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Petitioner: ENGINEER MAJID HUSSAIN ENTERPRISES VS Respondent: The SECRETARY WORKS AND SERVICES DEPARTMENT GOVERNMENT OF SINDHHonorable Justice Fahim Ahmed SiddiquiMuhammad Hanif Noonari
2020 C L C 1338 [Sindh (Hyderabad Bench)] Before Muhammad Iqbal Kalhoro and Fahim Ahmed Siddiqui, JJ Messrs ENGINEER MAJID HUSSAIN ENTERPRISES through Proprietor----Petitioner Versus The SECRETARY WORKS AND SERVICES DEPARTMENT GOVERNMENT OF SINDH and 5 others----Respondent Constitution Petition No.D-561 and M.As. Nos. 3308, 3309, 2279 of 2019, decided on 10th April, 2019. Sindh Public Procurement Rules, 2010--- ----Rr. 30, 31 & 32---Disqualification of contractor---Mechanism for redressal of grievances---Petitioner despite being a contractor, duly registered with the Engineering Council, was declared to be disqualified for participation in the bidding process by the procuring agency---Petitioner challenged such action by sending a letter to the Managing Director of the Public Procurement Regulatory Authority but it was not responded to, therefore, constitutional petition under Art.199 of the Constitution was filed, soliciting similar relief---Validity---Petitioner had preferred his complaint before the Managing Director and not before the Complaint Redressal Committee---Grievance petition should have been filed under R.30(3) of the Sindh Public Procurement Rules, 2010---Complete mechanism was provided under the Sindh Public Procurement Rules, 2010 with a hierarchy for dealing with such petition/application and even an opportunity of appeal/review was also provided under R. 32 of the Sindh Public Procurement Rules, 2010---Alternate and efficacious remedy being available to the petitioner, therefore, constitutional petition was not maintainable---Constitutional petition was dismissed in limine. Muhammad Hanif Noonari for Petitioner. No notice was issued for Respondent. Date of hearing: 10th April, 2019. ORDER FAHIM AHMED SIDDIQUI, J.---The petitioner is a contractor duly registered with Pakistan Engineering Council (hereinafter referred as PEC) in C-2 category and he is having National Tax No.3649992-7 (NTN). The respondent. No. 5 invited tenders as per Sindh Public Procurement Regulatory Authority Rules (hereinafter referred as 'SPPRA Rules') for the construction of road, from lslamkot to Thar Coal Field Blocks-VIII, IX, X up to Nagarparkar. The petitioner also tried to participate in the said tender process but the respondent No. 5 sent a letter on 25-03-2019 intimating the petitioner regarding his disqualification for the said process. The petitioner has challenged such action of the respondent No. 5 by sending a letter to respondent No.2 on 27-03-2019 against the respondents Nos. 4 and 5 regarding their misusing of authority, corruption and corrupt practice in this respect. 2. As no response has been received on the complaint of petitioner to respondent No.2; therefore, he has filed the instant petition in which he sought a declaration that the act of respondent to declare the petitioner as disqualified as null and void, as well as other consequential relief including re-invitation of tenders and restraining from opening the present tender bids. 3. The petitioner has challenged his disqualification as contractor on the ground that since he is holding a license from PEC; therefore, he assumed himself qualified for participating in a tendering process. Nevertheless, it is not the correct and proper approach. As per law, a building contract can only be awarded to those who are registered or enlisted with PEC subject to pre-qualification for the contract, if any. Enlistment / Registration and Qualification altogether are two distinguishing things and the same should not be confused. According to Rule 46(1) of SSPRA Rule, the registration with PEC is a mandatory requirement while procedure of pre-qualification and disqualification is mentioned in Rules 27 and 28 of SPPRA Rules. We are of the view that the process of pre-qualification and disqualification are purely a technical procedure, and the same cannot be questioned in constitution petition as the same requires evidence. 4. It is worth noting that the petitioner has preferred his complaint on 27.03.2019 before the respondent No. 2 and not before the Complaint Redressal Committee and thereafter, he has filed the instant petition, which is certainly not a proper and prescribed procedure. The grievance petition is to be filed as per provision in Rule 30(3) of SPPRA Rules, according to which the grievance petition is to be filed and processed as per provision of Rule 31 of SPPRA Rules, according to which the grievance petition is required to be filed before Complaint Redressal Committee instead of respondent No. 2, which should be decided within 7 days by the said committee. There is a complete mechanism provided under the said rule with a hierarchy for dealing such petition / application and even an opportunity of appeal/ review is also provided under Rule 32 of SPPRA Rules. In this respect, we are of the view that since an alternate and efficacious remedy is already available to the petitioner, hence the instant petition is not maintainable on this score also. 5. In view of the above discussion, the instant petition is dismissed in limine along with listed applications. SA/E-4/Sindh Petition dismissed.