' FAKHRUDDIN H. SHAIKH, J.-By this petition, the petitioners have challenged the order of respondent No, 1 dated 28th November, 1982, whereby the applications of the six petitioners for being declared as pre-qualified contractors were turned down by respondent No, 1.
2. The circumstances leading to the filing of this petition are briefly stated as under : ' The petitioners are enlisted as 'No Limit' contractors with the Karachi Development Authority (hereinafter referred to as the K. D. A.) for the year 1982-83. Some of them had also carried on major works in Scheme No, 36 of the K. D. A. Petitioners Nos. 1 and 2 were also registered as pre- qualified contractors by the K. D. A. Vide their office memorandum dated 12-2-1980. Petitioner No, 1 was pre-qualified for development work for Category-1 of Scheme No, 36 while petitioner No, 2 was enlisted for development work of Category-II in the same Scheme.
3. On 23-5-1982 the K. D. A. Invited tenders for development of areas in Sectors Nos. 7, 15 and 16 in Scheme No, 36 without publication in the newspapers. The petitioners were not allowed to bid for the work on the ground that they had not got themselves prequalified afresh for the said work.
Being aggrieved by this action of the K. D. A. The petitioners filed C. P. No, D-546/1982 on 22-6-1982 before this Court praying for a declaration that they were wrongly precluded by the K. D. A. From bidding for the development works in the above three Sectors of Scheme No,
36. In that petition only the K. D. A. And the Chief Engineer of the K. D. A. Were made respondents. The said constitutional petition was dismissed by this Court by an order dated 14th July, 1982 on the ground that the relationship between the petitioners and K. D. A. Being of contractual nature, this Court had no jurisdiction to entertain the petition. In tasking the above view the Division Bench who decided the case, relied on the decision in the case of Haji Wall Muhammad and another v. K. D. A. And others (1).
4. Being aggrieved by this Judgment in C. P. No, 546/1982, the petitioners filed C. P. S. L. A. No, K-212 of 1982 before the Supreme Court The said petition was converted into appeal being Civil Appeal No, K-75/1982 and decided by the Supreme Court on 30th August, 1982 by a consent order in following terms :- "In view of the statements made by the learned counsel for the parties the appeal is disposed of with the observation that the relevant authority in the K. D. A. Shall consider the case of the appellants who have not already been pre-qualified. We assume this shall be done purely on merit after considering in each case, their past performance and in comparison with other pre-qualified contractors so that no objection can subsequently be raised on the ground of mala fide."
5. In pursuance of the above order of the Supreme Court the Governing Body of the K. D. A. Vide Resolution No, 47 dated 14-11-1982 constituted a Committee of following four persons to consider the cases of the petitioners regarding their pre-qualification :-
(1) Member (Finance) K. D. A.
(2) Chief Engineer (Dev.) K. D. A.
(3) Deputy Chief Engineer (D) K. D. A. And
(4) Director (B & A) K. D. A.
' The petitioners were also directed by the K. D. A. To complete the necessary pro formas required for the purpose of considering the question of pre-qualification. All the 6 petitioners filed the pro forms duly completed alongwith necessary documents in support of their claims regarding their eligibility for being pre-qualified.
6. According to respondents the said committee held its meeting on 2241-1982 after notice to all the six petitioners to appear before them. All the petitioners, except Ghulam Haider Mandokhel, appeared before the
(1) PLD 1979 Kar. 449 ' committee who considered the cases of the five petitioners on the basis of the documents produced by them and concluded that none of the five petitioners was fit to be pre-qualified. No decision was taken by the Committee about Ghulam Haider Mandokhel, but it was stated in the minutes that Ghulam Haider was present in the morning but did not appear before the Committee at the time when he was called for interview, although a notice had been served upon him. The Committee accordingly formulated its recommendations and submitted it to the Governing Body on the same day. The latter accepted the recommendations of the Committee on 28-11-1982 vide their Resolution No, 1027 and informed the petitioners accordingly.
7. Meanwhile tenders for development works in the three Sectors mentioned above had already been invited by the K. D. A. During the pendency of the first Consititutional Petition No, 546 of 1982 and the tender of respondent No, 3 was accepted on 27-6-1982. The K. D. A , however, did not issue work order to respondent No, 3 until after decision of the cases of the six petitioners vide Resolution No, 1027, dated 28-11-1982 referred to above. After the above resolution, respondent No, 3 started the work and is alleged to have almost completed it by now.
