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
“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
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