1. ' NADEEM AZHAR SIDDIQI, J.---This Constitutional petition is connected with C.Ps. Nos.D-813, 814 and 815 of 2004 therefore heard together and is disposed.
2. ' In short the facts of this petition is that the petitioner previously filed petition in this Court seeking order against refusal of respondents to make payment on account of their bona fide claim for work carried out by him under contract awarded to him by respondent No,4 sanctioned by respondent No,2. During the pendency of petition an enquiry was commenced. The petitioner did not press the earlier petition and agreed that he would be satisfied if he is allowed to participate in the enquiry. It was further stated in the petition that the enquiry was conducted/ completed without participation of the petitioner and the respondent No,1 forwarded Enquiry report to respondent No,2 for his comments.
3. ' After conducting inquiry in which joint measurement statement was furnished with regard to the work done by the petitioner. The petitioner has further claimed that he is fully entitled for determination of his contract after incorporation in the final bill of the work "Rehabilitation of B.S. Feeder of R.D. 53 to 56 the quantum of work done by them respectively as under:--
(1) Wet Earth Allowance for 90% of the total quantity of earthwork as given in the Joint Measurement Statement.
(2) Actual number of studs (pucca stone work) to be recorded in theMeasurement Book after current abkalani season is over.
(3) Total quantity of earthwork as given in the Joint Measurement Statement.
4. ' Aggrieved with the action and joint measurement statement regarding his work he filed the present petition with the following prayers:--
(a) To declare that actions of respondents in withholding the bona fide dues of petitioner are unjust, unfair, arbitrary, perverse and mala fide, and without lawful authority.
(b) To direct the respondents to make payment of the amount payable to the petitioners in the light of contents of para No,26 above.
(c) To restrain the respondents from damaging or destroying the work done by the petitioner.
(d) Any other relief that this Honourable Court may deem fit: ' The Comments jointly signed by respondents Nos.3 and 4 were filed.
5. ' In reply to paras. 9 and 10 of the petition they submitted asunder:-- ' It is submitted that CMIE & IT has not admitted the claim of the petitioner for the item of wet earth allowance for 90% of total quantity of earth work and item relating to stone studs as per items Nos.3 and 4 but only mentioned that the Project Officer in their official communication had accepted the presence of seepage water in the bed of canal and 90% wet earth allowance yet the measurement in the MB's has been recorded as 20% similarly measurement of stone suds in same recorded have not been shown in the MB. Also the then Superintending Engineer Bagari Sindh Feeder Circle had to allow wet earth by inspecting but he has not done the same. Contractor is not entitled to claim.
6. ' The Chief Engineer Irrigation Gudu Barrage Sukkur has already submitted detailed report regarding the item-wise claim to the Secretary Government of Sindh I and P Department Karachi for further decision in the light of the enquiry report received CMIE & I.T. Vide letter No,91/W-E-I/2192, dated 7-9-2004.
7. ' In reply to paras. Nos. 16 and 17 of the petition they replied asunder:-- ' It is submitted that measurement recorded by AXEN concerned are to be checked by Executive Engineer concerned which is not in the case hence the quantity made by AXEN cannot be allowed.
8. ' It is submitted the measurement have not been checked by the then AXEN concerned as required by appendex-8(A) P.W.D. Manual Volume-II and no codal formalities were completed during the course of the time. Hence not allowed.
9. ' In reply to para. No,26 of the respondents, submitted as under:--
(1) The petitioner has been paid 20% wet earth allowance as per provision in PCI No, any approval from competent authority has been received as yet for 90% payment to the contractor/ petitioner.
(2) The concerned AXEN was duty bound to record after the completion of construction work such as stone studs etc: if any carried out by the petitioner. The petitioner also failed to record the measurement of stone studs during the course of the time before abkalani. No any bill of stone work available in the office of the undersigned respondent No,4 regarding the payment.
(3) The earth work have already been paid to the petitioner as per work done at site the replies has already submitted in para. 17.
10. ' Written statement was filed by the Respondent No,2. In para-I) he states as under:-- ' Only assumptions were recorded by the concerned officers and contractor but neither actual quantum was recorded nor was regularized. Waterlogging always varies with'the due passage of time. It is therefore concluded that since at the time of actual execution of work and recording of measurements, the intensity of wet earth was physically 20% that is why, the measurements were recorded as per site condition and payment was made accordingly and the same was also agreed by the contractor. If there would have been any variation or excess, it was the responsibility of the contractor as per contract clause to put objection note on the bill or measurement book before accepting the payment of work done. In this case, as such it is not done, therefore, after lapse of 2 years period the claim of contractor for 90% wet allowance is mala fide and unjustified which cannot be entertained at the state without performing legal formalities.
11. ' He further states that the contractor has already been paid for the work executed by him. Again for this Item, there is no evidence on the record to verify the authenticity of any outstanding claim for any excess or additional work as carried out by contractor.
12. ' The respondents Nos.2 and 3 has filed further statement, dated 12-12-2006 and again they have denied the claim of the petitioner andsubmits that the contract'amounting to Rs,1,24,53,412 was awarded and as per 'measurement an amount of Rs,73,74,123 was, paid in third running bills and 20% wet earth allowance is provided in the contract was also included and paid in the above bills to the extent of actual quantities recovered. They further submitted that the claim of contractor for 90% wet allowance is mala fide and unjustified which cannot be entertained at this stage without performing legal formalities.
