P L D 2020 Balochistan 21
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
ALI NAWAZ SHAHWANI AND BROTHERS through Proprietor and another ---
Petitioners
Versus
GOVERNMENT OF BALOCHISTAN through Secretary C&W Department,
Quetta and 2 others ---Respondents
Constitutional Petition No.614 of 2019, decided on 16th October, 2019. Constitution of Pakistan --
----Art. 199 ---Constitutional jurisdiction of High Court ---Scope ---Alternate remedy ---Factual
controversy---Effect ---Bidding process --- Petitioners were government contractors who were
aggrieved of allocation of tender by the authority to contractor of his choice --- Validity ---
Certain controversial questions were involved which could not be resolved while exercising Constitutional jurisdict ion of the High Court ---Fate of Constitutional petition could not be
decided on basis of such documents, authenticity whereof could only be determined and established before civil court as it required a full -fledged enquiry and scrutiny after
providing ful l opportunity of hearing to both parties ---In presence of alternate remedy
Constitutional petition was not maintainable ---Constitutional jurisdiction of High Court
could not be invoked in all matters as a matter of right ---Such jurisdiction had certain
circumventions which High Court was required to keep in view while exercising its
extraordinary jurisdiction ---Availability of alternate remedy was one of the limitations which
barred exercise of Constitutional jurisdiction by High Court ---Extraordinary juris diction was
intended primarily for providing an expeditious remedy in a case where illegality of action of an executive or other authority could be established without any elaborate enquiry into complicated or disputed facts ---Controversial questions of fa cts adjudication on which was
possible only after obtaining all types of evidence in power and possession of parties could be determined only by courts having plenary jurisdiction in the matter and on such ground Constitutional petition was not maintainabl e---While invoking Constitutional jurisdiction, it
was mandatory for a party to establish clear legal right which could be beyond any doubt and controversy---High Court declined to exercise Constitutional jurisdiction as in the light of alleged foul play, legal right and entitlement of petitioners were controversial and such
disputed questions of fact could not be decided in Constitutional jurisdiction---Constitutional petition was dismissed in circumstances. Rana Aftab Ahmed Khan v. Muhammad Ajmal PLD 2010 SC 1066 and Secretary to
the Government of the Punjab v. Ghulam Nabi PLD 2001 SC 415 ref.
Munawar Ahmed for Petitioners.
Shai Haq Baloch, Additional Advocate General and Muhammad Akram, XEN
Mastung for Respondents/State.
Date of hearing: 17th Septemb er, 2019.
JUDGMENT
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 f air-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 a nd 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 justi fication 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 le tter 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 tende rs
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 fur ther 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 i n 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 despi te 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 b een 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 opportuni ty 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 remed y 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 iss ued 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 controve rsy 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, whi ch
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 leg al 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 fac t 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 supe rior 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 a bove, the case of petitioners is not maintainable, as such,
dismissed with no order as to costs.
MH/129/Bal. Petition dismisseThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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