This Constitutional Petition has been filed by Bayindir Insaat a Turkish Construction Company against the National Highway Authority, Government of Pakistan, Islamabad. The expression "Contractor" for the petitioner and the "Employer" for National Highway Authority, respondent herein, respectively shall be used in the judgment.
2. The National Highway Authority awarded a contract for the construction of Pakistan Motorway, Islamabad-Peshawar Section to the petitioner, a foreign construction company vide an agreement dated 18-3-1993. The contract was for the construction of six lanes motorway for the price of rupees 16.8 billions and the completion date was March 1995. The 40% of the payment was to be made in US dollars and 60% in Pak currency. The parties agreed that 10 million US dollars would be deducted as mobilisation advance from each payment and in case of delay, one per cent. Of the contract price would be charged as liquidated damages for each day. The contractor was required to arrange a loan of 300 millions US dollars and also the performance guarantee. However, the project was still at preliminary stages when the National Highway Authority under the changed policy decided to drop the project and consequently vide letter dated 16-1-1994 informed the petitioner that the contract was cancelled. Upon the change of Government, the National Highway Authority after about three years again having decided to contract Pakistan Motorway, Islamabad- Peshawar Section revised the contract of the petitioner on 3-7-1997 with the following changes:-
(a) The period for completion of contract was extended to three years to be completed by 31st July, 2000,
(b) The contractor would construct four lanes instead of six lanes for the same price (Rs,16.8 billions).
(c) The half payment was to be made in US dollars and the remaining half in Pak currency.
(d) The contractor was also given concession in the matter of liquidated damages, financing, mode of furnishing performance guarantee and the escalation in the contract price.
3. Upon failure of the contractor to complete the project within the stipulated time, the employer on the request of contractor allowed him extension through Addendum No,9, dated 17-4-2000 under which the date of completion of the project was extended till 31-12-2002. The work in Section No,1 i,e, Islamabad to Burhan Interchange and Section No,5 from Rashakai Interchange to Charsaddah Interchange was allowed to be completed by 23rd of March 2001. The construction of the Rest and Service areas, toll plazas, tree planting and bushes was deleted and it was agreed that 96% sectional work in Sections Nos. I and 5 should be completed by 23-3-2001. The contractor, however, completed only 52% and 67% work in.Sections Nos.1 and 5 respectively till the target date. However, the Engineer having verified the delay allowed further period of twenty-seven days for completion of work in Section No,1 and ten days for Section 5 and fixed 19-4-2001 the revised completion date of these sections. The contractor still sought further time through letter dated 6-4-2001 but the Engineer refused to give further extension vide letter dated 19-4-2001. Consequently, the employer issued notice of termination of the contract and expulsion of contractor on 23-4-2001 under clause 63.1(b)(ii) of the contract.
4. The contractor at the time of grant of initial contract in 1993 furnished performance bond to the value of 10 per cent. Of the contract price i,e, Rs,2,682,006,502 and two mobilisation advance guarantees equivalent to US dollars 2,193,977,759.51 and 56.027,849.73 and also arranged the loan in US dollars as provided in the contract. Upon termination of contract by the National Highway Authority on 16-1-1994, the contractor while invoking the arbitration clause claimed damages and as a result of arbitration, the dispute was settled in consideration of the revival of the contract with payment of a sum of 10,721,595 US dollars to the contractor and consequently the work at the site commenced in May, 1998. In view of unavoidable events taken place in the interregnum period, the employer with a view to accommodate the contractor extended time provided under the revised contract for completion of project and sectional work through an addendum till 23-3-2001 and was further allowed time for the completion of sectional work till 19-4-2001. However, the contractor under clause 44.1 of the contract sought further extension vide letter dated 6th April, 2001, which was refused by the Engineer through letter dated 19-4-2001 and as a result thereof the employer having taken notice of failure of the contractor to complete the priority sectional work within the extended period and also overall poor performance due to which loss was being caused to the national exchequer, while invoking clause 63.1(b)(ii) of the contract issued notice of expulsion and termination of the contract with a grace period of fourteen days to enter upon the site.
