' Brief facts out of which present writ petition arises are that the petitioner participated in the bid for lifting 11000 tons of coal from Padhraar Coal Project for the period from 1-4-2001 to 30-11-2001. The petitioner's bid was highest which was accepted by the respondents and agreement was also executed between the petitioner and the respondents. The petitioner deposited requisite amount to the respondents in terms of auction notice and rules of the respondents. The petitioner had to lift average of 55 tons of coal daily till 30-11-2001. The petitioner could not lift coal in terms of the agreement. The petitioner informed the respondents that he could not be able to complete the work within prescribed period due to circumstances beyond control of the petitioner. The respondents accepted the request of the petitioner and revised schedule also agreed between the petitioner and the respondents. According to the terms of revised schedule, the petitioner had to lift the minimum 80 tons of coal per day or 500 tons per week as is evident from Annexure-B attached with the writ petition. The petitioner had started to lift the coal on 1-6-2001 and the petitioner had lifted total 1334 tons of coal till 21-6-2001. The Site Engineer restrained the petitioner to lift coal. The respondent No,3 sent notice to the petitioner on 12-6-2001 that the petitioner failed to lift coal as per revised schedule dated 31-5-2001 and threatened the cancellation of agreement. The petitioner being aggrieved challenged the vires of the notice before Civil Court at Jauharabad. The respondents filed an application before the Civil Court under Order VII, Rule 11, C.P.C., which was accepted and plaint was rejected by the Senior Civil Judge, Jauharabad vide order, dated 11-7- 2001. The petitioner being aggrieved, filed an appeal against the said order before the learned District Judge, Khushab which is pending adjudication. The petitioner approached the Higher Authorities of the respondent who directed respondent No,4 to allow the petitioner to lift coal in view of revised schedule dated 31-5-2001, but the respondent No,4 did not allow the petitioner to lift the coal in question. The petitioner being aggrieved, filed representation before respondent No,2, who refused to entertain the representation of the petitioner. Respondent No,4 cancelled the contract of the petitioner vide order, dated 12-7-2001. The petitioner being aggrieved filed this writ petition.
2. Learned counsel of the petitioner submits that respondent No,4 had cancelled the contract and forfeited the security of the petitioner with mala fide. He further submits that the petitioner is penalized by inaction of respondent No,4 who did not allow him to complete his work within prescribed period in the terms of revised schedule dated 31-5-2001. The petitioner had invested a huge amount for the development of the project but respondent No,4 with ulterior motive did not allow him to finalize the work within prescribed period. He further submits that action of the respondent is without lawful authority. He further urged that the respondents are duty hound to act in accordance with law without fear, favour and nepotism. It is the basic and fundamental duty cast upon the respondents to act fairly and justly. The action of the respondents is in violation of fundamental right of the petitioner and also in violation of the injunction of Islam. The action of the respondents is not in accordance with law laid down by the superior Courts. In support of his contention, he relied upon 1998 CLC 1178 (Messrs Wak Orient Power - and Light Ltd. Through. Chief Executive v. Government of Pakistan. Ministry of Water and Power through Secretary. Islamabad and 2 others).
3. I have given my anxious consideration to the contention of the learned counsel of the petitioner and perused the record myself.
4. It is admitted fact that the petitioner executed an agreement with the respondents A of his own free-will which contains arbitration clauses, therefore, the writ petition is not maintainable as per principle laid down by the Hon'ble Supreme Court in the following judgments:-- "1994 SCMR 1884" (Ali Sher alias Ajab Ali v. The State).
"1999 SCMR 121" (Project Director, Balochistan Minor Irrigation and Agricultural Development Project, Quetta Cantt. v. Messrs Murad Ali &c. Company).
"1999 SCMR 117" (Mumtaz Ahmed v. Zila Council, Sahiwal).
' On the basis of law laid down by the Hon'ble Supreme Court, in the presence of arbitration clause in the agreement executed between the parties, the writ petition is not maintainable. The writ petition is also not maintainable on the well-known principle of approbate and rerobate.
5. I am fortified by the judgment of FIon'ble Supreme Court in PLD 1971 SC 376 in Ghulam Rasool's case. It is also settled law that contract cannot be enforced through Constitutional jurisdiction as the petitioner has alternative remedy either to file a civil suit or invoke the arbitration clause or appeal under the rules before competent authority as mentioned above.
6. 1 am fortified by the following judgments:- "PLD 1986 Quetta 181" (Pakistan Mineral Development Corporation Ltd. v. Pakistan Water and Power Development Authority and 2 others).
"PLD 1958 SC 267" (The Chandpur Mills Ltd. v. The District Magistrate, Tippera and others).
"PLD 1962 SC 108" (Messrs Momin Motor Company v. Regional Transport Authority, Dacca).
"1994 SCMR 2287" (Muhammad Mumtaz Masud and 2 others v. House Building Finance Corporation and 2 others).
