2019 PLP 524 (YLR)

MALIK HAQ NAWAZ, J.

The main Writ Petition No.133 of 2016, C.M. No.293 of 2016, C.M. No.51 of 2016, C.O.C. No.12 of 2017, C.M. No.295 of 2017 and C.M. No.330 of 2017 hover around the matters of one and same kind, therefore, these are being disposed of through this single judgment. For the purpose of ready reference, a gist of the relief prayed in the above writ petition and CMs are given below. Writ Petition No. 133/2016 Prayers:- i The office order No. E6-2(146)/ 2014-15/1765 dated 16-11-2015 blacklisted of the petitioner firm may kindly be declared null and void and without lawful authority. ii. The declaration of defaulter of the petitioner firm vide office order No. ALA-1(18)/Recovery/2015 dated 16 May, 2016 may pleased to set aside while declaring null and void and without lawful authority. iii. Respondents be directed to allow petitioner to compete the tenders without any hindrance and in accordance of law. iv. Any other relief may be granted which this honorable Court deems fit and proper to meet the ends of justice. C.M. No.295/2017 Prayers:- It is therefore humbly prayed that, warrant of arrest issued by Sub-Divisional Magistrate/Assistant Collector 1st grade Gilgit in case No. 5323/2016 dated 10th July, 2017 and proceeding before the Assistant Collector Gilgit may kindly suspended till disposal of writ petition to meet the ends of justice. C.M. No. 330/2017: Prayers:- It is therefore, prayed that this Hon'ble Court may graciously be pleased to fix for early date for hearing of the Writ Petition No. 133/2016 for the ends of justice, law and equity. C.M. No. 292/2017 Prayers:- It is therefore humbly prayed that, temporary injunction may kindly be granted to the effect that, impugned office No.E6-2(146)/2014-15/1765 dated 16th Nov, 2015 and impugned order office order No.E6-2(8)Pec/2016-17 dated 18th May, 2017 may kindly be suspended and respondents be directed to allow the petitioner to appear in the tenders of projects without any hindrance and respondents further restrained to take action on the basis of impugned orders till disposal of writ petition to meet the ends of justice. C.M. No. 51/2018 Prayers:- It is therefore humbly prayed that, temporary injunction to the effect that order No. LAW-LIT2(8)/PC/WP/2017/2018 dated 10-01-2018 and office order No. EE/W&P/H/CB/1(4)/2016-17/735 dated 21th February, 2018 may kindly suspended, respondents may kindly be directed to allow the petitioner to appear in the pre-qualification and tendering process of different projects without any discrimination on the Court cases/litigation till disposal of writ petition to meet the ends of justice." C.M. No. 88/2018 Prayers:- It is therefore, humbly prayed that this Hon'ble Court may kindly allow the instant application by arraying the applicants/interveners as respondents Nos. 8 to 11 in the Civil Misc. Application No.51/2018 to meet the ends of justice, law and equity.

2. The main contentions raised at bar by the learned counsel for the petitioner in main Writ Petition No.133/2016 are that the petitioners are renowned contractors and they are rendering their services in the area of Gilgit-Baltistan and Pakistan also since last about 57 years. The petitioner's firm was awarded NALC building contract and they completed almost 80% construction work, when the contract was rescind and the firm was "black listed" under clause-3 of the agreement. On 16-11-2015 vide office order No. E6-2(146)/2014-15/1765 respondent No. 5 not only black listed the firm but also removed the name of the firm from the list of the contractors of G.B PWD. The learned counsel further contended that respondent No. 6 is playing the game of hide and seek with the petitioner by placing/removing the name of the firm of the petitioners from the list of the G.B contractors and not providing a level playing field to the petitioners as political rival group of the petitioner firm is sitting in present Government. Further that the firm of the petitioner has been declared defaulter vide office order No. ALA-1(18) Recovery/2015 dated 16.05.2016 under the West Pakistan Government Dues Recovery Ordinance 1962, without resorting to the mandatory procedure provided under law, which may be declared illegal and without lawful authority.

3. The learned Assistant Advocate General vehemently opposed the writ petition and submitted that the petitioners are playing with the Government of Gilgit-Baltistan and with the Courts of law through filing various frivolous applications/writs before the various Courts, just to avoid the payment of millions of rupees, which have been declared Government dues against them. The learned Assistant Advocate General further submitted that the respondents apprised the Courts that the petitioner firm filed petition/civil suits on similar grounds before this Court as well as civil Courts, which are pending adjudication and some writs are still under judicial scrutiny, which are only the tactics to linger on the matters for some malicious consideration. The Assistant Advocate General lastly submitted that some complicated questions of law and facts have been raised in the instant petitions, which could not be settled down without recording of evidence. The petitioners are using these tactics just to pressurize the respondent to achieve their own goals. The cases be referred to the Civil Courts for recording pro and contra evidence.