5. The contractor through this Constitutional petition has challenged the legality of the notice dated 23-4-2001 inter alia on the following grounds:--
(a) That because of the physical obstructions and unforeseen circumstances, the sectional work could not be completed within the target date.
(b) That the observation of the Engineer regarding the poor performance was a sort of advice to the contractor to expedite the work, which would not furnish a ground either for refusal of the extension permissible under clause 44.1 of the contract or to invoke clause 63.1(b)(ii) of the contract without an express rejection of application for grant of extension by the Engineer or disposal of dispute through the arbitration under clause 67.1 and 3 of the contract.
(c) That admittedly the contractor has completed 52% and 67% of total work in Sections Nos.1 and 5 respectively by the target date, which would show that despite all practical problems, the contractor has shown progress and the delay in completion of work was not deliberate but due to the circumstances beyond the control of the contractor.
(d) That the employer keeping in view the situational changes granted extension to the contractor for twenty-seven days and ten days for completion of work in Sections Nos.1 and 5 respectively which would expire on 19-4-2001 and that the contractor due to various problems at the site was not in a position to complete the work before the abovesaid date, therefore, sought further extension through letter dated 6th of April, 2001. The matter was still pending with the Engineer for disposal when the employer while proceeding in departure to the normal procedure provided under the contract for decision of such matter arising out of the main contract straightaway issued notice of expulsion of the contract under clause 63.1(b)(ii) of the contract.
(e) That the employer would not be authorised to proceed under clause 63.1(b)(ii) without referring the dispute regarding the grant of extension of time under clause 44.1 of the contract for arbitration.
(f) That the action of public functionary in contractual matter in conflict to the spirit of law and the terms of the contract would render such action without lawful authority.
(g) That the terminal date of the contract is 31-12-2002 whereas the contractor has been expelled without the termination of the contract, much before the said date, therefore, the contractor as of right would be entitled for extension of time to complete the sectional work on priority but there would be no justification for the expulsion of contractor or termination of contract for non- completion of sectional works before the final date of expiry of contract. The learned counsel for the contractor while concluding his argument has urged that it was incumbent upon the employer to invoke the arbitration clause (67.1) of the contract instead of proceeding under clause 63.1(b)(ii) and that the contractor would be satisfied if the needful is done with annulment of impugned notice dated 23-4-2001. The learned counsel placing reliance on Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 contended that contractual disputes are not out of the purview of judicial review of the High Court. The relevant paragraph from the above judgment is reproduced hereinafter:- "While routine contractual disputes between private parties and public functionaries are not open to scrutiny under the Constitutional jurisdiction, breaches of such contracts, which do not entail inquiry into or examination of minute or controversial question of fact, if committed by the Government, semi-Government or local Authorities or like controversies if involving directions of obligations, flowing from a Statute, rules or instructions can adequately be addressed to for relief under the jurisdiction. Further a contract, carrying elements of public interest concluded by functionaries of the State, has to be just, fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premises that public functionaries, deriving authority from or under law, are obliged to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviations if of substance, can be corrected through appropriate orders under Article 199 of the Constitution. In such behalf even where a contract, pure and simply, is involved, provided always that public element presents itself and the dispute does not entail evidentiary facts of a disputed nature, redress may be provided." The learned counsel also cited the following judgments in support of this petition:--
(i) PLD 1966 SC 639; (ii) 1986 SCMR 1096; (iii) AIR 1989 SC 1642; (iv) AIR 1990 SC 1031; (v) AIR 1991 SC 537; (vi) 1998 CLC 1178 and (vii) 2001 CLC 681 (Lahore).
