' ZAFAR AHMED RAJPUT, J.---Through instant petition by invoking constitutional jurisdiction of this Court the petitioners have impugned the letter bearing No, CE(CM)/Consultant/2013/686, dated 19- 3-2013, issued by the Chief Engineer (CM), Engg. Dept. Of KMC/ respondent. Whereby Assignment Orders issued to petitioners for eight projects for further deployment on those projects, were withdrawn till further orders.
2. Briefly stated the facts of the case are that the petitioners are the consulting engineering firms, duly registered with Pakistan Engineering Council, who formed a consortium so as to participate in the tender invited by the respondent for appointment of In-House consultants to provide engineering service in connection with detailed designing, vetting and verification of designs, tenders, estimates and preparation of PC-1s, executed quantities of KMC works/ADP projects and detailed supervision of works. Their offer was approved by the respondent for consultancy service at the estimated costs of Rs,85 million vide letter dated 17-10-2012 and such agreement was executed on 24-10-2012 between the petitioners and respondent. Thereafter, the respondent awarded various Assignments Orders to the petitioners. It is the case of the petitioners that after the change in the administration set-up of the respondent, the newly inducted personnel do not want the petitioners to continue with their assignments as they are interested to entrust the same to some other consultants of their choice and it was in pursuant to such nefarious design that Assignment Orders of the petitioners bearing Nos.1, 2, 5, 6.
7. 8, 9, and 10 were withdrawn by the respondent vide letter dated 19-03-2013, which has been impugned in this petition.
3. We have heard the learned counsel for the petitioner, respondent and A.A.G., have also perused the material available on record
4. Mr. Shehensha Hussain, the learned counsel for the petitioner, has contended that the impugned letter of respondent, without serving any show-cause or providing opportunity of hearing the petitioners, is void ab initio. Referring section 24A of General Clauses Act, 1897, the learned counsel has further contended that the respondent has not exercised its power reasonable, fairly and justly as no reason whatsoever has been assigned by the respondent while issuing the impugned letter.
On the point of maintainability of the petition, the learned counsel has asserted that the statutory contracts are enforceable through writ petition. In support of his contention, the learned counsel has placed his reliance on the following case-law:---
(i) Ali Hussain v. Karachi Municipal Corporation and 3 others (PLD 1977 Karachi 601), wherein without communicating the particulars of misrepresentation and fraud, the issuance of notices to petitioner cancelling his allotment of stall was held a breach of principals of natural justice and declared to be without lawful authority.
(ii) Zonal Manager, U.B.L. And another v. Mst. Parveen Akhter (PLD 2007 SC 298), wherein it has been held that where rights are based on statute law or rules framed thereunder or when an obligation or duty vests in a public functionary or a statutory body, performing functions in relation to the affairs of the Federation or a province or a local authority, constitutional jurisdiction can be attracted and in such situations even contractual rights and obligations may be enforced in constitutional jurisdiction, by considering that the remedy by way of suit can hardly be an adequate remedy in such cases. Which is, however, subject to the important rider of corresponding absence of an adequate remedy.
(iii) Government of Punjab through Minister for Revenue, Board of Revenue Lahore and others v.
Messrs Crescent Textile Mills Limited (PLD 2004 SC 108), wherein it has been held that a pure question of law does not require recording of any evidence, as such the same could legally be decided in the Constitutional jurisdiction.
(iv) Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another (PLD 1966 SC 639), wherein it has been held that when relief sought for is by its nature one which lends itself to be effectively remedied by the orders of the nature contemplated in Article 98 (of Constitution of Pakistan 1962), then remedy by way of suit can hardly be considered to be an adequate alternative remedy.
(v) Majlis-i-Intizamia, Jamia Masid, Ghulam Muhammad Abad Colony Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore (PLD 1963 SC 109), wherein the petitioner Anjuman invoked writ jurisdiction in a case in which the lease deed after having been executed in favour of petitioner was cancelled by the official respondent.
5. Conversely, Mr. Behzad Khan, the learned counsel for the respondent has 'categorically maintained that the contract executed between petitioners and respondent has not been cancelled or terminated or assigned to any other person and only some of the assignments awarded to petitioners have been withdrawn till further orders as per normal practice due to severe financial crises that respondent was facing. The learned counsel has also raised objection on the maintainability of the petition and has contended that a contract cannot be enforced through writ and that in case of any breach of contract the adequate remedy of (i) suit for specific performance of contract or (ii) suit for damages are available to petitioners.
