' JAVED IQBAL, C J.---This is Constitutional petition preferred on behalf of Messrs Campaigner Associates (Pvt.) Ltd. Under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer:- "It is, therefore, most humbly prayed that this Hon'ble Court may be pleased to direct the respondents Nos.2 and 3 to issue the certificates for the work done as mentioned in the interest of Justice and fair play."
2. Briefly states the facts of the case are that petitioner is a private limited construction company, having its head office at Lahore and floated bids for packages Nos.1 and 2 pertaining to construction of building for women polytechnic institute with 50 student Hostel for women and 200 student Hostel with 6 workshops and class room at Sariab Road, Quetta. The bid was accepted ' and agreement was executed in between the parties. The case of petitioner is that payment for construction already completed has not been made which is in violative of the terms and conditions as enumerated in the agreement.
3. It is mainly contended by Raja Rab Nawaz, Advocate that since there is no efficacious and speedy remedy available as such Constitutional jurisdiction has been passed into service because withholding of completion certificate on the basis whereof payment is made is without lawful] authority and without any reasonable justification. It is pointed out that heavy loan has been obtained by the petitioner and facing dire financial problems due to non-payment which would result inordinate delay and resultantly the public would suffer irreparable loss as loan has been obtained from Asian Development Bank and the construction is to be completed within a stipulated period. It is also pointed out that the work has' been completed up to the entire satisfaction of respondents and thus, the payment cannot be withheld.
4. The learned A.-G. Appeared on behalf of respondents along with Project Director (respondent No,2) and Messrs Unique Associate (respondent No,3) and contended that' they have no objection to make payment but according to them the bills submitted by the petitioner are not correct and some extra amount has been included in the bills which is not in accordance with the rates agreed in between the parties. They have, however, expressed their to make the payment of that portion of amount which is not disputed. It is also contended that after obtaining the amount in question the petitioner may not complete the work which would result in substantial loss to the Government. It is, however, not denied that loan has been obtained from Asian Development Bank and a period has been prescribed for the completion of project.
5. We have carefully examined the respective contentions as agitated on behalf of petitioner and for respondents in the light of relevant provisions of law, terms and conditions of the agreement and relevant documents placed on record. We have also afforded proper opportunity of hearing to the project director by whom the factual and technical aspects of the matter have been highlighted in a diligent manner. Let we make it clear at this juncture that we have Confined ourselves to the question as to whether payment can be withheld for the work which has already been completed and for which there is absolutely no dispute regarding financial or technical aspects. We are not concerned with escalation. Extra charges for steel, applicability of Balochistan composite schedule rates. Specification of items, their quantity, difference in between Balochistan composite schedule rates and that of bidding documents. Interpretation of various clauses of the agreement, lifting charge of steel and other controversial issues. As mentioned hereinabove the respondents have agreed to make payment of the work already done in accordance with the rates as `stipulated in the agreement but both the parties have their own interpretation of contra'nt agreement and we do not want to enter in such controversial realm till the remedies 'provided in the agreement are exhausted. A mechanism and methodology has been provided for resolving disputes which must be followed irrespective of the fact as to whether the same are time consuming or otherwise? It is, however, to be noted at this juncture that the project is foreign sponsored which is required to be completed within prescribed time limit and in case of failure Asian Development Bank may suspend or discontinue their financial assistance/loan facilities which would surely cause irreparable loss and the Province of Balochistan cannot afford it. At this stage if no interference is made this project may convert to another Bolan Medical Collage as litigation being time consuming process would surely take a considerable long period and which, could ultimately adversely affect the public interest at laree and student community would sustain substantial damage. We have also dilated upon the question of maintainability of this petition and suffice it to observe "jurisdiction flows from constitution. The Article confers on High Courts; jurisdiction (AIR 19950 SC 124 = 1950 SC 594) and the power does not require any statutory enactment-conferring jurisdiction to exercise it as a condition precedent to its exercise (AIR 1951 Nag.58 + AIR 1951 Mad. 70(SB) + AIR 1952 Punj. 70 + AIR 1951 Madh-B 21). Provision of Article 199 is not subject to any law but is only subject to the Constitution, (PLD 1991 SC 691). The jurisdiction must obviously be described as a Constitutional jurisdiction of an original kind. (PLD 1968 SC 171 = 20 DRL
(SC) 235 + PLD 1968 Lah. 1030 (DB)). It is axiomatic that a provision embodied in a sub- Constitutional Legislation making orders passed thereunder as final does take away the Constitutional jurisdiction of the High Court. It follow, therefore, that no considerations flowing from the finality of a sub-Constitutional Law bearing upon the finality of orders passed thereunder even in the absence of express provision in that behalf can prevail to exclude the Constitutional jurisdiction or to inhibit its exercise. (PLD 1979 Lah: 73 = 1979 Law Notes 60 (DB) + PLD 1980 Kar. 399).