6. The case of the contractor precisely as contended by the learned counsel is (a) that the dispute is only confined to the extent of extension of time in performance of the contract and unless the same is resolved through the arbitration as provided under clause 67.1 of the contract in the light of the decision of the Engineer, the expulsion of the contract under clause 63.1 would be without lawful authority; (b) that since the contractor was expelled before the final date of contract without getting decision of dispute relating to clause 44.1, the action under clause 63.1(b)(ii) would be unfair, unreasonable' and mala fide. The main emphasis was that the issue involved in the present petition can be decided without entering into the factual controversy either by the Engineer or through arbitration as provided under the contract. In nutshell, the learned counsel summarised the issue in the following manner:--
(i) Firstly, the certificates of the Engineer that the performance of the contractor was poor and that he was not entitled to further extension would only be relevant subject to the observance of clause 46.1 of the contract to authorise the employer to proceed under clause 63.1(b)(ii) of the contract.
(ii) Secondly, the dispute between the parties relating to the non-completion of sectional work within the time frame and the refusal of extension by the Engineer if any was required to be settled through arbitration as provided under clause 67.1 and 3 Mid during the commencement of arbitration the contract would remain operative.
(iii) Thirdly the employer while proceeding under clause 63.1(b)(ii) has issued a notice of expulsion of the contract without cancellation of the contract and the contract being not terminable till 31-12- 2002, the expulsion would be of no consequence.
(iv) Fourthly, in consequence to the final termination of the contract the contractor cannot seek performance of the contract or bring the contractual dispute to this Court for adjudication in its extraordinary Constitutional jurisdiction without invoking the arbitration clause o: the contract but in the interlocutory matter there would be no bar for seeking interference of this Court.
(v) Fifthly, the dispute confined only to the extent of non-completion of the sectional work within the time allocated through addendum and the contractor being still within the date to complete the project, the sectional default would not entail the penalty of expulsion without settlement of dispute through the arbitration.
(vi) Sixthly the question as to whether the contractor was entitled for the extension to complete the sectional work and the default if any would result either in expulsion of contractor or in termination of contract and that it is not essential that the dispute relating to such default should be first settled and decided before taking such action being a legal issue can be determined by this Court in its Constitutional jurisdiction.
7. Learned counsel representing the employer i,e, National Highway Authority; on the other hand while narrating the essential facts in the background and having explained the circumstances in detail under which the employer in the light of certificates issued by the Engineer has decided the expulsion of the contractor and termination of the contract has sought dismissal of this petition. He, submitted that main considerations for such action were as under:--
(i) That the revival of the contract and the conditions contained therein would not be normally acceptable to the employer but with a view to avoid national loss, the employer continued with the commitments already made in the contract and with maximum leniency even allowed further time to the contractor for completion of project by 31-12-2002 and the sectional work (Sections Nos.1 and 5) by 23-3-2001 through addendum and yet extended this date till 19-4-2001.
(ii), That it is evident from the certificates issued by the Engineers on 11th December, 2000 and 14th December, 2000, that the contractor was being regularly informed about his poor performance and the Engineer in an unambiguous words through letter dated 19th April, 2001, made it clear to the contractor that he was not entitled for further extension under clause 44.1 and consequently the employer while proceeding under clause 63.1(b)(ii) of the contract expelled the contractor with termination of contract vide notice dated 23-4-2001.
(iii) That the notice of expulsion included the termination of contract with intimation that on the expiry of notice period of fourteen days, the employer would be entitled to enter at the site and that the contractor as a result of termination of contract either rightly or wrongly would be entitled to invoke the arbitration clause of the contract or avail the remedy of filing a civil suit for damages but in any case cannot seek enforcement of contract by invoking the extraordinary jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
(iv) That there is no cavil to the proposition that the cases in which factual controversy is not involved and dispute is only confined to the extent of violation of statutory duty by a public functionary, the Constitutional jurisdiction can be extended to the contractual matters in such cases but in a case in which the dispute relates either to the breach of the contract or non- performance of the contract and involves factual controversy, such dispute is not adjudicateable in the Constitutional jurisdiction of this Court.
