length 1.5 kilometer, total length 3.5 kilometer, situated at LA-28, estimated costs of the aforementioned work was fixed as Rs.289 million, later on the cost was decreased to Rs. 65.661 million, along with the construction of (i) Link road Chanania to Mandakuli, length 1 km (ii) Link road Chakmakam to Kapagali, length 2 km, total length 3 km, situated at LA-29, estimated cost of work fixed as 59.830 million. it is further averred that both the Firms applied against the aforesaid work through joint venture agreement dated 26.01.2021. It is further contended that the petitioners after obtaining the bidding document from the office of Executive Engineer PWD Highway Division Jehlum Valley (Hattian Bala) submitted the bids before the concerned quarter on 01.02.2021, as per schedule against the aforesaid construction work. The petitioners' Firms and others participated in Bidding Process in open competition. It is maintained that official quarters opened the bids of different Firms including the petitioners Firms against the aforesaid construction works on 01.02.2021 at 12 afternoon. Respondent No.5 after opening the bids of different Firms and analyzing the rates of the contenders declared the Petitioners' Firms as a successful bidder being lowest in the competition. It is fervently contended that after preparing the comparative statement in respect of the rates of the different bidders against the aforementioned construction work, respondent No.4 through letter dated 23.02.2021 to respondent No.3, recommended for approval of the tenders submitted by the Firms of the petitioners being lowest bidder. It is adamantly contended that respondent No.6 with mala fide intention without any justification moved application under AJK PPRA Rules, 2017, before the Redressal Committee for allotment of the aforementioned work in his favour without impleading the petitioners and other concerned quarters; and Redressal Committee against the facts and record, without affording an opportunity of hearing to the petitioners while leveling false and fabricated objections against the petitioners' Firms declared them non-responsive for this package through decision dated 26.03.2021, whereas, the petitioners' Firms through joint venture fulfilled the required qualification which is evident from the letter dated 23.02.2021. It is submitted that in earlier round of litigation, the decision of redressal committee dated 26.03.2021, the acceptance letter dated 15.04.2021 and the work order dated 19.04.2021 have been challenged through the writ petition, which was accepted vide judgment dated 30.12.2021, but the same was partially challenged by the petitioners before Hon'ble Supreme Court, whereas, respondents filed separate petition for leave to appeal against the judgment of this Court dated 30.12.2021. Both the petitions were consolidated and case was remanded by the Honorable Apex Court for fresh decision within six months, vide Judgment dated 20.01.2022, however, this Court/division bench, after hearing parties, remanded the lis to the grievance redressal committee to decide the complaint within 15 days, through judgment. dated 26.05.2022. The grievance redressal committee after hearing parties, declared the petitioners as not eligible for aforesaid construction work through its decision dated 17.06.2022, thus, the decision of the Grievance Redressal Committee is liable to be set-aside. It is prayed that the previous decision of Grievance Redressal Committee dated 26.03.2021, letter of acceptance dated 15.04.2021 and the work order dated 10.04.2021 are also liable to be set-aside.
3. The learned counsel for the petitioners, Mr. Raja Shujat Ali Khan, reiterated the facts and grounds raised in the writ petition and contended that the official respondents with mala fide intention and without lawful authority by misuse of powers while ignoring the petitioners in the garb of false and fabricated objection allotted the construction work to respondent No.6, which is bad in the eye of law, therefore, the decision of Redressal Committee, letter of acceptance in favour of respondent No.6 and work order dated 19.04.2021 are liable to be set-aside. The learned counsel maintained that the rates of the petitioners' Firms were lowest as compare to other contractors. He staunchly contended that Redressal Committee without affording an opportunity of hearing to the petitioners and without taking into account of fact and record of the case, unilaterally declared the petitioner'
Firms non-responsive in respect of the disputed construction work, whereas the petitioners' firms fulfilled the required qualification as per law and rules, hence, the decision of Redressal Committee regarding acceptance letter in favour of respondent No.6 for disputed construction work and disputed work order are liable to be set-aside and the official respondents are liable to be directed to issue the work order in favour of the petitioners.
4. Conversely, Haroon Riaz Mughal, the learned counsel appearing on behalf of respondent No.6 confronted the arguments of the learned counsel for the petitioners and contended that respondent No.6 is registered with Pakistan Engineering Council bearing license of category C-3, who is eligible for the required criteria mentioned in tender notice for constructing the road of LA.28.
The learned counsel maintained that letter of acceptance and work order have been issued in favour of respondent No.6 and a valuable right is accrued in his favour, which cannot be ignored.