6. Mr. Saifullah, the learned A.A.G. Has also questioned the maintainability of the petition and invited our attention towards the Conditions Nos.
2.9.5 and 7.2 mentioned in Section-II of the General Conditions of Contract, that provide referring the dispute/matter about events of termination to arbitration and the dispute which cannot be settled amicably may be submitted by either party to settlement in accordance with the provision of the Arbitration Act, 1940 and the rules made thereunder. Per learned A.A.G. Violation of a contract cannot be decided in exercise of constitutional jurisdiction. In support of his contention, he has relied upon the case of Pakcom Limited and others v. Federation of Pakistan and others (PLD 2011 SC 44)
7. We have given due considerations to the arguments of learned counsel for the parties.
8. It appears from the perusal of the impugned letter dated 19-3-2013 that the respondent has withdrawn the Assignment Orders issued to petitioners for the projects (which have been described in a list attached with said letter) till further orders. The words "till further orders" itself manifest that the Assignment Orders have not been cancelled or terminated and it is an admitted position that the subject work of the said assignment has not been awarded/assigned to any other person or firm. Therefore, apparently the petitioners have misconstrued the impugned withdrawal order as they have taken the said order as termination of contract which is not correct. Although the respondent has not assigned any reason for withdrawal of Assignment Orders in the impugned letter but he has categorically stated in the para wise reply that the Assignment Orders have been withdrawn due to severe financial crises faced by the respondent.
9. It is also an admitted position that no financial loss has been accrued to the petitioners due to withdrawal of subject Assignment Orders. In this regard, it will be advantageous to reproduce the para No,13 of the Para-wise Comments filed by the respondent, as under:-- "Out of the total assignments awarded to the petitioners, some have already been completed; some of them are at the completion stage whereas some of them have not even been started. The correct position is reflected in the enclosed list 'A'. Payment for the completed assignments and also for those which are at the stage of completion has already been made to the petitioners on monthly basis as per the contract. Payment due, if any, shall also be made to them."
' When we confronted learned counsel for the petitioners about the above position, he frankly admitted that the respondent is making payment for the assignments awarded to them as per contract. Even otherwise in case of termination of any assignment order the petitioners are entitled to the remuneration and reimbursable direct costs expenditure up to the effective date of termination i,e,, when the prescribed notice period would expire, as per condition Nos.
2.9.4 of the Conditions of the Contract executed between the parties.
10. So far the contentions of learned counsel for the petitioner with regard to the prior serving of any show-cause notice and providing them an opportunity of hearing are concerned, we are of the considered view that the necessity of issuing show cause notice or providing an opportunity of hearing arise in the case where any disciplinary or penal action is required to be taken. By no stretch of imagination. There can evolve any such situation where a party in contract would require issuing any show cause notice or providing opportunity of hearing to other party in contract.
11. We also do not find any weight in the arguments of learned counsel for the petitioners with regard to applicability of section 24A of General Clauses Act, 1897 in present case. For the sake of convenience section 24A (hereinafter referred as "Act of 1897") is reproduced as under:-- "24A. Exercise of power under enactments.---(1)Where, by or under any enactment a power to make any order or give any direction is conferred on any authority office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall so far as necessary or appropriate, give reasons for malting the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."
From plain reading of above provision, it is clear that under section 24A, Act of 1897, only an authority, office or person, conferred with the power to make any order or give any direction under any enactment, is obliged, so far as necessary or appropriate, to give reasons for making order or, as case may be, for issuance direction. In the case in hand, the respondent while issuing impugned letter did not act as an authority, office or person under any enactment, but has acted as a promisor in a contract; therefore, respondent cannot be held to have acted unfairly and unjustly in terms of section 24A, Act of 1897.
12. We have also observed that the instant petition is not maintainable for the reasons that it pertains to contractual obligation between promisor and promisee under an "arbitration agreement". Expression "arbitration agreement" within the contemplation of section 2(a) of Arbitration Act, 1940 means a written agreement to submit present or future differences to arbitration. The conditions Nos.
7.1 and 7.2 mentioned in Section-II of the General Conditions of Contract, which is an .Integral part of the Contract under clause 1 of the Contract Agreement, provides as under: 7.1 Amicable Settlement The Parties shall use their best efforts to settle amicably all disputes arising out of or in connection with this Contract or its interpretation.
7.2 Disputes Settlement ' Any dispute between the Parties as to matters arising pursuant to this Contract which cannot be settled amicably within thirty (30) days after receipt by one Party of the other Party's request for such amicable settlement may be submitted by either Party for settlement in accordance with the provisions of the Arbitration Act, 1940 (Act No, X of 1940) and of the Rules made thereunder and any statutory modifications thereto.
