MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioners impugn the notice dated 20.06.2019 issued by respondent No.2, National Highway Authority ("NHA") whereby notice under clause 4.10.1 of the lease agreement dated 19.05.2006 was issued to them. Under clause 4.10.1 of the said lease agreement, NHA is entitled to terminate the said agreement at any time for its convenience but only for the purpose of land utilization of the leased land by NHA and only after serving ninety days prior notice to the lessee. The said clause also entitles the lessee to compensation to be fixed by the sole arbitrator.
2. Learned counsel for the petitioners submitted that after a competitive tender bidding process, NHA had entered into the lease agreement dated 19.05.2006 with the petitioners; that possession of the land leased to the petitioners was not given to them at any material stage; that on 01.07.2013, the petitioners requested NHA to allocate an alternative site to the petitioners; that vide letter dated 04.09.2014, NHA called upon the petitioners to identify another alternative site with the required plot size; that on 12.09.2014, the petitioners requested NHA to change the purpose of the lease from establishment of a CNG Station to the construction of a plaza; that vide the impugned letter dated 20.06.2019, NHA has not just acceded to the petitioners' said request for executing a lease for alternative land, but has also issued a notice for the termination of the lease agreement dated 19.05.2006; and that the fact that alternative land for the establishment of a CNG Station or a plaza is available with NHA is apparent from the fact that on 11.06.2019, NHA has published an advertisement inviting proposals for the lease of land at different places for commercial purposes as well as for the establishment of CNG Stations. Learned counsel for the petitioners prayed for the writ petition to be allowed in terms of the relief sought therein.
3. On the other hand, learned counsel for NHA raised an objection to the maintainability of the instant petition on the ground that the lease agreement dated 19.05.2006 contains an arbitration clause; that the petitioners have the alternative remedy of invoking the Dispute Resolution Mechanism enshrined in the said lease agreement; that this Court, in exercise of its jurisdiction under Article 199 of the Constitution, cannot enforce provisions of a contract; that the terms of the said lease agreement empower NHA to terminate the lease agreement; that vide letter dated 08.12.2005, the petitioners were given a final reminder that they had not cleared the dues nor submitted the required documentation; that the petitioners had only paid the ground rent and approach rentals amounting to Rs.122,564/- for the first year and not for any period thereafter; that the petitioners were unable to provide an NOC issued by the Deputy Commissioner for the establishment of a CNG Station; and that the impugned letter dated 20.06.2019 whereby the lease agreement dated 19.05.2006 was terminated does not suffer from any legal infirmity. Learned counsel for NHA prayed for the writ petition to be dismissed.
4. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.
5. It is not disputed that lease agreement dated 19.05.2006 was executed between petitioner No.1 and NHA. As per clause 4.1 of the said lease agreement, the duration of the lease was to be thirty years.
6. For the purposes of the instant case, it is not necessary to go into the details of the dispute between the petitioners and NHA which led to the impugned letter dated 20.06.2019 whereby the said lease agreement was terminated. The termination was made pursuant to clause 4.10.1 of the said lease agreement which reads thus:- "4.10.1 Termination for Convenience of Lessor The Lessor shall be entitled to terminate this Agreement at any time for his own convenience but, only for the purpose of planned utilization of the leased land by the Authority and only after serving Ninety (90) days prior notice to the Lessee. In no event such termination is deemed as default by the Lessor under this Agreement. However, the Lessee shall be entitled to compensation to be fixed by a Sole Adjudicator appointed by the Lessor and acceptable to the Lessee in addition to allotment of an alternate site, if available, provided the facility is established for which the land is leased."
7. Additionally, clause 15 of the said lease agreement provides a mechanism for the settlement of the contractual disputes between the parties. The said clause is reproduced herein below:- "15. Settlement of Disputes If any dispute or difference of any kind whatsoever arises between the Lessor and the Lessee in connection with or arising out of the Agreement or performance of the job whether during the progress of the job or after its completion or after [its] termination, abandonment or breach of the Agreement, it shall in the first place be referred to: 15.1 The General Manager (Operations), NHA in accordance with Clause 15. The said notice / reference shall contain the cause of action, mentioning facts of the case and relief sought. The General Manager (Operations) shall decide the dispute within twenty eight (28) days of the receipt of such notice.
15.2 If the Lessee is dissatisfied with the decision of the General Manager (Operations) or if the decision of the General Manager (Operations) is not forthcoming within the stipulated or extended period, the Lessee may within two (02) weeks from the receipt of the decision of the General Manager (Operations) or expiry of twenty eight days time refer the matter to the Member (Operations) along with the cause of action, mentioning facts of the case and relief sought. The Member (Operations) will act as a Sole Adjudicator and shall decide the matter within twenty [eight] (28) days [from] the date of submission. The decision of the Adjudicator shall be final and binding upon the parties with no legal recourse.
15.3 The Lessee, if dissatisfied with the decision of the Adjudicator shall have the right to serve Notice for Intention to commence arbitration within twenty eight (28) days of receipt of the Adjudicator's decision or within twenty eight (28) days after the expiry of the period stipulated herein above for decision of the Adjudicator in case he fails to give decision. The Arbitration shall take place at Islamabad under the Pakistan Arbitration Act of 1940 as amended from time to time.
15.4 Provided however, that the parties shall have the right at resolution of disputes amicably within fifty six (56) days of service of Notice for Intention to commence Arbitration and the Arbitration shall commence in case of failure of amicable settlement."
8. 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.
9. 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 petitioner No.1 and NHA leaves no option to the Writ Court but to point the parties in the direction of arbitration. There is a catena of case law in support of the 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).
10. In the case at hand, learned counsel for the petitioners does not deny that the lease agreement dated 19.05.2006 executed between petitioner No.1 and NHA contained an arbitration clause. The disputes between the said parties caused due to the termination letter dated 20.06.2019 are such that can be referred to arbitration, subject to law. 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.
11. 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.