WAOAR AHMAD SETH, J: - Toyota Frontier Motors (Pvt) Ltd, petitioner herein has invoked the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayers:- "It is therefore, most humbly prayed that on acceptance of this writ petition: a) Declare letter dated 31st July 2015 (Termination of Contract) as illegal and without lawful authority beside being on alien considerations; b) Direct the respondents to take the possession of the TLC's from the petitioner's premises and to pay compensation to the petitioner accordingly; c) Restrain the respondents from demanding any amount as mentioned in letter dated 31st July 2015; d) Direct the respondents to make the payment of the remaining amount to the petitioner as per the agreement.
2. Briefly stated the facts of the case are that, the petitioner being a registered company, registered under the Companies Ordinance 1984, having registration No. P00741 of 1990-91 (GCN01620), has applied for bid in pursuance to Tender Notice dated 26th January 2014 of Government of Khyber Pakhtunkhwa, Administration Department, (respondent No.2) herein, invited sealed tenders based on the Khyber Pakhtunkhwa Procurement of Goods, Works & Services Rules, for the procurement and armouring of 05 Armoured Toyota Land Cruiser Jeep VX A/T Petrol 4.5 L Model 2014 and 02 Armourned Toyota Lexus Jeep LX570 Model 2014, and the petitioner amongst other have participated in the said tender and being the lowest bidder have informed by Deputy Secretary (Admin) to deposit 2% earnest money for TLCs and Lexus, which he did and also provided detailed of quotations and specifications of the armoured vehicle with quoted delivery of 05 / 06 & 02 months respectively, and vide letter No. SOT (AD) 1 82/2013 dated 14th May 2014, the petitioner was informed that his quotation regarding TCLs' has been selected / approved and the respondent No.1 was pleased to place supply order for the purchase of 04 TLC's at a total price Rs. 145,056/- millions (36,264/- million) per unit to be delivered at Peshawar alongwith all approved accessories as per quotation and vide letter dated 30th May 2014, petitioner requested for release of advance payment and issuance of NOC and singing of agreement / contract, and on 2nd June 2014, they were entered into agreement and respondent No.2 also release advance payment in the sum of Rs.
142, 948, 349/- for purchase of 04 armourned TLC's, thereafter, petitioner entered into a separate transaction for sale of 04 TLC's with Armourned Group and accordingly the ibid vehicles were brought to Dubai from Japan and the respondents were requested for issuance of NOC, extension in the delivery and providing particulars of its technical team for inspection of said TCL's in UAE as per agreement. It is averred in the petition that vide letters dated 26th August, 4th & 29th September, 2014, petitioner time and again requested for issuance of NOC and extension of time, as conversion of the TCL's into B7 level armoured vehicles would take sufficient time, but of no avail; that on 2nd October 2014 the inspection report conducted by Mr. Shafqatullah Malik, Assistant Inspector General, Bomb Disposal Unit AIG BDU at UAE was delivered to respondent No.2 and on 7th November, 2014, respondent No.2 was informed that the TCL's were ready for deporting to Karachi, but is awaited for issuance of NOC, and finally on 6th December, 2014, after much insistence, the petitioner received the crucial NOC for conversion of the TLC's into armoured vehicles after six months of the placement order. It is further averred that through incessant calls and letters the petitioner was pressurized for delivering the TLC's and one week deadline was given and due to unwarranted pressure and dire threat of disciplinary proceedings qua delay they did not able to inspect the vehicles prior to their delivery; that on 12th March 2015, respondent No.2 was informed that the TLC's had arrived at Karachi port and finally received four vehicles alongwith original documents, however under the agreement they were required to inspect the same before delivery; that vide letter No. SOT (AD) 1-82/2013 dated 27th April 2015; the petitioner was informed that a preliminary inspection of the TLC's conducted and found them under-specification; that on 29th April 2015, the petitioner submitted a parawise response to the preliminary report and gave detailed report. It is further averred that several meetings were held regarding specification, certificates and other accessories and in order to remove their reservation petitioner hired skillful technician from Karachi on heavy cost for rectification of the TLC's, but the respondents without waiting have sent notice of Termination of contract with an option to retain the TLC's and refund the principal amount with interest to the Provincial Government or to provide properly retrofitted vehicles; that petitioner responded to the said notice and assured the respondents that their reasonable concern would be addressed and seeks extension of time, as the rectification would certainly consumed time to which they agreed, but it was on 31st July 2015, that respondents sent last termination of contract notice and asked the petitioner to refund the total amount without even waiting for the rectification task.