4. We heard the lengthy arguments of both the learned counsel for the parties and examined record of the case with their valuable assistance.

5. Three (03) prayers have been made in the main Writ Petition No. 133/2016 and C.M. No. 293/2016 has also been filed along with the instant petition, wherein the petitioner prayed that the respondent be restrained to remove the name of the petitioner from the list of Pakistan Engineer Council. The prayer No. (i) of the main writ petition pertains to the declaration of the petitioners firm "black listed" vide office order No.E6-2(146)/2014-15/2016 dated 16-11-2015 which be declared illegal/unwarranted. We thoroughly examined this core issue. The above letter has been placed at page 5 of the paper book and perusal thereof shows that the firm of the petitioner has been black listed on the following (04) grounds:-- "a. Construction of NALC and NA Secretariat Complex at Jutial Gilgit (Assembly Building). b. Construction of Residential Accommodation for Speaker and Deputy Chief Executive and staff in NAs (Const. of MLC Hostel Gilgit). c. Construction of Staff colony for the Employees of NAs Gilgit. d. Construction of Residential Accommodation for officers in NAs."

6. On 14.5.2018, the respondents submitted written arguments in support of their contentions. It revealed from the written arguments that a case for blacklisting of the firm is pending adjudication before the Hon'ble Supreme Appellate Court. This Court is under moral/legal obligation not to adjudicate upon the merit/demerits of the case of "blacklisting". However as evident from the parawise comments/written arguments, the respondents have blacklisted the firm on the basis of a letter No. PS-Law-1(1)-2011-viii dated 20.06.2016. The operative para is reproduced as under:-- "It is hereby, therefore, directed to all the Government departments that in future the defaulters shall not be allowed to take participation in Public Procurement, Bidding and Tendering process within the departments of the Government of Gilgit-Baltistan. In case of violation of these instructions by any officer, competent Authority shall take strict action as per law." "That, the issue of blacklisting is directly and substantially in issue in CPLA filed by the petitioner before the Supreme Appellate Court GB against the order of this Honorable Court wherein this Honorable Court has refused to grant temporary injunction for not awarding of the above 4 Nos. contract to any other firm. The impugned order is pending before Supreme Appellate Court which Operates as res judicata."

7. Since blacklisting is directly and substantially in issue in CPLA filed by the petitioner in Supreme Appellate Court, however for the purpose of convenience and future guidance, the law declared in various judgments and the principles laid down for declaring a firm as "blacklisted" are re-produced as under and the legality and proprietary of relief(i) falls out of the purview of this Court and the petitioner's firm should pursue their case before the Hon'ble Apex Court of Gilgit-Baltistan. PLD 2011 Quetta 67 (b) Constitution of Pakistan

Arts. 18 & 199

Constitutional petition

Right of business

Blacking listing of a contractor

Petitioner was a manufacturer of electric cables and conductors etc. and authorities blacklisted the petitioner on account of breach of contract and failure to supply material on time

Pleas raised by petitioner was that such reasons were not a sufficient cause to necessitate blacklisting and circulation of letter of blacklisting had infringed Fundamental Right of carrying on lawful business guaranteed by Art. 18 of Constitution-- Validity

Registra-tion procedures that had been relied upon by both sides, which permitted different actions to be taken against delinquent firms, including blacklisting, removal and placing of embargo

Blacklisting could only be restored to after obtaining approval of Registration Committee

Authorities did not file any document to show that Registration Committee was constituted to consider blacklisting the petitioner and had granted an opportunity of hearing to petitioner before passing order approving blacklisting

Reasons stated by authorities in the letter of blacklisting the petitioner did not come within any of the categories listed in Registration Procedure

Petitioner manufactured cables and conductors which were mostly used by power generating and distribution companies and National Transmission Distribution Company and an extreme action of blacklisting petitioner effectively prevented it from carrying on with its lawful business and consequently would drive petitioner out of business

Such action of authorities had violated Fundamental Rights of carrying on a lawful business guaranteed by Art. 18 of the Constitution

Authorities had also violated their own Registration Procedure

High Court, in exercise of constitutional jurisdiction, declared the letter issued by authorities as unlawful and of no legal effect and petitioner would not be considered as blacklisting or treated as such

