MIANGUL HASSAN AURANGZEB, J.---Through the instant writ petition, the petitioner , Bukhari Gas and Oil (Pvt.)
Ltd., seeks a declaration to the effect that the non-provision of the leftover Liquefied Petroleum Gas ("L.P.G.") from the share of respondent No.1 (Government Holdings (Pvt.) Ltd.) in the Makori Gas Field, is unlawful, and that the petitioner has a preferential right for the provision of the leftover L.P.G. from the said field. Furthermore, the petitioner seeks a direction to respondent No.1 to allocate to the petitioner , and permit it to lift the leftover L.P.G. from respondent No.1 's share in the said gas field.
2. Learned counsel for the petitioner submitted that the petitioner's contract with respondent No.1 for the supply of L.P.G. is valid and subsisting up to Februa ry, 2022; that through the instant petition, the petitioner is not seeking the enforcement of any of its contractual rights; that the instant case pertains to unallocated L.P.G. from respondent No.1's share; that respondent No.1 's entitlement to L.P.G. from the Makori Gas Field is 75 metric tons per day; that under Rule 4 of the L.P.G. (Production and Distribution) Rules, 2001 ("the 2001 Rules"), respondent No.1 as a producer of L.P.G. base-stock can dispo se of the whole or the part of its share to licensed L.P.G. marketing companies like the petitioner; that Oil and Gas Regulatory Authority ("O.G.R.A.") is bound to follow the policy guidelines issued by the Federal Gover nment in terms of Section 21 of the Oil and Gas Regulatory Authority Ordinance, 2002 ("the 2002 Ordinance"); and that clause 3.1.1 of the Liquefied Petroleum Gas (Production and Distribution) Policy , 2016 ("the 2016 Policy") issued by the Federal Government provides inter alia that L.P.G. would be disposed of by the L.P.G. producers in a transparent manner through a competitive bidding process to licensed L.P .G. marketing companies.
3. Learned counsel for the petitioner further submitted that in response to an advertisement published by respondent No.1, the petitioner participated in the bidding process by submitting the highest signature bonus of Rs.49,777,777.77 in respect of the purcha se of one lot of L.P.G. of 5 metric tons per day; that the 5-year agreement for the sale of L.P.G. between the petitioner and respondent No.1 was due to expire on 22.02.2020; that by acceding to the petitioner's request, respondent No.1, vide letter dated 20.12.2019, extended the duration of the agreement by two years i.e. up to 22.02.2022; that clause 3(e) of the instructions to bidders, which constitute the agreement between the parties provides inter alia that unsold L.P.G. may be offered in lots to the successful bidders equally; that there is leftover L.P.G. with respondent No.1 which it is bound to offer to the petitioner in lots; and that the refusal on respondent No.1 's part to make such an offer is a violation of its own instructions to bidders as well as its legal obligation to sell L.P.G. to licensed L.P.G. marketing companies like the petitioner . Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein. In making his submissions, learned counsel for the petitioner placed reliance on the judgments reported as 2017 CLC Note 42, PLD 2010 Lahore 443 , 1998 SCMR 2268 and 1998 CLC 1 178.
4. On the other hand, learned counsel for respondent No.1 submitted that through the instant writ petition, the petitioner has agitated a purely contractual dispute; that the petitioner was seeking the enforcement of clause 3(e) of the instructions to bidders, which has the force of the agreement between the parties; that clause 11.2 of the L.P.G. purchase agreement which is a part of the instructions to bidders provides that the contractual dispute between the petitioner and respondent No.1 are to be settled amicably failing which the dispute shall be settled through arbitration; and that on account of the arbitration clause in the agreement between the parties, the instant writ petition is not maintainable.
5. Learned counsel for respondent No.1 further submitted that presently there is no leftover L.P.G. with respondent No.1 which could be offered to the petitioner; and that the sale of the petitioner's share of L.P.G. shall be strictly in accordance with the provisions of the 2001 Rules and the 2016 Policy . Learned counsel for respondent No.1 prayed for the writ petition to be dismissed.
6. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.
7. It is an admitted position that in response to a tender notice published by respondent No.1, the petitioner participated in the bidding process for the sale of respondent No.1's share of L.P.G. from the Makori Gas Field, TAL Block, Khyber Pakhtunkhwa. The petitioner offered the highest signature bonus of Rs.49,777,777.77 in respect of the purchase of one lot of 5 metric tons of L.P.G. per day. Until the execution of the L.P.G. purchase agreement between the petitioner and respondent No.1, the L.P.G. offered by respondent No.1 and received by the petitioner was to be in accordance with the terms and conditions contained in the tender documents. At no material stage was the L.P.G. purchase agreement executed between the parties. Therefore, the terms and conditions of the tender documents operated as the agreement between the parties. The petition er is, in essence, seeking the enforcement of clause 3(e) of the instructions to bidders, which is admittedly a part of the tender documents. For the purposes of clarity , the said clause is reproduced herein below:- "If one or more lot of the SELLER'S SHARE remains unsold after BIDDERS have been offered to match the highest signature bonus as aforementioned, the SELLER may withdraw the unsold lot(s) and conclude the bidding process or offer the quantity of LPG in the remaining lot(s) to all successful BIDDERS equally ."
8. The agreement between the petitioner and respondent No.1 was valid for a period of five years and due to expire on 22.02.2020. The petitioner had requested respondent No.1 for the duration of the agreement to be extended. Vide letter dated 20.12.2019, respondent No.1 extended the duration of the agreement for a period of two years effective from 23.02.2020 or until the decision of the Court on whether the charge of signature bonus by L.P.G. producers was lawful, whichever was earlier . The extended term of the agreement has not expired as yet.
9. Vide letter dated 28.05.2021, the petitioner requested respondent No.1 to sell to the petitioner the leftover L.P.G. which was available due to the expiry of the agreements executed with three other L.P.G. marketing companies.
The petitioner agitated its entitlement to be sold the entire 15 lots of the leftover L.P.G. This request of the petitioner has not been acceded to by respondent No.1. This dispute between the petitioner and respondent No.1 arises from and is related to the agreement which is a part of the instructions to bidders and in particular clause 3(e) thereof.
Clause 11.2 of the L.P.G. purchase agreement A provides that the contractual dispute between the petitioner and respondent No.1 are to be settled amicably failing which the dispute shall be settle d through arbitration. I am of the view that the primary dispute agitated by the petitioner in the instant writ petition is to be resolved in accordance with the arbitration agreement between the parties.
10. Ordinarily , the High Court, in exercise of its jurisdiction under Article 199 of the Constitution, does not entertain a petition filed by a petitioner seeking the enforcement of its rights under a contract executed with an instrumentality of the State. Although sub-constitutional legislation cannot curtail the jurisdiction of this Court under Article 199 of the Constitution, and there are numerous precedents where this Court has exercised its Constitutional jurisdiction in contractual matters where the executive acts in an irrational, illegal or procedurally irregular manner , or in excess of jurisdiction, the facts of the case at hand are not such where this Court ought to exercise its Constitutional jurisdiction.
11. It is well-settled that when an alterna tive and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the Constitutional jurisdiction of the High Court for the issuance of a writ. It is also well settled that where there exists an arbitration agreement, the parties are required to get their disputes arising out of the contract adjudicated by the domestic forum created by them. Respondent No.1 has correctly asserted that the existence of an arbitration clause in the contract between the parties leaves no option to the Writ Court but to point to the parties in the direction of arbitration. There is a catena of case law in support of proposition that where there is an arbitration clause in the contract between the parties, a writ petition cannot be instituted to question the termination of the contract and or to seek specific perfo rmance of the contract. In the case of Mumtaz Ahmad v . Zila Council, Sahiwal (1999 SCMR 1 17), it has been held as follows:- "7. The petitioners had voluntarily executed the lease agreements withou t any duress, compulsion or threat and had not only agreed to pay instalments for the months of July, August and September , 1997 along with other dues, but had actually deposited the same at the time of assuming work under the lease agreements. They were, therefore, not justified to take exception to those payments at the fag-end of the lease period. Anyhow , if they had any grievance, they could have invoked the Arbitration clause and referred the matter to the Arbitrator or file appeal under the relevant rules, but in view of the availability of these remedies, they could not have invoked the writ jurisdiction. Hence, the Intra-Court Appeals filed by the petitioners were rightly dismissed and in consequence these petitions are dismissed."
(Emphasis added)
Law to the said effect has also been laid down by the Superior Courts in the cases of Abdul Qayyoum Khan v.
District Officer, Passenger and Freight (2003 MLD 670), Messrs Frontier Construction Company v.
Bahauddin Zakariya University (2006 MLD 978), Muhammad Hayat Khan v. Tehsil Municipal Administration (2009 YLR 2259 ), Signage Security System v. CDA and others (2010 CLC 567), Mst. Zahida Maqbool v.
Member (Colonies) Board of Revenu e (2010 YLR 1734 ), Messrs Muhammad Siddiq Chaudhry v. Higher Education Commission (2011 CLC 863), Wajahat Ali v. Government of Khyber Pakhtunkhwa (2013 YLR 2132 ), N.A.A. Consulting Engineers v. Metropolitan Corporation (2014 MLD 1795 ), Gandapur Construction Company v. Government of Khyber Pakhtunkhwa (2014 CLD 400), Uch Power (Pvt.) Ltd. v. Government of Pakistan, Federal Board of Revenue (2017 PTD 1215 ), and M/s. Bisra Stone Lime Company Limited v.
Orissa State Electricity Board (AIR 1976 SC 127).
12. Respondent No.1 remains committed to sell its share of the L.P.G. strictly in accordance with the requirements in the 2001 Rules and the 2016 Policy . True, Rule 4(2) of the said Rules read with clause 3.1.1 of the said Policy requires the producers of L.P.G. base-stoc k to sell L.P.G. to licensed L.P.G. marketing companies but this places no obligation on respondent No.1 to sell L.P.G. to the petitioner to the exclusion of any other licensed L.P.G. marketing company without a tender bidding process. The petitioner's assertion that respondent No.1 is to sell the leftover L.P.G. only to it is on the basis of a clause in the agreement / instructions to bidders and such matter can be resolved through the Dispute Resolution Mechanism provided therein.
13. In view of the above, the instant petition is dismissed as not maintainable.