MUHAMMAD AKRAM, J.--This is a petition under Article 98 of the abrogated Constitution of Islamic Republic of Pakistan read with clause 5 (b) of the Proclamation of Martial Law, 1969. It purports to have been filed by the two petitioners in a representative capacity and was accompanied by a separate application under Order I, rule 8 of the Code of Civil Procedure for permission to prosecute it in a representative capacity for and on behalf of the Government contractors in general. But at the hearing the application was not pressed and for all intents and purposes this petition must be treated as having been filed by the two petitioners in their personal capacity only.
2. The petitioners are on the approved list of the Govern-ment contractors. They are interested in the contracts for the public works, buildings and roads etc., granted by the Government throughout Baluchistan. It is alleged in this petition that in the year 1940 during the Second World War the then Government of India had introduced a system of nomination for the allotment and execution of works in the border regions of the Tribal areas in Baluchistan. Under this system, the Political Agent was authorised to allot the repair works for roads etc., up to the limit of Rs, 40,000 in their value, to the tribal Sardars and 1 Maliks nominated by him, in keeping with their tribal responsibilities. But after the Second World War this system was recommended to be abolished.
However, before this could be done, the sub-continent was divided and after the Partition, due to the other more pressing problems facing the Government in Pakistan this system for the allotment of works by nomination wasallowed to continue. But at the time it was confined only to the border regions of the Tribal areas like the Sherani erritory in Zhob District. Except for this, all contracts and public works were used to be allotted by the Government by inviting open tenders in Quetta and Kalat regions including the remaining Tribal areas. It was in the year 1968 that an effort was made to change this system and instead introduce a system for the allotment of works by nomination from a panel of contractors prepared by the Commissioners and Deputy Commissioners in their respective areas. Accordingly, a meeting was convened for the purpose, on the 20th of June 1967.
This was presided over by Mr. Ghulam Sarwar Khan, S. Q. A. the then Minister for the Development of Tribal Areas of Quetta and Kalat Regions. The matter was considered at length in the meeting but it was finally decided that the old system in vogue in Quetta and Kalat should continue and that status quo may be maintained. A true copy of the minutes of this meeting enclosed with a copy of the covering letter No, 19/1-H (Dev-11) TV/67, dated 11-7-1968, from the Secretary to the Government of West Pakistan, Home Department, Lahore, to the Chief Engineer, Highways, Western Region, Quetta is attached with this petition as Annexure 'A'. The petitioners have further alleged that in spite of this, however, recently, the Provincial Government has revised the old system in vogue for the allotment of contracts and works by inviting open tenders in Quetta and Kalat Divisions excepting in 'A' areas (comprised of the Quetta City, other small towns and areas covered by the railway line). In 'B' areas, comprised of most of Quetta and Kalat Divisions, the Deputy Commissioners and the Commissioners have been empowered to award contracts by a single nomination from among the contractors on the "Approved List" prepared by them in keeping with their tribal responsibilities. Under this system, the Deputy Commissioner is authorised to award contracts up to the value of Rs, 5,00,000 in his discretion and those for Rs, 5,00,000 to Rs, 10,00,000 subject to confirmation by the Commissioner. Contracts above Rs, 10,00,000 in value could be awarded by the Commissioner in his discretion. They are assisted by the Rates Committees formed at the District and the Divisional Levels, consisting of the Engineers concerned and another senior officer, to advise them about the rates etc. It is averred in the petition that this change in the system for the allocation of the contracts and works, in the future, in Baluchistan, was brought about by the Government by a secret order passed behind the back of the petitioners without any hearing. It was introduced on parochial considerations in order to afford political patronage to their stooge and encourages corruption among them. It was not at all conducive to the interests of the Government. The petitioners and some other contractors made repeated representations against it to the Government but in vain. It is alleged that this order thus passed by respondent No, 1, the Province of West Pakistan, introducing this new system for the award of the public works was ultra vires, illegal, arbitrary and wrongful. It offends against the provisions of Article 2 of the late Constitution and has no sanction behind it under the law of the land. The executive authority of the Province must always be exercised solely in accordance with the late Constitution and the law. It is asserted that the petitioners and other similarly placed persons have an inalienable right to be treated in accordance with law and not arbitrarily at the whim and caprices of the authorities in the matter of this allotment of the works of public nature to them. According to the petitioners, the impugned order passed by the Government was wholly without any lawful authority. In these circumstances, the petitioners have prayed that the action taken by respondent No, 1 in doing away with the open tender system and substituting it by a system of nomination of contractors for allotment of contracts and works of public nature may be declared to be without lawful authority and of no legal effect and that Government may be directed to make these allotments through the well-recognised system by inviting open tenders only.
