P L D 2020 Balochistan 21 (PLP)

ROZI KHAN BARRECH, J.

Through this petition the petitioners sought following relief: "a) Declare that the petitioners are legal and lawful contractors and the respondents cannot restrain them from participating in bid proceedings of the different works issued in the publication dated 28-05-2019. b) Declare that the act of respondent No. 2 for not opening the tender on the given date is an attempt for restraining the petitioners from participating in tender proceedings, which is null and void which is liable to be discarded. c) Declare that the act of respondent No. 2 by issuing the work order in concealing manner to another contractor is illegal and unlawful. d) Declare that the petitioners are entitled to participate in the tender proceedings of respondent No. 2 and respondent No. 2 cannot restrain the petitioners from participating in bid process. e) To cancel the work order of other contractor issued by respondent No. 2. f) To direct the respondents to provide a proper / fair opportunity to the petitioners for participating in the same along with other eligible contractors. g) Any other relief which this Hon'ble deems fit and proper may also be extended in the favour of petitioners in the interest of justice, equity and fair-play.

2. Brief facts of the case are that the petitioners (construction companies) are registered with Pakistan Engineering Council ("PEC") and have PEC licenses. That on 28th May 2019 an advertisement was published in daily Jang, Quetta by respondent No. 2 inviting tenders for different works/construction of schools from interested contractors; that in compliance of the tender notice the petitioners submitted their respective tenders' fee with the requisite call deposit. After submitting call deposit and fulfilling all the requirements of respondents the petitioners were waiting for opening of the tender which was to be opened on 12th June 2019, but on the said date tenders were not opened by respondent No. 2 rather without assigning any reason or justification for the same the respondents carried out the proceedings in a concealed manner, whereby contract was awarded to another contractor. Consequent upon which the petitioners filed complaints against respondent No. 2 before respondent No. 3 and vide letter dated 14th June 2019 respondent No. 3 called explanation of respondent No. 2 regarding the anomalies in inviting tenders/tender opening proceedings. It is case of the petitioners that respondent No. 2 in a clandestine manner, without opening the tenders publicly, issued work order to another contractor of his own choice.

3. Mr. Munawar Ahmed, learned counsel for the petitioners, contended that the act of respondent No. 2 by not opening the tender publicly was clear cut attempt for restraining the petitioners from participating in the bidding process and subsequently issuance of work order to another contractor is totally illegal, unwarranted and against the Rules and Regulations of Balochistan Public Procurement Regulatory Authority ("BPPRA"). It is further contended that position of the case is not clear that neither the respondent No. 2 opened the tender, nor cancelled the same, but in the meanwhile issued work order to another contractor, otherwise the petitioners are legally entitled to participate in the bid proceedings; that the act of respondent No. 2 shows that he has already made bargaining with the other contractors of his own choice, due to which the petitioners have been deprived of their legal vested rights. It is further contended that despite approaching the official respondents the relevant documents for being restrained in the bidding process were not provided to him.

4. On the contrary the learned Additional Advocate General and respondent No.2 appearing before the court on behalf of the respondents, while opposing the instant petition, contended that the same is not maintainable and there are factual controversies involved. To substantiate the contentions of the respondents it is further contended that the respondents have adopted all the legal procedures and the petitioners along with other contractors participated in the process of tender opening whereby the bid of the contractor to whom the work order was issued by the respondents according to law and no illegality or irregularity has been committed by them.

5. We have heard the learned counsel for the parties and have gone through the available record with their valuable assistance.

6. We are in agreement with the learned AAG appearing on behalf of the respondents that the documents, annexed with the petition, which were produced by the petitioners and respondents establish the fact that there are certain controversial questions involved in the matter, which cannot be resolved while exercising constitutional jurisdiction of this court, however, fate of the instant petition cannot be decided on basis of such documents authenticity whereof can only be determined and established before a civil Court and it requires a full-fledged enquiry and scrutiny, that too, after providing full opportunity of hearing to both the parties.

7. Another moot question, which requires determination by this Court, is that whether in presence of alternate remedy, the instant writ petition is maintainable? In this regard, we are of the view that constitutional jurisdiction of this Court cannot be invoked in all matters as a matter of right, rather such jurisdiction has certain circumventions, which the Court is required to keep in view, while exercising its extraordinary jurisdiction. Availability of alternate remedy is one of the limitations, which bars exercise of constitutional jurisdiction by this Court. If any case-law is required, reference can safely be made to the case of "Rana Aftab Ahmed Khan v. Muhammad Ajmal", (PLD 2010 SC 1066) wherein it was observed that: "We have considered the above and are constrained to hold that the constitutional jurisdiction (reference Article 199) of the High Court in all the cases cannot be invoked as a matter of right, course or routine, rather such jurisdiction has certain circumventions which the Court is required to keep in view while exercising its extraordinary discretionary powers, as the conditions mentioned in Article 199 of the Constitution are obviously meant for the purposes of regulation of the Courts jurisdiction and the availability of "other remedy" is one of such limitations."

8. The learned AAG appearing on behalf of the respondents, contended that the documents, relied upon by the petitioners cannot be construed as conclusive proof to determine that the respondents have committed any illegality or irregularity while opening the tenders, as documentary evidence is available on behalf of the respondents to prove that the respondents, after opening the tenders, prepared a comprehensive statement and thereafter issued work order accordingly to other contractor as per law. Admittedly, there are certain controversial questions, which cannot be resolved in exercise of constitutional jurisdiction as a thorough probe and investigation would be needed to set the controversy at rest, particularly when a specific allegation of foul play on the part of the respondents has been levelled by the petitioners. It is well settled by now that the superior Courts should not indulge in investigation of disputed questions of fact, which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. The extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controversial questions of facts adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by Courts having plenary jurisdiction in matter and on such ground constitutional petition is not maintainable. While invoking constitutional jurisdiction it is mandatory for a party to establish a clear legal right which should be beyond any doubt and controversy. In the light of alleged foul play, as pointed out by the learned counsel for the petitioners, the legal right and entitlement of the petitioners are controversial and such disputed questions of fact cannot be decided in constitutional jurisdiction. In this respect reference can be made to the case of "Secretary to the Government of the Punjab v. Ghulam Nabi (PLD 2001 SC 415), wherein it was held that: "It hardly needs any elaboration that "the superior Courts should not involve themselves into investigations of disputed question of fact which, necessitate taking of evidence. This can more appropriately be done in the ordinary Civil Procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts" Thus, in view of the above, the case of petitioners is not maintainable, as such, dismissed with no order as to costs. MH/129/Bal. Petition dismisse