High Court directed the authorities to circulate letter of recall of blacklisting of petitioner was circulated

Petition was allowed accordingly

8. The same principles were laid down PLD 1992 SC 1126. The Paragraphs 15 and 16 of the said judgment are reproduced as under:-- "(15) It may be stated that the respondent is a Bank owned by State and therefore, under the Constitutional mandate, it should act fairly, justly, without any discrimination and without adopting unfair procedure. If an insurance company fulfils the required conditions and becomes eligible to be enlisted in the list of approved Insurance Companies the respondent cannot arbitrarily refuse enlistment for a reason which may have no nexus with the eligibility to be enlisted. However, a company (including the appellant), listed in the list of approved Insurance Companies has no right to force the respondent to enter into a contract of Insurance. It can at the most claim that it may be treated alike with the other Insurance Companies, placed in the same/similar position/situation. In other words, it is entitled that its offer to insure may be considered along with particular offer. So long the respondent acts in good faith, acceptance of a particular offer or non-acceptance of the same will not ensure any justifiable cause of action. (16) It may be pointed out thus the fall-out of the blacklisting of the appellant is not preventing it from the privilege and advantage of entering into lawful relationship with the respondent for the purpose of gain which lays down that subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. The blacklisting of a company/firm/ person also tarnishes the reputation of it/his as to its/his credibility to honour its/his commitments which may dissuade other parties from entering into contracts with the former. Thus the consequences of blacklisting a company/firm/person are of great magnitude, which warrant that before taking such an action, there should be material on record prima facie to indicate that the delinquent Insurance Company's refusal to pay claim was not warranted in the circumstances of the case." Likewise it was held in PLD 2001 Lahore 13:-- Constitution of Pakistan (1973)

Art. 199

Constitutional petition

Contractual liability

Blacklisting of a firm

Failure to issue show-cause notice

Petitioner failed to comply with its contractual obligation in stipulated period

Such failure was due to non-availability of the material in the market

Authorities without providing opportunity of hearing blacklisted the petitioner--Validity

Mere assertion that the petitioner had ample opportunity, without the support of documents could not have a firm credence

Where an act or order inflicted civil consequences on a person in respect of his reputation or property which was harmful to interest of that person, he was entitled to be heard before such action or order was taken or passed

Before taking such a decision the person likely to be affected adversely was entitled to a notice and hearing in the matter

Order of blacklisting the petitioner without notice was illegal of no legal effect and the same was set aside in circumstances. Again in 2009 CLC 1314 Karachi, a Division Bench of Karachi High Court held as under. Passports Act (XX of 1974)

S. 8

Constitution of Pakistan (1973), Arts. 15 & 199

Constitutional petition

Blacklisting of passport

Application of S. 8, Passports Act, 1974

Scope

Petition, in the present case, was not involved in any subversive activities or in activities which were prejudicial to the interest of Pakistan or Pakistan's relations with any foreign power

Mere fact that the petitioner or his son had filed some complaint at a foreign Court wherein he had also impleaded some of the members of the Embassy of Pakistan in that country, would not mean that the petitioner was a person involved in subversive activities etc.

Relevant letter from the said Embassy did not contain any allegation, which could be termed to be subversive activities against Pakistan or covered by any other situation visualized under S.8(3) of the Passports Act, 1974

Not only that, petitioner, in the present case, was not given opportunity of being heard before taking punitive action of blacklisting his passport

Held, action taken by the authorities against the petitioner was not only in violation of fundamental rights guaranteed to him under Art. 15 of the Constitution but also against the fundamental principles of natural justice of "Audi Alteram Partem"

High Court, in circumstances, allowed the constitutional petition with the observation that in future the official/authorities shall be careful in taking such arbitrary action against any citizen of this country, else they will be liable for penal action, which may entail inter alia consequences of imposition of heavy costs

Principles.

9. On 28-03-2018 Secretary Water and Power appeared in person in compliance of the Court order, who was directed to file copy of summary of tenders regarding the instant case and case was posted to 11-04-2018. Secretary Water and Power Mr. Zafar Waqar Taj was absent on 11-04-2018 and the Court was informed that he has proceeded to Islamabad in connection with an urgent meeting. He should have taken care of the situation as the above date was fixed on his insistence and he was morally and legally bound to put up his appearance before this Court and in case of absence due to some un avoidable circumstances must have deputed someone else either to attend the meeting at Islamabad or to put up appearance before this Court. On Court query regarding his absence on 11-04-2018, he informed the Court that he came back from Islamabad by 1st flight on 11-04-2018, but instead of attending the Court, he went to attend a meeting in the Chief Secretary Office. Such an attitude is unwarranted and uncalled for. We direct Chief Secretary Gilgit-Baltistan to take care of the situation. Secretaries are very rarely called and whenever they are so directed, we noted with concern that they feel it their insult/disgrace. No one is above the law and we being custodian of law will ensure supremacy of law in future. Because of our extra ordinary lenient attitude, the honour/dignity of the Chief Court is being compromised.

