1. ' JAVED IQBAL, J.---This petition for leave to appeal is directed against the judgment, dated 10-11- 1999 passed by learned Division Bench of the Lahore High Court, Rawalpindi Bench, whereby ICA bearing No.106 of 1999 has been dismissed and against the order of dismissal of the writ petition bearing No.2028 of 1999, dated 5-11-1999 and order of dismissal of review petition, dated 16-11-1999.
2. Briefly stated the facts of the case are that respondent through Deputy Director invited applications for the determination of pre-qualification for construction of a Carriage-way of Islamabad Highway from Gumrah Bridge to G.T. Road, Rewat and Faizabad to Kuri Chowk in pursuant to notice for pre-qualification. The petitioner also floated its application for the grant of said contract. After a thorough scrutiny for which respondent evolved a mechanism and engaged consultant and eight contractors were found qualified for the contract in dispute but the petitioner could not qualify and filed a Constitutional Petition (W.P. No.2028 of 1999) which was dismissed by the learned Judge on 5-11-1999 which was assailed by means of ICA which met the same fate and was dismissed vide order, dated 10-11-1999. Being aggrieved a review petition was filed but it was also dismissed vide order, dated 1611-1999.
3. It is mainly contended by Ch. Mushtaq Ahmad Khan, Advocate Supreme Court that the process adopted by the CDA is dishonest, non-transparent and the person who had never participated for the contract in question has been chosen for doing the needful and contract is being awarded to him. It is argued with vehemence that the petitioner/firm obtained 72 marks out of 100 whereas pre-qualification was granted to M/s. Echo West International which secured 66 Marlas and is indicative of mala fides on the part of respondents. It is contended that petitioner was refused the pre-qualification on the ground that it had a joint venture with "Build More" which is not the correct appreciation of facts as the application was submitted by the petitioner on its own and 72 marks were obtained on the basis of sound financial position and experience. It is pointed out that the action of respondent is in violative of provisions as contained in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, and the conduct of respondent is not only prejudicial but discriminatory. It is pointed out that the petitioner/firm had completed various projects assigned to it by CDA and there was no justification to disqualify it for the contract in question. It is argued that the legal and factual aspects of the controversy were not appreciated properly by the Division Bench of the Lahore High Court which resulted in serious miscarriage of justice.
4. It is contended on behalf of CDA that no illegality or irregularity whatsoever has been done but on the contrary a transparent and fair methodology has been adopted by appointing consultant and the petitioner was not found fit for pre-qualification alongwith other fifteen firms hence the question of any discrimination does not arise. It is pointed out that the petitioner/firm obtained 72 numbers on the basis of information and documents produced by the firm but the said numbers were in consideration of their association with a foreign based company with the name and stile of "Build More System" and as such it could not be said that the petitioner/firm secured 72 numbers at its own. It is argued that as a matter of policy it was decided that no work should be assigned to joint ventures in view of the past experience of CDA. It is pointed out that the petitioner/firm secured 52 numbers as a result of independent assessment. It is mentioned that previous performance of the petitioner/firm was not up to the mark and it failed to complete the smaller stretch of the road measuring 1-6 kilometre within the stipulated period of seven months which was got completed after lot of pursuance and pressure exerted by CDA.
5. We have carefully examined the respective contentions as agitated on behalf of petitioner and respondent in the light of available record. We have minutely perused the impugned judgments/orders passed by learned Division Bench of Lahore High Court, Rawalpindi Bench. Let we mention here at the outset that it would not be possible to decide the factual controversy and disputed facts such as whether the petitioner/firm has got the skill, technical know-how, modern equipments, capability and resource to accomplish the task in question and in our considered opinion CDA is in better position to determine such ticklish and technical questions. It is well settled by now that "the superior Courts should not involve themselves into investigation of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. The Constitutional jurisdiction is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated or disputed fact". (1971 SCM R 110, 1970 SCM R 853, PLD 1964 SC 636, PLD 1983 SC 280, PLD 1983 SC 280).
6. In such view of the matter we cannot give the petitioner/firm certificate of fitness for pre- qualification as technical and expert opinion cannot be substituted. We have not been able to agree to persuade ourselves with Ch. Mushtaq Ahmad Khan, Advocate Supreme Court that it is a case of sheer discrimination for the reason that discrimination always involves an element of unfavourable bias which cannot be proved on the basis of bald assertion but requires solid and concrete evidence which apparently is lacking. The award of contract falls within the discretionary domain of CDA and every exercise of discretion is not an act of discrimination. It becomes an act of discrimination only when it is improbable or capricious exercise or abuse of discretionary authority.
7. It is worth mentioning that an attempt appears to have been made to carry out the exercise of pre-qualification in a transparent manner as the contract in question could have been assigned to various civil engineering firms with no limits which are already registered with CDA and further pre- qualification of contractors through an independent consultant is indicative of the transparency and fairness. It is worth mentioning at this juncture that according to CDA the past performance of petitioner/firm was not up to the mark and, therefore, CDA cannot be forced to declare the petitioner/firm fit for pre-qualification.
8. In the light of what has been stated above we are not inclined to grant leave and, accordingly, the petition being devoid of merit is dismissed.