7-A. Not satisfied with the decision of the Governing Body dated 28-11-1982, the six petitioners filed the present petition being C. P. No, 983 of 1982 in which respondent No, 5 has also been joined as a party alongwith the K. D. A. And the Provincial Government through Secretary, Housing. Town Planning, Local Government and Rural Development Department, as respondents Nos. 1 and 2 respectively. Respondent No, 2 has been joined because an appeal against the decision of the Governing Body dated 28-11-1982 was filed before respondent No, 2, who, instead of deciding the same forwarded it to respondent No, 1.
8. In the present petition the grievance of the petitioners is that the K. D. A. Has not complied with the directions of the Supreme Court in C.A. No, K-75/1982 which. Was given in pursuance of consent of K. D. A. And the petitioners. Following reliefs have been sought by them in the present petition :-
(i) To declare that the disqualification of the petitioners by respondent No, I is without lawful authority.
(ii) To direct the respondent No, 1 to consider first the pre-qualification forms of the petitioners on merits, and solely on merits, and only then to decide upon the issuance of work orders of the subject tenders.
(iii) To declare that the work orders issued by the respondent No, 1 to the respondent No, 3 to be of no legal effect and void ab initio.
9. As the grievance of the petitioners related to non-compliance of the order of the Supreme Court, therefore, this Court was, in the first instance, reluctant to admit the petition on 1-12-1982, when Mr. Khalid M. Ishaque learned counsel for the petitioners sought adjournment on the ground that he shall move the Supreme Court for appropriate relief. The matter was, therefore, adjourned to enable the learned counsel to move the Supreme Court in this behalf.
10. The petitioners then filed Civil Miscellaneous Petition No, K-123/ 1982 in Civil Appeal No, K-72 of 1982 before the Supreme Court with the prayer that the K. D. A. Has not complied with the directions of the Supreme Court given in the earlier order, dated 30th August, 1982 in Civil Appeal No, K-75 of 1982, and therefore, they were liable for action for contempt of the Court. The Civil Miscellaneous petition was dismissed by the Supreme Court on 5th December, 1982 on the ground that the petitioners had a fresh cause of action in view of the alleged violation of principle of natural justice on the part of the K. D. A. And as such they were entitled to pursue the second petition (i,e, C. P. No, 983/1982) which was already pending before this Court. After the said order of the Supreme Court this Court admitted this petition on 8-12-1982 for regular hearing. The petition was admitted to consider the allegations of the petitioners that the order of the K. D. A., dated 28-11-1982 communicated to the petitioners on 29-11-1982 was mala fide, that the decision was given without proper application of mind and that it was wrongly stated in the impugned order of the K. D. A. That representations of the petitioners were rejected because the factual position was that no representation at all had been made by the petitioners to K. D. A. Besides filing the pro formas for pre-qualification.
11. The Executive Engineer of K. D. A. Namely, Mr. Hussain A. Tijjani has filed counter-affidavit in which he has denied the allegations levelled by the petitioners against the K. D. A. He has stated that petitioners Nos. 1 and 2 were, no doubt, registered as pre-qualified contractors in the original list dated 12-2-1980 for works of categories I and H respectively, but this list is revised from time to time and that the final list was prepared on 16-9-1982, but the name of none of the petitioners was included therein. It is stated that the petitioners did not avail of the opportunity of being registered afresh as pre-qualified because they did not file any proformas which were invited by. The K. D. A.
For the purpose. Mr. Tijjani also referred to an office memo. Of the K. D. A., dated 7-1-1981 whereby the K. D. A. Had "reserved the right to pre-qualify well-established and more experienced Contractors/Firms for various development works in Gulstan-e-Jauhar (Scheme 36) and in other schemes for works of exceptional nature requiring planning, designing, estimating, technical know- how and organizational set up as would be required in the works of Bridges, Pumping Stations etc. Or for the works to be awarded on turnkey basis." It may be stated that according to the above office memo. The right to pre-qualify the contractors in respect of Scheme No, 36 was absolute i,e, it did not depend upon the nature of the work being exceptional or requiring planning, designing etc. These conditions were necessary in case of pre-qualification for works other than those of Scheme No,
36. It was, therefore, alleged by the Executive Engineer of the K. D. A. In his affidavit, that the development work in the three Sectors of Scheme No, 36 of K. D. A. Was also to be given to pre- qualified contractors who only were entitled to file tender for the same and as none of the petitioners was a pre-qualified contractor according to the latest list, dated 6-5.1982, hence they were not considered fit to be allowed to bid for the work.