3. Feeling aggrieved from the acts of respondents and having no other adequate, efficacious & alternate remedy the petitioner has approached this Court through petition in hand.
4. Comments were called from respondents which they furnished accordingly and denied the assertion of the petitioner and stated that time for delivery of 04 units of Toyota Land Cruiser (V8)
Armoured vehicles after placement of supply order was 05 / 06 months, however, as per section 2.1 of the agreement duly agreed between the petitioner and respondent No.2, the supply of vehicles was required to be effectuated within a period of 80 days after the conclusion of the agreement and the quotation for the supply does not have any legal status in presence of agreement; that NOC was issued to the petitioner on 1st December 2014, even then sections 2 & 3 of the agreement were violated and the vehicles were delivered after the laps of 04 months, after issuance of NOC and the vehicles were dispatched without adopting procedure; that the NOC was only for import of vehicles to Pakistan and has nothing to do with the armoring of vehicles and the plea of petitioner that the delay occurred due to non issuance of NOC is misconceived; furthermore, plea of dire threat of disciplinary action was not correct, but it was just a reminder to adhere to the terms and conditions of the agreement and ensure early delivery of vehicles and as per section 3.2 of the agreement it was the responsibility of the company to intimate the date of inspection which the company failed to comply with. It is averred that the vehicles were delivered on 6th April 2015 and the delivery thereof was acknowledged by the Department subject to the condition that vehicles will be accepted only on contract agreement. There is a difference between the term delivery and acceptance; that neither the 2nd nor the 3rd most vital inspections, as were required under section 3 of the contract agreement were made nor the certificates to the effect that the vehicles were equipped with B7 level protection provided and also observation regarding the inferior interior, exterior, fumes issues, impaired visibility and rear seats adjustment finishing sustained and the M/s Toyota Frontier limited agreed to rectify the same to the satisfaction of end users, which they failed to do so, however, further scratches were made on the body of the vehicles as such the same could not be accepted and rejected as per section 15, 17 and 41 of the Sales of Goods Act, 1930.
Notice of termination of contract was issued as the provincial government had realized that the petitioner was not interested in rectifying the flaws in the vehicle through retrofitting, as petitioner never bothered to respond to letter regarding furnishing an affidavit to the effect that the vehicles shall be provided after retrofitting in strict compliance of the specification and procedure laid down in the contract; that the administration department is not in a position to endorse that the rectification process as carried out through qualified and skilled worker, however it is negated that the Deputy Secretary (Admn) and the Section Officer Transport Administration Department showed their satisfaction on the rectification work. In fact they showed concerns over the substandard rectification work and advised to carry out the rectification process in professional manner and regarding termination of contract the Deputy Secretary (Amdn) and Section Officer during their visit to the premises of petitioner verbally warned him to take the matter serious and carry out the rectification through reputed firm and qualified and skilled manpower, however, the petitioner turned a deaf ear to the warning which resulted into the termination of contract agreement by the purchase committee as per section 12.1 of the contract agreement and rejection of the vehicles as per section 15, 17 and 41 of the Sales of Goods Act, 1930.
5. We have heard learned counsel for the petitioner and learned AAG for respondents and perused the available record with their valuable assistance.
6. Undisputed facts, not denied by the parties are that a tender was floated for the purchase of armoured Toyota Land Cruiser five in number and armoured Toyota Lexus Jeep, two in number.
According to the terms and conditions given in the tender the supply was required to be made by the successful bidder within thirty days after issuance of supply order and execution of contract / agreement, beside the specification of the tender vehicles. Record is suggestive that after the requisite called deposits / earnest money etc, petitioner participated in the said tenders and bids of the petitioner was accepted and in this respect letter dated 14th May 2014 was issued by the administrative department, subject to signing of contract duly vetted by law department and approved by the purchased committee. On 2nd June 2014 contract was signed by the parties wherein according to clause 2.1, the company i.e petitioner was bound to hand over the vehicles to the purchaser i.e respondents within eighty days, after signing the agreement. The specification of the vehicles was initially provided in the advertisement and were made part and parcel of the agreement vide annexure-I appended with the said agreement. According to the said agreement it was also agreed that purchaser and the company shall constitute its own inspection teams separately, who shall submit the inspection and acceptance before the delivery of the vehicles.
These inspections were three in number; reference is made to clause 3.1 to 3.5. The perusal of the agreement also reflects that all the disputes and difference of opinion arising in respect of interpretations, effects, rights or applications of the agreement shall be settled between the purchaser and company under the Arbitration Act, 1940, under clause 15 of the said agreement.
