' To restrain the general contractors upon the strength of Rule 48 of the Electricity Rules of 1937, to participate in the filing of tenders, invited by the Executive Engineer, Provincial Works Department, Bahawalpur Division, respondent No.2, through his short tender notice for the electrical works, to be done in different Government departments. This writ petition has been filed by Muhammad Ghaus Rana. The petitioner, who claims himself to be an associate Engineer, and possessing such diploma, awarded to him by the Punjab Board of Technical Education, Lahore, and licensed to act as an electrical contractor from the Government of the Punjab, has considered himself and the other electrical contractors, only qualified to file the tenders. As per version of the petitioner, the issuance of licence has conferred upon , him the power to get the other persons refrained from participating in the tenders, and only the persons holding such licence have got the monopoly to take part in the tenders.
2. As per learned counsel, the controversy in this writ petitionrevolves around the interpretation of ule 48 of the Electricity Rules, 1937, which were framed under the Electricity Act, 1910. To appreciate the disputatious issue between the parties, rule 48 of the Electricity Rules, 1937 is reproduced below:-- "(48) Precautions to be adopted by consumers and owners, electrical contractor and electrical workmen.
(1) No electrical installations work, including additions, alterations, repairs, and adjustments to existing installations, except such replacement of lamps, fans,--fuses, switches and other component parts of the installation as in no way alter its capacity or character, shall be carried out upon the premises or on behalf of any consumer or owner for the purposes of the supply of energy to such consumer or owner except by an electrical contractor licensed by the Provincial Government in this behalf and under the direct supervision of a person holding a certificate of competency issued by the Provincial Government: ' Provided that, the Provincial Government may by notification in the Official Gazette exempt on such conditions as it may impose any such description of work either generally or in the case of any specified class of consumers or owners from so much of this Sub-rule as requires such work to be carried out by any electrical contractor licensed by the Provincial Government in this behalf.
(1 A) No electrical installation work which has been carried out in contravention of Sub-rule (1) shall be connected with the work of any licensee or other supplier of energy.
(2) Sub-rule (1) shall come into force in any Province or part thereof on such date as the Provincial Government may by notification in the local official Gazette appoint and Sub-rule (1A) shall come into force in any Province or part thereof on the 10th October, 1943, or one year after Sub-rule (1) has come into force therein, whichever is later.
(3) This Rule shall not, unless the Central Government otherwise directs, apply to any work carried out by, or -on behalf of, the Central Government."
3. The version of the petitioner is that as all works of electricalinstallations can be done only by electrical licensed contractors due to the provision of Rule 48 of the Electricity Rules, 1937, so no person other than the electrical contractors licensed by the Provincial Government in this behalf, can participate into the tenders to be invited by any Government Department. Therefore, the short tender notice invited by the aforesaid Executive Engineer/respondent No.2, which has granted right to all general contractors partake in it, is illegal and without jurisdiction as it has opened the field, to all. According to the learned counsel, the words used in Rule 48 of the Electricity Rules, 1937, which have.Prescribed that the work of electrical installations can be done by no other person except the electrical engineer, which are licensed by the Provincial Government, do not allow any other person to offer tender of such specific nature. To explain it more, he states that as the work cannot be done by any other person except the electrical contractor, so the monopoly was created by the rule and respondent No.2 was not authorized to offer the tender to other general contractors. To support his arguments, the learned counsel has also referred to Clause (a) of Condition No. 1 of the Conditions printed on the reverse side of the licence granted to him, which contains the same words as are found in Rule 48 of. The Electricity Rules, 1937. To persuade the Court, he has referred to persuasive precedent of the Government of N.-W.F.P., Communication and Works Department, which is in the shape of memo No.E&A/C&W/11(206)184/5610, dated Peshawar the 9th April, 1984, which had taken the same view of Rule 48 of the Electricity Rules, 1937 as is being construed by him.
He has quoted yet another instance of Pakistan P.W.D. Contractors (Classification, Categorization, Enlistment, ' Evaluation of Performance) Rules, 1999, which was notified by Ministry of Housing and Works, Government of Pakistan through its Notification No.S.R.O. 1368(1)/99, in the Gazette of Pakistan, dated December 24, 1999. Pointing to Part II, which deals with the classification of contractors and referring to clause (ii) of the aforesaid Part, it has been stated that the Pakistan PWD has enlisted contractors of different classifications, such as buildings and roads works, electrical and mechanical works, air conditioning works, and so on. Therefore, this classification also supports his view. A photocopy of short tender notice got published by Pakistan Public Works Department in the daily newspaper "The Nation" of 20th June, 2003 has also been referred. Short tender notice, dated 18-6-2003 issued by Public Works Department, Government of Pakistan has also been pointed out for this purpose. Another short tender notice issued by Deputy Director (E&M) Maintenance Division, Parliament House was also indicated to, in which (E&M) Government Contractors were invited to file tenders.
4. On the other hand, learned counsel appearing on behalf of respondents Nos.4 to 6 has opposed the version taken and arguments submitted by the learned counsel for the petitioner, by stating that Rule 48 of the Electricity Rules, 1937 does not prescribe a condition for calling the tenders from electrical contractors only. According to him , the petitioner and other electrical contractors, who are few in number, are creating hindrance in the true rates to be mentioned in the tenders and are acting arbitrarily in their performance also. According to the learned counsel, these electrical contractors after pre-planning pool their resources and file tenders at exorbitant rates as compared to the other general contractors, who get these works done, at lower rates than these electrical contractors. He has referred to some instances, in which rates were found lower than the rates offered by the aforesaid electrical contractors, while filing the tenders.