12. It is further alleged that the K. D. A. Had complied with the directions of the Supreme Court in letter and spirit by giving opportunity to the petitioners to present their cases before the Committee appointed to consider the question of their pre-qualification and that no fault can be found with the decision of the Governing Body which was based on the recommendations of the Committee which was to the effect that none of the petitioners was fit to be pre-qualified.
13. Respondent No, 3 also filed counter-affidavit through its partner Ahmed-ud-Din Siddiqui in which it is alleged that the petitioners were rightly not pre-qualified because their previous work had been of sub-standard nature and that their offer of completing the development work of the three Sectors in question of Scheme No, 36 at the rate of 23 % below the rate given by respondent No, 3, is ridiculous. It is further alleged that respondent No, 3 should have been joined as a party in the first Petition (C. P. No, 5460/ 1982) which was filed on 2_-6-1982 because the tender of respondent No, 3 was accepted by the K. D. A. On 27-6-1982 i,e, five days after the filing of the said petition. It was in the knowledge of the petitioners that the tender of this respondent had been accepted, still no application was made to join him as a party ;n that petition. Even in their appeal before the Supreme Court, the petitioners did not think it proper to implead respondent No,
3. It is further stated that respondent No, 3, after the dismissal of the petitioners' appeal in the Supreme Court and decision of the Board, dated 28-11-1962 by Resolution No, 1027, has started the work and has invested large amount in the work. Mr. Wajihuddin Ahmed, learned counsel for respondent No, 3 stated during the arguments that the work entrusted to respondent No, 3 has almost been completed and so far as relief No, 3 sought by the petitioners in their petition is concerned it has become infructuous.
14. The main question that arises for consideration in this case is whether the K. D. A. Had complied with the directions of the Supreme Court in letter and spirit in considering the question of pre- qualification of the 6 petitioners? It is candidly conceded by Mr. Wajihuddin Ahmed that so far as the case of Ghulam Haider Mandokhel is concerned, his case was not considered by the Committee and as such his non-pre-qualification by the impugned resolution of the Governing Body was not proper and that the Committee appointed for the purpose should have taken into consideration the documents filed by Ghulam Haider Mandokhel in support of his claim with the pro forma a. .d should have decided the question one way or the other. He, therefore, conceded that so far as Ghulam Haider Mandokhel is concerned, his matter was not decided by the K. D. A.
Strictly according to the directions of the Supreme Court and needs to be remanded to the K. D. A.
For fresh decision. So far as other petitioners are concerned, it has been argued both by Mr. Wajihuddin and Mr. S. H. Qazilbash learned counsel for respondents Nos. 3 and 1, respectively, that they were ,given full opportunity to present their cases before the Committee and that in their presence all the documents produced by them alongwith their pro formas in support of their claim for pre-qualification, were duly considered and they were not found sufficient for declaring them as prequalified contractors. Mr. S. H. Qazilbash has also filed a copy of the minutes of the meeting, dated 22-11-1982 held by the Committee to consider the cases of the six petitioners. It may be stated that out of the four members appointed by the Committee only three were present namely, Member (Finance) K. D. A. (2) Chief Engineer (Dev.) K. D. A. And (3) Deputy Chief Engineer (D) K. D. A.
While the fourth Member namely, Director (Finance and Accounts) K. D. A. Was not present still he has signed the minutes of the meeting saying that he endorses the views of the other three Members. A perusal of the minutes would show that the claims of the five petitioners, other than Ghulam Haider Mandokhel, were rejected summarily on identical grounds namely, that they did not produce documents showing satisfactory performance in respect of the work which they executed, that the required biodata of permanent technical personnels of the firm and their registration with Pakistan Engineering Council has not been produced and that they had not produced - registration documents in respect of vehicles owned by them. It may be stated at the ,outset that according to the directions 1984] FAZAL DIN V.:;KARACHI DEVELOPMENT AUTHORITY of the Supreme Court, the K. D. A. Was required to consider the cases of only those petitioners who were not already pre-qualified. It has been mentioned above that petitioners Nos. 1 and 2 were already pre-qualified for works of Categories 1 and 11 respectively, vide the list contained in office memo. Of the K. D. A.