10. It is worth mentioning here that tenders were called for the impugned projects on 01-04-2017. The bidders deposited their bids and call deposits on 06-04-2017 but due to some unknown reasons the tenders were not opened. An another aspect, which created a lot of suspicion in our mind was that when the injunction was vacated by the District Judge Gilgit on 06-04-2018, then on the same day, whole process was completed and the contracts were awarded, which shows the collusion of respondents and the contractors.

11. The petitioner firm has to pay a heavy amount of 136.374 million, which has been declared as Government dues vide letter No. ALA-1(18)/Recovery dated 16/05/2016, and the same has not been recovered so far, therefore, award of above contract or rendering any finding in their favour will be true interpretation of "to rob petter to pay paul", which is against all the canon of justice, but we when examined Sections 17, 18 and 19 of PAPRA Rules and relevant provisions dealing with the cases of defaulters and blacklisting it came to our knowledge that despite of default and blacklisting a firm can participate in bidding and in case of above disqualification, will loose only 5 marks each, which though not appealing but we have to follow the procedure/rules and cannot substitute our own findings.

12. On 18-04-2018 during arguments the learned counsel for the petitioners Mr. Amjad Hussain, who is representing the firm was confronted that the firm is under a heavy default of Rs. 136.74 million, since over last 2 years, then how they could be declared eligible to compete in the tenders. The learned counsel in reply referred Sections 17, 18 and 19 of PAPRA Ordinance 2002, which Section deals with qualification, disqualification and black listing of contractors. The above quoted Section are re-produced as under;--

17. Qualification of suppliers and contractors.- A procuring agency, at any stage of the procurement proceedings, having credible reasons for or prima facie evidence of any defect in supplier's or contractor's capacities, may require the suppliers or contractors to provide information concerning their professional, technical, financial, legal or managerial competence whether already pre-qualified or not: Provide that such qualification shall only be laid down after recording reasons therefore in writing. They shall form part of the records of that procurement proceeding.

18. Disqualification of suppliers and contractors.- The procuring agency shall disqualify a supplier or contractor if it finds, at any time, that the information submitted by him concern-ing his qualification as supplier or contractor was false and materially inaccurate or incomplete.

19. Blacklisting of suppliers and contractors.- The procuring agency shall specify a mechanism and manner to permanently or temporarily bar, from participating in their respective procurement proceedings, suppliers and contractors who either consistently fail to provide satisfactory performance or are found to be indulging in corrupt or fraudulent practices. Such barring action shall be duly publicized and communicated to the Authority: Provided that any supplier or contractor who is to be blacklisted shall be accorded adequate opportunity of being heard.

13. To meet the Court query the learned counsel referred to SOP, issued by Pakistan Engineering Council Islamabad for pre-qualification of contractors he invited attention of the Court to clauses (e) and (f), wherein as per learned counsel only 5 points are to be deducted in case of default, litigation and blacklisting. For ready reference respective clauses are re-produced blow:-- Sr. No. Description Marks assigned Criteria for Marks Obtained e) Litigation History in which Decision has been given against the firm(s) 5 In case the firm is involved in any litigation, no marks will be given and 5 points will be added in case affidavit of no litigation is attached. f) Blacklisting from any agency 5 In case the firm is blacklisted, no Marks will be given and 5 points will be added in case affidavit by the company that it has not been black listed is attached.

14. The bare reading of the above quoted clauses read with Sections 17, 18 and 19 of PAPRA Rules, 2002, no doubt is left in our mind that the contentions of the learned counsel are tenable. We are of the view that clauses (e) and (f) of SOP issued by Pakistan Engineering Council Islamabad clearly depicts that if a firm/company is not in litigation and not blacklisted (5) marks will be added into their qualifying total and the interpretation of the learned counsel that in case of above two disqualifications (5) marks are to be deducted from the total, though we have some reservation regarding the above criteria, seem to be correct.