The petitioner company accordingly, received cheques of advanced payment amount to rupees 14, 2,948, 349/- dated 5.6.2014 by acknowledging the receipt dated 6th June 2014.
7. Record is suggestive that vide letter dated 8th July 2014, petitioner company informed the respondents / Secretary Administration Department KPK, Peshawar that the order has already been processed and soon they will be requiring the following; (i) NOC for import of four units TLC armourned B7 vehicles from Ministry of Interior (ii) alongwith NOC of the Government that the subject vehicles will be imported through Frontier Toyota Motors. It is observed over here that the NOC from the Ministry of Interior as demanded, vide the above letter was not legal due to the terms and conditions of agreement as clause 10 specifically provides that all formalities with regard to import etc of vehicles shall be the responsibility of the company, however, the said demand on behalf of petitioner company remained there and on 5th August 2014, they also requested for extension in delivery period. Right from the time, petitioner company addressed letter dated 25th July, 25th August, 26th August & 4th September, 2014 for extension of time and other lame excuses.
On 17th September 2014, despite clear specification given in the tender and contract, signed between the parties, petitioner asked for change of structure of bulkhead and in this respect also made several correspondences. Vide letter dated 7th November, 2014, the petitioner-company informed that the vehicles are ready for dispatched from Dubai to Karachi after completion of conversion work, but are awaited due to non availability of NOC from the Ministry of Interior. Inspite of the fact that all import formalities were the responsibility of the petitioner-company, the respondents obtained and provided the said No Objection Certificate from the Ministry of Interior on 01.12.2014. On 25.02.2015, the petitioner was reminded through a letter that despite laps of 9 months, delivery of vehicles was still awaited, then on 27.03.2015, once again they were reminded of delay of supply, by that time. Record shows that the petitioner-company informed the respondents that the tentative arrival date of vehicles at Karachi port was 08.03.2015. vide letter dated 3rd April 2015, the petitioner-company informed that the ordered vehicles are going to reach here at Peshawar, today, positively i.e 3rd April, 2015, which date is clearly barred even from the date when NOC was provided to the petitioner, what to say of time given in the agreement.
8. Record is further suggestive that petitioner-company delivered the vehicles in question without joint inspection however, after receipt of the said vehicles an preliminary inspection report was prepared in the presence of representation of the petitioner-company including expert of bomb disposal unit and during the proceedings it was held that vehicles so supplied were under specification and the same were supplied without third and most vital inspection as per the contract, before shipment in violation of the contract. Thereafter, on 29th April 2015, once again meeting was held between the parties and the shortcomings were pointed out to the vendor i.e petitioner-company. On 26th May 2015, once again a meeting was convened wherein five committee members attended, including the representative of the petitioner-company and AIG bomb disposal unit, wherein about 10 shortcomings, under specification, as per contract were pointed out to the petitioner-company and they committed to resolve / rectify the same, but failed to do so, hence on 18th June 2015 they were directed to do the needful and finally vide notice of termination dated 29th June 2015, after sufficient time and opportunities to rectify the flaws, was issued, informing them to retain the vehicles and refund to the provincial government the principle amount alongwith interest on prevailing market rates OR provide properly retrofitted vehicles as per the specifications and procedure laid down in the contract agreement. Thereafter the petitioner-company vide letter dated 13th July 2015, committed to rectify the flaws / shortcomings in the said vehicles within 20/30 workings days.
9. On 29th July 2015, the Deputy Secretary and Section Officer (Transport) while visiting the office of petitioner- company found that the vehicles were parked in their local workshop at Peshawar, which clearly indicated that the company has no intention to take the vehicles back to the original armouring company for proper retrofitting and as such upon their observation termination of contract order dated 31st July 2015, impugned herein, was issued.
