2001 PLP 1762 (CLC)

(1) Messrs Mufti Salu & Company v. Government of Punjab and others Writ Petition No.5458 of 2000 and (2) Messrs Subhan Deepwell Corporation v. Project Director Writ Petition No.5473 of 2000.

2. Executive Engineer, Punjab Rural Water Supply and Sanitation Project(s) Division I, II, Bahawalpur invited sealed percentage/item rate tenders (term as short tender notice) from registered, renewed contractors/ firms of Housing and Development and Physical Health Engineering Department for the year 2000‑2001, who have been pre-qualified by Punjab Rural Water Supply and Sanitation Project Directorate, Lahore for its sub- Projects as per clause 4(a) Schedule III of Project agreement signed between the Asian Development Bank and Government of Pakistan and are eligible for participation in tenders.

3. The petitioners in both the abovementioned writ petitions claimed to be approved Government Contractors in Category "A". They intended to participate in the above tenders but respondent No.3 did not allow them, hence they filed the instant petitions with the following prayers: ‑‑ (i) Declaration may kindly be granted to the effect that the clog of pre -qualification upon the petitioner firm for tendering to be issued up to 25‑11‑2000 from the office of the respondent No.3 and its receipts on 27‑11‑2000 is contrary to law, arbitrary, mala fide, without jurisdiction, without lawful authority and of no legal effect. (ii) Direction may kindly be issued to the respondent to issue tenders to the petitioner's firm as per schedule of the "Short Notice" (Annexure "D"). (iii) An ad interim stay be graciously granted in favour of the petitioner by suspending the operation of the Short Tender Notice. (iv) Any other relief which this Honourable High Court deem fit and proper may graciously be awarded with costs in favour of the petitioner firm against the respondents in the larger interest of justice.

4. The learned counsel for the petitioners contends that petitioners being Class "A" approved contractors are fully eligible to apply for tender in question particularly when their applications for pre‑qualification have already been entertained by the Project Director Punjab Rural Water Supply and Sanitation. Project HUD and PHE Department and they were duly recommended by the competent Committee. Thus, the petitioners are being prevented from participating in the tender in question on the pretext of pre-qualification. Such an act on behalf of the respondents cannot be justified on any score either roof law or justice.

5. On the other hand learned A.A.‑G. submits that the projects for which tenders have been invited, are being financed by Asian Development Bank. As per clause 4(a) of the agreement executed between the Asian Development Bank and Government of Pakistan, those contractors are eligible to participate in the tenders whose pre‑qualification has been approved by the Bank. The petitioners did apply for pre‑qualification but so far no requisite approval by the A.D.B. has been received, therefore, tenders cannot be issued to them.

6. I have given due consideration to the arguments of the learned counsel for the parties and perused the record. Admittedly 72% of the cost of I the Projects in question is being financed by Asian Development Bank and in this context, an agreement was executed between the Bank and Government of Pakistan, a copy of which is annexed with the comments of the respondents. It is also an admitted position that applications were invited for grant of pre‑qualification of firms and the petitioners in response thereto did submit their applications, which were duly entertained and processed by the Project Director and as per petitioners, they have also been recommended by a competent Committee but at the same time it could not be denied that the requisite formal approval in the context of pre‑qualification of firms from the A.D.B. has not been received. Since the condition precedent to participate in the coming tenders is that of pre‑qualification approved by the A.D.B. and the same has not yet been received, therefore, the petitioners cannot lawfully maintain or claim a right in respect of participation in the tenders, subject- matter of these writ petitions. Since the terms and conditions of agreement are binding, therefore, no departure there from is permissible particularly with reference to approval of pre‑qualification by A.D.B.

7. Viewed from this angle respondents are helpless to adopt a course in order to accommodate the petitioners which could not have the sanction under the law and justice. Resultantly the act of respondents for not allowing the petitioners to participate in the coming tenders cannot be declared unlawful.

8. For what has been stated above, instant petitions fail and the same are dismissed. H.B.T./S‑232/L Petition dismissed.