SARDAR MUHAMMAD NAWAZ KHAN, Through this Constitutional petition, the petitioner seeks direction in shape of writ of mandamus against respondents to issue necessary taking over certificate with effect from 23.10.2001 and release of guarantees executed by the petitioner alongwith return of retention money. He also requested to restrain respondents from encashment of entire amount of the guarantee and in case the instrument of encashment in favour of the respondents' the concerned has been completed the instrument of encashment may also be set aside.
2. The brief facts as narrated in the petition are that a contract agreement was executed on 22nd January, 1998 between the petitioner and AJ&K Hydro-Electric Board. The petitioner executed performance guarantee amounting to Rs. 24.2 million and kept the retention money with respondent No. 1 amounting Rs. 24.2 million which could only be released upon successful completion of work as per contract. The petitioner has completed construction work in accordance with the period specified in the contract and the specification under the supervision of NESPAK.
After completion a meeting was held at NESPAK house on June 4, 2001. The petitioner was asked to complete the remaining work pointed out by NESPAK and it was decided that immediately after completion of the said work, taking over certificate for the project required under clause 29.2 of conditions of contract part 1, was to be issued. The petitioner completed remaining work as specified by NESPAK and submitted an application to respondent No. 1 for issuance of required certificate. He also requested to release guarantee executed by him alongwith payment of retention money and all the outstanding bills. A meeting of Hydro-Electric Board was held on 27th June, 2001 under the Chairmanship of the Prime Minister of A&K who is the Chairman of the Hydro- Electric Board. In the aforesaid meeting, the matter with respect to issuance of taking over certificate in favour of petitioner was considered by Hydro-Electric Board as an Ex-Agenda item.
The Hydro- Electric Board through its decision resolved that the petitioner had completed the work and the concerned engineer had also issued certificate to this effect. It was further observed that Hydro-Electric Board was holding performance guarantee amounting to Rs. 24.2 million and retention money amounting to Rs. 24.2 million and the same could only be released subject to successful completion of work as per contract. The decision in the meeting also confirmed that in addition to the performance guarantee and retention money an additional guarantee was to be provided for the amount of balance work except those that do not affect the use of works. It was also confirmed through decision in the meeting that the petitioner had completed all formalities for issuance of taking over certificate with effect from 23.10.2001. Accordingly, it was decided in the meeting of the Board that taking over certificate was to be issued after compliance of necessary formalities. Despite the decision of the apex body of the Hydro-Electric Board, necessary taking over certificate was not issued in favour of petitioner and instead, the respondent No. 1 vide letter dated 17.11.2001 and 4.12.2001, placed a demand upon the Bank issuing the guarantees to encash the same in favour of the respondents. The petitioner has completed the project and handed over the same to the respondents. The respondents are operating the same and the project is in profit.
The respondents had earned billions of rupees in shape of revenue, yet they with mala fide intention failed to release the guarantees and repay the retention money apart from withholding issuance of necessary taking over certificate. The contract between the parties, after the decision of apex body of Hydro-Electric Board has come to an end.
3. The respondents through their written statement resisted the claim of the petitioner put- forwarded by him in the petition and apart from parawise reply certain preliminary objection were raised to the maintainability of the petition like jurisdiction of the Court on the ground of contractual liability, availability of alternate remedy under clause 43 of the contract and in- competence of writ petition on the ground of non-impleading of NESPAK being necessary party.
While denying the claim of the petitioner on factual side, it is submitted that the petitioner did not complete the assigned construction works in accordance with the period specified in the contract agreement. The petitioner failed to complete the execution of assigned works and left the site without completing the balance work pointed out by the engineer (NESPAK). The contractor (petitioner) clearly admitted that some works were remaining which he was required to execute as his contractual obligations. He has applied for taking over certificate without completing remaining works. The request of the petitioner was forwarded to NESPAK (Engineer) but it was turned-down.
The decision of board clearly suggested to say that Hydro-Electric Board was directed to take opinion from the engineer (M/s. NESPAK) and make sure that the pending works are completed however, neither the Engineer favoured issuance of taking over certificate nor the petitioner (contractor) furnished additional guarantees to complete the pending work as per contract agreement. Mobilization advance amounting to Rs. 29.135 million was paid to the petitioner as per clause 11 of notice of award against the advance payment guarantee. The amount of guarantee reduces in proportion to the progress of work done at site. The work done value is less than the originally anticipated amount now assessed by the engineer and the performance guarantee cannot be further reduced. Hence the encashment of remaining amount of Bank Guarantee was invoked to adjust the advance payment to the contractor (petitioner). Despite the operation of the works certain crucially important items are still pending which are affecting the performance of works. The contractor (petitioner) was time and again directed by the respondents and engineer (NESPAK) to complete remaining works but he failed to fulfil his obligations under the contract agreement.