5. Learned A.A.-G. Has supported the version of the respondents through his arguments.
6. After hearing the learned counsel for the parties and the perusal of the record/documents produced by the learned counsel for the parties, in this behalf, I record my findings and conclusions in the following Paras.
7. Before proceeding to interpret the impact of Rule 48 of the Electricity Rules, 1937 upon the controversial question, it is necessary that a cursory view of Article 18 of the Constitution of Islamic Republic of Pakistan be taken, which is reproduced as under:-- "(18)such qualification, if any, as may be prescribed by law, everyFreedom of trade, business or profession. Subject to citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business:-- ' Provided that nothing in this Article shall prevent-
(a) the regulation of any trade or profession by licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial of other persons.
8. The above noted Article 18 of the Constitution has granted an important right to every citizen, to enter upon any lawful trade, business, profession or occupation. This entering, conducting or taking part into enterprises can be subjected to a few qualifications, which should be prescribed by law. In other words, every citizen of this country has got a right to adopt any lawful trade, occupation or profession of his choice unless he is prohibited or restained by any provision of law. This right is commonly known as freedom of trade, business and profession.
9. Proviso (a) to this Article has conferred powers upon Federal/a Provincial Government to regulate any trade, profession through a licensing system, vide 1991 M LD 267 (Messrs Murree Brewery Company Limited versus Director General, Excise and Taxation and 3 others) and 1992 M LD 1882 (Riaz Ahmed versus the Regional Transport Authority, Multan, through its Secretary. Lalazar Colony, Multan and 2 others).
10. Clause (b) of the above noted Article has granted power to the above Governments to regulate trade, commerce or industry in the interest of free competition. While according to Clause (c) to Proviso of Article 18 of the Constitution, the Government has been given power tocarry on any trade, business, industry or service, by excluding completely or partially persons to enter into it if trade, business, industry or service is owned or controlled by it.
11. So, the crux of this discussion is that before a person is to be prohibited to take part in any such trade, business, industry or service, there must be some provision prohibiting him to partake therein. To say it in other words, it is the right of every citizen to embrace a lawful profession, or adopt a business, trade or run an industry. But this right can be curtailed, regulated, licensed or prohibited only through some legislation and by prescribed law, as deprivation of a vested right should not be made without the sanction of any law. On my query, as to whether there was any law/order/direction prescribing any such restriction upon the general contractors by Federal or Provincial Government of the Punjab to take part in the works noted above, reply was in the negative.
12. Keeping in mind the above conclusions, I advert to the interpretation of Rule 48 of the Electricity Rules, 1937. In the Rule, the words used are "No electrical. Installation work shall be carried out upon the premises except by an electrical contractor licensed by the Provincial Government ." (Space amongst the words has been provided by me). The words are clear, which denote that electrical installation work has to be done by and through an electrical contractor. A general contractor, if he gets a contract through filing of tenders, would be bound to get the work of electrical installation done through a licensed electrical contractor. It is the carrying on of the work, which has been prohibited by the Rule to be done through any person other than the licensed electrical contractor.
Nowhere the participation of a general contractor in the tender has been prohibited or obstructed.
To interpret Rule 48 of the Electricity Rules 1937 in a way to bar the participation of general contractors in the tender would be bringing in, those words, which are not found in Rule 48 supra.
The rule of interpretation of statute is that clear words, the import and meanings of which are free from doubt, should not be twisted or changed to other meanings from their apparent tenor. Words, which are not found in a law, have not to be imported to distort the meanings of plain words. I have not been referred to any law, rule or notification issued or enforced by the Provincial Government, in which the Public Works Department has been restricted to float the tenders to electrical contractors only. As no such exclusion from the Provincial Government has been made or envisaged by applying clause (c) of Proviso to Article 18 of the Constitution, and for the purposes of Rule 48 of the Electricity Rules, 1937, therefore, in my opinion, general contractors can take part into the invitation of tenders and file their tenders. However, it may be clarified that as the Government has got the right to exclude the general contractors or any other person in accordance with clause
(c) of Proviso to Article 18 of the Constitution, therefore, the Government, if it intends to exercise this right can do or act by or through prescribed law. In such an event, this judgment would not be creative of any such hindrance in the way of Federal or Provincial Government.
13. As regards, the interpretation put on the words of section 48 of the Electricity Rules, 1937 by the N.-W.F.P. Government, it cannot be held binding upon this Court. It may be the practice of a department, butit cannot be considered the law of the Province, and cannot override the clear meaning of the law.
14. The other limb of the argument of the learned counsel with regard to Pakistan P.W.D.
Contractors (Classification, Categorization, Enlistment, and Evaluation of Performance) Rule, 1999, it would suffice to say that it has only prescribed and provided the classification and categorization and not the prohibition for general contractors, to participate, which again is not of any use or benefit to the cause or case of the petitioner.
15. Accordingly, I do not see any merit in this writ petition, which IF is therefore, dismissed without any order as to costs.