ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
C.P. No.D-394 of 2018
Petitioner : Jaggan Khan
Through Mr. Mehfooz
Ahmed Awan, Advocate
Respondent : Through
Mr. Nisar Ali Shah advocate
holding brief for Syed Ghulam Shabbir Shah,
advocate
F.O. Pakistan : Through
Date of hearing : 16.07.2020
Date of Order : 16.07.2020
*************
O R D E R
ADNAN-UL-KARIM
MEMON, J: Through
this petition, the petitioner is seeking direction to the respondents to make
payment of the work done by him i.e. construction of 2D, 4E type quarters,
external water supply, sewerage system, underground tank, over hand tank,
septic tank, collecting tank, bituminous road, gird cabin etc. at 132KV Grid
Station Tharu Shah.
2. We directed him to satisfy this court with
regard to maintainability of the instant petition in view of disputed question
of fact; he replied the query and argued that this petition may be disposed of
in terms of admission of the official respondents.
3. We have heard learned counsel for the
petitioner and perused the material available on record.
4.
Before adjudicating upon the merits of the petition, the question involved in
the matter in hand is whether any contractual dispute can be resolved through
mechanism provided under Article 199 of the Constitution of Islamic Republic of
Pakistan. Our deep concern is on the maintainability of the instant petition.
5. In the light of
above averments, the petitioner in his petition has attempted to show that
there was a genuine claim of the petitioner regarding contractual obligation
which the government was bound to pay to him.
6. Now the question before us is as to whether
in the present proceedings
we can enlarge the scope of Article 199 of the constitution and dilate upon the
alleged contractual obligation in the proceedings.
7. The dispute between the parties is with
regard to certain financial liability mentioned in the contract and without
recording the evidence of the parties; it is not possible for this Court to
ascertain the fact of actual amount or variation of the amount or any amount at
all. It is also a settled principle of law that contractual obligation cannot
be enforced through writ petition as it is the mandate of the ordinary
jurisdiction to interfere in the contents, variations and applicability of
terms & conditions of the contract. 8.
In view of above discussion, prima facie, claim of the petitioner which
calls for enforcement of contractual obligation is not proceedable,
or amenable to the constitutional jurisdiction. We are fortified with the
decision rendered by the Honorable Supreme Court in the case of Nizam-ud-Din and another. Vs.
Civil Aviation Authority and 2- others
(1999 SCMR 467),
On the strength of above cited dictum, we are of the considered view that writ
jurisdiction under Article 199 of the Constitution of Islamic Republic of
Pakistan is not meant for dispute relating to terms and conditions of contract.
We are of the considered view that if the contract between the private party
and the government functionary is under realm of a private law and there is no
element of public law, the normal course for the aggrieved party is to invoke
the remedies provided under ordinary civil law rather than approaching this
Court under Article 199 of the Constitution and invoking its extra-ordinary
jurisdiction. It is well settled now that if an order passed by this Court which is against the basic spirit of the judgment of the Honorable
Supreme Court, the same cannot be enforced under Article 199 of the
Constitution. This Court cannot direct the respondents to pay the contractual
liabilities to the petitioner.
9. In view of the above facts and circumstances
of the case and for the reasons as discussed above, we are satisfied no case
for indulgence of this Court is made out. Thus we are not minded to proceed
further on the instant petition having no merits. Accordingly the same is
dismissed along with pending application(s) with no order as to costs.
JUDGE
JUDGE