This writ petition challenges the legality of notification, dated 25-6-2002 known as Pakistan P.W.D.
Contractors (Classification, Categorization, Enlistment and Evaluation of- Performance) Rules, 2002, according to which as per clause III the Contractors are categoried with monetary limits as under:--
2. The registration and renewal fee prescribed for each category has also been revised as under:-- CategoryFinancial Limits (in Rs.)
A Class No limit.
B Class 5 million.
C Class 2.5 million.
D Class 1.2 million.
E Class 0.5 million.
Petty Class0.05 million.
Also according to Clause XIII (ibid) standing security deposit has been prescribed as follows:-- Category (Rs.)Registration/Renewal fee A Class 15,000 B Class 9,000 C Class 6,000 D Class 3,000 E Class 2,250 Petty Class 1,500
3. Sahibzada Ahmad Raza Khan Qasuri, Advocate appearing for the petitioner has assailed the said notification mainly on the following grounds:--
(a) That initially, as, per notification, dated 19-5-1979 the Contractors were entitled to be enlisted as follows:-- MONETARY LIMIT Class Contractual LimitStanding Security Deposit A Class Rs. No limit Rs.500,000 B Class Rs. 5 Million Rs. 300,000 C Class Rs. 2.5 Million Rs.200,000 D Class Rs.1.25 Million Rs.100,000 E Class Rs.0.5 Million Rs.50,000 Petty ClassRs. 0.05 Million Rs.5.000 The registration/renewal fee were specified as under:-- 1.A Class No limit 2.B-1 Class Rs.1,500,000 3.B Class Rs.7,50,000 4.C Class Rs.3,50,000 5.D Class Rs.1,00,000 4.E Class Rs.25,000 5.Petty ClassRs.10,000 The above mentioned notification was amended on 23-12-1999, according to which the mandatory limits and the registration/ renewal fee was revised as under:-- MONETARY LIMITS CategoryRegistration/Renewal Fee (Rs.)
1 600 B-1 500 C 400 D 250 F 150 Petty 125 REGISTRATION/RENEWAL FEE Category Financial Limits (in Million)
1. A-1 Class No limit
2. A Class Rs.50,000
3. B-1 Class Rs.10,000
4. B Class Rs.5,000
5. C Class Rs.1,000
6. D Class Rs.0,500
7. F Class Rs.0,100
8. Petty ClassRs.0,025.
It is contended that increase in to Monetary Limit, Registration fee/Renewal fee and the provision for security deposit has been increased without any rationale. It is harsh and prohibitory and oppressive in nature and has the virtual effect of ousting and excluding the petitioners from the pale of enlisted contractors. He referred to Article 1 of the Constitution of Islamic Republic of Pakistan, 1973 to contend that the impugned notification is violative of the said Article as it impinges on the right of citizens to enter upon any lawful profession or occupation. It is contended that the impugned notification exceeds the concept of regulation of the trade etc, as envisaged by the said Article According to the learned counsel, the notification is liable to be struck down upon the yardstick of Article 18 (ibid).
(b)that as a corollary of the above, the impugned act of the respondents in issuing such a prohibitory regulation shall have the effect of promoting monopolies which is strictly in violation of law; (c)that the notification in question is discriminatory in nature. The learned counsel for the petitioner has produced a list of 95 Contractors based at Karachi whose enlistment has been renewed at the rates and categorisation as mentioned in the notification of 23-12-1999. This, according to the learned counsel amounts to blatant discrimination qua the petitioners. Article 25 of the Constitution of Pakistan, 1973 was invoked to contend that all citizens are equal before law and are entitled to equal protection of law but in the instant case the petitioners have been dealt with differently to their detriment; (d)that the impugned S.R.O., dated 25-6-2002 cannot operate retrospectively. According to the learned counsel all notifications are prospective in operation unless a different intention is shown in the notification itself. According to him no such contrary intention is decipherable from the impugned notification and hence the said notification shall not have the effect of taking away vested rights of the petitioners retrospectively;
(e) that according to para. 1 of the reply/comments submitted by the respondents an allegation is made that the performance of the petitioners in the past had been unsatisfactory. According to the learned counsel, if this was the reason, the petitioners were entitled to be heard and without hearing the petitioners, the impugned notification shall be hit by the principle of audi alteram partem.
4. Learned counsel for the petitioner in alternative to the above pleas has contended that, in case of those petitioners whose enlistment has been renewed at the terms and conditions of the previous notification, their enlistment should not be disturbed till the renewal is effective.
5. Barrister Sultan Mansoor, the learned Deputy Attorney-General, has controverted all the contentions raised by the learned counsel for the petitioner. According to him the freedom of trade and profession as guaranteed under Article 18 of Constitution of Islamic Republic of Pakistan, 1973 is subject to such regulations as are warranted under the law. According to the learned counsel the categorization and enhancement in the enlistment (Registration, renewal) fees have to be commensurate with increasing value of the contracts. It was contended that rationale of increasing fee and categorization was necessitated by the increase in the nature volume and magnitude of contracts. Replying to the objection on the basis of discrimination, the learned Dy. A.- G. Contended that the S.R.O. In question is universal in application and applies to all the enlisted contractors throughout Pakistan without any discrimination. He submitted that out of -as many as 259 enlisted Contractors only the four petitioners have chosen to challenge the said notification. All the rest have abided by the same.
6. As regards the renewal of 95 Contractors at Karachi, it was explained that the same was done after 5-9-2002 when an injunctive order was issued by this Court only in deference to the Court's order. The enlistment of all the 95 Contractors at Karachi were renewed in the past 5-9-2002 period.