15. During hearing of the case many irregularities of fatal nature have come to our notice. We deliberated many days to reach to a just and fair conclusion, keeping in mind that all the projects, which are impugned before this Court relates to the overall development of Gilgit-Baltistan and the journey of progress will come to halt, but at the same time, we being custodian of law, have to discharge our duties right in accordance with law and are not supposed to shut our eyes, whenever any such manipulation is brought into our notice. The contention of the respondents that these are development projects and delay in disposal of the instant writ petition will adversely affect on the progress of these projects is itself rebutted from the record/conduct of the respondent, who kept on these tenders pending over 1 year, without any legal justification and when the stay was vacated from the District Judge, the respondent completed the task within a day, which is humanly not possible.

16. On Court insistence the summary of tenders provided to Court for perusal depicts a sketchy detail of the projects, which was just an eye wash, despite our repeated queries regarding disqualification of a numbers of contractor the reasons for disqualification have not been mentioned against the contractors, who failed to win the bids. A gist of the detail submitted by the respondents regarding the bidding of 5 mega projects is given below, which will show that not a single word has been mentioned against the unsuccessful contractors. The data supplied by the respondents and made part of the judgment from page 16-22, will show the lethargic attitude of the defendants and will also show as to how the cases are defended in the Chief Court. PROCEEDING OF TURBO GENERAT-ING SETS OF DISTRICT HUNZA-NAGAR Executive Engineer Water and Power Hunza/Nagar invited applications for the following works in 01st April 2017 vide advertisement published in the local newspaper. A Names of Schemes/ Projects. 1 Turbo Generating Sets 02 MW, Chalt Nagar 2 Turbo Generating Sets 02 MW, Hisper Nagar 3 Turbo Generating Sets 02 MW, Dahitar Nagar 4 Turbo Generating Sets 02 MW, Hassanabad Hunza 5 Turbo Generating Sets 02 MW, Mayoon Hunza In response to the Advertisement the following contractors applied for the Technical and Financial Proposals. B Application Received from Contractors/Supplier 1 Muhammad Shahid JV Buraq (Ltd.) 2 Shaheen and Sons 3 Messrs Irfan Brothers 4 Iqbal Enterprises 5 Messrs Zeal Enterprises 6 Jan Sons (Pvt.) Ltd. 7 Messrs Shakeeb Traders 8 Muhammad Yousuf and Sons 9 AAJ Sons JV MK Builders 10 Messrs Mustaq Ali 11 Wazir Imtiaz Haider 12 Messrs SMA Enterprises 13 Bilal and Brothers 14 Messrs Al-Fajr International The Chief Engineer Water and Power Department Gilgit, Region constituted evaluation committee, to evaluate the Technical Proposals of the contractors, the following officials are the members of the constitution committee. C Constitution of Committee for Opening of Technical Bids S. # Names of Employee Designation 1 XEN, (Works) President 2 XEN, W&P Division, Hunza Member 3 XEN, W&P Division, Nagar Member 4 Rep. of P&D Department, GB, Gilgit Member 5 Rep. of Finance Department, GB, Gilgit Member 6 Rep. of Secretary W&P Department, GB Member 7 Rep. of Deputy Commissioner, Hunza Member 8 Rep. of Deputy Commissioner, Nagar Member 9 Rep. of CMIT, GB, Gilgit Member The committee opened the technical proposals on 05th May 2017 in the office of Executive Engineer (Works). The names of qualified and disqualified Contractors/Suppliers of each project are as under:-- Name of Project:-- 500 KW Hydro Power Project Mayoon Hunza Qualified Contract S. # Name of Contractors 1 Muhammad Yousuf and Sons 2 Messrs Mushtaq Ali 3 Messrs Sultan Mehmood Sons 4 AAJ Sons JV MK Builders 5 Messrs SMA Enterprises 6 Messrs Zeal Enterprises 7 Messrs Pearl Trade International 8 Messrs Al-Fajr International Disqualified Contractors S. # Names of Contractors 1 Bilal and Brothers 2 Iqbal Enterprises 3 Hydro Tech (Pvt.) Ltd. 4 Shaheen and Sons 5 Messrs Irfan Brothers Names of Project: 02MW Hydro Power Project Hassanabad Hunza Qualified Contractors S.