10. Admittedly, there exists no malafides on behalf of the respondents / government nor the same is alleged by the petitioner and there is a technical aspect of the case as well, which has been determined by the bomb disposal unit in the presence of particular specification given for the purchase of said vehicles. Indeed, whenever there is a dispute between the parties, specially against the government, this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has the ample powers to issue directions to an Executive Authority, when such an Authority is not exercising its power bonafide for the purpose contemplated by the law or is influenced by any extraneous and irrelevant considerations. Where a statutory functionaries act malafidely or in a partial, unjust and oppressive manner, High Court in exercise of his constitutional jurisdiction has ample powers to grant relief to the aggrieved party. Technicalities cannot prevent High Court from exercising its constitutional jurisdiction and affording relief, which otherwise a party is found entitled to receive. But in the instant case, we have given our anxious considerations and nowhere could found any malafide, nor alleged by the petitioner, the conduct of the respondents is perfectly in accordance with the agreement so signed between them. The respondents / government / department specified the vehicles to be purchased through a publication and that specification was made as annexure-I, part and parcel of the agreement so signed, which clearly reflects that the vehicles as supplied are under specification, beside the report of technical expert. The petitioner company is not denying the fact regarding the specification and substandard supply rather; they obtained sufficient time for retrofitting but could not do the same within extended time as well.
11. In addition to this technical aspect of the case and non mentioning of any malafide on behalf of the government-department, we as a Court of law cannot go into the disputed questions of facts and that too, regarding technical / mechanical aspect of the vehicles in the presence of an Arbitration Clause.
12. In this regard, we seek guidance from the judgment of the august Supreme Court of Pakistan in the case of Messrs Arshad & Company vs. Capital Development Authority, Islamabad through Chairman (2000 SCM R 1557), wherein, it has been held that: "Art. 199--Constitutional jurisdiction of High Court--- Scope--Factual controversy and disputed facts such as whether the petitioner/firm had got the skill, technical know-how, modern equipments, capability and resources to accomplish the task in question as the concerned Authority was in a better position to determine such ticklish and technical questions---Court, therefore, could not give the petitioner/firm certificate of fitness for pre-qualification as technical expert opinion could not be substituted by the Court.
Similarly, in the case of Fida Hussain and another vs. Mst. Saiqa and others (2011 SCM R 1990), has held that: "Art. 199--Constitutional petition---Factual controversy--Recording of statement--Respondent filed constitutional petition before High Court against appellants and police officials for causing harassm ent to her and her children - Appellants specifically denied allegations of respondent and in support had produced some documents - Matter involved disputed facts which for the purpose of determination required factual inquiry by recording evidence--High Court recorded statement of respondent and appellants were not provided any opportunity to cross-examine her on the basis of her statement and passed the order--Validity--High Court was not to resolve disputed question of facts in exercise of Constitutional jurisdiction under Art. 199 of the Constitution--Orders passed by High Court were not sustainable in the eye of law, therefore, those were set aside by Supreme Court --Appeal was allowed accordingly.
Likewise, in the case of Pakcom Limited and others vs. Federation of Pakistan and others (PLD 2011 SC 44), has held that: "Art. 199--Constitutional jurisdiction of High Court - Violation of contract or failure to abide by the terms and conditions mentioned therein--Scope of interference--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".
Further, this Court in the case of Sheikh Wajahat Ali vs. Government of Khyber Pakhtunkhwa, through Secretary Industries and 3 others (2013 YLR 2132), has held that: "Art. 199--Constitutional jurisdiction of High Court Scope--Contractual obligations--Cancellation of allotment--Arbitration clause mentioned in the contract Arbitration clause having been provided in the contract/agreement deed for resolution of any dispute or difference arising out of the deed, constitutional petition was not maintainable".
13. There is no denial of the fact that a proper agreement was executed with the specifications of vehicles to be supplied and clause-15 was provided regarding any dispute and the arbitration proceedings. There is no allegation, whatsoever, of any malafides of the government-department, nor the petitioner has disputed the flaws so pointed out by the technical committee / inspection teams, in their presence and as such the contractual rights and obligations had to be enforced through courts of ordinary jurisdiction. The High Court in exercising its constitutional jurisdiction loath to interfere in matters arising out of contractual obligation, the normal remedy as law, was a suit for enforcement of contractual rights and obligations, especially in the circumstances when there is a report of technical / mechanical nature and this court in the situation cannot substitute its findings with that of technical and mechanical report of expert. The routine contractual disputes between private parties and public functionaries are not open to scrutiny under constitutional jurisdiction especially in the circumstances when there is no allegation of ill will or malafide of public functionaries. Only contracts carrying elements of public interest, concluded by functionaries of the state, has to be just, fair, transparent, reasonable and tented with malafide are to be, in certain cases, be adjudicated and entertain in writ jurisdiction. If in every contractual matter, giving rise to enforcement of contractual obligations or a dispute which can be redressed through 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.
14. In view of the above, the instant Writ Petition being not maintainable is hereby dismissed.
However, the petitioner may, if so advised, seek his remedy before an appropriate legal forum.