7. The Full Bench of this Court has considered this proposition of law in 1998 CLC 1178 (Messrs Wak Orient Power and Light Ltd. v. Government of Pakistan, Ministry of Water and Power and 2 others).
The relevant observation is as follows:-- "We find that Supreme Court of Pakistan has in a later judgment, i,e, Majlis-e-Intizamia, v. Ghulam Muhammad Abid (PLD 1975 SC 355) upheld the view of the High Court that person whose lease was illegally cancelled by the Government could competently invoke writ jurisdiction. We respectfully follow this law. As regards the presence of arbitration clause in the agreement, suffice it to say proceedings were likely to take long time to conclude and in the circumstances of the present case, particularly so when the facts are not seriously disputed, we consider that remedy of writ is more efficacious and speedy and the petitioner cannot be denied due relief on the ground of availability of forum of 'arbitration. We may, with profound respect, refer to the - case of Muhammad Ashraf Ali 1986 SCMR 1096), wherein their lordships of Supreme Court have ruled that jurisdiction of High Court to intervene under Article 199 in a contractual matter between a private person and statutory functionary like the provisions of arbitration clause in the contract.
' In the present case, the petitioner does not seek enforcement of the terms and conditions of the contract but assert its rights against the action of the State which is termed to be unlawful. The breach of contract complained of on the part of the State can be said to be breach of statutory obligation, and therefore, preset writ petition is held to be maintainable. The objection raised in this behalf is overruled."
8. In case contents of writ petition and impugned order for cancellation are put in juxta position, then it brings the ease of the petitioner in the area of disputed question of facts. This Court has no jurisdiction to resolve the disputed question of facts in Constitutional jurisdiction as per principle laid down by the Hon'ble Supreme Court in Muhammad Younis's case (1993 SCMR 618). In view of these circumstances, present case is distinguished on facts and law from the cited Full Bench judgment of this Court in "1998 CLC 1178" (Messrs Wak Orient Power and Light Ltd. Through Chief Executive v. Government of Pakistan, Ministry of Water and Power through Secretary, Islamabad and 2 others). It is pertinent to mention here that no roaming enquiry can be conducted in this behalf while deciding Constitutional petition or evidence can be collected to determine the real controversy between the parties with regard to the disputed question of facts considering this fact of the case, coupled with facts that the petitioner did not bring on record sufficient material to show that the respondents have taken action against the petitioner with ulterior motive or mala fide. It is settled principle of law that general allegation of mala fide is not sustainable in the eyes of law as per principle laid down by the Hon'ble Supreme Court in PLD 1974 SC 151 in Saeed Ahmad and others' case.
9. In this view of the matter, I am of the view that the dispute between the parties can better be resolved through an Arbitrator. The petitioner himself executed a contract with respondent which contained arbitration clause 25. As mentioned above, the petitioner has alternative remedy under the provisions of law and rules framed therein, therefore, the writ petition is not maintainable as per principle laid down by the Hon'ble Supreme Court in 1999 SCMR 117 in Mumtaz Ahmad's case. Same view was also taken by the Hon'ble Supreme Court in "1994 SCMR 1484" (Raja Muhammad Ramzan and 21 others v. Union Council, Bajnial and another). It is also an admitted fact that the respondents issued notice to the petitioner for cancellation of agreement before the order was passed by the respondent. The petitioner being aggrieved filed a civil suit before the Senior Civil Judge, Jauharabad, who dismissed the same, therefore, the petitioner has preferred an appeal before the learned District Judge, Khushab against the said order, which is pending adjudication. The cancellation order is based on the said notice meaning thereby the controversy with regard to the initiating proceedings against the petitioner is pending adjudication before the learned District Judge, Khushab. In this view of the matter, the writ petition is not maintainable as per principle laid down by the Hon'ble Supreme Court in case "Ch. Tanbir Ahmad Siddiky v. The Province of East Pa an and others" (PLD 1968 SC 185). It is pertinent to mention here that the petitioner failed to complete the work within prescribed period and the respondents on the request of the petitioner, extended period by issuing revised schedule on 31-5-2001: The petitioner failed to complete the work within extended period. This fact brings the case of the petitioner that the petitioner does not approach this Court with clean hand. It is settled principle of law that he who seeks equity must come with clean hands. Since the petitioner does not approach this Court with clean hands. In view of aforesaid circumstances, I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Hon'ble Supreme Court in case "Nawab Syed Raunaq Ali v. Chief Settlement Commissioner" (PLD 1973 SC 236). It appears that the respondents acted in good faith and did not act against the petitioner with ulterior motive as the respondents extended the period for execution of work ly, issuance of revised schedule on 31-5-2001.
10. In this view of the matter, the writ petition is not maintainable as per principle laid down by this Court in PLD 1981 Lahore 371 (Saeed Nawaz v. Board of Intermediate and Secondary Education, Lahore and another).
' For what has been discussed above, this writ petition has no merits and the same is dismissed