4. The Learned counsel for the petitioner apart from reiteration of facts narrated in the petition responded to the preliminary objections on the opposite side about contractual liability, availability of alternate remedy and non-impleading of necessary party. While replying to the objection about contractual liability, he has maintained that he neither sought performance of contract nor its revocation rather he simply sought implementation of decision of apex body of Hydro- Electric Board taken in the meeting on 27.6.2001. To support his view, he relied upon 1998 SCM R 2268. As regards non-impleading of NESPAK as necessary party, he argued that he had nothing to do with NESPAK as it was for Hydro-Electric Board to issue necessary taking over certificate per agreement between the petitioner and Hydro-Electric Board during meeting in NESPAK house on 4.6.2001.
5. On the other hand, the Learned counsel for the opposite side also addressed the Court revolving around the objections raised in the written statement. During his arguments he relied upon 1998 SCR 70 and 1997 SCR 239.
6. Before arriving at a conclusion, it is felt appropriate to have a brief survey of the case-law cited at bar. In case M/s. Airport Support Services Vs. Airport Manager, Quaid-e- Azam International Airport, Karachi and others (1998 SCM R 2268) it was observed that routine contractual disputes between private parties and public functionaries are not open to scrutiny under the Constitutional jurisdiction however, breaches of such contracts which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by Government, semi-Government or Local Authorities or like controversies if involving some obligations, flowing from a statute, rules or instructions can adequately be addressed for relief under the Constitutional jurisdiction. It was further held by the Learned judges that 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 while exercising writ jurisdiction. This rule according to the Learned Judges is founded on the premise 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. Deviations, if of substance, can be corrected through appropriate order under the Constitutional jurisdiction. In such behalf even where a contract, pure and simple, 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.
In case Jawad Hussain Jafri Vs. Azad Govt, and others (1998 SCR 70) it was held that writ does not lie to enforce a contract.
In case Qazi Uaqat Ali Qureshi Vs. Hafiz Muhammad Ishaque and others (1997 SCR 239) it was observed that an effective writ could not be issued due to non-impleadment of a necessary party and this objection even have not raised by the aggrieved party, it could be gone by the Court suo motu.
7. The facts of the case in hand were tested on the touchstone of the criteria or principle laid down in the case- law cited by the parties and the following observation is made.
8. The, case of the petitioner as pleaded by his counsel is that he wants implementation of decision taken in the meeting of Hydro-Electric Board chaired by the Prime Minister on 27.6.2001. The decision taken in the aforesaid meeting reads as under:- "The Board directed HEB that after obtaining opinion from 'Engineer' M/s. NESPAK the taking over certificate be issued to the Contractor after obtaining necessary additional guarantees for the pending works to resolve the issue amicably."