7. Arguments have been heard and record perused.
8. It is manifest from the record that the initial notification regarding categorization, monetary limits and registration fees was promulgated on 19-5-1979. According to the change in the circumstances, necessitated by increase in the nature volume and magnitude of the contracts awarded by the Pakistan PWD this categorization monetary limit and renewal/registration fee in respect of all the enlisted contractors was revised through notification, dated 23-12-1999. A comparison of the rates under 1979 notification and the notification of 1999 would show that there was a marked difference in the two notifications. There is nothing on the record to suggest that any enlisted Contractor had opted to challenge the notification issued in the year 1999. Even at present as is pointed out by the learned Dy. A.-G. Out of 259 Contractors only the four petitioners have challenged the latest notification. This is so far obvious reason. It is common knowledge that with the increase in the commercial and industrial activity, the value of Projects has multiplied manifold.
Both the Government, the Pak P. W. D. And the respective contractors are conscious of the fact that only a financially sound contractor shall ensure fulfillment of its contractual obligation.
9. The contention of the learned counsel for the petitioner that terms and conditions of the impugned notifications are a clog upon the right of freedom of trade business and profession is not apt. The fundamental right guaranteed under Article 18, although entrenched in the Constitution as inviolable right is nonetheless not absolute. This freedom of trade, business or profession is subject to such qualification as may be prescribed by law and is further subject to the regulation of trade etc. By a licencing system.
10. A perusal of the impugned notification would show that the same has been issued for the classification, categorization enlistment and evaluation of the performance of the Pakistan PWD Contractors. The nomenclature of these rules has also been structured accordingly. A comparison of the notifications on the subject, dated 19-5-1979, 23-12-1999 and the latest notification, dated 25-6-2002 will make it abundantly clew that categorization, monetary limit and registration/renewal fee has been progressively revised. It is idle to contend that effect of the enhancement in the monetary limit etc. Was deliberated to be harsh and oppressive, so as to exclude bona fide, though comparatively small contractors.
11. As noticed, hereinbefore the notification in question is of universal application and applies to all Pak PWD Contractors. There is no discrimination between any different kinds of Contractors. At least hone is discoverable from the p record. The fact that some Contractors will not be able to meet the monetary limit of categorization may be a result of the revised notification but not its cause. These are the needs of a progressive society and no retrogression can be countenanced upon the imaginary violation of Article 18 of Constitution.
12. The allegation of discrimination is attempted to be supported by producing a list of about 95 Contractors based at Karachi who have either been registered or their registration renewed on the basis of the previous S.R.O. Of 1999. Firstly, the alleged discrimination does not have its source in the notification itself.. A careful scrutiny of the impugned notification discloses no such discrimination.
On the factual side, it has been explained by the learned Dy. A.-G. That these 95 persons were allowed registration/renewal at the previous rates only on account of the order of status quo issued in the present case on 5-9-2002. This position appears to be correct as the enlistment of all the said Contractors has been renewed at the old rates on dates which are subsequent to 5-9- 2002 and that too only provisionally. It is thus clear that this action was taken in the past 5-9-2002 period in deference to the order of injunction issued by this Court. I thus find no discrimination either in the contents of the impugned notification or in its application. The contention of the learned counsel for the petitioner in this respect is without any force.
13. The next contention raised by the petitioners is in relation to the retrospectivity of the notification. It is contended that the notification which was issued on 25-6-2002 shall have no effect qua those contractors who have been enlisted prior to the enforcement of the impugned notification.
14. There is no cavil with the proposition that a notification is only prospective in nature unless retrospectivity is accorded to it by a specific intent.. The principle of law which would apply in the present case, however, is that all procedural laws are retrospective in nature. The effect of the impugned notification is merely to revise the hither-tofore existing condition for fixing monetary limit and the quantum of registration/renewal fee etc. No alteration in any substantive law or legal right has been effected though the said notification. Obviously, it is open for the competent Authority to lawfully regulate a trade of business and in doing so procedural amendments take place from time to time. No such revision of categorization Monetary list or alteration in the registration/renewal fee can be challenged on the ground of retrospectivity legislation.
15. The next contention of the petitioners is based upon the reply/parawise comments submitted by the respondents. It is contended that in reply to para. 1 of the writ petition it has been stated that renewal of registration is subject to evaluation of the part performance of the contractors and that performance of the petitioners in the past had been unsatisfactory. It has been urged that if this was the reason, no adverse action against the petitioners could be taken without affording them an opportunity of being heard.
16. This submission is also devoid of force. As discussed above the impugned notification does not concern itself with individuals. It is of general application which it applies to all the enlisted Contractors uniformly. The fixation of the categories etc. Has got nothing to do with the individual performance of any contractor. This objection taken by the respondents in my estimate could have been well-avoided as it has no nexus with the controversy in hand
17. It was also feebly contended that the enlistment of the petitioners stand renewed up to June, 2003 at the old terms which should not be altered. Nothing has been placed on the record to substantiate this contention.
18. The learned Dy. A.-G. Has placed on the record a copy of the order, dated 15-8-2002 passed in Petition No. 14719 of 2002. Wherein a learned Single judge of this Court had dismissed a similar writ petition in limine finding no merit in the same.
19. As a sequel of the aforesaid discussion, the writ petition has no merit and is hereby dismissed.
S.A.K./S-581/L CategoryRegistration/Renewal fee A-1 Class Rs.6,500 A-Class Rs.5,000 B-1 Class Rs.4,000 B Class Rs.3,000 C-Class Rs.2,000 D Class Rs.1,000 E Class Rs.750 Petty ClassRs.500