MUHAMMAD FAHEEM WALI, J. Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has sought the following relief:- It is, therefore, humbly prayed that on acceptance of instant petition and by issuance of an appropriate writ, order or direction, directing respondents to release the net payable amount of Rs. 33.9544 million in favour of petitioner as per verified IPC No. 9 with such other relief as may be deemed proper and appropriate by this Hon'ble Court in the circumstances of case and in the interest of petitioner.
2. Brief facts of the case are that as per recommendation of the Procurement Committee, the contract for F/S design and construction of main Daraban road Sagu to Madi viza Gara Unra Attal Sharif Road (1-KM) Kulachi, District D.I.Khan under ADP No. 800/140987 (2014-5) was awarded to the petitioner vide letter dated 11.8.2015, after observing all legal and codal formalities. The estimated cost of the said construction as worked out by the department, was Rs. 149,467,549.62/-which was based on item rate, on the terms and conditions of contract executed inter se between the parties. It was pleaded by the petitioner that the entire construction work was completed within stipulated period and to this effect interim payment certificate IPC No. 09 was submitted which reflects that Rs. 3333.9544 million is payable to the petitioner. It was averred that despite submission of IPC No. 09, the respondents failed to make payment as per agreed terms and thereby they committed breach of contract which necessitated to file the instant petition.
3. At the very outset, learned Assistant Advocate General representing the respondents raised preliminary objections on the maintainability of the constitutional petition, firstly, on the ground that contractual obligations cannot be enforced through constitutional petition, particularly, when it carries arbitration clause and secondly, that alternate remedy by way of filing a suit for recovery of the amount in question is available to the petitioner and prayed for dismissal of the writ petition.
4. The learned counsel for the petitioner argued that despite incorporation of arbitration clause in agreement, the constitutional petition is maintainable by responding to the objection raised by learned Asstt. Advocate General. He next argued that mere availability of alternate remedy does not create absolute bar in entertaining the grievances of an aggrieved person, and went on to say that the writ petition is maintainable.
5. Heard. Record perused.
6. We have carefully examined the record in the light of above submissions of the learned counsel for the parties, it is an admitted fact that, on 11.8.2015, on the recommendation of Procurement Committee, the contract for construction of F/S design and construction of main Daraban road Sagu to Madi via Gara Unra Attal Sharif Road (1-KM) Kulachi, District D.I.Khan under ADP No. 800/140987 (2014-15), was approved in favour of the petitioner and to this effect an agreement was executed between the parties inter se. From perusal of the said agreement, it is reflected that clause "25" of the above referred agreement carries arbitration clause which reads as under:- Clause 25. "In the event of any disagreement arising out of the contract, the matter shall first be referred to the Superintending Engineer for decision who shall after making such enquiries as may deem fit, given his decision in writing not later than three months after the reference is made to him. This period for decision of the case by the Superintending Engineer may however be extended by the Chief Engineer under special condition according to the circumstances/justification available in each case. The contractor shall forthwith give effect and shall proceed with the work with due diligence whether arbitration is intended or not".
A plain reading of the aforesaid clause shows that arbitration clause has been incorporated in the said agreement for resolution of any dispute or difference arising out of the agreement so in presence of arbitration clause in the agreement, the writ petition is not maintainable. In this context, reliance can be placed on the judgment reported as Mumtaz Ahmad vs. Zila Council, Sahiwal through Administrator and others (1999 SCMR 117). In this case dispute relates to the collection of goods exit tax of Zila Council under lease agreement executed between the parties when the petitioners were asked to make payment of bid money, salaries of the employees and other allied expenses, he filed constitutional petition against such demand, their constitutional petition as also their Intra-Court Appeal was dismissed. It was observed that the agreement carries arbitration clause which provided that in case of any dispute between the parties, the matter would be referred to the commission for arbitration and it was held by the august Supreme Court of Pakistan that petitioners, if felt aggrieved could have invoked arbitration clause or could have filed appeal under the relevant laws and in view of the availability of those remedies, they could not have invoked constitutional jurisdiction. In this behalf, further reliance can be placed on the judgment reported as Raja Muhammad Ramzan and 21 others v. Union Council, Bajnial, and another (1994 SCMR 1484). In this context, reliance can also be placed on the judgment reported as Messrs Gandapur Construction Company v. Government of Khyber Pakhtunkhwa through Secretary (C & W) and 3 others" (2014 YLR 399) wherein it was observed as under:- "when the agreement itself provides a forum for resolving a dispute among the parties to the suit then without availing such forum how a disputed question of fact can be placed before the High Court for its resolution. A High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 may issue a writ only when facts are admitted and when there is no alternate remedy to the aggrieved person for resolution of this grievance. Here in this case either facts of the case are admitted nor the petitioner is divested of alternate forum for the resolution of his grievance as the agreement itself provides him a forum to settle his dispute with the respondent/department. So it is held that in view of clause 25 of the agreement, the instant writ petition is not maintainable"
In this behalf reference may also be made to the case reported as "Sheikh Wajahat Ali v. Government of Khyber Pakhtunkhwa and others" (2013 YLR 2132) wherein it was held that:- "Arbitration having been provided in the lease/contract agreed deed for resolution of any dispute or difference arising out of the deed, constitutional petition was not maintainable"
7. In the instant case, the petitioner has based his case on the above referred agreement. It is by now settled that contractual rights, commitment, invoking an obligation have to be enforced through courts of ordinary jurisdiction and should not be interfered with by the High Court while exercising its constitutional jurisdiction especially in those matters arising out of contractual obligations. Normally a remedy under the law in such like eventuality being a suit for enforcement of contractual rights and obligations by invoking provisions of Arbitration Act, 1940 would be availed instead of invocation of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this behalf reliance can be placed on the judgment reported as "Zonal Manager, UBL and another v. Parveen Akhtar" (PLD 2007 Supreme Court 298) wherein it was ruled that contractual rights and obligations had to be enforced through courts of ordinary jurisdiction, High Court in exercising its constitutional jurisdiction was loath to interfere in matters arising out of contractual obligations.
In this behalf further reliance can be placed on the judgment reported as "Messrs OPI Gas (Private) Limited v. Government Holding (Pvt) Limited and others" (2021 MLD 1916 Islamabad), wherein it was held that "when an alternative 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".
8. It is also by now settled that when law provides a remedy to another authority fully competent to give relief, any indulgence to the contrary by High Court is likely to produce a sense of distrust in those authorities and to case an underserved reflection on their integrity and competency and would defeat legislative intent. If the remedy sought for, is in substance a remedy, which is available under the ordinary law, then a suit, and not the extraordinary remedy, under this Article should be the appropriate remedy, for, the remedy provided by Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not intended to be a substitute for the ordinary forms of legal action.
9. In wake of the above, this petition being not maintainable is hereby dismissed in limine with no order as to cost.