' The petitioner has filed this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on the ground that the petitioner company was 'A' class contractors registered with the Secretary Communications and Works Department since long. The Chief Executive of the company namely Ch. Muhammad Iftikhar being fully competent and authorised to file the present writ petition had instituted the same on the ground that the tenders in respect of the work relating to renovation/restoration of Council Block Civil Secretariat, Lahore were invited by the competent Authority. The petitioner participated in the tenders and its bid being the lowest was granted with the approval for carrying out the work of renovation and restoration as pointed out above vide Work Order No,49-T, dated 6-3-1994 (Annexure 'A'), whereby the work money was estimated at Rs,48,20,071. The petitioner company completed the aforesaid work within the stipulated period. The respondent No,4 addressed a letter on 14-2-1996 (Annexure 'B') whereby. The aforesaid company in continuation of the previous tender was offered a proposal of the execution of some additional work in the same block and proposed the estimate of the amount of Rs,2,48,42,000 on the existing rates. The petitioner-company agreed to the additional work at the proposed amount of Rs,2,48,42,000 on the existing rates upon which the previous tender was floated. In this regard, reference was made to Annexure 'C'. The work in question was also completed and a bill was submitted to the concerned authorities showing that the petitioner was entitled to an amount of Rs,15,85,752 in view of the report and advice given by the duly approved consultants of the Government i,e, M/s Nayyar Ali Dada and Associates. In this respect, reference was made to Annexures 'D' and 'E', whereby, the aforesaid consultants were directed to vet or approve the rates to be given to be contracting company i,e, petitioner-company. The aforesaid consultant company finally vetted the bill submitted by the contracting company i,e, the petitioner and came to the conclusion vide page No,47 of the writ petition that the net amount due to the contracting company i,e, the petitioner was Rs,15,85,752. On the basis of the vetting made by consultant company, the petitioner lodged his demand with the competent Authority for the payment of the aforesaid admitted amount upon which the competent Authority i,e, Executive Engineer (Respondent No,4) addressed a letter to the S.D.O. Concerned who replied back (Annexure 'G'), that the aforesaid amount be arranged for the payment to the contracting company i,e, the petitioner.
2. A notice of this petition was sent to the concerned departments who filed the parawise comments in which it was contended that the contracting company had varied the existing rates and, therefore, it was not entitled to the claim of Rs,15,85,752 but it was admitted that the reference was made to the consultants who had approved this amount. Anyhow, a plea was also raised that since the dispute had arisen regarding the interpretation of the contract, therefore, the matter should have been sent to the Superintending Engineer for arbitration as the contract provided for an arbitration clause. However, the correspondence entered between the parties was admitted, whereby, the bill (Annexure 'A') was submitted to the Executive Engineer i,e, respondent No,4 for verification and payment. It is upon that bill that an order was recorded that the original be sent to the consultants for verification and vetting. In pursuance of that order, verification was conducted rate wise and finally as pointed above, an amount of Rs,15,85,752 was found outstanding in favour of the contracting company i,e,, the petitioner vide vetted report of the consultants. In pursuance of that, a letter was written by the petitioner-company as (Annexure 'E') to the Executive Engineer for the payment of the balance alongwith extract of the report showing that an amount of Rs,15,85,752 was due to be paid as per report of the consultants. In this regard, a letter to the Sub-Divisional Officer, 'K' Provincial Buildings, Sub-Division, Lahore (Annexure 'F') was written by the Executive Engineer for arranging the early payment of the aforesaid amount. The aforesaid letter was replied by the Sub-Division Officer on 25-10-1997 (Annexure 'G') in which it was requested to the Executive Engineer to arrange payment for clearance of the pending bill to the tune of Rs,15,85,752. However, no payment was made by the respondents for which this writ petition was filed.
3. I have heard the learned counsel for the petitioner who has submitted that according to the tell- tale story of the facts narrated above, it becomes clear that even the department had admitted payment of arrears of Rs,15,85,752 but wrongly denied in their comments on flimsy grounds that the inflated rates were incorporated in the bill by the petitioner. In this respect, it was alleged that the rates were corrected by the consultants and finally the impugned amount was found to be due.