Dated 16-6-1980. This list does not appear to have been cancelled, because reference to supersession of the office memorandum, dated 12-2-1980 whereby petitioners Nos. 1 and 2 were declared to be pre-qualified contractors. We, therefore, feel that until the list of pre-qualified contractors, dated 12-2-1980 is expressly cancelled or superseded, the petitioners Nos. 1 and 2 could not have been considered to be no prequalified nor the K. D. A. Was, according to the direction of Supreme Court, required to consider their cases for pre-qualification.
15. So far as the remaining three petitioners other than Ghulam Haider Mandokhel are concerned, the Committee does not appear to have applied their mind seriously to their cases as required under the directions of the Supreme Court. The Committee did not consider all the documents which were produced by them in support of their claim. Bahoo Khan, Messrs Haji Sail Khan Sherani and Messrs Ibrahim Khan and Brothers had produced several certificates of the X. E. N. Of K. D. A. In support of their past performance. They had undertaken several works of the K. D. A. And according to the certificates of the Executive Engineer, they had satisfactorily completed all those works which were valued at several lacs of rupees. No reference whatsoever has been made to those documents. Again these three contractors had been working under the K. D. A. For the last several years as is evident from the certificates issued by the Executive Engineer of the K. D. A. Produced by them alongwith their counter-affidavits. It was also mentioned by these petitioners in their counter-affidavits that the entire record of their past performance in respect of the several works completed by them for K. D. A. Is available with the K. D. A. Itself. But the Committee neither referred to the record of the K. D. A. Nor to the certificates produced by the petitioners in determining their eligibility for pre-qualification.
16. Moreover, one very important direction which was given by the Supreme Court to the K. D. A.
Was that the past performance of the petitioners 'should be considered "in comparison with other pre-qualified contractors so that no objection can subsequently be raised on the ground of mala fide," A perusal of the minutes of the meeting held by the Committee, would show that while undertaking the exercise of considerin 1 the question of pre-qualification, the Committee did not refer at all to the performance of the petitioners in comparison with other prequalified contractor.
We, therefore, feel that the cases of the four petitioners excluding Haji Faza Din and Fateh Khan, have not been considered by the K. D. A. Strictly in accordance with the directions of the Supreme Court.
17. We are, therefore, of the view that the cases of the three petitioners namely, Bahoo Khan, Messrs Haji Saifoo Khan Sherani, and Messrs Ibrahim Khan and Brothers also need to be reconsidered by the Committee in the light of the documents produced by them and also in view of the previous record of their past performance which might be available in the K. D. A. Their performance in comparison to other pre-qualified contractors was not considered by the K. D. A., which also needs to be given due consideration in determining the question of their pre-qualification. In making these observations, may not be understood as saying that in spite of their better performance in comparison to other contractors, if these petitioner do not fulfil the requirements which are mentioned in the preform, even then they should be declared as pre-qualified. The K. D. A. Shall be at liberty to decide the question of pre-qualification of the three petitioners and also of Ghulam Haider Mandokhel in comparison to their past performance and also in view of the various requirements mentioned in the proforma which a pre-qualified contractor has to fulfil as a precondition for pre-qualification. The K. D. A. Shall also be at liberty to come to any conclusion after giving independent consideration to the cases of the four petitioners named above including Ghulam Haider Mandokhel, keeping in view the observations made above. We may also specifically mention here that by remanding the cases of the four petitioners for reconsideration of their question of pre-qualification, we have not held that the above contractors are in any way exempted from complying with the requirements mentioned in the preforms as preconditions for their pre-qualification.
18. We consequently hold that so far as petitioners Messrs Haji Fazal Din and Messrs. Fateh Khan and Brothers are concerned, their cases for pre-qualification were not to be considered by the K. D.
A., according to the order of the Supreme Court, because they already stood pre-qualified vide the list Annexure "A" dated 12-2-1980 which has not been superseded specifically by the subsequent list Annexure "E", dated 16-5-1982 produced by Mr. Tijjani with his affidavit. In respect of the other petitioners we direct that the K. D. A. Shall decide the question of their pre-qualification afresh keeping in view the observations made above. The petition is, therefore, partly allowed to the extent indicated above, but there shall be no order as to costs.