(v) That under the revised contract, the mode of payment was fixed in equal percentage of US dollars and Pak currency and due to the every day change in the rates of currency, the delay of each day would put the employer under heavy extra financial burden in addition to the rise of cost as a result of escalation and that the contractor was paid an amount of 71.72 millions US dollars and Rs,1872 millions (Pak currency) as mobilisation advance, therefore, further grant of time and continuation of the contract would rise the cost of the project twice to the price fixed in the contract and consequently the employer had no option except to expel the contractor and terminate the contract. Learned counsel while placing reliance on the case-law contended that neither the wrong expulsion nor termination for breach of the conditions of the contract or enforcement of such contracts is challengeable before this Court in its Constitutional jurisdiction and in support thereof has placed reliance on Nizam-ud-Din and another v. Civil Aviation Authority and another 1999 SCMR 467. The relevant portion is reproduced hereinunder: -- "The argument advanced by the learned counsel for the appellants that as the latest trend of superior Courts in our country and also elsewhere is to enlarge the scope of judicial review, therefore, availability of alternate remedy or matter involving contractual obligation should not pose hurdle in exercise of power of judicial review under Article 199, is too wide and sweeping to be adopted in every case. It is axiomatic principle of law that every case is to be adjudged on its own facts, circumstances and merits. If in a particular case both the parties admit the factual aspect which give rise to the dispute and the Court feels that the matter is of such an urgent nature that the very remedy would get frustrated, if the aggrieved party is directed to seek redress through alternative remedy available under the law, then in that case it would be proper for the Court to entertain the writ petition. Similarly, if through alternative remedy and action/order of a lower authority is to be impugned before a higher authority at whose behest the action is taken or order is passed then that cannot be termed as an adequate and efficacious remedy so as to justify refusal of exercise of judicial review. If in every contractual matter giving rise to enforcement of contractual obligation or a dispute which can be redressed through other.Remedy available under the law. Writ Petitions are entertained, then this would defeat that very purpose of law and which competent Courts are established and vested with jurisdiction under the law." In addition to the above judgment, the learned counsel also cited the following judgments:--
(i) PLD 1965 SC 83; (ii) 1968 SCMR 1136; (iii) 1969 SCMR 122; (iv) 1974 SCMR 519; (v) PLD 1977 Karachi 191; (vi) 1990 CLC 394; (vii) 1992 CLC 2396; (viii) PLD 1992 Lahore 400; (ix) 1994 CLC 1733 (Peshawar);
(x) 1995 MLD 15;-"(xi) 1995 MLD 912 (Lahore); (xii) 1996 CLC 279 (Peshawar); (xiii) 1999 CLC 26 (Lahore) and (xiv) PLD 2000 Karachi 224.
8. Learned counsel for the parties after having argued this petition at all length have requested that the same may be disposed of as a notice case. Order accordingly.
9. The preliminary question for determination is as to whether the disputes relating to the contractual obligations can be subjected to judicial review and the enforcement of a contract can be sought through the Constitutional petition in preference to the alternate remedies available under the ordinary law. It is settled law that the contractual disputes either in private or public contracts are not subject to judicial review unless it is shown that a public functionary in a contract has committed breach in violation of the statutory duty and the dispute can be resolved without examination of controversial question of fact. In the ordinary circumstances, there can be no departure to the rule that the contractual obligations are not subject to judicial review and the parties cannot invoke. The Constitutional jurisdiction of this Court in such matters but at the same time there is no cavil to the proposition that the public functionaries are under legal and moral duty to own the commitments made in the contracts between the private parties and the Government and must adhere to the principle of fairness and reasonableness. The action of public functionaries in relation to the contractual obligation, if are found tainted with mala fides, unfairness and unreasonableness, the breach shall be subject to judicial review on the touchstone of the golden principle of fairness in Islam in the dealings with each other and in the matter of rights and duties in private and public life as has been laid down by the superior Courts. The following are the essential conditions for exercise of Constitutional jurisdiction in the contract with the Government:--
(a) That there is a breach of performance of public duty in relation to a contract and that the remedy under the general law is neither beneficial nor efficacious and adequate to provide justice.
(b) That the action of a public functionary in a contractual matter is arbitrary, unfair, unreasonable and mala fide.