Learned counsel for the petitioner expressed his anxiety over the attitude of the Government functionaries who deliberately avoided the payment of the aforesaid money to the contracting company i,e, the petitioner for the work, it had carried out in accordance with the provision of the contract and to the satisfaction of the authorities concerned which was also verified and vetted by the consultants appointed by the Government. It was, therefore, contended that this willful attitude of the Government functionaries was not befitting of Government Department which should not only be just and fair in public dealing but should also do justice to the people who come into contract with them seeking their remedy such as in the present case. The alleged unjust refusal by the department concerned reflected their apathy towards the fundamental rights of a citizen to receive due compensation for carrying out the work. It was, therefore, contended that the writ petition should be allowed as prayed with costs.
4. The learned A.A.-G., vehemently contested the writ petition on the ground that there was an arbitration clause in agreement and if at all, there was any dispute, the same should have been referred to the arbitration i,e, Superintending Engineer concerned. Secondly, it was contended that it was a contractual liability which was to be enforced through the civil suit and the writ petition would not be competent in such matters. Thirdly, it was alleged that the petitioner is to be blamed for inflating its bill by departing from the agreed rates and getting its approved from the consultants. As such, it was contended that the petitioner had not put up a just claim but inflated the amount unnecessarily to get undue advantage for no ostensible reason. Lastly, it was submitted that though the work was carried out by the petitioner-company but it was paid for the work which had been done. Anyhow, in the end, it was submitted that after thorough verification through the technical officers, the reports of which have been brought on record, the department is still ready to make payment of the legitimate amount due to the contracting company i,e, the petitioner. Upon this, the learned A.A.-G., was asked as to what was the legitimate amount according to his estimate or instructions, upon which he replied that the department considered the case thoroughly and it was found that the petitioner contracting company was entitled to receive Rs,600,000 only and not Rs,15,85,752 i,e, the impugned amount which was based on inflated rates.
5. I have considered the foregoing submissions raised before me. One thing is clear from the foregoing facts that there was a contract between the parties which was carried out and the work was completed. The petitioner had initially demanded Rs,19,83,330.91 vide bill (Annexure 'H') as the amount due for the work had carried out. However, after vetting and verification by the consultants, the aforesaid amount was curtailed to Rs,15,85,752 which was also accepted to be true by the then Executive Engineer and the Sub-Divisional Officer concerned. The aforesaid correspondence has not been refuted even by the present functionaries who have otherwise denied the aforesaid amount to be due and came up with a claim, without any base, that the petitioner company was entitled to receive Rs,600,000. The perusal of the bill submitted by the petitioner company running over 47 pages (Annexure 'H') clearly shows that it was examined in detail by the consultants M/s. Nayyar Ali Dada and Associates item by item, ratewise, the amount due and the amount already paid were corrected vis a vis demanded and vetted amount. The demanded amounts have been shown in pink marking, whereas, the vetted and verified amounts have been found to be in yellow marking. Likewise, Annexure 'J' on page No,74 addressed by the consultants to the Sub-Divisional Officer, 5th Provincial Building Division, Lahore will show that the rates item wise, as given in the tender, submitted by the contractor and approved by the office have been shown in the yellow marking and the report prepared to that effect is signed by the consultant. It .Is on the basis of those rates that the vetted due amount was worked out as pointed out above.
6. The learned A.A.-G. Has not been able to show me from the record that the aforesaid report of the consultant was wrong. Conversely, it was accepted in toto by the then Executive Engineer and the S.D.O. Concerned i,e, the field officer concerned and recommended that the impugned amount of Rs,15,85,752 be arranged for payment to the contracting company i,e, the petitioner. There is no nexus nor it has been shown to me as to why the aforesaid amount can be slashed from Rs,15,85,752 to Rs,600,000 as pointed out by the learned A.A.G. There is no martial on record to show that the amount determined by the consultants and accepted by the concerned field officers may be slashed to Rs,600,000. The contention of the learned A.A.-G. That the petitioner should have moved before the arbitration before coming in the writ petition does not appear to be valid because the impugned amount was due by the department concerned and the field officers after accepting the same had been trying for the payment of the aforesaid amount to the petitioner but in the meantime, no such payment was made which compelled the petitioner to file this writ petition as his fundamental right of receiving the compensation was violated by denying the admitted amount due to him from the Government Department. In such a situation, at the relevant time, there was no dispute under the contract and as such, 'the arbitration clause as proposed by the learned A.A.-G. Could not be invoked successfully. Similarly, as pointed out above, the rates, itemwise, were checked by the consultants and found in order and certain correction were also.
Made and the claim of the petitioner company was reduced and after slashing the same, the impugned amount of Rs,15,85,752, was found due to the contracting company i,e, petitioner.
7. In view of my above discussion, the writ petition is accepted with costs.