' Services under the Contract shall, if reasonably possible, continue during the arbitration proceedings and no payment due to or by the Client shall be withheld on account of such proceedings.
' Terms employed in the above arbitration clause expressly reflects mutual intention of the parties to resolve disputes concerning to matters arising pursuant to the contract. Therefore, the petitioners have alternate remedy under Arbitration Act, 1940 to redress his grievances. In the case of S.M. Hashim Hussain v. Pakistan Defence Officer's Housing Society (2005 SCMR 1782), a full Bench of the honourable apex Court, while refusing leave to appeal, held that in terms of clause 18 (arbitration clause) of the condition of agreement, it is obligatory upon the parties to refer the dispute arising between them to Arbitration for its resolution. In such circumstances, the only option available to the petitioner was to avail remedy under Arbitration clause of the conditions of agreement. In the case of Gandapur Construction Company v. Government of Khyber Pakhtunkhwa (2014 YLR 399) it has been held that by the learned Double Bench of Peshawar High Court that where arbitration clause, of agreement provides a forum to the parties to settle their disputes out of Court through the process of arbitration, this is a forum where all the disputed matters will be discussed by referring to each and every aspect of the case even by recording pro and contra evidence. Similar view has also been taken in the case of Sheikh Wajahat Ali v.
Government of Khyber Pakhtunkhwa through Secretary Industries (2013 YLR 2132) and Messrs Syed Bhais (Pvt.) Ltd. Through Director v. Government of Punjab, through Secretary Local Government (PLD 2012 Lahore 52).
13. We are also of the view that controversies arisen out of a contract and the contractual obligations cannot be resolved and enforced through Constitutional jurisdiction of this Court. In the regard we are fortified by the case of Pakcom Limited (supra), cited by the learned A.A.G., wherein it has been elaborately held that:-- "47. It seems proper here at this juncture to mention that the contractual rights, commitments, undertakings and obligations have to be enforced through courts of ordinary jurisdiction which should not be interfered with by the High Court while exercising its Constitutional jurisdiction especially in those matters arising out of a contractual obligation. Millat Tractors E.T. v. Govt. Of Pak.
(PLD 1992 Lah 68), Sufi Muhammad Ramzan v. Secretary, Local Government and Rural Development Department, Punjab. Lahore (PLD 1987 Lah. 262) Pakistan Mineral Development Corporation Ltd., v.
Pak. WAPDA (PLD 1986 Quetta 181). In such like eventualities the normal remedy to law being a suit for enforcement of contractual rights and obligations would be availed instead of invocation of Article 199 of the Constitution merely for the purpose of enforcing contractual obligations. The said view finds support from the dictum laid down in the following authorities:-- ' Ahmed Hassan v. Pakistan Machine Tools Factory (1990 CLC 2007), Lutfonnessa Ibrahim v. Province of East Pak. (PLD 1969 Dacca 779), Mohd. Din and Sons v. Province of West Pak. (PLD 1969 Lahore 823), Muzaffar-ud-Din v. Chief Settlement Commissioner (1968 SCMR 1136), Miajan Ali v. Province of E. Pak. (22 DLR 235), Momin Motor Co. v. R.T.A. Dacca (PLD 1962 SC 108), Chandpur Mills Ltd. v. District Magistrate Tippera (PLD 1958 SC 267), The State of Pakistan v. Mehrajuddin (PLD 1959 SC 147), Raghavendra Singh v. State of Vindhya Pradesh (AIR 1952 Vindh Para. 13).
48. It hardly needs any elaboration that violation of a contract or failure to abide by the terms and conditions mentioned therein or to honour obligations arising out of an agreement cannot be decided in exercise of Constitutional jurisdiction and such controversies should be resolved by approaching the appropriate forums provided by law. Abdul Rahim v. Town Committee (1985 CLC 2805), Haji Noor Din v. C.C.I. And E (NLR 1978 Civ.Lah. 1114), Ashraf Ali v. Abdul Awal (PLD 1968 Dacca 962), A.F.M. Abdul Fateh v. Province of East Pak (PLD 1966 Dacca 178). The superior Courts should not involve themselves into investigation of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controverted question of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent."
14. In view of above facts and circumstances of the case, the case-law cited by the learned counsel for the petitioner are distinguishable from the facts of case in hand and the instant petition is found to be devoid of any merit which is hereby dismissed along with the listed application.