3. Before this writ petition was admitted to a full hearing, respondent No, 1 was called upon to submit its comments. In the comments received from the Government they have admitted that before the issuance of the recent instructions by the Government of West Pakistan in the Home Department, the procedure in vogue in Quetta Division for the allocation of contracts and works was the same as mentioned in the minutes of the aforesaid meeting held on the 20th of June 1968.
According to this, the works costing less than Rs, 40,000 to be executed outside the town limits, were given by inviting tenders from a panel of contractors maintained by the Political Agent/ Deputy Commissioner. In Zhob Agency, Sherani and the country around Sambaza and Mir Ali Khel, works were let out by nomination. In Kalat Division, all contracts were given to the contractors by inviting open tenders. But afterwards the system for the nomination of contractors, by a single nomination, was introduced by the Government with a view to safeguarding the economic interests of the public of this backward area. It is alleged that the financial position of the local contractors was such that they could not compete with the outsiders with the result that the works carried out in this area did not bring in any employment or work for the local inhabitants. The intention of the Government behind this change was to raise the economic conditions of the local people and to protect their legitimate interests. The Government has denied that this system has provided any scope for political patronage and corruption nor was there anything to indicate that it was encouraged by the Maliks and some officers for ulterior reasons. The Government has pointed out that even under the revised policy, the old system for the grant of contracts by open tenders was still in force in 'A' areas in Quetta and Kalat regions and that the petitioners could be easily nominated by the Political Agent for the works in 'B' area, if found suitable. So that their grievances in this respect are altogether illusory. It was admitted that the petitioners along with some others had made a written representation to the Governor of West Pakistan/ Martial Law Administrator Zone 'A' in this behalf. But their request was found to be unreasonable and filed. The respondents have asserted that the petitioners have no legal right in insisting that the old policy for the grant of the works and contracts must be introduced again. By this change in the policy none of their vested rights was adversely affected and they have no legal grievance to make in this respect. The Government has merely revised its own policy keeping in view the political and economic conditions obtaining in the backward areas in Quetta and Kalat Regions, in accordance with the wishes of the people there. It is contended that these tribesmen are socially and educationally a backward class of citizens and such a provision was made for their advancement in consonance with Article 6 (12) (6) of the abrogated Constitution. The respondents have vehemently asserted that there was nothing illegal in this policy adopted by them. No legal rights inhering in the petitioners were at all involved or effected. They have no legitimate grievance and locus standi to file the writ petition.
4. The essential facts necessary for the disposal of this petition were not disputed before us at the hearing. In the beginning in most of the territories, in the Quetta and Kalat regions, all contracts and works of public nature were used to be awarded to the eligible contractors on the approved list, by inviting open tenders. The only departure from this system for the allocation of contracts in this connection was made with respect of the works executed in certain specified areas situated in the Tribal borders where limited contracts up to the value of Rs, 40.000 were allotted by the Political Agent concerned by nomination, to the tribal Sardars and Maliks. But under the revised policy recently introduced by the Government the old system for the grant of contracts and works to the contrators in Baluchistan was materially changed. The Government decided that in future all works and contracts in Quetta and Kalat Divisions (excepting A'-area comprised of Quetta City and other small towns and the area covered by the railway line) should be allotted to the contractors by a single nomination from among the contractors on an " Approved List " maintained by the Commissioner and the Deputy Commissioner for the area. The Deputy Commissioner is authorised to award contracts and works of the value of up to Rs, 5,00,000 in his discretion and between Rs, 5,00,000 to Rs 10,00,000 subject to confirmation by the Commissioner. Contracts above Rs, 10,00,000 in value could be awarded by the Commissioners in his discretion. In this manner the system in vogue for the allotment of public works by open tender in most of the territories in Quetta and Kalat regions was altogether given up and under its revised policy the Government has decided to award these works and contracts to the contractors by nomination from the "Approved List".
