2001 PLP 1850 (CLC)

MUHAMMAD MOOSA K. LEGHARI, J.‑‑‑ Through this petition the petitioner has prayed for directing the respondents Nos. 1 and 2 to appoint an impartial Superintending Engineer as Arbitrator to decide the matter impartially and judiciously and pay the outstanding amount to the petitioner as found due by the Chief Engineer.

2. The facts as narrated in the petition are that respondent No.4 invited tenders for the work of restoration of Stone‑Pron of Right Guide Bank Guddu Barrage from R.D.‑4550 to 4700. The tender of the petitioner was accepted. The total amount payable for the entire work was Rs.35,60,555 (Rupees thirty‑five lacs sixty thousand five hundred fifty‑five only). It has been stated that by 31‑5‑1994 the petitioner finished 89% work as admitted in the letter of Chief Engineer, Guddu Barrage dated 4‑12‑1996. In spite of the fact that most of the work was finished, the petitioner was paid only a sum of Rs.15,54,

956. The petitioner demanded remaining balance but his request was not heeded to. It has further been stated that according to the terms of agreement between the parties, in case of occurrence of any dispute between the parties it was to be referred to the Superintending Engineer who was to decide the matter as Arbitrator. On 4‑12‑1996, the Chief Engineer, Guddu Barrage wrote to Superintending Engineer for deciding the dispute but the same was not decided in a judicious and fair manner. Hence this petition.

3. Parawise comments were called from respondents and in pursuance of the notice the respondent No.4 filed the parawise comments. In parawise comments the assertion with regard to completion of 89% work was denied. It was further mentioned in the comments that the time allowed for the completion of work was 90 days from the date of issue of the work order which was issued to the petitioner on 26‑2‑1994,and the date stipulated for completion of work was 28‑5‑1994. It has further been stated that because of non‑completion of work within stipulated time the petitioner had to be issued a notice by the Executive Engineer, Guddu Barrage Division which was also placed on record. The claim of the petitioner was not admitted and was vehemently disputed. It war, also disputed that the petitioner was paid only an amount of Rs.1,55,

956. It was further stated that the petitioner has abandoned the work and had become the defaulter thus, the fact was reported by the Executive Engineer to the higher authorities for inclusion of his name in the list of defaulter contractors.

4. We have heard Mr. Abdul Ghafoor Bhurgari learned counsel appearing for the petitioner and Mr. Muhammad Bachal Tonyo learned Additional Advocate‑General for official respondents.

5. Learned counsel for the petitioner has contended that there was dispute between the parties and according to the terms of the agreement dispute was required to be referred for arbitration to the Superintending Engineer which was not done and, therefore, he was deprived of the amount for the work done. He has further contended that since there is arbitration clause in the agreement between the parties, therefore, the jurisdiction of Civil Court was barred hence the Constitutional petition was maintainable as the petitioner has no alternate remedy.

6. This position has been vehemently controverted by learned Additional Advocate‑General who has argued that the disputed questions of fact cannot be resolved in a Constitutional petition.

7. We have perused the contents of the petition as well as the parawise comments filed on behalf of the respondents. We have also examined the documents produced by the parties. Admittedly the petitioner was Contractor and was awarded a contract for performing certain work. According to the petitioner he has performed substantial work and has, in return been paid lesser amount than the actual work which he has performed. This fact has been seriously controverted in the parawise comments filed by the respondents. It is the case of the petitioner that there is agreement between the parties which contains arbitration clause as such the matter can be referred to arbitration.

8. From the contentions raised by the parties, it is crystal clear that the petitioner, through this petition intends to enforce contractual obligations and to invoke the jurisdiction of this Court to enter into arid resolve factual controversy which is beyond the scope of Article 199 of the Constitution.

9. Under the provisions of Article 199 of the Constitution, this Court is competent to issue directions to the persons or authorities performing their functions in connection with the affairs of the Federation or the Province on the application of an aggrieved party. However, it is well‑settled that the rights exclusively founded on the basis of contract, howsoever, clear those may be are not enforceable by invoking the Constitutional jurisdiction of this Court. In support of the above view, following authorities of the Honourable Supreme Court can be relied upon:‑‑ State of Pakistan v. Miraj PLD 1959 SC (Pak.) 147, Chandpur Mills Ltd. v. District Magistrate PLD 1958 SC (Pak.) 267 and Momin Motor Company v. Regional Transport Authority PLD 1962 SC 108.

10. It is also settled law and consistent view of the Honourable Supreme Court that in cases where factual controversies are involved Constitutional petition in the High Court is not the proper remedy. Reference case can made the following authorities:‑‑ Muhammad Younis Khan and 12 others v. Government of N.‑W.F.P. 1993 SCMR 618, Federation of Pakistan and 2 others v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476, Bendict F.D. Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918, Khawaja Muhammad Akhtar v. President Cantonment Board, Sialkot Cantt./Election Authority (Tribunal) and another 1981 SCMR 291, Ghulam Muhammad and another v. Mst. Noor Bibi and 5 others 1980 SCMR 933 and Dr. M.A. Haseeb Khan and others v. Sikandar Shaheen and 9 others PLD 1980 SC 139.

11. In the case of Revenue Employees Cooperative Housing Society Limited and 8 others v. Mst. Bachoo and others reported in 2001 SCMR (

55. Honourable apex Court was pleased to hold that disputed question of fact should not have been decided by the High Court.

12. The petitioner himself admits that there is an arbitration clause and the matter can be resolved by way of initiating arbitration proceedings. Needless to emphasize that issuance of any direction under Constitutional Jurisdiction is discretionary with the Court and this discretion has to be exercised with extra care and caution.

13. For the above reasons we are of the considered view that the Constitutional petition is not maintainable which is accordingly dismissed in limine. These are the reasons for the short order, dated 3‑5‑2001. M.B.A./A‑151/K Petition dismissed.