# Names of Contractors 1 M/S Al-Fajr International 2 Messrs Pearl Trade International 3 Messrs Mushtaq Ali 4 Messrs Sultan Mehmood Sons 5 AAJ Sons JV MK Builders 6 Muhammad Yousuf and Sons 7 Messrs SMA Enterprises 8 Wazir Imtiaz Haider Disqualified Contractors S.# Names of Contractors 1 Shaheen and Sons 2 Bilal and Brothers 3 Hydro Tech (Pvt.) Ltd. 4 Messrs Irfan Brothers 5 Iqbal Enterprises 6 Messrs Zeal Enterprises 7 Messrs Shakeeb Traders Names of Project:- 500KW Hydro Power Project Chalt Nagar Qualified Contractors S.# Names of Contractors 1 Messrs Al-Fajr International 2 Muhammad Yousuf and Sons 3 Messrs Safdar Khomer 4 Messrs Pearl Trade International 5 Messrs Zeal Enterprises 6 Messrs Mushtaq Ali 7 AAJ Sons JV MK Builders 8 Messrs Sultan Mehmood Sons 9 Messrs SMA Enterprises Disqualified Contractors S.# Names of Contractors 1 Hydro Tech (Pvt.) Ltd. 2 Muhammad Shahid JV Buraq Ltd. 3 Bilal and Brothers 4 Iqbal Enterprises 5 Shaheen and Sons 6 Messrs Shakeeb Traders 7 Messrs Irfan Brothers Name of Project:- 02MW Hydro Power Project Dahitar Nagar Qualified Contractors S.# Names of Contractors 1 Messrs Al-Fajr International 2 Messrs Mushtaq Ali 3 Muhammad Yousuf and Sons 4 Wazir Imtiaz Haider 5 AAJ Sons JV MK Builders 6 Messrs Pearl Trade International 7 Messrs Sultan Mehmood Sons Disqualified Contractors S.# Names of Contractors 1 Messrs Irfan Brothers 2 Messrs Shakeeb Traders 3 Iqbal Enterprises 4 Shaheen and Sons 5 Messrs SMA Enterprises 6 Messrs Zeal Enterprises Name of Project:- 02MW Hydro Power Project Hisper River Nagar Qualified Contractors S.# Names of Contractors 1 Iqbal Enterprises 2 Messrs Sultan Mehmood Sons 3 Messrs Pearl Trade International 4 Muhammad Yousuf and Sons 5 AAJ Sons JV MK Builders 6 Messrs Mushtaq Ali 7 Wazir Imtiaz Haider 8 Messrs AI-Fajr International Disqualified Contractors S.# Names of Contractors 1 Muhammad Shahid JV Buraq Ltd. 2 Shaheen and Sons 3 Messrs Irfan Brothers 4 Messrs Zeal Enterprises 5 Jan Sons (Pvt.) Ltd. 6 Messrs Shakeeb Traders 7 Messrs SMA Enterprises 8 Bilal and Brothers The Chief Engineer Water and Power Department Gilgit, Region approved the proceeding submitted and intimated the disqualified bidders about their disqualified. Resultantly, disqualified contractors applied for grievances with respect to evaluation of their technical proposals. Accordingly, the Chief Engineer Water and Power Department Gilgit Region again constituted a redressal committee, to address the grievances of disqualified contractors. Below was composition of the committee:-- S.# Names of Employees Designation 1 Engr. Abdul Karim SE (Works) W&P HQ Gilgit. President 2 Engr. Sherbaz. XEN W&P Division Ghizer. Member 3 Mr. Goher Ayub Sub-Engineer, W&P Chief Engineer Office Gilgit. Member Following contractors/firms applied for the said redressal. S.# Names of Contractors 1 Messrs Zeal Enterprises 2 Messrs Shakeeb Traders 3 Messrs Shaheen and Sons 4 Messrs Irfan Brothers 5 Messrs Bilal and Brothers 6 Messrs Jan and Sons (Pvt.) Ltd 7 Messrs Iqbal Enterprises The re-dressal committee, after thorough examination of the board/ evaluation proceeds, agreed to the decisions taken taken by the evaluation committee, vide their letter No.CE2(305)/2017-18/513, dated 23rd January 2018. Hence, after finalization of the proceedings, as per provisions of the PPRA, the financial bids were opened on 2nd March 2018. It would be pertinent to mention here that as provided by PPRA financial bids of the qualified candidates were opened and those of the disqualified irresponsive bidders were kept un-opened for return. As a result, following contractor/ firm succeeded in winning the bids on the basis of lowest rates/prices/financial bids. S.# Names of projects Names of Contractors 1 02MW Hydro Project Hisper River Nagar Messrs Pearl Trader International 2 02MW Hydro Project Dahitar Nagar MK Builders JV AAJ Sons 3 0.500MW Hydro Project Chalt Nagar Mr. Safdar Hussain Govt. Contractor 4 02MW Hydro Project Hassanabad Hunza Messrs SMA Enterprises 5 0.500MW Hydro Project Mayoon Hunza Messrs Zeal Enterprises Comparative statement in respect of each project is attached as Annexure A" proceedings are submitted as directed please. Sd/XXX (Karim Khan) Executive Engineer (Works) Water and Power Department Gilgit-Baltistan