5. According to the petitioners this change in the policy has adversely affected their future business prospects as the approved Government contractors of great repute and standing, in this region, on the basis of open tenders for the public works in a free and fair competition for all. Indeed according to the data produced by them during the past 10 years they have executed works, amounting to Rs, 185'50 Lacs in value, allotted to them. In the 'B' area on the basis of open tenders and comparatively a small work of Rs, 4 lacs only was carried out by them in 'A' area. The main bulk of the work (over 90%) was done by the petitioners in 'B' area which includes most of the Quetta Division and the whole of Kalat. It cannot be denied that the petitioners are vitally interested and greatly alarmed at this change in the policy introduced by the Government for allotment of works and contracts in those areas by a system of nomination in the discretion of the authorities. So far they have not been placed on the newly "Approved List" of contractors maintained under the revised policy for the allotment of the works to them.
6. In these circumstances the learned counsel for the petitioners has vehemently argued that this system introduced by the Government for the allocation of contracts through a single nomination was not at all authorised by law. It is not based on any law and has no sanction of the law behind it.
It was therefore, ultra vires of Article 2 of the late Constitution of Islamic Republic of Pakistan, 1962 (as adopted). Dilating upon his argument further it was contended that the executive authority of the government can act only in accordance with law and has no residuary or inherent powers to act without the backing of any law to support it. Article 2 lays down that it is the inalienable right of every citizen in Pakistan "to enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law. "It further provides that in particular no action deterimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law and that no person shall be prevented from, or be hindered in, doing that which is prohibited by law. In interpreting this Article, Kaikaus, J. in Mian Jamal Shah v. The Member, Election Commission Government of Pakistan, Lahore, and others on pages 52 and 53 of the report, had little doubt that this object of this Article was to negative any claim by the Government that it had inherent power to take action which was not subject to law or that it could deal with individuals in any manner which was not positively prohibited by law. In his opinion this Article embodies an important charter : "It prevents the Government from taking any action in this country, for which there is no legal sanction, and it at the same time debars the Legislature from creating an authority whose actions are not subject to law." In this connection the Court further observed that all persons exercising authority in Pakistan must do so only in accordance with law. Even prior to this Constitution the Privy Council in Eshugbayi Eleko v. Officer Administering the Government of Nigeria and another has generally observed that : "The executive can only act in pursuance of the powers given to it by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice."
7. A great emphasis on this aspect under Article 2 of the Constitution was laid in a series of recent decisions by the High Court of East Pakistan. In Md. Hossain and others v. General Manager, E. B.
Railway, Chittagong and others , the Court observed that :- "The argument advanced on behalf of the respondents pre-supposes that a vague, indefinite and wide power has been vested in the executive to invade upon the proprietary rights of citizens and that such invasion cannot be subjected to judicial scrutiny if it is claimed that it is a mere executive order. This is not the position in law. Any invasion upon the rights of citizens by anybody, no matter whether by a private individual or by a public official or body, must be justified with reference to some law of the country otherwise, such invasion would be illegal and our Courts would not only subject the same to their scrutiny but would also enforce the rights of citizens whenever there is an1 2 3 encroachment upon such rights without legal jurisdiction."
In this connection a Full Bench in Haji Ghulam Zamin and another v. A. B. Khondkar and others has held that : "It cannot be denied that there is no inherent power in the Executive, except what has been vested in it by law, and that law is the source of all power and duty." Following this dictum in Haji Ghulam Sabir v. Pan Allotment Committee a Division Bench of the Court was of the opinion that from this all pervading presence of law, as the sole source of governmental power and duties, there follows the consequence that the existence or non-existence of a power or duty is a matter of law to be determined by reference to some enactment or reported case. Consequently there were no powers or duties inseparably annexed to the executive Government apart from the law itself.
8. But it seems that this Article 2 of the Constitution has meanings only in relation to the vested rights of the subjects. It is difficult to consider this Article merely in the abstract and it has got to be construed in its application and relation to a public or private right involved. in this connection M.
Munir, a former Chief Justice of Pakistan, in his treaties on the "Constitution of Islamic Republic of Pakistan" in his discussion, under this Article has observed : "But it is difficult to see how the aid of the Article can be invoked in any particular case where no public or private right is involved. What the 'Article declares is that any public functionary or person taking any action affecting the life, liberty, body, property or reputation of a person, or affecting his profession, trade or business, must rely on some law to justify his action."
In the opinion of the learned author : "To put the rule in other words, every public functionary or person must show a legal authority for his interference with the right of another person. Thus, a direction or order by the Executive, which infringes a present right, would be invalid, if it does not have the backing of a valid contemporaneous law.