13. ' The learned counsel for the petitioner has submitted that respondents have illegally and without any justification denying the bona fide claim of the petitioner. He submits that in view of the Enquiry conducted by the Chairman of CMIT his claims stand proved. He submits that public Officers are supposed to perform their functions fairly, justly and in accordance with law and if they failed to act in accordance with law the petition can be maintained. He further submits that no doubt the claim of the petitioner is arising out from contract the writ petition can be maintained as the respondents have failed to act in accordance with the Rules. The learned counsel for the petitioner has relied upon the following cases:--
(1) Dr. Sohail Mukhtar Ahmed v. Government of Punjab (2000 YLR 2583).
(2) Nizamuddin and another v. Civil Aviation Authority (1999 SCM R 467).
(3) Messrs Airport Support Services v. The Airport Manager Qaudie-Azam International Airport Karachi and others (1998 SCM R 2268).
(4) Messrs Sakrand Sugar Mills and another v. State Bank of Pakistan and others 2005 CLD 529.
(5) Messrs Ahmed Clinic v. Government of Sindh (2003 CLC 1196).
14. ' On the other hand learned Additional Advocate-General has submitted that the matter relates to enforcement of contractual obligations and complicated disputed question of facts are involved and the same cannot be resolved by way of filing of petition. He further submits that respondents have denied the execution of work as well as extra work allegedly performed by the petitioners. He further submits that on the basis of report of Chairman CMIT payment cannot be released, as he has also not recommended for payment.
15. ' We have heard learned counsel for the parties and perused the record made available before us.
16. ' The matter relates to rights accrued to petitioner pursuant tocontract awarded to him on account of work of Rehabilitation of B.S. Feeder R.D. 53 to 56. The award of contract was not disputed.
17. However the extra work of 90%-wet earth was disputed. In the statement the respondent No,2 submits that against the contractual amount of Rs,1,24,53,412 an amount of Rs,73,74,123 was paid including 20%-wet earth allowance. The respondents have disputed the extra work carried out by the petitioner and have also submitted that the payment cannot be released on the basis of measurement recorded by the AXEN without checking by Executive Engineer. It was also stated that amount for the work carried out was paid.
18. ' In this matter the relationship between the parties governs by the terms and conditions of the contract the routine contractual disputes between private parties and public functionaries are not open to scrutiny under the constitutional jurisdiction, breaches of such contracts. Matters involving derelictions of obligations following from a statute, rules or instructions can adequately be addressed by granting relief under the jurisdiction, if committed by Government semi-Government or Local Authorities or like controversies and do not entail inquiry into or examination of controversial questions of facts that require to be proved by the evidence. However in exceptional cases, where both the parties A admit the factual position and the Court feels that matter is of an urgent nature and the very remedy may be frustrated, if the aggrieved party is directed to avail alternate remedy, the writ petition can be entertained. In this case no such urgency was shown. No rule or statute has been cited which were violated. The proceedings in writ are summary in nature and disputed facts cannot be resolved. The petitioner claims amount arising out of contract on the plea that he has completed the work and has carried out extra work. The respondents have denied the same. This cannot be resolved without given opportunity to the parties to lead evidence. In this matter the officials have refused to make payment for want of completion of work. We have also gone through the report of Chairman CMIT who has recommended as under:-- ' The scheme was executed during fiscal year, 2001-2002 and the CMIT was asked to conduct a detail enquiry in the year, 2004 to ascertain the shortcomings of a well-conceived scheme. As rightly pointed out in the report that since abandoning of the project two abkalani seasons have passed and at this belated state it may not be possible to reach technically logical conclusion. A cursory look at the official document reveals glaring shortcomings.
19. ' For example the project officers in their official communication had accepted presence of seepage water and 90% wet earth allowance yet the endorsement in, the M.B's had been shown as20%. Similarly, measurements of some of the studs in some reaches have not been shown in the MB.
20. ' In short the entire scheme smacks of executing Officers indifference and inaptitude towards the execution of the Scheme. It seems they were more concerned with personal gains rather than the project/interest of the Government. They are now trying to shield themselves by implicating the contractor. There is absolutely no doubt that if the officers had gone by the book and followed the procedures the project would have been completed as the matter would have not gone for litigation.
21. ' This is not the first time when the matter has landed up in the Court the I&P Department has to devise a mechanism to ensure that a project from its inception to completion is devoid of technical and administrative flaws/lacunae which have the potential of exploitation by the either party.
22. ' From the above report it is apparent that Chairman CMIT has not accepted the work carried out by the petitioner and has not recommended the payment. If in every contractual matter giving rise to enforcement of contractual obligation or a dispute which can be redressed through other remedy available under the law writ petitions are entertained, then this would defeat the very purpose of law under which competent Courts are established and vested with jurisdiction under the law. The other adequate remedy by way of filing regular suit is available to the petitioner and if advised he may avail the same.
23. ' Since the extra work carried out by the petitioner is disputed and the remedy by way of filing of suit is available. This petition is not maintainable and is accordingly dismissed: