C.M No. 3 & 4 of 2021 These applications seek permission to place certain documents on record, which are taken on record subject to all just and legal exceptions.
Main case
2. Petitioner hereby impugns order dated 20.11.2020 by respondent No.2, passed pursuant to the direction issued by this Court vide order dated 09.1 1.2020 in W .P. No. 57567/2020.
3. Petitioner was awarded contract for performance of civil works relating to Lahore Orange Line Project-1 - Package-1, Dera Gujran to Chauburji Chowk, Lahore. Barring unnecessary details, the crux of the matter is that petitioner claimed that works assigned were substantially completed and project was officially handed over by 29th April 2019. Thereafter , petitioner approached LDA, vide letter of 02.05.2019, and sought for issuance of Taking Over Certificate, which certificate was lately issued on 24.10.2020, wherein Taking Over Certificate (TOC) was given effect from 30th September 2020. Petitioner was constrained to approach this court and filed W.P.No.57569 of 2020, which was disposed of in terms of the direction issued vide order dated 09.11.2020. Order impugned was passed subsequently .
4. Learned counsel strenuously argued that, in fact and law, TOC issued was contrary to the terms of agreement and record, wherein, for all intent and purposes, act of physical handing-over of the project was not given effect.
Learned counsel adds that requisite requirements were carried out upon physical taking over of the project on 29.04.2019 and as consequence of due diligence, it was recommended that Taking Over be made effective from 29.04.2019, reference is made to the letter of 11.10.2019 by Chief Resident Engineer NESP AK. Submits that, pursuant to letter of 11.10.2019, performa nce guarantee was also released by Chief Engineer LDA. Lastly submits that order impugned was not a speaking order , who has referred to the judgments reported as "Nizamuddin and another Vs. Civil Aviation Authority and 2 others" (1999 SCMR 467), "Dr. Sher Afgan Khan Niazi Vs. Ali S. Habib and others" (2011 SCMR 1813 ), "United Bank Ltd, through Authorized Attorneys of the Bank and 2 others Vs. Muhammad Ashraf and another" (PLD 2020 Lahore 400), "Messrs Airport Support Services Vs. The Aiprot Manager Quaid-e-Azam International Airport, Karachi and others" (1998 SCMR 2268 ), "Muhammad Aslam Vs. Senior Member (Colonies), Board of Revenue, Punjab and others" (2004 SCMR 1587 ) and "Ishaq Khan Khakwani Vs. Railway Board through Chairman and others" (PLD 2019 S.C 602).
5. The dispute simply relates to the interpretation and scope of the various provisions of the contract, involving clauses 48.1, 48.2 and clause 31.1(c) of General Conditions of Contract (GCC). Petitioner 's claim is that TOC has to be issued under clause 48.1, effective from 29.04.2019 - irrespective of the assertion of the Employer - LDA - that project was hand over to the contract or, M/s.CR-NORINCO, which comes within the ambit of clause 31.1 (c). It is expedient to reproduce relevant portion of the order impugned, which reads as; "The petitioner was heard at length and the case was thoroughly deliberated. It is analyzed that the civil works were handed over to "M/s CR-NORINCO" by the petitioner on April 29th, 2019 not as a consequence of substantial completion, or for use of civil works for their intended purpose as contended by the petitioner , but rather for execution of interface works in accordance with the interface schedule.
Therefore, it has been deduced that handing over of civil works to the E&M Contractor cannot be qualified as "Taking Over" under Clause 48.1 or 48.2 but is rather "Opportunities for Other Contractors" under Clause 31.1(c).
Conclusively , after detailed scrutiny and evaluation of ground realities, it is ascerta ined that the date of issuance of "Taking Over Certificate" as September 30th, 2020 determined in accordance with the recommendations of the Project Consultant M/s NESP AK-CEC JV is legally and lawfully correct. Moreov er, request of the petitioner for release of retention money cannot be entertained till he fulfills contractual obligations pending at his end.
However , if the petitioner does not agree with the decision, he may adopt the proper mechanism for resolution of dispute in accordance with clause 67 of Conditions of Contract.
In view of foregoing, the representation of the petitioner is rejected."
6. Learned counsel when confronted with the mechanism for arbitration procedure provided under the contract for the 'settlement of disputes' - clause 67.1 of GCC, followed by Arbitr ation in terms of clause 67.3 - subject to the conditions prescribed - submits that in view of facts and circumstances, as pleaded, judicial review jurisdiction can be invoked in terms of the ratio of decision in cases referred. There is no doubt that controversy at hand - regarding determination of effective date of taking over in terms of the conditions of contract - clearly falls within the scope of an arbitrable dispute, otherwise having factual dimensions as well. Learned counsel argued that this court has already exercised jurisdiction by allowing constitutional petition and issued directions, hence, matter can be adjudicated again by exercising judicial review jurisdiction. I am afraid that submissions must fail; simplicitor , issuance of direction to treat constitutional petition as representation and to decide same by a speaking order would not substitute arbitral mechanism provided in terms of contractual arrangem ent, which has been agreed and consented to by the parties at the time of execution of the contract. Judgments relied upon are distinguishable, which have no application to the facts of the case, particularly in the wake of peculiar dispute, attracting arbitral mechanism. This is not the case, alike the case of Messrs Airport Support Services (Supra) where violation of mandatory provision requiring prior notice as envisaged in Section 3 of Central Government Lands and Buildings (Recovery of possession) Ordinance, 1985 was a relevant issue. The pertinent issue is not simplicitor of availability of alternate remedy but assumption of jurisdiction when dispute squarely falls within the scope of an arbitral mechanism and per se qualifies as an arbitrable dispute. In view of the above, this court is not inclined to embark upon an exercise to adjudicate upon, determine and decide dispute(s), by substituting dispute resolution mechanism. Reference is made to the case of AL-MAHMOOD INDUSTRIES (PAKIST AN) LTD. v. THE TRADING CORPORA TION OF P AKIST AN L TD AND ANOTHER ( 1974 SCMR 51 ).
7. This petition is incompetent and same is, therefore, dismissed. Any observation hereinabove would not prejudice the case of any party nor influence determination of the matter , if resort is made to the of dispute resolution mechanism.