Article 31 of the Constitution provides that the executive authority of the Republic is vested in the President and shall be exercised by him, either directly or through officers subordinate to him "In accordance with this Constitution and the law". These words are susceptible of two interpretations and commenting on them the learned author has observed that :- "The words in accordance with the Constitution and the law are capable of lending themselves to two different constructions. One view is that in the absence of any provision to the contrary in the Constitution or the law, President may exercise his general executive power in any way he thinks fit in regard to matters to which the executive authority of the Republic extends under Article 135, provided that the power exercised does not amount to a legislative or judicial act. A further proviso to this rule, which has its foundation in the terms of Article 2, is that the exercise of the power should not involve an infringement of the rights, fundamental or not, of the subject. This is the view taken of Presidential powers by the Supreme Court of the United States and the Supreme Court of India. The other possible view is that the true import of the word 'in accordance with the Constitution and the law' is that for every executive act done by the President there must exist either in the Constitution or the law some authority for the doing of such specific act and that the President cannot perform any executive functions which are not authorised by a provision in the Constitution or the law."
In the cases discussed above Article 2 of the Constitution was actually construed in the context of certain vested rights of the persons concerned yet it is true that as already discussed, in this country the Courts have adopted the latter view on the interpretation of Article 2. However, in tue leading ease of Ram Jawaya Kapur v. The State of Punjab the Supreme Court of India seems to have adopted the first view.
9. But the matter does not rest here. The learned counsel for the petitioners was unable to lay his hands on any specific provision in the law on which the old system for the grant of works by the Government to the contractors by inviting tender, was based. This system on which he has relied and which he is seeking to enforce again suffers from precisely the same criticism levelled by him4 5 6 under Article 2 of the Constitution against the new system introduced under the revised policy for the allocation of nomination. From this point of view there is little to choose between the two systems. Quite apart from this, the petitioners, in order to succeed in this petition, under Article 98
(2) of the Constitution, must establish that they were possessed of a legal right which was infringed by this impugned change in the polio by the Government. In the absence of any right vested in the petitioners the question of its invasion at the hands of the respondents does not arise.
The petitioners are interested in securing contracts for the public works from the Government in Baluchistan. It is elementary that a contract is formed by an offer and its acceptance with the free- will and consent of the parties and there could be no compulsion in this behalf. It is solely for the Government, as one of the contracting parties, to formulate its own policy from time to time, and to evolve its own method for according its acceptance to an offer received from a contractor. The con erector has no say whatever in this matter which rests solely with the government. The Government is altogether free to lay down its own policy in this respect.
10. But in this connection the learned counsel has asserted that the petitioners are among the leading contractors having established their business in Baluchistan. They belong to Mandokhel tribe of Zhob District in Baluchistan. During the past ten years they were able to execute works worth Rs, 185.50 lacs, in the "B-area", secured on the basis of open tenders submitted by them. But by virtue of this change, introduced by the Government for the allotment of works to the contractors in the area, by a system of nomination in the discretion of the authorities, their prospects for capturing the business in future having become altogether block. Thereby they are bound to suffer a great set back in their business. It is, therefore, argued that this has adversely affected their rights and interests at the hands of the Government and per se they have a cause of action to sustain this writ petition. In support of his conten-tion in this behalf the petitioners have relied on The Montgomery Flour and General Mills Ltd., Montgomery v. The Director Food Purchases, West Pakistan and others . In that case the Court remarked that :- "It is true that a petitioner must have some right if he applies to the Court for a direction or order under Article 170 (corresponding to Article 98 of this Constitution), but he need not have a personal or a proprietary right whose correlative is a duty. Whenever an enactment empowers a public officer to pass orders that benefit or harm a citizen, the citizen gets a right that; in a matter in which he is concerned, an order be passed in accordance with law. This too is a right that can be enforced by the Court in the exercise of its jurisdiction under Article 110 of the Constitution of Pakistan. If the Meer concerned passes an order that is not in accordance with law, any person whose interests are effected by the order can maintain a petition for a writ or direction under Article 170. All orders of executive officers are subject to challenge by those effected by the orders and the person would be 'affected' even if he loses some benefit or advantage which he would have gained if the order was in accordance with law."
This quotation was cited with approval by the Supreme Court in Mian Fazal Din v. Lahore Improvement Trust, Ldahore and another and in this connection the Court has observed that :-- "It is clear from the above that the right considered sufficient for maintaining the proceedings of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
It is no doubt true that the term "right" in the context of its application under Article 98 of the Constitution must be liberally construed. But on facts both these cases on which the learned counsel has relied are distinguishable. In the first cited case the quota of sugar granted to the petitioner under the law was withheld and he applied for a writ of mandamus issued in his favour.
