' LAI, JAN KHATTAK, J.---Messrs Khurasan Construction Company through the instant writ petition under Article 199 of the Constitution of Pakistan, 1973 has prayed this court for Issuance of an appropriate writ for directions to the respondents ih the following manner:-- "(a) That payment for the carried earth work may kindly be made under schedule item No,3-61/ c, and payment for its transportation may also be made under item No,03017/ a,03-18/ a,03-18/ b and 03-18/c, that are fully applicable in the circumstances for the transportation of borrow excavation earth beyond the lead of 1.5 to 8 KM.
(b) That payment for providing and laying of granular sub base course may kindly be made under the Schedule Item No,16-3/ a and payment for its transportation may also be made under schedule item No,01-01/ c, 01-01/f, 01-01 / g, 01-01 / h, that are fully admissible in the situation for the transportation of granular sub base course beyond the lead of 100 KM.
(c) That the unlawfully demanded amount of Rs,19,00,000.00 (rupees nineteen lacs only) as 8% additional earnest money may kindly be refunded to KCC as the same is definitely against the rules and regulations of Pakistan Engineering Council.
(d) 20 of Premium over Composite Schedule of Rates (CSR) 2009 may also be paid to KCC in the light of Govt. Of ' Khyber Pakhtunkhwa Finance Department Notification No,B0J/FD/ 1-7/ 2010-11/CSR dated 29-3- 2011".
2. Brief facts of the case are that the petitioner is a Government Contractor engaged, inter alia, in the construction activities in the Province of Khyber Pakhtunkhwa as well as in Balochistan. It is the petitioner's case that the respondents for various 'Flood Restoration Works' published invitation for bids in the newspapers which tendering process was participated by the petitioner for the work at serial No,2 of the tender notice titled as "Restoration of Flood Damage in District D.I. Khan" S/ H Package No,II Paroa to Chondwan Road with a estimated cost of Rs, 23.641 mil/ion". The tender offer of the petitioner was accepted by the respondents being the lowest one.
3. Petitioner has averred, inter alia, in the writ petition that for non-availability of the specified earth material by the site of work, the embankment was formatted by the petitioner from borrow excavation beyond the lead of 1.5 k.m. To 8 k.m. Also It is averred in the writ petition that in accordance with schedule item No,16.03/a, Granular Sub Base course was provided and laid from Chund Hilly area which place falls beyond the lead of 100 km as provision of the same was demanded and approved by the respondents.
4. Parawise comments were called from the respondents which were so provided wherein claim of the petitioner was refuted.
5. Representative of the petitioner argued before the court that since the material for granular sub base course was provided by the petitioner beyond a lead of 100 km, therefore, the transportation/carriage charges for the same are to be paid to the petitioner. It was further argued that an amount of Rs, 19,00,000.00 as 8% additional earnest money in the shape of call deposit has illegally been demanded by the respondents from the petitioner which be refunded to him by the respondents.
6. Arguments heard and record perused.
7. Grievance of the petitioner emanates from a contract executed between him and the respondents regarding the restoration of some flood damage work in district D.I. Khan. There are so many terms and conditions of the contract one of those is to refer a dispute for its settlement to arbitrators.
8. Under clause 25 of the contract annexure "F" executed between the parties if there arises any dispute that shall first be referred to the arbitrators for its resolution which forum the petitioner has not availed.
9. Apart from the above the issue brought by the petitioner is related to facts resolution of which requires recording of evidence in order to ascertain whether the petitioner is entitled to any transportation charges etc; or not and if so then to what extent and under what circumstances, Thus recording of evidence is necessary because when facts are alleged then the same must be proved through evidence and not through a writ petition.
10. As the issue raised by the petitioner stems from a contractual obligation and in the contract a proper forum has been provided for the redressal of the grievance of the petitioner, therefore, the controversy raised by the petitioner in the instant writ petition cannot be resolved by this court under its constitutional jurisdiction. Therefore, for the above discussion, the instant petition has no substance in it which is hereby dismissed. However, the petitioner can avail his remedy available to him before the proper forum.