P L D 2022 Balochistan 103
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
Messrs KOHI CONSTRUCTION CO./GOVERNMENT CONTRACTORS, KOHLU
through Managing Director ---Petitioner
Versus
GOVERNMENT OF BALOCHISTAN through Secretary Communication Works, Physical Planning and Housing and others ---Respondents
Constitutional Petition No.(s) 68 of 2020, decided on 23rd November, 2020.
(a) Balochistan Public Procurement Regulatory Authority Act (VIII of 2009) ---
----S. 27 ---Balochistan Pub lic Procurement Rules, 2014, Rr. 56 & 56 -A---Constitution of
Pakistan , Arts. 10A & 199 ---Constitutional jurisdiction---Documents, question as to
authenticity of ---Alternate remedy, availability of - Petitioner/contractor who submitted the
bid form for apply ing against contract works contended that the entire bid opening and
awarding contract had been carried out in sheer violation of governing Balochistan Public Procurement Regulatory Authority Act, 2009 and Balochistan Public Procurement Rules, 2014---Valid ity---Certain controversial questions involved in the matter which could only be
determined/established before a civil Court and it required full -fledged enquiry/scrutiny that
too after providing the full opportunity of hearing to both the parties ---Filing complaint
under R. 56 and appeal under R. 56A of the said Rules, 2014 were the alternate remedies which petitioner had not availed--- Constitutional petition was dismissed accordingly.
(b) Constitution of Pakistan ---
----Art. 199---Constitutional jurisdic tion---Alternate remedy ---Principle ---Constitutional
jurisdiction of High Court could not be invoked in all matters as a matter of right ---Such
jurisdiction had certain circumventions which the Court was required to keep in view while exercising its extra- ordinary jurisdiction---Availability of alternate remedy was one of the
limitations which barred exercise of Constitutional jurisdiction of High Court.
Wali Khan Nasar (absent) for Petitioner.
Mir Ahmed Ali Baloch, A.A.G. for the State.
Date of hearing : 28th October, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---The instant constitutional petition filed under Article
199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") carries the
following prayer:
a) "Declaring that act of responde nt No. 2 with regard to awarding contract works
namely (1) construction of Futsal Stadium at District Kohlu (TS170021E) (2)
(construction of black topped road and sewerage line at Marri Colony, Kohlu (TS169806E) (3) Construction of Black topped Road, Town Area, District Kohlu (TS169819E) against identical 0.99% below estimated cost in pursuance of publication dated 05- 02-2020 appeared in Daily Mashriq Quetta respectively in
favour of private respondents is illegal, without lawful authority and amounts to causing huge monetary losses to government exchequer;
b) Declare that while awarding contract works the official respondents were / are mandated to adhere with the Balochistan Public Procurement Regulatory Authority Act, 2009 (Balochistan Act No. VIII of 2009 and Balochistan Public Procurement Rules, 2014 to ensure transparent, healthy and competitive atmospheres amongst
bidders;
c) Directions be issued to competent official respondents to restrain from issuing work orders in favour of private respondents or processing post -bid proceedings
including contract signing in any manner;
d) Directions be issued to official respondents to re -advertise the publication of the
subject contract works with strict directions to adhere with Rules dealing with the matter and procure to ensure healthy and fair competition;
Any other relief which this Hon'ble court may deems fit and appropriate in the
circumstances of the case may also be awarded in favour of petitioner and against the
respondents, in the interest of justice and equity;
2. Brief facts of the case are that the petitioner is contractor by profession. The
respondent No.2 being the procuring agency made notice inviting the tender applications in Daily newspaper Mashriq Quetta dated 05.02.2020 bearing PRQ No. 1916/4.02.2020 invided bids from legible bidders for single contract work for construction of Futsal Stadium in Kohlu with the estimated cost of Rs. 24.938 millions for which the petitioner did apply along with other interested contractors. It is further averted in the petiti on that the respondent No.2
through even dated publication bearing PRQ No. 1914/04.02.2020 invited bids from eligible bidders for multiple contract works (14 in number) out of which the petitioner also applied against 06 contract works. In order to make el igible for participation in bidding process, the
petitioner got issued Call Deposit Receipts (CDRs) against each of the bid security in favour of respondent No.2 and after procuring Bid Forms, filled -in and accordingly the petitioner
submitted the bid form before the last date i.e. 21.02.2020. The last date for submission of
the bids was 21.02.2020 at 10:00 hours and the bids were to be opened at 11:00 am before the procurement committee in presence of contractors or their authorized representatives/agents in the office of respondent No.2. The respondent No.2 was duty bound
to open the technical bids within one hour of the deadline for submission of bids in presence of bidders or their authorized representatives to ensure fair and transparent bidding procedure. The petitioner after elapsing considerable period visited the office of respondent No.2 whereat he came to know that respondent No.2 uploaded the subject works on the official website of Balochistan Public Procurement Regulatory Authority (BPPRA), wher eby
after downloading valuation report it transpired that respondent No.2 awarded contracts to
respondents Nos. 4 and 5. It is alleged in the petition that respondent No.5 happened to be
first cousin of a political figure of the area and it is further alle ged in the petition that the
contract has been awarded by respondent No.2 in favour of private respondents against the evaluation of 0.99% below the estimated cost. It does not appeal to the prudent mind and it is
beyond imagination that private respondent s could quote 0.99% identical bids in three
different works with different estimated costs. Lastly it is contended that no any authority
has inscribed signatures on minuts of bid opening, meaning thereby the entire bid opening and awarding contract have be en carried out in sheer violation of governing BPPRA Act,
2009 (Balochistan Act VIII of 2009) and Balochistan Public Procurement Rules, 2014.
