' MUHAMMAD YUNUS SURAKHVI, J.---This appeal by leave of the Court is directed against the order passed by the High Court on 12-1-2000 whereby while granting the interim relief it was ordered by the High Court that the tender documents may be issued to the respondent and he may be allowed to participate in the tenders. The respondent had been earlier refused pre-qualification by the Works Department.
2. The necessary facts giving rise to the present appeal are that appellants, herein, got published a pre-qualification notice in the newspaper on September 23rd 1999, in order to pre-qualify the well- reputed construction companies for the construction of 6 roads of Highways Division Mirpur. The respondent, H. Ali Construction Company, applied for the pre-qualification of various projects included in the pre-qualification notice. The respondent was pre-qualified to the extent of construction work of other projects except Chechian--Mangla Road mentioned in item No,1 of the pre-qualification notice.- The respondent through a writ petition challenged die action of the appellants. A learned Judge in the High Court vide his impugned order, dated 12-1-2000 admitted the writ petition for regular hearing, and, as an ad interim relief by dispensing with Rule 34 of the High Court Procedure Rules, granted the interim injunction in favour of respondent in the following manner:--- "As the matter under consideration is of urgent nature, therefore, the application for Rule 34 of AJK High Court Procedure Rules is hereby dispensed with and it is ordered that provisionally the tender may be issued to the petitioner and he may be allowed to participate in the tenders, subject to objections from the other side."
' It is the aforesaid order of the High Court, dated 12-1-2000 which relates to the grant of interim relief in favour of respondent and is the subject of present appeal.
3. It was vehemently contended by Raja Muhammad Hanif Khan, the learned counsel for the appellants, that it was wrong for the High Court to order that tender documents may be issued to the respondent and he be allowed to participate in the tenders. The learned counsel contended that similar relief was prayed for by the respondent in his writ petition. By granting the interim relief indicated above the High Court practically accepted the writ petition filed by the respondent in to.
The learned counsel also contended that the High Court fell in error while issuing the interim relief without giving notice of the application and affording an opportunity of hearing to the appellants.
The learned counsel pressed into service the submission that the High Court by accepting the contention of the respondent emphatically observed that no reason was advanced by the Pre- qualification Committee to refuse to pre-qualify the respondent for the work in dispute. The learned counsel contended that if a notice had been issued by the Court the appellants would have placed their written statement and other documents on record showing that the criteria was maintained by the Pre-qualification Committee wherein the previous track record, financial position, equipment of machinery and the relevant staff of the concerned construction company was taken into consideration and on the basis of said criterion the respondent was refused the pre- qualification of the disputed work, therefore, it could not be said by any stretch of imagination that without assigning any reason the respondent was disqualified for the said project.
4. Controverting the arguments raised by the learned counsel for the appellants, Mr. Ghulam Mustafa Mughal, the learned counsel for the respondent, contended that the respondent was refused pre-qualification without assigning any reason. The learned counsel contended that arbitrarily or at the whims of pre-qualifying Committee the construction work could not have been refused to the respondent.
5. The basis on which the writ petition has been accepted and consequently ex parte interim relief has been granted to respondent-company are as follows:--- "Mian Muhammad Saeed, the learned counsel for the petitioner, contended that when once the petitioner has qualified for the four projects, then, there seems no justification for rejection of the application regarding the remaining projects. It was, also contended by the learned counsel that the impugned order, dated 21-12-1999 did not contain any reasoning that why the application of the petitioner was rejected for the remaining projects. He further submitted that being 'A' Class Contractor, there is no limit on the petitioner. He next submitted that it was enjoined upon the non- petitioners to give some reasoning for the rejection of the application about the remaining projects. The petitioner has already completed huge projects and possessed high experience and reputation. It was further submitted by the learned counsel that under no law, non-petitioners were competent to reject the application of the petitioner. They have adopted the policy of pick and choose."
In the advertisement inviting pre-qualification application it was stated, as is the usual practice, that the application for pre-qualification can be rejected without assigning any reason. Therefore, the argument raised on behalf of Company before the High Court that no reason had been assigned in rejecting the application of respondent-Company should not have been given so much weight. It is true that arbitrariness or discrimination cannot be allowed in such matters. It is also true that the provision that no reason will be assigned does not imply that an application or tender can be rejected without reason. If rejection is challenged in the High Court it will be the duty of the department to disclose the reason to the Court. In the present case, however, no opportunity was given to the department to explain why the respondent had not been pre-qualified. A copy of the proceedings conducted by the Committee constituted for pre-qualification purposes has been appended with the appeal. It appears that there is a reason as to why the respondent-Company was not pre-qualified. Whether the reason will ultimately find favour with the High Court or not will be seen at the proper stage. For the time being, the basis on which interim relief was granted to the respondent loses force. In our view the execution of public work has been stopped ex parte without weighty reason which is against subsection (4) of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
6. Consequently the appeal is accepted and the stay order of the High Court is vacated.