KARACHI, Oct 13: The Sindh High Court has allowed injunction application of a contractor who has contested cancellation of his contract for the construction of a flyover and at the same time ruled that in view of the changed circumstances, the plaintiff should be allowed to participate in fresh tenders for the project.

This has been ruled by Justice

Anwer Zaheer Jamali in civil suit no 1038 filed by Mehran Construction Company in which the Karachi Metropolitan Corporation and the provincial government are respondents.

The plaintiff had participated in the tender invited by the KMC on Feb 15, 1996, for the construction of a flyover on Sharea Faisal, near Gora Kabristan. Being the lowest bidder, his offer was accepted by defendant no 1 and after completion of formalities, the contract was executed and the plaintiff mobilized his resources at the site.

At that time the plaintiff received notice from the cantonment board saying that the land belonged to it and the plaintiff should obtain a no-objection certificate from it.

It is the case of the plaintiff that interference and objection from the board resulted in considerable delay. This fact has been supported by S.M. Tahir, an assistant executive engineer in the city government, in his counter-affidavit.

In the meantime, the plaintiff was surprised to notice an advertisement on May 25, 2001, inviting fresh tender for the project. Subsequently, the plaintiff received a letter from the Karachi Metropolitan Corporation dated July 17, 2001, informing cancellation of contract for the project.

According to the plaintiff represented by Shahanshah Hussain, advocate, such cancellation of contract was malafide and challenged the letter informing cancellation of contract.

Defendant no 1 stated that in view of the change in configuration of the project design, fresh tenders were invited in the best interest of the general public but the plaintiff did not participate in that.

Counsel for the plaintiff, in his detailed arguments, contended that his client was validly awarded contract for the flyover and at no point in time did he abandon the work nor did defendant no 1 cancel the contract.

It was his contention that in the impugned letter of July 17, 2001, which has been arranged by defendant no 1 in back date in a malafide manner, no fault was attributed to the plaintiff.

Referring to clauses 4.12 and 6.79 of tender/contract, he contended that even the pleas of revision/change in design, addition of construction and escalation of cost for inviting fresh tenders was not justified.

Advocate General Sindh, Raja Qureshi, representing the provincial government, contended that the flyover contract was awarded to the plaintiff in 1996. But due to inordinate delay and changed circumstances, it was totally scrapped and a new project with new drawings was advertized and tenders were invited, but the plaintiff did not qualify and participate in the fresh tender.

Under such circumstances, he argued, the plaintiff cannot claim enforcement of earlier contract, which is no more in existence.

He further contended that construction of the flyover is of public importance which has already been delayed by more than four years and any further delay would cause serious loss to the general public.

Therefore, balance of convenience would not be in favour of grant of injunction. Justice Anwer Zaheer Jamali was, however, of the view that in the circumstances of the case, the plaintiff has succeeded to make out prima facie case in his favour for grant of injunction. Balance of convenience is also in its favour and it will suffer irreparable loss and injury in case of refusal of construction.

In view of the above, he allowed the injunction application.

However, keeping in view the importance of early completion of the flyover project in the interest of the general public and also the fact that defendant no 1 is replaced by elected representatives of the public, the option to invite fresh tenders for construction of the flyover project, with the precondition to allow the plaintiff to participate in such fresh tenders, subject to the fulfilment of other conditions of tender, was left open to defendant no 1.