IJAZ ANWAR J.----This single judgment in Writ Petition No,3499/2016 shall also dispose of the connected Writ Petition 4364/2016 filed by M/S Qari Muhammad Iftikhar as in both the writ petitions similar facts are involved.
2. The petitioners in both the writ petitions, M/S Majid Books and Qari Muhammad Iftkhar, have asked for an appropriate writ directing the respondents Nos,3 to 5 to make payment of the bills amounting to Rs,127.500 and 279.827 million respectively to them.
3. The petitioner, M/S Majid Book Depot and Haq Nawaz, are running business of Printing and publishing books, while the respondents Nos, 3 to 5, the Worker Welfare Board and "FUND", having the network of schools to educate the children of industrial workers with the name "Working Folks Grammar Schools".
The background of case in W.P. 3499-P/2016 is that the "BOARD" called upon the quotation of petitioner, M/S Majid Book's firm for the supply of Exercise Books of various subjects to Working Folks Grammar Schools, Khyber Pakhtunkhwa, and, accordingly, he submitted his rates, vide letter dated 19.4.2014. The "BOARD" being satisfied with his rates, approved the same and directed the petitioner's firm to arrange the same within two months, vide letters dated 3.2.2013, 21.8.2013 and 9.9.2013. The petitioner, as per specifications in the letter dated 21.8.2013 and 9.9.2013, supplied the Exercise Books to the specified branches of the Working Folks Grammar Schools, Khyber Pakhtunkhwa, with delivery reports. The petitioner, after supply of the Exercise Books to the specified branches, submitted his bills amounting to Rs,127.500 for payment, but the respondents, in spite of repeated reminders, are not making the payments, hence, he filed Writ Petition No,3499/2016. Similarly, the petitioner, Qari Muhammad Iftikhar, in W.P.No,4364-P/2015, also participated in the bidding process in response to the tender issued by the respondents Nos,3 to 5 for supply of college uniform, syllabus books for the Schools and, as such, had succeeded in getting several supply orders of different items such as stationery items, answer sheets, college books and stationery, civil engineering books, students and teachers diary, college uniform and syllabus books and he supplied the said items, as per the supply order, to the different institutions and when the bill amounting to Rs,279.827 million was submitted, the BOARD refused to pay the same in spite of the fact the same were released by the FUND, therefore, he filed W.P. No,4364-P/2016.
4. Learned counsel for the petitioner, M/S Amjid, while referring to letter dated 04.2.2013 contended that it was the petitioner, who requested for sending quotation to the respondents for the supply of books, which in compliance of letter dated 10.4.2013, submitted to them, vide letter dated 19.4.2013.
He argued that after approval of the quotation, the BOARD gave order for supply of the above books, which he duly made to the respective schools after obtaining proper receipts. Learned counsel referred to letter dated 13.2.2014 of the "FUND", vide which the funds have been released for onward payment to the petitioner. He also made reference to the different letters, addressed to Secretary Worker Welfare Board, for the payment of rupees 127.500 millions, but the "BOARD" is reluctant to pay the same payment to him.
Sardar Ali Raz, Advocate, representing the petitioner in W.P. No,4364/2016, leads us to all the relevant documents regarding supply of the books, the distribution list and receipt duly obtained from the store keepers. Regarding the court quarry about the contractual obligation, factual controversy and denial of claim of the petitioners, he argued that there are admitted documents and denial of the respondents is based on mala fide and in such a situation even in contractual obligation judicial review is competent and can be enforced in constitutional jurisdiction. In support of his arguments he placed reliance on PLD 1997 SC 82, 2004 SCM R 1274, PLD 2007 SC 298 and 1999 SCM R 467.
5. Learned counsel for the respondents argued that the petitioners were never enlisted as contractors with the respondents for supply of exercise books etc and even no tender was published nor the petitioners was the successful bidders and how it is possible to make payment of rupees in millions without such proceedings. Learned counsel argued that National Accountability Bureau has already taken cognizance of the matter of illegal procurement made by the Worker Welfare Board during the tenure of the then Secretary, Tariq Awan. He argued that on paper there is supply of the books, however, on the ground there is no such supply. Learned counsel by placing reliant on 2005 SCM R 1721, 2008 SCM R 605, and 2012 SCM R 773, contended that the illegality committed in the matter of awarding contract and supply been deprecated by the superior courts.