The learned counsel persistently contended that the work order has rightly been issued in favour of respondent No.6 by the official respondents, after due procedure. The learned counsel resolutely contended that the petitioners participated in all the proceedings and had terribly failed to fulfill the required criteria of the project, now, they cannot challenge the process of selection. The learned counsel submitted that the official respondents have imposed conditions in the bid book of the tender notice for both the packages i.e. for the package of LA-28 for which the petitioner is declared successful and work order is issued in favour of petitioners, the conditions were clearly mentioned in the standard form of bidding documents, the conditions No.26(v) and (vi) are imposed for the qualification which respondent No.6 qualified as having past experience as well as completion certificates according to the criteria in vogue, whereas the petitioners were refused the tender of LA-28, because they had no past experience of similar nature of work. during last five years and petitioners are also lacking the requirement of the impugned work according to law and rules. The learned counsel maintained that both the works have different criteria, so both were sanctioned in accordance with the law. The learned counsel enthusiastically contended that bids security for the Joint Venture should be from the Joint Venture Account of both Members as prescribed in Joint Venture Agreement Schedule-4, whereas, CDR No.12195477 dated 29.01.2021 of Allied Bank which is attached with bidding form was prepared from Individual Account of one of the petitioner, according to the law it should be prepared or formed from the Joint Venture Account which was prerequisite by the Department through letter dated 24.03.2021 and also mentioned in AJ&K PPRA Rules, 2017, so the petitioners were not entitled to be successful bidders. The learned counsel eagerly contended that bid of the petitioners was rejected on the following reasons:-
(i) Raja Zain Akbar (Associate Partner) provided credit limit of 50 million.
(ii) The leading partner has not provided any credit limit.
(iii) Although the Associate partner did not have his license renewal till June, 2021 but he participated in this bidding process as JV.
5. The learned counsel finally prayed that by accepting the submissions/arguments on behalf of respondent No.6, instant writ petition may be dismissed with costs.
6. The learned Legal Advisor appearing on behalf of respondents Nos.1 to 5 supported the arguments of the learned counsel for respondent No.6 and also prayed that the writ petition may be dismissed.
7. We have heard the learned counsel for the parties and gone through the record of the case with due care.
8. The petitioners herein have claimed that the decision of Grievance Redressal Committee dated 26.03.2021 and fresh decision dated 17.06.2022 passed by GRC being without law backing and capricious, hence, the same are liable to be declared null and void. It is prayed that work order dated 19.04.2021 issued in favour of respondent No.7 may also be declared null and void and same may also be set-aside and official respondents may be directed to issue the work order in favour of petitioners.
9. Right of appeal, review and revision are creature of statute, rationally bestowed to and provided as remedial purpose to provide a fora for adjudication of a matter.
10. The Hon'ble Supreme Court ordained a value laden verdict in the reported pronouncement titled "Muhammad Muneer v. Chairperson Board of Intermediate 2006 SCR 29, relevant para is reproduced as infra:- "Without availing remedy under the statute particularly where right of appeal is provided, the filing of writ petition in the High Court is not justified. If the appellant would have availed right of appeal before the board and the same would have remanded unattended for indefinite period only then he could have availed writ jurisdiction of the High Court seeking direction to decide his appeal at earliest. As the remedy of writ was availed without availing the alternate remedy of appeal before the Board, therefore, no error was committed by the learned Chief Justice of the High Court while dismissing his writ petition."
11. The petitioners after adjudication of the matter by (GRC) under Rule 48 of the AJK PPRA Rules instead of filing an appeal before the Authority in view of Sub-Rule (7) of Rule 48 switched over and directly opted to file the instant constitutional petition. During course of arguments; upon query of this Court; the learned counsel for the petitioners could not satisfy the court as how writ petition is maintainable when an alternate remedy is provided in the PPRA Rules, meaning thereby that wisdom of an appellate fora is missing, particularly technical aspect and modalities with a cross version could have better been judged by the appellate fora as per scheme of special law and thereafter the petitioners could come forward to attack both the decisions rendered by (GRC) and (authority) in writ jurisdiction by pointing out violation of any law. At this juncture, we would like to refer PLD 1983 SC 28 "State Life Insurance Corporation v. Pakistan Tobacco Company" in which it was held that controverted question of facts adjudication of which is possible only after obtaining all types of evidence in power and possession of the parties can be determined only by Courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent.
Another judgment of the Apex Court is also referred in this connection, somewhat akin to the proposition involved in instant case i.e. 2001 SCMR 1993 Mst. Kaneez Fatima v. Muhammad Salim, wherein it was held by the Hon'ble Apex Court that when a particular statute provides self contained machinery for determining of question arising under the statute and law provides a remedy by way of appeal or revision to another tribunal fully competent to give any relief.
Squeezed Analysis
12. The petitioners directly filed the instant constitutional petition in hand without resorting to the remedy provided under sub-rule (7) of Rule 48 of the PPRA Rules which provide a right of appeal before authority. Thus, alternate remedy could not be bypassed at random, remedy of writ in its very nature is an extraordinary relief which is exercised in extra-ordinary circumstances with due care and caution; that too when violation of law or any statutory provision, fundamental right is oozing from the record which attracts the conscious of the Court qua indulgence.