17. As well as Civil Misc. No.88/2018 filed by M.K Builders through their Director Ghulam Mujtaba, is concerned, the petition has been filed under Order I, Rule 10 (2) read with section 151, C.P.C. for impleading the applicants as respondents. On last date of hearing when Secretary Water and Power was asked to de-seal the tenders in Court, Mr. Assadullah Khan Advocate came at rostrum and addressed the Court. The main contention of the learned counsel was that the petitioner (Shaheen and Sons) in main writ petition has sought only (03) reliefs and Civil Misc. No.51/2018 is not maintainable as some extra relief has been prayed, which is outside the preview of the original writ petition. The learned counsel vehemently opposed the de-sealing of the tenders of rejected bidders.

18. The contentions of the leaned counsel are not tenable, as in main Writ Petition No. 133/2016, the petitioner firm has prayed "any other relief as deemed fit and proper in the interest of justice". It must be known that Chief Court being a Constitutional Court may take the notice of any subsequent development and may grant relief to an aggrieved party even if the same has not been claimed according to changing circumstances. The contention of the learned counsel for M.K. Builders that the tenders may not be opened in the Court, was suggestive of the facts, that the learned counsel was made conversant about the malpractices and manipulation under taken by the respondents in process of tenders which was supposed to expose them in the open Court. The application under Order I Rule 10(2), C.P.C. has been filed in aid of respondents to protect their illegal deeds, which cannot be entertained and is dismissed.

19. We in chamber opened all tenders and found that some lowest bidders were not allowed to participate due to mala fidies and collusion of blue eyed persons with the respondents. On opening the tenders of the contractors, disqualified by the respondent, it was found that the respondents committed gross irregularities and illegalities, while awarding the contracts to their favourtes. The details are as under:- a. The tender of 02 MW Hydro Power Project Hisper River Nagar was awarded to Pearl Trader International in the sum of Rs. 11,15,00,000/-. The following low bidders were not awarded the contract. 2 MW HYDRO POWER PROJECT HISPER RIVER NAGAR. Messrs Pearl Trader International 11,15,00,000/- Zeal Enterprises 6,28,00,000/- Irfan Brothers 6,84,00,000/- Iqbal Enterprises 8,00,05,000/- Shaheen and Sons 7,99,99,786/- Messrs Jan Sons 5,85,00,000/- Messrs Shakeeb Traders 5,95,00,786/- Bilal and Brothers 7,53,57,254/- SMA Enterprises 7,50,00,000/- Messrs Shahid 9,40,00,000/- b. 02 MW Hydro Power Project Dahitar Nagar was awarded to M.K Bilders in the sum of Rs. 10,56,00,000/-. The following though on lower side were not awarded the contract. 2 MW HYDRO POWER PROJECT DAHITAR NAGAR. MK Builders JV AAJ Sons 10,56,00,000/- Zeal Enterprises 5,90,00,000/- Irfan Brothers 5,34,00,000/- Iqbal Enterprises 6,90,07,710/- Shaheen and Sons 6,89,99,786/- Messrs Shakeeb Traders NIL SMA Enterprises 5,85,00,000/- c. 0.5 MW Hydro Power Project Chalt Nagar was awarded to M/S Safdar Hussain Government Contractor in the sum of Rs. 2,31,09,000/- and following lowest bidders were ignored. 0.5 MW HYDRO POWER PROJECT CHALT NAGAR. Messrs Safdar Hussain 2,31,09,000/- Shaheen and Sons 2,15,11,000/- Bilal and Brothers 2,23,53,376/- Iqbal Enterprises 2,15,00,000/- Messrs Shahid 1,79,00,000/- Hydro Tech. Pak 1,95,91,600/- d. 02 MW Hydro Power Project Hassanabad Hunza was awarded to Messrs SMA Enterprises against a sum of Rs. 10,30,00,000/- and following were lower bidders were not allowed the contract. 2 MW HYDRO POWER PROJECT HASSANABAD HUNZA. Messrs SMA Enterprises 10,30,00,000/- Zeal Enterprises 6,35,00,000/- Hydro Tech Pak 7,39,03,623/- Messrs Irfan Brohters 7,76,00,000/- Iqbal Enterprises 7,17,11,786/- Shaheen and Sons 7,17,11,786/- Messrs Shakeeb Traders 4,87,00,786/- Bilal and Brothers 7,40,02,465/- e. 0.5 MW Hydro Power Project Mayoon Nagar was awarded to Messrs Zeal Enterprises for sum of Rs. 2,79,00,000/- and following were lower bidders were not allowed the contract. 0.5 MW HYDRO POWER PROJECT MAYOON NAGAR. Messrs Zeal Enterprises 2,08,00,000/- Hydro Tech. Pak 2,08,71,447/- Iqbal Enterprises 2,11,00,000/- Bilal and Brothers 2,08,71,447/- Shaheen and Sons 2,09,99,999/- The above actions suggest that whole the process was tainted, full of mala fidies and a heavy loss has been caused to Government exchequer, while leaving the lowest bidders and showering bounties on a selected group of contractors.