He further argued that the matter requires pro and contra evidence which cannot be decided in constitutional jurisdiction. In support of his arguments he also placed reliance on the case Manzoor Ahmed Bhayo v. Govt of Sindh (2014 M LD 1130).
6. We have considered the submissions of learned counsel for the parties and have gone through record of the case.
7. The perusal of comments of the respondents would reveal that they have completely denied the averments made in the writ petitions. The relevant paras of the comments in Writ Petition No,4346/2016 are reproduced for ready reference:- "5.6. The assertions made in the paragraph under reply are vehemently denied and the petitioner is put to strict proof to prove the same. Under the prevalent practice of workers welfare Board and rules, it is sine qua non that all the contractors who make supply of books/textbooks must be enlisted with respondent-department and its bounden duty of the respondent-department that all kind of supply/procurement for schools should be duly advertised. It is only after approval of bid by the notified committee, contract is awarded to successful bidder and this whole exercise is carried out in free and transparent manner. In the present case, it is surprising that the petitioner is claiming huge supply of books/textbooks to the schools run by answering respondents without observing any codal formalities and there is no record whatsoever with the answering respondents from which it can be inferred that any arrangement were made for supply of stationary to the schools mentioned in the petitions. The petitioner claim regarding aforesaid supply is refuted because he was not enlisted with the respondent organization. How can the petitioner be associated in tender process and bid is awarded to him, assuming without conceding, when he is not even enlisted with answering respondents. Similarly, there is no record regarding approval of tender for said supply, nor any record of the alleged tender and acceptance of bid of the petitioner and the consequent execution of contract for supply. In absence of all this, the answering respondent cannot make any payment for the alleged supply, running into millions of rupees, to the petitioners. It would be worth mentioning that National Accountability Bureau has already taken cognizance of the matter of illegal procurement made by the workers welfare board during the tenure of the then secretary Mr. Tariq Awan. Under the circumstances, the answering respondents are unable to verify the claim of the petitioner or to make any payment in this regard.
9. The assertions made in Para under comment are vehemently denied and the petitioner is put to strict proof to prove the same. The claim of the petitioner is also frivolous and inference can be made from the fact that he alleges making supply worth Rs,300 million without execution of any contract or any guarantees/ securities in return."
Almost similar comments have been filed by the respondents in W.P. No,3499-P/2016.
8. The perusal of comments and record would reveal that the whole exercise in both the cases has been carried out without observing the proper procedure as there is nothing on record which could suggest that either any tender notice published regarding the, supply of books or other items etc or the petitioners are enlisted as contractors with the respondents except certain letters vide which the petitioners had made a request for sending them quotations and the "BOARD" on receipt of the rates approved the same and, thereafter, as per claim of the petitioners, they have delivered the books to the specified branches. Besides the above, as per comments of the respondents, the National Accountability Court has also taken cognizance of the matter, wherein the Secretary, Workers Welfare Board and other employees of the Board have been arrested.
9. The controversy urged before us, as is evident from the record, relates to the disputed questions of facts and it cannot be resolved without recording of evidence. By now it has been settled that Courts while exercising constitutional jurisdiction should not involve themselves into investigations of disputed questions facts 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 inquiry into complicated or disputed facts. Controversial question of facts 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 is incompetent as in the instant case where the controversy between the parties cannot be resolved without entering into the process of inquiry. We are fortified in our view by the precedent cases of the apex court reported as Muhammad Saeed Azhar v. Martial Law Administrator (1979 SCM R 484), Umar Hayat Khan v. Inayat Ullah Butt and others (1994 SCM R 572), Mst. Kaniz Fatima through legal heirs v. Muhammad Saleem (2001 SCM R 1493), Secretary, Govt. of Punjab v. Ghulam Nabi and others (PLD 2001 SC 415), Wazir Ali Soomro v. WAPDA and others (2005 SCM R 37) and Col Shah Sadiq v. Muhammad Ashqiq and others (2006 SCM R 276). The reported judgment referred by the petitioners in support of their cases were either on point of law or on admitted documents, thus, are distinguishable and not relevant to the present case.
10. For the reasons discussed above, these writ petitions are dismissed. The petitioners, however, would be at liberty to avail appropriate remedy available to them under the law.