(c) That the dispute in relation to the breach of contract does not involve any factual controversy or inquiry and can be decided only as a question of law on the basis of given facts.
(d) That the breach in relation to the contractual obligation is violative of statute and the dispute.
Arose is confined only to that extent without involving the factual dispute relating to the terms and conditions of a contract.
9-A. The perusal of clause 63(1)(b)(ii) of the contract would show that the employer is empowered not only to expel the contractor but also to terminate his employment as a contractor. The employer took the composite action through the notice of termination dated 23-4-2001 and with the expulsion of contractor also terminated the contract and thus the question relating to the legality of termination of contract either rightly or wrongly would not be adjudicatable by this Court in its Constitutional jurisdiction and the remedy would be either to invoke the arbitration clause as provided in the contract or file a suit for damages for the breach of the contract. The employer terminated the contract for violation of its conditions by the contractor and consequently the identification of reasons in the background for such an action without factual inquiry would not be possible and it would be difficult to hold that the contractor was not at fault or the employer proceeded unfairly and unreasonably and this may not be out of place to mention here that even if the contract was wrongly terminated, the dispute would not be subject to judicial review of this Court. It is a matter of record that contractor was allowed extra time through the addendum for completion of sectional work and on his failure to do the needful, he was given further time for twenty-seven days and ten days but still he failed to achieve the target and in consequence thereto, the Engineer through letter dated 19-4-2001 informed the contractor that he was not entitled to further extension and thus there was no bar for the employer to take action under clause 63(1)(b)(ii) of the contract. This may be observed that the contractor while raising the dispute regarding his entitlement for further extension of time could conveniently invoke the arbitration clause and, therefore, the case-law relied upon by the learned counsel for the contractor in support of this petition is relevant only to the extent of legal proposition of breach of statutory duty in contractual matters and would not be applicable to the present case involving factual controversy.
10. The proposition that the writ jurisdiction can be invoked in contractual matter if the dispute is confined to the extent of violation of the statutory duty being not disputed, it can be safely said that no such violation is involved in the present case.
11. In the light of the case-law referred by the learned counsel for the parties and the examination of the nature of dispute, it can be unhesitantly said that the present case involved a mixed question of law and fact and consequently it would be difficult to decide the disputes of mixed character only on the basis of principle of law laid down by the superior Courts without establishing the essential facts. The examination of the matter as demonstrated by the learned counsel for the parties would show that due to practical difficulties faced by the contractor for non-completing the project within the time specified under the revised contract, the authorities firstly through addendum have extended the dates to enable the contractor to complete the project and sectional work and secondly the Engineer allowed further time to complete the sectional work on priority. There is no denial to the fact that the conditions of the revised contract varied to the original contract and further certain relaxations were given through addendum in the interest of the project at the cost of extra-financial burden and it is also an admitted fact that the contractor failed to perform his part of the contract with regard to the completion of sectional work even in the extended time. It is clearly provided in clause 63(1)(b)(ii) of the contract that in such a situation, the employer is empowered to expel the contractor and also terminate the contract and thus the breach of condition contained in the contract either in partial or in toto would authorise the employer to invoke clause 63(1)(b)(ii) of the contract, which provides as under:-- "Clause 63.1(b)(ii).-- If the contractor is deemed by law unable to pay his debts as they fall due, or enters into voluntary or involuntary bankruptcy, liquidation or dissolution (other than a voluntary liquidation for the purposes of amalgamation or reconstruction), or becomes insolvent, or makes an arrangement with, or assignment in favour of, his creditors, or agrees to carry out the contract under a committee of inspection of his creditors, or if a receiver, administrator, trustee or Liquidator is appointed over any substantial part of his assets, or if, under any law or regulation relating to re- organisation, arrangement or re-adjustment of debts, proceedings are commenced against the contractor or resolutions passed in connection with dissolution or liquidation or if any steps are taken to enforce any security, interest over a substantial part of the assets of the contractor, of if any act is done or event occurs with respect to the contractor or his assets which, under any applicable law has a substantially similar effect to any of the foregoing acts or events, or if the contractor has contravened sub-clause 3.1, or has an execution levied on his goods, or if the Engineer certifies to the employer with a copy to the contractor, that, in his opinion, the contractor;
(b) without reasonable excuse has failed
(ii) to proceed with the work, or any section thereof, within 28 days after receiving notice pursuant to sub-clause 46.1."