9. The above-mentioned decision indicates that Hydro- Electric Board was directed to issue Taking over certificate after obtaining opinion from Engineer (M/s. NESPAK) and necessary additional guarantees from the petitioner to complete the pending works so as to resolve the disputes amicably, it is worth to mention here that under clause 29.2 of the contract agreement, it is the engineer (NESPAK) who is to issue taking over certificate and not Hydro-Electric Board. The decision taken in the meeting of Hydro-Electric Board or during meeting of the concerned parties in the NESPAK house on 4.6.2001 as disclosed in item-D of minutes of the meeting dated 4.6.2001 cannot be accepted as a clause or provision of the original contract especially when engineer (M/s. NESPAK) has raised objection to bring any additional protocol agreed by the petitioner and Hydro- Electric Board within the ambit of contract agreement. However, even if, it is accepted that the said decision or the agreement arrived at between the petitioner and Hydro-Electric Board is a part of original contract, it suggests certain pre-requisites like opinion from Engineer (NESPAK) furnishing of additional guarantees, schedule for completion of outstanding works, extended performance security and advance payment guarantee. So far as opinion from NESPAK is concerned it did not favour the request of the petitioner on the ground that remaining works were yet to be completed as disclosed in its letter Annexure A/l dated 6.11.2000. The direction given in the meeting of Hydro- Electric Board on 27.6.2001 to issue taking over certificate is qualified with the opinion of the engineer (NESPAK) therefore, unless opinion favourable to the petitioner from the engineer is obtained by the petitioner, Hydro-Electric Board cannot issue taking over certificate. Furthermore furnishing of additional guarantee etc. Is a controversial question of fact. Though the petitioner has claimed to fulfil ail formalities for issuance of taking over certificate and an affidavit is there but all the same a specific and not a general assertion is required in this respect when a fact is denied through the written statement, It is correct that a controversial question of fact can be resolved through an affidavit but it is only when the fact is specifically pleaded, stands supported by an affidavit and goes un-refuted through counter-affidavit. Here in this' case, the fact of furnishing additional guarantee etc. Has not been specifically pleaded in the memo, of writ petition and only a general assertion for fulfilling all formalities and an affidavit in support of it has been brought on file. The petitioner claims that on 27.6.2001, it was resolved in the meeting that he has completed the balance work and the engineer has also issued necessary certificate in this respect but despite the fact neither T.O.C. Is being issued nor guarantees etc. Are being encashed in his favour. The decision taken in the aforesaid meeting of the Board indicates nothing like that. It only shows that after taking opinion from engineer, T.O.C. Was to be issued and that too after furnishing additional guarantee to complete remaining work if disclosed by the engineer.
10. There is yet another aspect of the case. The petitioner's counsel's claim is that NESPAK (engineer) has not given its opinion for they have some dispute with Hydro- Electric Board and it is for the Hydro-Electric Board to settle its dispute with NESPK and issue taking over certificate after obtaining opinion from it. The respondents have placed a letter "Annexure-A/1" from NESPAK showing its reluctance to favour petitioner's request. Therefore, it is a controversial question of fact which could not be resolved through the writ petition. Moreover, as stated earlier, it is the engineer (NESPAK) who is to issue taking over certificate under clause 29.9 of contract agreement. However, even if it is accepted that per decision taken in the meeting of board under the Chairmanship of Prime Minister, Hydro-Electric Board is to issue the required certificate even then, availability of opinion of the engineer favourable to the petitioner is necessary, in both the eventualities M/s. Nespak (Engineer) is a necessary party in the writ petition so as to clarify as to why taking over certificate and opinion for issuance of the said certificate is withheld, It is well-settled principle of law that in absence of necessary party no writ petition is competent.
11. Dealing with the objection of the petitioner about the use of the project of the respondents, its operation, functioning and energization, it may be observed that under clause 29.3 of the contract agreement the project may be used by, Hydro-Electric Board in case when taking over certificate has not been issued due to any fault on behalf of contractor (petitioner). The operation and functioning of the project does not mean that all the works assigned to the petitioner (contractor) have been completed successfully and satisfactorily,. There is yet a remaining work which is critical to the functioning of the project successfully as pointed out by the engineer and unless it is completed to the satisfaction of the engineer, issuance of taking over certificate is not possible.
12. Another aspect of the case which cannot escape the attention of this Court is that clause 29.2 is a part of contract agreement as such issuance of taking over certificate after fulfilment of necessary formalities is a contractual liability. Here in this case, the respondents or for that matter NESPAK are refusing issuance of taking over certificate. This certainly is a dispute and a controversy between the parties, It can be resolved through arbitration under clause 30 of the contract agreement. The petitioner may ask for arbitration and his grievance may be redressed efficaciously through arbitration. When an alternate and adequate remedy is available to the petitioner, the extraordinary jurisdiction of this Court cannot be exercised.
13. The position which emerges out from the above discussion is that the petitioner claims to have completed the remaining work and a certificate to this extent by the engineer. There is nothing on record to support his contention. Neither it was resolved in the meeting dated 27.6.2001 that he has completed remaining work nor any certificate by the engineer has been issued in this connection.
Therefore, in absence of any material suggesting completion of remaining work or at least availability of additional guarantee to complete balance work, how a writ against respondents to issue T.O.C. Can be issued. The project under discussion is of national importance and any remaining work, as pointed out by NESPAK through Annex-A/1 may prove critical to the project and it may entail its ultimate failure.
14. The result is that in the light of what has been observed above the writ petition having no substance is hereby dismissed.