CONSTITUTION PETITION.D-451 OF 2009

 

Applicant             :        Manzoor Ahmed Bahyo through        M/s    Bhajandass Tejwani and           Mr.Manoj Kumar Tejwani

 

Respondents         :        Government of Sindh and Others,                                                       through Mr.Liaquat Ali Shar,                                                            Additional Advocate General

 

Date of Hearing   :        18.09.2012

Date of Decision   :        18.09.2012

Present before       :        Mr.Justice Ahmed Ali M. Shaikh                                                         and Mr.Justice Salahuddin                                                                Panhwar--JJ

 

 

O R D E R

 

SALAHUDDIN PAHWAR---J., Petitioner has invoked constitutional jurisdiction of this Court and prayed as under:-

 

a)      To declare the act of the respondents, dropping the running and pending scheme of road from Wasti Qutubdin Shah from village Drigh Chachar of District Ghotki is illegal, mala fide and without any lawful authority.

 

b)      To direct the respondents to assist the work carried out by the petitioner on site by recording MBs etc., prepare pass bill and make payment of the same without loss of time.

 

c)       To direct the respondents to make payment of damages on account of closure of the above running scheme to the tune of Rs.1 (M).

 

d)      For payment of 15% per annum as markup from the date of dropping the scheme till payment is made to the petitioner.

 

 

2.       Relevant facts, set out in the petition are that petitioner, being contractor, was awarded contract for construction work of road from Wasti Qutubuddin Shah to Village Drigh Chachar, District Ghotki; According to work order the petitioner was assigned to  complete the construction of road within a period of six months; the petitioner deployed labour machinery and other all arrangements; work was in full progress; completed up to 35%; subsequently petitioner was informed that whole scheme has been dropped by the competent authorities; petitioner applied for the payment for which he completed the work at the site but his demand was not considered by the authorities.

 

3.       Comments filed by respondent No.2 and 3, stating therein, that petitioner failed to complete the work within the stipulated time; petitioner was awarded   contract on 24.10.2007, which was required to be completed within six months i.e. 24.02.2008 and dropping of those works schemes, which could not be completed was proposed during February 2009; petitioner has not carried out any work at the site, therefore, petitioner is not entitled for any payment including damages; contractual obligation cannot be enforced in writ jurisdiction.

 

4.       Learned counsel for the respective parties have reiterated their pleadings and learned counsel of petitioner has also relied upon un-reported judgment of honourable Supreme court in civil petitions no. 853- k to 857 of 2001, (Government of Sindh through secretary irrigation versus Jehan Ali, Fida Hussain, Manzoor Hussain, Mir Muhammad,and Abdul Razak), by that  common judgment five petitions were decided.

 

5.       Heard counsels and perused the record.

 

6.       We have examined the unreported Judgment in case of Government of Sindh (supra); it will be conducive for understanding to reproduce the relevant paragraph No.5 of Judgment:--

 

“We do not find substance in the said contention. The claims of the respondents were admitted by the petitioners before the learned Ombudsman and the learned High Court, therefore the High Court was quite within the jurisdiction to issue the directions in law and equity in the circumstances of cases. The learned High Court in last two paras has observed as under:-

 

“It is shocking to note that the payment has not been made even though the order was passed more than two years ago. The ground of non-availability of funds to make payment does not appeal to reason because it is not possible to believe that the employees of the Irrigation Department including respondents 1 to 4 have been working without receiving any salary from the Government of Sindh. The ground given for delay is not reasonable and is rejected. However, in the interest of justice and as a matter of grace three months’ time is allowed to pay the petitioners claim. The respondents shall also pay compensation/Liquidated damages for delay in payment at the rate of 15% per annum from 1.7.2001 till the date of payment.

 

The respondents are put on notice that if they do not pay the amount within the period specified above, their conduct shall be treated as contempt of Court and they shall be dealt with accordingly”

 

7. According to this dictum, it is manifest that claim of petitioners   was admitted by the respondents, and that matter was related to the salary of employees of irrigation department, but  in the instant petition, factual  and legal position is entirely different; nowhere respondents have admitted the claim of petitioner hence the very judgment, referred by learned counsel for petitioner is not of any help for petitioner. Further, it is evident that  petitioners claim relates to the contractual obligation, thus, whether the petitioner completed the work in accordance with terms and conditions of the contract or not, such controversy cannot be resolved in this writ petition as recording of evidence is necessary to resolve the same. The unpaid amount for the work carried out by the petitioner, can be proved, through evidence in ordinary Court, having jurisdiction, because if the amount was ascertained and was admitted by the respondent in that eventuality this Court could exercise its discretion in favour of the petitioner. Not only the claim of the petitioner but also the work, claimed to be done by petitioner is disputed, therefore, such controversy is factual and can’t be resolved in the writ jurisdiction. Moreover, the grievance of petitioner pertains to the contractual obligation, and it is settled proposition of law that contractual obligations cannot be enforced through the writ petition; reliance can be placed on the case of PAK.COM LTD. VS. Federation of Pakistan reported in PLD Supreme Court 544, it is held:--

“It seems proper here at this juncture to mention that the contractual rights, commitments undertakings and obligations have to be enforced through Courts of ordinary jurisdiction, which should not be interfered by the High Court while exercising its constitutional jurisdiction especially in those matter arising out of a contractual obligations.

 

In another case of Nizamuddin and others versus Civil Aviation and 2 others, reported in 1999 SCMR 467, it is held:-

 

                       “if in a particular case both the parties admit the factual aspect which give rise to the dispute and the court feels that matter  of such an urgent nature that the every 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 an 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 can not 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 obligations or a dispute which can be redressed through other remedy available under the law. Writ petitions are entertained, then this would defeat that every purpose of law and which competent court are established, and vested with jurisdiction under the law”.

 

8.       As discussed above, prima facie, claim of the petitioner falls within the ambit of factual controversy, which cannot be resolved in constitutional jurisdiction, besides this, the claim of the Petition is based on a “Contractual obligation” and it is also settled proposition of law, lays down, by the dicta of honourable Supreme Court, that contractual obligations, cannot be enforced through writ jurisdiction. Consequently, petition is hereby dismissed. However, petitioner has alternative remedy to approach the Civil Court, which is the competent forum to examine the record and give its findings on the merits, and according to Law.

 

9.       The petition was dismissed by short order dated 18.09.2012; these are the reason for the same.

 

J U D G E

 

J U D G E

 

Brohi