1989 PLP 2872 (MLD)

In the counter-affidavit it has been pleaded that the petition is not maintainable and there has been no breach of violation of any statutory provision. It has also been pleaded that the contractual rights cannot be enforced through Constitution petition. The petitioners are "A" class contractors, but it does not vest in them any, right regarding award of contract nor does it restrict the rights of the respondent m particular cases to invite applications for pre-qualification. In the counter-affidavit the respondents have given the instances of failure of the petitioners in execution of their work, which had been awarded to them. It has also been alleged that the petitioner No.3 has played fraud on the department in the past which was found out by the scrutiny committee and that it did not have the capacity to carry out the particular work. It has been pleaded that the results of the tenders are not communicated to the contractors except to those whose tender is accepted. The return of bank guarantee itself signifies rejection of the tender. The petitioners submitted application for pre-qualification without taking any objection to the same. They have fully participated in it and are estopped from challenging the result after the decision has gone against them. In all 170 applications were received seeking such pre-qualification which were scrutinised by two committees which comprised of officers of the Railways at different level. The consultation and recommendations were forwarded to the Cheif Engineer who in consultation with the Financial Adviser communicated his result to the General Manager. The applications of the petitioners and many other contractors were rejected. It was alleged that the petitioners Nos.1 and 4 had supplied incorrect information in their pre-qualification application forms and had made mis-representation. It has been stated by the learned counsel that the tender work issued to the contractors has been completed and, therefore, even otherwise this petition has become infructuous. The only contention which Mr. Nizam Ahmad has raised is that as the petitioners are registered "A" class contractor with Pakistan Railway they were entitled to participate in the bids for contract and tender bid form should have been issued to them. The learned counsel has not been able to show any Rule or any provision of law under which by mere registration as "A" class contractors they have a right to seek tender form or to apply for any tender irrespective of any condition that may be imposed by the respondents Nos.l and

2. Mr. Makhdoom Ali Khan the learned counsel for the respondents Nos.l and 2 has contended that the entire exercise between the parties was of a contractual nature and even if any right had accrued the same cannot be enforced through a Constitutional petition. The petitioners have made grievance that they have not been allowed to submit their tender for the afore stated work. The tenders submitted on invitation are offers which are made for the work advertised by any party and once this tender is accepted then it forms into a contract. Therefore, the dealing between the parties related to contract in respect of work which was to be advertised. It is true that a list of approved contractors one of which is classified as "A" class contractor is maintained by the respondent No.1 but mere maintenance of such a list does not give any vested right to any such contractor to participate in any contract in respect of which tender is floated by the respondent No.1. There may be case and tenders in which work may be of a technical nature requiring expertise, experience and equipments, and therefore, it is necessary that before awarding such contract the qualifications, experience, staff employed by the contractor and the machinery kept by him should be disclosed which would determine the ability and capacity to execute the work. This object was to be achieved by issuing pre-qualification notice. In these circumstances in our view no vested right has been infringed by the respondent. Mr. Makhdoom Ali Khan has referred to M/s. Monima Motors Co. v. The Regional Transport Authority, Dacca P L D 1962 SC 108 and Ghandana Limited v. District Magistrate Tipra and another AIR 1958 SC 267) where it was observed that contractual rights if any cannot be enforced by exercising writ jurisdiction. Reference was also made to M/s. Sanaullah Khan Brothers v. Province of West Pakistan PLD 1971 Quetta 101 where the contractors had challenged a system of allocation of contract work to the contractors on the approved list in preference to an old method which was envisaged from the year 1940, under which the Political Agent was authorised to allocate the repair work upto a certain limit to Tribal Sardars and Maliks nominated by him in keeping with their tribal responsibilities. When this system was changed the petitioners challenged it on the ground that it was introduced on parochial considerations in order to afford political patronage to their stooges and encourages corruption among them. It was challenged on the ground that the introduction of new system for the award of the public works was ultra vires, illegal, arbitrary and wrongful. The petition was dismissed and the following observation was made: "But the matter does not rest here. The learned counsel for the petitioners was unable to lay his hands on any specific provision in the law on which the old system for the grant of works by the Government to the contractors by inviting tender, was based. This system on which he has relied and which he is seeking to enforce again suffers from precisely the same criticism levelled by him under Article 2 of the Constitution against the new system introduced under the revised Policy for the allocation of nomination. From this point of view there is little to choose between the two systems. Quite apart from this, the petitioners, in order to succeed in this petition, under Article 98 (2) of the Constitution, must establish that they were possessed of a legal right which was infringed by this impugned change in the policy by the Government. In the absence of any right vested in the petitioners the question of its invasion at the hands of the respondents does not arise. The petitioners are interested in securing contracts for the public works from the Government in Baluchistan. It is elementary that a contract is formed by an offer and its acceptance with the free-will and consent of the parties and there could be no compulsion in this behalf. It is solely for tile Government, as one of the contracting parties, to formulate its own policy from time to time, and to evolve its own method for according its acceptance to an offer received from a contractor. The contractor has no say whatever in this matter which rests solely with the government. The Government is altogether free to lay down its own policy in this respect. . . . There is yet another reason in support of our decision. We find that in terms of Article 98 (2) of the Constitution only an aggrieved party' is competent and has the standing to file this petition. According to James, L.J in Ex parte Sidebotham, In re: Sidebatham (1880) 14 Ch. D458:- `A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongfully refused him something, or wrongfully affected his title to something. We have come to the conclusion that in this case the petitioners have no `legal grievance' to sustain this petition. This Court in Muhammad Din and Sons v. The Province of West Pakistan and others PLD 1969 Lah. 823 was of the opinion that the petitioner in that case was not an aggrieved party' within the meanings of Article 98 of the Constitution and in that connection the Court observed that:- "There is no vested right in the petitioners on which they can ask for the sale of the factory in their favour. The petitioners have no vested right to purchase and there is no corresponding duty cast upon the Government to sell this factory to the petitioners. Thus, they have no case for mandamus. The petitioners were merely tenderers and the Government was not obliged to accept their tenders." The above observations equally apply to the facts of the present case. Applying I the principles enunciated in the above authority we dismiss the petition. M.Y.H./S-378/K Petition dismissed.