MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition, filed as far back as 29.05.2015, the petitioner, Daewoo Pakistan Motorway Service Limited, had sought a declaration to the effect that the execution of the concession agreement relating to the project for the Overlay and Modernization of Lahore-Islamabad Motorway (M-2) on Build, Operate and Transfer (BOT) basis between respondent No.2 / National Highway Authority ("NHA") and respondent No.4 / Motorway Operations and Rehabilitation Engineering Company (Private) Limited ("MORE") on the basis of an unsolicited assignment of work from respondent No.3 / Frontier Works Organization ("FWO") is unlawful and in violation of the requirements of the Public Procurement Rules, 2004 ("PPR-2004").
Furthermore, the petitioner had sought a declaration to the effect that the taking over of control of ten Motorway Service Areas ("MSAs") on M-2 from the petitioner was unlawful. The petitioner had also sought an injunction to restrain the respondents from dispossessing the petitioner from the said areas.
2. At the very outset, learned counsel for respondents No.3 and 4 raised an objection to the maintainability of the instant petition on the ground that the petitioner and NHA had entered into a concession agreement dated 10.09.1997 for the construction, management, operation and maintenance of MSAs on M-2 for a period of fifteen years, and that the said agreement contained an arbitration clause providing for the disputes between the said parties to be settled in accordance with the Rules of Arbitration of the International Chamber of Commerce ("the ICC Rules"). He also submitted that the petitioner had instituted arbitration proceedings under the ICC Rules and that the said proceedings culminated in the final award dated 17.07.2014. It is not disputed that after the said award was rendered, NHA has filed an application for the recognition and enforcement of the said award before the Hon'ble Lahore High Court whereas the petitioner challenged the said award before the Courts at Islamabad. It remains to be seen whether the said award is recognized and enforced or not. The petitioner also filed a suit for recovery against inter alia NHA before the Court of the learned Civil Judge, Rawalpindi. The plaint in the said suit was rejected, vide order dated 30.05.2022, on the ground that the dispute between the said parties was to be decided in the light of an arbitration award. Be that as it may, the vital question that needs to be answered is whether this Court, in exercise of its jurisdiction under Article 199 of the Constitution, can adjudicate upon disputes purely arising from the terms and conditions of a contract which contains an arbitration clause.
3. 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 his/her 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.
4. It is well settled 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. 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. The respondents have correctly asserted that the existence of an arbitration clause in the contract between the petitioner and NHA 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 performance of the contract. In the case of Mumtaz Ahmad Vs. Zila Council, Sahiwal (1999 SCMR 117), it has been held as follows:- "7. The petitioners had voluntarily executed the lease agreements without any duress, compulsion or threat and had not only agreed to pay instalments for the months of July, August and September, 1997 alongwith 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 Qayyu m Khan Vs. District Officer, Passenger and Freight (2003 MLD 670), Messrs Frontier Construction Company Vs. Bahauddin Zakariya University (2006 MLD 978), Muhammad Hayat Khan Vs. Tehsil Municipal Administration (2009 YLR 2259), Signage Security System Vs. CDA and others (2010 CLC 567), Mst. Zahida Maqbool Vs. Member (Colonies) Board of Revenue (2010 YLR 1734), Messrs Muhammad Siddiq Chaudhry Vs. Higher Education Commission (2011 CLC 863), Wajahat Ali Vs. Government of Khyber Pakhtunkhwa (2013 YLR 2132), N.A.A. Consulting Engineers Vs. Metropolitan Corporation (2014 MLD 1795), Gandapur Construction Company Vs. Government of Khyber Pakhtunkhwa (2014 CLD 400), Uch Power (Pvt.) Ltd. Vs. Government of Pakistan, Federal Board of Revenue (2017 PTD 1215), and M/s Bisra Stone Lime Company Limited Vs. Orissa State Electricity Board (AIR 1976 SC 127).
5. In the case at hand, learned counsel for the petitioner does not deny that the concession agreement executed between the petitioner and NHA on 10.09.1997 contained an arbitration clause and that the disputes between the said parties were referred to arbitration under the ICC Rules which resulted in the award dated 17.07.2014. In this view of the matter, this Court, in exercise of its jurisdiction under Article 199 of the Constitution, cannot venture to adjudicate upon the contractual disputes between the said parties.
6. At this juncture, learned counsel for the petitioner submitted that the procedure adopted by NHA for the award of the concession agreement to MORE suffers from procedural irregularities and illegalities. He submitted that the petitioner would abandon the relief prayed for against NHA regarding the contractual disputes but urged the Court to scrutinize the process for the award of the concession agreement in the public interest. This exercise would not be possible at the instance of the petitioner in view of the law laid down by the Hon'ble Supreme Court in the case of Echo West International (Pvt.) Ltd. Vs. Government of Punjab (PLD 2009 SC 406), wherein it has been held as follows:- "15. Realizing that the appellant was unlikely to succeed in view of his participation in the bidding process to obtain relief for itself regarding the said two projects, the learned counsel for the appellant insisted that the matter be examined as one of public importance to undo the result of failure of public functionaries to perform their duties properly. It was thus, urged that the entire process be repeated and transparency ensured. The learned counsel, therefore, attempted to make it a case of public interest litigation. The litigation of such nature do not fall specifically under any provision of Article 199 of the Constitution. However, this concept has received judicial recognition enabling the Courts to enlarge the scope of the meaning of `aggrieved' under Article 199 of the Constitution to include a public spirited person who brings to the notice of the Court a matter of public importance. The appellant has a personal interest in the present litigation as he is motivated purely by his own economic interests and wants the entire bidding process reversed so that he can avail another opportunity of bidding for the project. The present litigation is, therefore, not public interest but rather personal interest litigation. We will thus not examine the case from that stand point. We have already held that the appellant has locus standi, having personal interest in the litigation but at the same time have found that he has no cause for complaint.
Furthermore, since we are not considering the present case as one of public interest litigation and having held that the appellant was not treated unfairly or discriminately, we need not comment upon the arguments advanced by both sides, on the application or otherwise, of the provisions of the Public Procurement Regulatory Attorney Ordinance No.22 of 2002, to the present case."
7. In view of the above, the instant petition is dismissed as not maintainable. It is clarified that this Court has not adjudicated upon the legality of the process for the award of the concession agreement by NHA to MORE. This matter will remain to be decided in competently instituted proceedings. There shall be no order as to costs.