11-A. The contract provided that in case of non-performance, the defaulting party would render himself answerable to the other party and the other party, in exercise of his power under the contract, can take an appropriate action in terms of the contract and if the action is in the form of termination of contract, the defaulting party cannot claim performance of remaining part of the contract. In the present case, the controversy apparently seems to be confined only to the extent of grant or refusal of the extension of time for completion of sectional work but as contended by the learned counsel for the respondent, the employer suffered a huge loss due to non-completion of work within the stipulated time, therefore, the matter would definitely involve scrutiny of disputed question of facts for non-completion of work within the time given to the contractor. There can be no deviation to the principle that the public functionaries are under legal obligation to honour the commitments made by the Government with the private parties and the citizens but at the same time, it is also the duty of the public functionaries to act in the public interest in performance of their functions. The construction of motorway, is a heavy burden on the public exchequer and the requirement of strict compliance of the contractual obligation by the parties in such project of national importance would be in the public interest and, therefore, no exception can be taken to the rule o strict compliance in such cases. The expression "public interest" as defined in Black's Law Dictionary is as under: -- "Public interest.-- Something in which the public, the community at large has some pecuniary interest or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or national Government."
12. The question whether despite the breach of contract by the contractor at the cost of extra burden to the exchequer, the termination of the contract is not in the "public interest" would not be ascertainable without scrutiny of facts in detail and consequently this Court neither can go into such question nor can be held that non-performance of contract was injurious to the national and public interest and consequently determine the question of entitlement of ate contractor for grant of further time to complete the project or permit him to continue with the contract till the decision of the dispute through arbitration in exercise of its Constitutional jurisdiction. Therefore, the contention of the learned counsel that the purported exercise of power for taking action of termination of contract may or may not be in the "public interest" has no force. The examination of the matter in context to the relevant clauses of the contract would show that the employer as well as the contract while pleading wrongs of each other have attributed the non--performance of the contract and breach of condition contained therein and thus by shifting the burden of default and breaches to each other tried to justify their conduct and thus the question, that which party was on the wrong side and which was on the right side cannot be determined through interpretation of different clauses of the contract without fixing the responsibility through evidence. This petition containing the relief relating to the enforcement of the contract cannot possibly be entertained and the contractor without the intervention of this Court can claim the settlement of the dispute through arbitration under clause 67.1 of the contract. This is settled law that this Court is not supposed to exercise equitable jurisdiction to perpetuate the contractual or other wrongs or interfere in the contractual disputes. The employer in the present case, in exercise of his powers under the contract while giving fourteen days' notice to the contractor could enter upon the site and terminate the employment of the contractor without releasing him from any of his obligation or liability under the contract. The employer is also empowered under the above-said clause to himself complete the work or appoint any other contractor for completion of work and in such an eventuality, the employer may use the equipment and material belonging to the contractor. The contractor upon expulsion having lost the right of performance of the contract cannot claim even temporary enforcement of contract pending the dispute in arbitration. The law on the subject is that notwithstanding the nature of dispute in such an engineering contract, the enforcement of contract in full or part, after its termination, would amount to bring the parties back to the position prior to the termination of the contract and the exercise of Constitutional jurisdiction in such manner is not only prohibited but impossible.