13. Albeit, the rule of exhaustion of alternate remedy is not an absolute one as there may be exceptional cases wherein a petitioner may be allowed to seek his/her remedy by way of judicial review in spite of the existence of an alternative remedy, but casual deviation from this general rule will burdensome the Constitutional Courts with such matters where grievance of petitioner can be well redressed by any alternate forum. Further, the strict compliance to this settled principle will also help to improve the working of other statutory machineries to handle such disputes instead of invoking the constitutional jurisdiction of judicial review. Object of this principle has beautifully been explained by Justice retired Fazal Karim in words:- "The object of this rule, which has in Article 199 (corresponds Article in AJ&K) received recognition, that in the presence of another adequate remedy, the power of the Judicial Review under tele 199 will not be exercised, is to provide against short cut in legal proceedings." (Judicial Review of Public Action, Justice Fazal Karim, Second Edition published by Pakistan Law House, Volume-III, page No.1453."
14. Supra view of the Hon'ble Supreme Court of Pakistan taken in the case of Ch. Muhammad Ismail, reported as PLD 1996 SC 246 is also quoted in that book wherein august Supreme Court of Pakistan has re-expounded this principle as under:- "The High Courts are already huddled up with thousands of cases. If the litigant public is permitted to take all sorts of disputes to the High Court without first availing of the other remedies available to them, under law, it not only necessarily increase the work-load of the High Courts but would also defeat the provisions of law by which the said remedies have been made available. Such a spree on the part of the litigant public would, if we may say so, amount to abuse of the Constitutional Jurisdiction which is to be exercised by the High Courts in exceptional cases to provide justice which cannot be otherwise obtained by the aggrieved parties."
15. Likewise in Khalid Mehmood's case reported as 1999 SCMR 1881, august Apex Court of Pakistan had upheld the decision of High Court, whereby writ petition was dismissed due to availability of alternate remedy, Supreme Court held:- "There are other matters, however, where the constitutional jurisdiction under Article 199 cannot be so readily resorted to. One such, falling in this category would be matters amenable to the jurisdiction of an exclusive Tribunal, mandated by the Constitution itself. Another, which readily comes to the mind, would be disputes under a statute, postulating the appellate or revisional jurisdiction to reside either in the High Court itself or directly in the Supreme Court.
To sum up, therefore, the High Court in the circumstances, should have declined to say anything on merits of the dispute and preferred to non-suit the petitioner on the sole ground of maintainability. As it turns out, the High Court has done that but not without touching merits with the result that we ourselves are compelled to make limited observations in the context of merits of the controversy."
16. Under common law too, remedy of judicial review through writ jurisdiction is not available in the presence of adequate alternate remedy and this principle has been settled by the English Courts. It is settled there that remedy by way of judicial review should be treated only as a remedy of last resort and should only be used in exceptional circumstances when other remedies, which would provide efficacious redressal, have been properly exhausted by a litigant. In R. v. IRC, Ex pane Preston case ([1985] BTC 208), House of Lords had categorically held that:- "House of Lords had categorically held that:- "a remedy by way of judicial review is not to be made available where an alternate remedy exists.
This is a proposition of great importance. Judicial review is collateral challenge, it, is not a an appeal....Judicial Review should not be granted where an alternative remedy is available."
17. Same principle was reiterated by Court of Appeal (England and Wales) in Regina v. Secretary of State for the Home Department, ex pane Swati, [1986] 1 WLR 477, wherein it was held by the court that:- "However, the matter does not stop there, because it is well established that, in giving or refusing leave to apply for judicial review, account must be taken of alternative remedies available to the applicant."
18. Even through a recent decision in Glencore Energy UK Ltd. case reported as [2017] EWHC 1476 (Admin), High Court (Queen's Bench Division), after exhaustive discussion regarding the scope of judicial review in presence of adequate alternate remedy has again refused to grant relief to the petitioner by-reiterating this principle that:- "[40] The basic principle is that judicial review is a remedy of last resort such that where an alternative remedy exists that should be exhausted before any application for permission to apply for judicial review is made. Case law indicates that where a statutory alternative exists, granting permission to claim judicial review should be exceptional. The rule is not however, invariable and where an alternative remedy is none-theless ineffective or inappropriate to address the complaints being properly advanced then judicial review may still lie."
19. Article 44 of the Interim Constitution, 1974 does not confer any substantive right on any party but provides a person only an additional remedy under extra ordinary jurisdiction.
20. Non-availability of adequate alternate remedy is also one of the primary test in this regard, beside other protocols, however, the petitioner is at liberty to approach the appellate fora provided by PPRA laws if so advised within 15 days.
21. In sequel of the above factual matrix, the constitutional petition in hand is devoid of any force, which fails, hence, dismissed in limine under the doctrine of limine control.