The petitioner in the second case was the owner of a plot of land in a scheme sanctioned under7 8 the law. The Supreme Court found that his interests in the property were adversely affected by an unwarranted alteration made in the scheme, challenged under Article 98 of the Constitution.
11. In this case as already discussed above there was no corresponding duty or obligation cast on the Government under any law to adopt one or the other method in the matter of c the allotment of works to the contractors. In the nature o things any decision taken by the Government in this respect is not open to judicial review by the law Courts. In this connection, it is pertinent to reproduce here the following from page 25 of the treaties on "Judicial Review of Administrative Action" by S. A. de Smith (Second Edition).
"The classes of administrative acts and decisions that are unreviewable, because of the nature of their subject-matter are more extensive than in most foreign systems. For example, many of the claims lodged before the administrative Courts in continental countries are brought by civil servants and military officers who have been dismissed, reduced in rank or passed over for promotion, by candidates at public examinations who have failed or been disqualified, and by firms whose tenders for public contracts have been rejected in favour of their rivals ; but in English law persons aggrieved in these sets of circumstances will seldom if ever be able to find a legal peg on which to hang a justiciable claim."
In this connection it will be also relevant to reproduce here from pages 208-209 of this book. The learned author has observed :- "A licence or permit has often been characterised as a `privilege'; granting, refusing or revoking a privilege is not taking a decision which affects `rights'; a duty to act judicially arises only where the decision affects rights; hence licensing authorities are under no implied duty to give notice of opportunity to be heard or to disclose relevant information to those affected."
During the course of his arguments the learned counsel for the petitioners suggested to us that this revision in the policy adverse to them was made by the Government behind the back without a hearing against the principles of natural justice. But there was no duty cast on the respondents to give a prior notice in this behalf to the petitioners. In this connection according to the learned author of the Judicial Review of Administrative Action (page 143) :- "Nor does such a duty necessarily arise where numerous persons are competing for scarce resources ; the allocation of Government contracts and university places may cause great hardship to the unsuccessful contenders, but it has not yet been suggested in this country that they have any common-law right to go to the Courts on the ground that their applications have been summarily rejected, even if the rejection has been passed on an adverse undisclosed report."
In the same connection the learned author (page 165) further remarked that :- "In such situations a Court ought, in general, to refuse to hold that there is any duty to give notice and opportunity to be heard. The discretionary allocation of scarce resources (e. g. licences, permits, grants, subsidies, loans, Government contracts, telephones, university places) among competing claimants is perhaps the best example of this kind of situation."
The learned author was of the considered opinion that in such like matters judicial review by the Courts was not competent and the decisions ought to be taken by politicians rather than by the Judges. He has observed on pages 209 and 210 that :- "It may possibly be desirable for them to be obliged to conduct formal hearings the same may be true of the award of Government contracts, television programme contracts, investment grants and agricultural subsidies--but as a general principle a decision to require an executive authority to act judicially when dispensing discretionary benefits partly on the basis of policy factors ought to be taken by politicians rather than by judges."
In the light of this discussion, therefore, we have no hesitation in holding that this is not at all a fit case for our interference in these proceedings.
12. There is yet another reason in support of our decision. We find that in terms of Article 98 (2) of the Constitution only an "aggrieved party" is competent and has the standing to file this petition.
According to James, L. J. in Ex parte Sidebotham, In re : cidebatham :- "A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongfully refused him something, or wrongfully affected his title to something." We have come to the conclusion that in this case the petitioners have no "legal grievance" to sustain this petition. This Court E in Muharmnad Din & Sons v. The Province of West Pakistan and others was of the opinion that the petitioner in that case was not an "aggrieved party" within the meanings of Article 98 of the Constitution and in that connection the Court observed that :- "There is no vested right in the petitioners on which they can ask for the sale of the factory in their favour. The petitioners have no vested right to purchase and there is no corresponding duty cast upon the Government to sell this factory to the petitioners. Thus they have no case for mandamus.
The petitioners merely tenders and the Government was not obliged to accept their tenders."
These observations are fully attracted to the facts of this case before us and we find that the petitioners have no locus standi to move this petition which is bound to fail.
13. For all the reasons this petition is dismissed with costs. PLD 1966 SC 1 AIR 1931 P C 248 PLD 1961 Dacca 730 PLD 1965 Dacca 156 PLD 1967 Dacca 607 AIR 1955 SC 549 PLD 1957 Lah. 914 PLD 1969 SC 223 (1880) 14 Ch. D 458 PLD 1969 Lah. 823