This order will dispose of the Constitutional petition wherein letter dated 12.10.2018 of respondent No.3, letter dated 10.12.2018 of respondent No.2, letter dated 29.04.2019 of respondent No. 4 and letter dated 19.04.2019 of respondent No. 3 have been challenged.
2. Petitioner claims to be a government contractor registered with respondent No.1, who was granted contract/work through letter dated 27.05.2015 for Rs.512.518 million issued by respondent No.3. The work was later rescinded through letter dated 12.10.2018 of respondent No.3. The petitioner assailed the letter in W.P. No. 15345/2018 which was disposed of vide Order dated 05.11.2018 with the observation that there being a mechanism for the settlement of dispute between the parties through arbitration or mediation as per contract and, therefore, the petitioner did not press the writ petition on the issuance of the direction that the respondent No.2 shall hear and decide the issue in accordance with law by providing proper hearing to all concerned including the petitioner.
3. The petitioner thereafter filed W.P. No. 516/2019 which was disposed of by a learned Single Judge of this Court vide Order dated 01.04.2019, the operative part whereof reads as under: - "...Through this petition order dated 10.12.2018 passed by the respondent No.2 has been assailed, whereby application filed by the petitioner has been dismissed.
2. At the outset of hearing, learned couns el for the petitioner has been confirmed with Clause 65 of the agreement arrived at between the parties, which speaks about arbitration proceedings in case of any dispute between the parties. In the above backdrop, he was asked to explain that as to whether petitioner has availed this remedy by way of approaching the Superintending Engineer , who has to act as an arbitrator , his answer was in the negative.
3. In view of the above, let the petitioner approach the said functionary with an appropriate application for the initiation of arbitration proceedings, which once filed shall be entertained and decided in accordance with law and will be decided without being influenced of the impugned order. Disposed of."
4. In the instant petition, which is third in succession, the petitioner asserts that through the letter dated 29.04.2019 issued by respondent No.4 he has declined to commence the arbitration proceedings and the letter is null and void.
The petitioner further asserts that the rescission of the contract is illegal and that in any case keeping in view the subject-matter of claim the reference can be made to two arbitrators, each party to appoint its own arbitrator and that reference to sole arbitrator will be impermissible. With these assertions, the petitioner seeks declaration in this petition to the ef fect that the impugned letters be declared to be without authority and be set aside.
5. Learned Counsel for the petitioner argued that the Constitutional petition is maintainable and that the actions/letters issued by the executive authority could be declared to be illegal by this Court and notwithstanding the arbitration clause the petitioner could still assail the impugned letters and pray for the quashment thereof.
Learned Law Of ficer has entered appearance on Court call and opposed the petition.
6. On deeper consideration of the arguments in reference to the documents/material annexed with this petition, it is manifest that the crux of the matter is a dispute arising out of a contract, wherein, the letter of rescission was issued. Petitioner's stance is that the contract could not be rescinded, the action taken was mala fide and that the pending bills shall be released by the respondents. The respondents support their actions and dispute the claims of the petitioner. From the letters of rescission, of which the petitioner is basically aggrieved, it is manifest that the action was taken after raising the issue of serious violations. It is a settled rule that in contractual matters all claims and counter-claims, requiring factual inquiry for determination, cannot be raised through the Constitutional petition as in summary jurisdiction factual inquiry is not visualized. It is also a settled rule that where the contract, in respect whereof the dispute has arisen, provides for a mechanism of settlement of dispute through arbitration and the dispute is also of factual nature, the parties to agreement must follow the mechanism agreed for the resolution of their dispute/claims, and the arbitrators are legally competent to decide all issues of law and fact and award the relief to which either of the parties is entitled.
7. It was in this backdrop that the petitioner on earlier two occasions, when he filed the writ petitions, was confronted with the legal bar in his way to invoke the extraordinary jurisdiction. In the presence of the arbitration clause when he did not press the petitions, when he was unable to put forth any valid explanation. In result, vide Order dated 05.11.2018, in W.P. No. 15345/2018 it was directed that the petitioner should approach the said functionary with an appropriate application for initiation of arbitration proceeding. In view of the earlier Order , the instant writ petition, which is third in succession is not maintainable.
8. In "Mumtaz Ahmed v. Zila Council, Sahiwal through Administrator and others " (1999 SCMR 117) the honourable Supreme Court observed to the effect that in the presence of the arbitration clause the parties if aggrieved could invoke the arbitration clause and refer the matter to the arbitrator while they cannot invoke the Constitutional jurisdiction for the resolution of the matter . Rule enunciated by the honourable Supreme Court was followed in "Messrs Syed Bhais (Pvt.) Ltd. through Director v . Government of Punjab and 3 others " (PLD 2012 Lah. 52 ).
9. Perusal of the stated facts makes it discernable that in the present case, the issues raised tilt around factual controversy which of course will require inquiry for the determination of claims and counter-claims. As to which party was at fault, who was responsible for the breach of contract, if any, whether the letter of rescission was illegal, whether the stoppage of work was not justified and whether the petitioner could receive the pending bills, can only be determined after full-fledged inquiry. The petitioner having agreed to a dispute resolution mechanism through arbitration as per clause 65 of the contract, could invoke the same and enforce it, if the respondents were reluctant to proceed in accordance with the arbitration. The argument that the sole arbitration is not permissible, or that the matter needs to be referred to two arbitrators, one to be appointed by each party and that the department's arbitrator could not act as such in view of his involvement in the dispute, could only justify the petitioner to file the appropriate proceedings in the court of general jurisdiction under the Arbitration Act, 1940 which provides that if a dispute had arisen from a contract that provides for the decision through arbitration and either party, without any sufficient cause refuses to make reference, the other party could file an application under section 20 read with sections 8 and 9 of the Act supra, for an order to file arbitration agreement in court and for a reference of the dispute to the arbitrators. The court, of course, in the light of the agreement will proceed to appoint sole or two arbitrators with the mutual consent of the parties and refer the dispute for their decision. The arbitrators will be legally competent to determine the questions of law and fact in the case and also the claims/counter-claims of the parties.
10. This being so the petitioner has an adequate alternative remedy in accordance with the agreed mechanism in the contract itself and could not invoke interference in the extraordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The instant petition is therefore not maintainable for the reason that the earlier Order passed by this Court will bar the filing of the petition on the same subject and also as the matter pertains to the factual controversy , the petitioner having agreed to the mechanism for the decision of dispute through arbitration, the filing of the petition will not be tenable.
11. For the reasons above this petition is without substance and is dismissed with the observation that the petitioner may, if so advised, approach the competent forum as observed herein above for reference of matter to arbitration and for resolution of the dispute through the mechanism of the agreed forum.