2005 PLP 1126 (YLR)

The petitioner was entitled as an A-class contractor with the Cholistan Development Authority (respondent No.1). He applied for the annual renewal of his enlistment as far back as June, 2004. No decision on his renewal application was communicated to him until 10-11-2004. On this date the Executive Engineer addressed a letter to the petitioner informing him that pursuant to a decision of the enlistment/ renewal committee of the Cholistan Development Authority taken in a meeting held on 17-8-2004 the petitioner s application for enlistment as category-A Contractor for the year 2004-2005 has been rejected. The letter, dated 10-11-2004 does not specify any reason as to why the petitioner s application for enlistment/ renewal has been rejected. However, reference has been made to the minutes of the meeting of the enlistment/renewal committee, dated 17-8-2004. According to the said minutes enlistment/renewal has been refused to these contractors who were lagging behind in the performance of work awarded to them and who were not serious in rectification of the defects despite correspondence addressed to them.

2. Learned counsel for the petitioner has drawn the attention of the Court to a performance certificate dated 20-9-2004 issued by the Executive Engineer (respondent No. 2) wherein it has been certified that the petitioner has good standing with the Cholistan Development Authority as a contractor. The certificate is in the following terms:

PERFORMANCE CERTIFICATE TO WHOM IT MAY CONCERN It is certified that Messrs Muhammad Hussain resident of Jhetta Bhutta, Tehsil Khanpur, is Government Contractor of Cholistan Development Authority, Bahawalpur, for the last 10 years. During the period he has been entrusted various projects/works which he successfully completed within the stipulated time. The quality and progress of his work and his overall performance have been found satisfactory.

3. On the above basis it is submitted that the refusal of the respondents to renew the enlistment of the petitioner is wholly mala fide.

4. I have heard learned counsel for both parties at length and I have also gone through the record available with the SDO of the respondent authority. I note that the only complaint alleged against the petitioner is in respect of the contract for laying of pipelines from Mutton Wala to Chori. According to learned counsel for the petitioner, the fault pointed out by the respondent-Authority is a result of design defect. The SDO upon being questioned, acknowledged that 13/14 other contractors engaged in the said work, had also reported similar defects. It is not within the remit of this Court, while exercising Constitutional jurisdiction, to embark upon a factual inquiry as to the competing contentions of the parties. The resolution of such factual disputes, no doubt, will take place through ordinary legal process.

5. I, however, note that the final bill submitted by the petitioner in respect of the above was approved. It shows that measurements were finally made. Thereafter the certificate dated 20-9-2004, reproduced above, was also issued to the petitioner. This is a material circumstance appearing on the face of the record. At this juncture, I need to note that even according to the terms of contract, as confirmed by the SDO, the Engineer Incharge under the contract is the Executive Engineer (respondent No.2). In the circumstances, the certificate issued by the Executive Engineer has to be given due weight. The certificate expressly stipulates that the petitioner has successfully completed projects/works entrusted to him within the stipulated time.

6. Learned counsel for the respondent authority referred to the minutes of the meeting dated 17-8-2004 and stated that the Revenewal Committee, which comprises of four members, had decided not to renew the enlistment of the petitioner. These minutes, however, make reference to general defects and delays on the part of a number of contractors. As against these general observations is the Specific Performance Certificate issued to the petitioner by the Executive Engineer. Furthermore, the Performance Certificate is subsequent in time to the meeting of the Renewal Committee dated 17-8-2004.

7. Bearing in mind the above discussion and the examination of the record. I allow this petition and direct that the refusal to renew the enlistment of the petitioner is violative of the norms of natural justice and fairness as recognized by law. The said refusal is, therefore, set aside. In the circumstances, the petitioner shall also be entitled to submit tender for the contracts which have been advertised in the Daily Khabrain . H.B.T./M-896/L Petition allowed.