20. The summary of the above discussed aspects of the controversy runs as follows, that although the Courts always been reluctant in setting at naught the matters relating to the Development Projects, but this particular approach has been misread and misconceived by the mafias, a chunk of which now a days exists in almost every department, whether it be a public, private or Government Department, the reluctance at the part of the Court has been construed either as their weakness or constitutional/legal mandate to be mandatorily observed in each and every case, which even has a slightest resemblance or even a remotest link with any of the projects which may fall within the definition of "Development Projects" even in the remotest sense. It is to be taken with a pinch of salt that this leniency at the part of the Court runs as the major theme in the backdrop of certain anomalies which continue to infest the system of grant of tenders, those who are at the helm of affairs being sanguine of the fact that such irregularities in the past have failed to raise the eye brows in the concerned quarters. Continue to do the mischief which owes its genesis to the inside jobs, meticulously done to bless the selected lot. The tenders in question are the chips of the same block. The fishiness and the pungent smell of a foul play was felt, when we de-sealed certain tenders in our chamber to our utter astonishment in certain bids filed by the contractors, the bids have mentioned at the lower side in terms of money if compared with those which have been selected and approved by the respondents. The legal cohort representing the respondents came up with no convincing and justifiable reasons as to why the lowest bids have not been selected. No plausible, cogent and satisfying reasons has been furnished for granting tenders to the concerned contractors, which in itself is suggestive of a forum, which has been given under the counter. It is evident that while granting tenders, the requisite care and caution has not been observed and what has resulted as a sequel of series of acts is an advertent, well hammered and cleverly worked mischief, which cannot be seen favourably by this Court, which is bound under the oath to safeguard the right of general public being custodian of the rights of general masses, any sham, fraudulent and mischievous endeavor at the part of any of the parties arraigned on any manner before the Court cannot be allowed to thrive under the grab of development. Therefore, in order to meet the ends of justice the bids accepted and the tenders granted to the concerned contractors of the Schemes/Projects i.e. Turbo Generating Sets 0.5 MW Chalt Nagar, Turbo Generating Sets 02 MW Hisper Nagar, Turbo Generating Sets 02 MW Dahetar Nagar, Turbo Generating Sets 02 MW Hassanabad Hunza and Turbo Generating Sets 0.5 MW Mayoon Hunza are hereby declared null and void and the respondents are directed to start the process de novo, to republish the tenders and recall the bids from the interested parties.

21. We were intending to refer the case to NAB for inquiry/investigation and filing of reference against the officials/contractors after collection of substantial evidence, who in collusion with each other caused heavy loss to Government exchequer and it is only one of the example, which came before us for adjudication, but we restrained ourselves and decided to refer the matter for probe and holding a high level inquiry duly headed by an honest and well reputed professional officer, who after inquiry should recommend the appropriate action against the responsible officials who participated in the bidding process and the Chief Secretary shall take deterrent action against them. Action so taken be made a part of service book of the responsible delinquent officials. The result of inquiry committee be submitted to the Registrar of this Court within 60 days positively. The Chief Secretary has recently been posted in Gilgit-Baltistan and we hope that he will play his role to eradicate the menace of corruption, which is prevailing in almost all the departments of Gilgit-Baltistan.

22. A copy of this judgment be sent to Chief Secretary Gilgit-Baltistan for information/compliance as directed in the para-21 of the judgment.

23. As a sequel of above discussion Writ Petition No. 133/2016 and C.M. No. 51/2018 are partially allowed. C.Ms. Nos. 293/2016, 292/2017, 295/2017, 330/2017, and 88/2018 are also disposed off. HBT/167/GB Order accordingly.