3. On 28.10.2020 despite repeated calls neither the petitioners nor their counsel was in
attendance. Same was the position on the last date of hearing, therefore, we have perused the record with the assistance of learned AAG and decided to adjudicate upon the matter on the basis of available record.
4. The learned Additional Advocate General appearing before the Court on behalf of the
official respondents, while opposing the instant petition, contended that the same is not maintainable and there are factual controversies involved.
We agree with the learned AAG appearing on behalf of the respondents that the
documents annexed with the petition, which were produced by the petitioner and respondents
establish the very fact that there are certain controversial questions involved in the matter, which cannot be resolved while exercising constitutional jurisdiction of this Co urt, however,
the fate of the instant petition cannot be decided on the 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 the full opportunity of hearing to both
the parties.
6. Another moot question, which requires a determination by this Court, is that whether
in the presence of alternate remedy, the instant constitution 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 jurisdictio n. 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 regu lation of the Courts
jurisdiction and the availability of "other remedy" is one of such limitations"
7. Learned AAG appearing on behalf of the respondents, contended that the petitioner
should avail remedy before the Redressal Committee in view of Rule 56 of the BPPRA
Rules, 2014.
It is worthwhile to mention here that respondents while submitting para -wise
comments clearly mentioned that the petitioner did not avail the remedy available to him before the redressal committee.
According to the Rule 56 of the BPPRA Rules, 2014, which is produced herein blow:
"56. Mechanism for Redressal of Grievances.---(1) The Procuring Agency shall constitute a committee comprising odd number of persons, with appropriate powers and authorizations, to address the complaints of bidders that may occur prior to the
entry into force of the procurement contract.
(2) Any bidder being aggrieved by any act or decision of the Procuring Agency after the issuance of Notice Inviting Tender may lodge a written complaint. (3) The complai nt redressal committee upon receiving a complaint from an aggrieved bidder
may, if satisfied (a) reject the complaint considering it to have been made on frivolous grounds; (b) prohibit the Procurement Committee from acting or deciding in a manner, inconsi stent with these rules and regulations; (c) annul in whole or in part,
any unauthorized act or decision of the Procurement Committee; (d) recommend to
the Head of Department that the case may be declared a mis -procurement if material
violation of the Act, rules, regulations, orders, instructions or any other law relating to public procurement, has been established; and (e) reverse any decision of the Procurement Committee or substitute its own decision for such a decision: Provided that the complaint redres sal committee shall not make any decision to award the
contract. (4) The Complaint Redressal Committee shall announce its decision within fifteen (15) days and intimate the same to the bidder and the Authority within three (03) working days by Procuring Agency. (5) The Procuring Agency shall award the contract after the decision of the complaint redressal committee. (6) Mere fact of lodging of a complaint shall not warrant suspension of the procurement proceedings. (7) Any bidder not satisfied with the deci sion of the Committee of the procuring
Agency may lodge an appeal in the relevant court of jurisdiction."
8. It is clearly mentioned in Rule 56 of BPPRA Rules, 2014 that if any bidder being
aggrieved of any act of decision procuring agencies should file a complaint before the Redressal Committee and if the Redressal Committee rejects the application of the bidder, the bidder can file an appeal in view of Rule 56 -A of BPPRA Rules, 2014.
The petitioner did not avail the above remedy and directly invoked the constitutional
jurisdiction of this Court.
Thus, in view of the above, the case of the petitioner is not maintainable, as such,
dismissed with no order as to costs.
ZH/26/Bal. Petition dismissed.This 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,
let us know.