14.(sic) Mr.Abdul Hafeez Pirzada, Senior Advocate, while representing the sub-contractors engaged at the project having filed a miscellaneous application in Court under section 151, C.P.C. Has contended that due to the, expulsion of the contractor, the sub-contractors who executed the work at the site on behalf of the contractor would suffer heavy financial loss. They being the real sufferers would be necessary party to the dispute and would be entitled to legal protection. The learned counsel contended that despite the fact that the sub-contractors have no claim against the employer, they having entered into a valid contract with the contractor for the execution of the work at the site under clause 4 of the contract impliedly were holding the status of the contractors duly acknowledged by the employer and being recognised as such upon termination of contract were entitled to the legal protection as the machinery, equipment and construction material available at the site belonged to the sub-contractors and that the employer on termination of contract and expulsion of contractor under section 63.1(b)(ii) would only be entitled to take over the site with material and equipment belonging to the contractor and not to the third parties and consequently the employer has no right to take into possession the machinery and the material belonging to the sub-contractors,
15. Mr. Fakhar-ud-Din G. Ebrahim, Senior Advocate, while placing on record the written statement on behalf of respondent No,3 duly signed by the said respondent stated that efforts shall be made that no action detrimental to the interest of sub-contractors should be taken with the assurance of release of equipment and machinery belonging to them and also if possible to engage their service for completion of the remaining work. The learned counsel added that the employer is mindful of the possibility of loss to be suffered by the sub-contractors in consequence to the expulsion of the contractor and they may approach the Chairman, National Highway Authority for redressal of their grievance. The learned counsel, however, without conceding the rights of sub- contractors or any liability of employer qua their agreements with the contractor has given assurance that the matter of sub-contractors shall be given due consideration and they shall be dealt with fairly and reasonably. The statement is to the following effect:-- "(iii)the respondent No,3 as a gesture of goodwill is prepared to return the remaining equipment and machinery belonging to the concerned sub-contractors, if so directed by this Hon'ble Court.
(iv) That for the completion of the work, the respondent No,3 may need a limited number of qualified and competent contractors and the respondent No,3 will accommodate such of the present subcontractors in the completion of the remaining works on terms and conditions to be agreed between the parties. This offer is made without creating any obligations and only as a gesture of good will."
16. Learned counsel representing the sub-contractors has disputed the correctness of the statement through the written reply in the following manner:-- "That admittedly the sub-contracts have not been terminated nor any default has been alleged against any sub-contract. Neither the employer nor sub-contractors have been served any notice of termination or suspension or taking over of any sub-contracts and all these sub-contracts are in the course of being performed by the subcontractoRs, In the event of the employer is allowed or enabled to evict/oust the contractor from the site or terminate the contract, a new relation in law with rights and obligations will arise between the employer and the sub-contractor. It is reiterated that the funds under IPC 20 and 21 amounting to Rs,1.00 billion approximately have been assigned by the contractor prior to the expiry of the notice dated 23-4-2001 and in any case before the termination of the contract or the entry on the site and therefore these amounts which are admittedly due to payable in law by the employer to the sub-contractor. That neither the contract nor any law whatsoever authorises or permits the employer to take over plant, machinery, equipment and materials etc. Not belonging to the contractor (which in fact and undisputedly belong to the sub-contractor) and by preventing through the State machinery the access to the use and possession of the same the employer is in violation of the fundamental rights of the sub-contractors under Articles 18, 24 and 25 read with 2A and 4 of the Constitution. That the aforesaid monies belong to the sub-contractor as a matter of legal right and not as some gesture or grace on part of the employer. It is denied that the sub-contractors have removed any assets from the site, this denial also finds full support from the inventory prepared by the Engineer on 4-5-2001 and submitted in Court on 5- 5-2001 alongwith the statement of Fakhur-ud-Din G. Ebrahim. The sub-contractors reserve the right to the correctness and verification of the inventory list by an independent agency or through a Commission issued by this Hon'ble Court.
17. In view of the position taken by the learned counsel representing the employer, the sub- contractors instead of agitating the matter before this Court should approach the Chairman, National Highway Authority for redressal of their grievance.
18. For the foregoing reasons, I am of the view that the expulsion of the Contractor and the termination of the Contract by the Employer is not questionable before this Court in the exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The relief being sought by the Contractor through this Constitutional petition regarding the enforcement of Contract pending arbitration of the dispute cannot be extended and consequently, this petition fails and the same is accordingly dismissed as a notice case with no order as to costs.