1. ' SARDAR ABDUL HAMEED KHAN, J.-This writ petition has been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. ' The precise facts of the instant writ petition are that after due course of law, the petitioners were allotted the construction work of different Govt. Schools in District Poonch. The petitioners submitted that in the meantime, the rates of costs have been changed and respondent No, 1 issued a letter with regard to the price adjustment along with the directions of Earthquake Reconstruction and Rehabilitation Authority (ERRA) hereinafter referred as "ERRA" on 5-5-2011 and the ERRA again issued a letter on 23-2-2012 in which it has been directed to concerned authorities "that the provisions for price adjustments shall be applicable to the projects to be executed. For the an going contracts, the existing provisions provided in the contract shall continue to apply". The petitioners also submitted that after issuance of letter dated 23-2-2012, the PWD paid the "price adjustment" to the Contractors of Muzaffarabad Division and the Contractors of District Poonch were denied to be paid. Now, through the instant petition, the petitioners sought direction for implementation of letter dated 23-2-2012.
3. ' The respondents were duly summoned. The respondents Nos, 2 to 5 did not appear before the Court, therefore, they were proceeded ex parte. Arguments have been heard.
4. ' Raja Sajjad Ahmed Khan learned counsel for petitioners argued that the contents of the writ petition may very kindly be taken as integral part of the arguments. The learned counsel has referred documents/ letters initiated by respondent No,1 as annexures PB and. PC, addressed to the respondents for the payment to the petitioners/Contractors of District Poonch. It is added that the petition of the petitioners merits acceptance for the reason that the respondent No,3 is treating the petitioners in a discriminatory attitude because the contractors working for the same projects have been paid the said amount of escalation/price adjustment and other changes in the costs of the material but the petitioners have yet not been paid. That in the light of above referred documents and under clause 70.1 of the contract, the respondent No, 3 is bound to pay the dues of the petitioners. Lastly the learned counsel prayed that this writ petition may be accepted.
5. ' On the other hand, the learned counsel for respondent No, 1 argued that the letters referred by the learned counsel for petitioners as annexures PB and PC neither carry the value of a Notification/order of Government nor come within the definition of a legal provision. Rather these letters are only guidelines to the respondent No, 3 to conduct his business in the light of contract deed and other relevant documents. It is further added by the learned counsel that escalation/price adjustment is to be paid in the light of terms of contract deed and for the contractual liabilities/obligations, constitutional jurisdiction cannot be exercised. He prayed for the dismissal of the writ petition.
6. ' In rebuttal, the learned counsel for petitioners argued that this is not a case of implementation of contractual liabilities/obligations, rather it is case, where the orders of respondents authorities who are performing the functions in the affairs of the State of AJ&K and these letters are issued by the respondents authorities to another authority i,e, respondent No, 3 who is bound to perform his duties/functions in the light of these documents and in the light of contents of the contract deed.
7. Thus, the petitioners are aggrieved persons because according to the Constitution, every citizen has the equal right, whereas the respondents have violated the basic right of equality before law of the petitioners. He has referred PLD 1998 SC (AJ&K) 7.
8. ' I have heard the learned counsel for the parties and gone through the record. It deems proper to reproduce the clause 70.1 of the contract and the contents of the documents referred by the learned counsel for the petitioners annexures PB and PC, which reads as under:-- "Clause 70.1 of the contract, Increase or Decrease of costs. Delete sub-Clause 70.1 in its entirety, and substitute with the following.
9. ' The amounts payable to the Contractor, pursuant to Sub-Clause 60.1, shall be adjusted in respect of the rise or fall in the price of labour, materials, and other inputs to the works, by applying to such amount the formula prescribed in this sub-Clause.
10. Annexure PB, letter dated 5-5-2011 ' I have been directed to enclose herewith a self explanatory Letter No,1964/1A/ERRA/EA/Vol-1/2009- 10/592 dated 28-5-2011 received from ERRA regarding subject captioned above whereby it has been conveyed that Price Adjustment claims pertaining to ERRA funded projects be processed in line with the procedure/ parameters of "Standard Formula for Price Adjustment" duly provided in the Pakistan Engineering Council's (PEC) bidding/ contract documents.
11. ' It is presumed that provisions of "Price Adjustment Formula" are well within your knowledge.
12. However, copy of the same is attached for ready reference, please.
13. Annexure PC letter dated 23-2-2012.
14. ' Reference your Letter No, 454-58 dated 15-2-2012 in respect of the subject matter. Para 1 of the Applicability of Price Adjustment states that "The provisions for Price Adjustment shall be applicable to the projects to be executed. For the ongoing contracts, the existing provisions provided in the contract shall continue to apply, until and unless a mutually agreed amendment to the contract is signed by the parties to the contract, thereby incorporating a Price Adjustment clause, provided the Federal Government has issued such notification from time to time for those contracts having no Price Adjustment provisions".
15. ' In that context, I have been directed to clarify that the contract documents prepared by Messrs NESPAK and contracts executed so far, allow Price Adjustment/Escalation notwithstanding the category of the contractor. Therefore, it is advised that Price Adjustment claims for all ongoing projects may be processed in line with the provisions of the contract. However, in future the contract documents may be amended/prepared as per instructions/guidelines issued by the Pakistan Engineer Council from time to time."
16. I have gone through the list of contractors placed on record as annexure PD who have been paid the subject amount. It transpires that the respondent No, 3 is bound by the directions of other respondents/ authorities, hence the refusal of the respondent No, 3 to pay the lawful dues of the petitioners is not justified. It is pertinent to mention that after due service, non-presence of respondents Nos. 2 to 5 also lends support to the version of the petitioners that they are being treated with discrimination. The petition is supported with an affidavit, which has been rebutted by only respondent No, 1 by filing written statement and counter affidavit but the other respondents specifically respondent No, 3 who has to make payment to the petitioners neither appeared before the Court nor filed the written statement or counter affidavit etc. It is settled principle of law and natural justice that the petition supported by an affidavit that can be rebutted by only filing counter affidavit, which has not been done in this case. Thus, it is proper to pass ex parte order except respondent No, 1.. As far as the respondent No, 1 is concerned, during the course of arguments it has been stated by the learned counsel for respondents that escalation can be paid in the light of terms and conditions of the contract deed and while confronting with this situation, the counsel for petitioners stated at bar that he has no quarrel with the respondent No,
1. Thus, need not to resolve more to the extent of respondent No,
1. Keeping in view the principle laid down in PLD 1998 SC (AJ&K) 7, the writ lies in the instant case.
17. Thus, in view of above, this petition is accepted ex parte and respondents Nos. 2 to 5 are directed to pay all the dues according to price adjustment formula in the light of letter of respondent No, 1 bearing No, SERRA/Technical/625/39/2012 dated 23-2-2012 to the petitioners/Contractors of District Poonch positively.