But this power granted by this Article have to be exercised in accordance with well-established principles. (AIR 1951 SC 217 = 1951 SCR 344 = 52 Cri. L. Jour 736 + AIR 1953 Cal. 721 (DB). The High Courts only function as ordinary Courts in exercising powers under Article 199. (PLD 1972 Lah. 201
(DB) + AIR 1963 Ca1.433 (SB) + AIR 1950 SC 124 = 1950 SCR 594 = 51 Crl. L. Jour 1514). They do not act as special tribunals nor do they act as tribunals to which a special kind of dispute is referred by statute. It is only the procedure in respect of matter lying within their ordinary jurisdiction and the form of relief that may be given, which are changed. AIR 1963 Cal. 433 (SB) + AIR 1950 SC 124 = 1950 SCR 594 = 51 Cr.LJ Jour 1514). It may not be out of place to mention there that "Article 199 casts an obligation on the High Court to act in aid of law, protect the rights of the citizens within the framework of the Constitution against the infringement of law and Constitution by the executive authorities, strike a rational compromise and a fair balance between the rights of the citizens and the actions of the state functionaries, claimed to be in the large interest of society. This power is conferred on the High Court under the Constitution and is to be exercised subject to Constitutional limitations. (PLD 1988 Lah. 49 = KLR 1988 Cr.C. 128 (FB). In the matter of entertainment of petitions and grant of relief in equitable and discretionary jurisdiction, it is necessary not to be wholly by the technicalities of the law but also by the substance of the controversy when the proceedings did not suffer from mala fides of fact. (p991 SCMR 654). Technicalities cannot prevent High Court from exercising its Constitutional jurisdiction and affording relief which otherwise petitioner is found entitled to receive. PLD 1990 Lah.
121. The petition in hand has been examined in the light of criterion as laid down and discussed herein above. In our considered view it is a fit case where Constitutional jurisdiction could be exercised.
' In such view of the matter we are, inclined to direct as follows:
1. The agreed amount regarding which there is no dispute at the moment be paid to the petitioner.
2. For disputed amount to mechanism provided in the contract agreement be followed.
3. The work shall not be discontinued/ suspended without following the provisions contained in clause 55 of the contract.
4. In view of the serious apprehension of Project Director that petitioner may not complete the project after getting the amount in question could be met by obtaining surety in the manner as may be deemed fit and proper in accordance with contract agreement. The paramount consideration would, however, be the satisfaction of project director. In this regard reference can be made to clause 45 of the contract agreement.
5. The requisite certificate for the work done which is not disputed shall be issued without further loss of time.
6. The bid price packages Nos.1 and 2 shall remain within the agreed limits of Rs,6,14,33,439.58 and Rs,5,54,55,399.36 respectively and it shall have no bearing on the extra work done by the petitioner with the mutual consent of the respondents but total price shall not cross the limits of Rs,11,68,88,838.94 (excluding extra work).
' A copy of this order be sent to Additional Chief Secretary and Secretary Education with the direction to make every effort to remove all the bottle-necks and to see that project is completed within the stipulated period as it would being the interest of public and student community.
Petition allowed/