2021 PLP 736 (YLR)

WIQAR AHMAD, J.

Petitioners have filed the instant constitutional petition after feeling aggrieved from denial of respondents in paying them the escalation amount.

2. Respondent No. 5 i.e. Deputy Director Works and Services Department Dir Lower at Timergara had invited tenders for a number of projects through a consolidated adverlisement published in daily newspaper on 13.03.2007. Contract for one of the work i.e. improvement and black topping of Asbarn Bambolai Road three (03) kilometers in length had been given to an association of persons formed by petitioners and known as "Messrs Shah & Company". The estimated period for completion of work was 18 months after getting work order. Work order was issued to petitioners on 11.05.2007. Petitioners accordingly started work but could not complete the same within the given time of 18 months. Work was completed by petitioners on 06.05.2010. Petitioners have been claiming escalation according to Notification No. SOG/W&S/ 11-129/2005 dated 30th June, 2005 of the Works and Services Department, Government of Khyber Pakhtunkhwa.

3. Respondents have taken a number of defences to the writ petition, but on merits their case is stated in Para 7 of their comments, which is reproduced hereunder for ready reference; "Incorrect; the contractor did not complete the work within stipulated period of Eighteen Months without any cogent reason. The work was commenced on 12.05.2007 and was required to be completed before 12.11.2008 (18 Months after the commencement date), but instead of this, the contractor completed the work on 06.05.2010 (measurement date of the final Bill) (Annexure -B) as a result 1-year, 5-Months and 24-days of time extension involved. Furthermore the contractor did not apply for grant of time extension, as per Clause-5 of contract agreement.

4. Learned counsel for petitioners stated during the course of his arguments that delay had occurred in completion of the project but for no fault on part of the petitioners. He added that operation "Rah-e-Rast" was being carried in the area of Dir during the period of contract and it was due to militancy and turbulence in the area that the project could not be completed in time. He added that when similarly placed other contractors have been getting escalation as per Notification No. SOG/W&S/11-129/2005 dated 30th June 2005 of the Works and Services Department, Government of Khyber Pakhtunkhwa, then petitioners could not be deprived of such a benefit. He placed reliance on judgments reported as 1986 SCMR 1096, 1998 SCMR 2268, 2005 SCMR 678 and PLD 2010 Lahore 404.

5. Learned Astt: A.G. appearing on behalf of respondents raised a preliminary objection that arbitration clause was provided in the agreement, therefore the instant writ petition was not maintainable. In support thereof, he placed reliance on judgments reported as 1999 SCMR 121, 2000 PTD 478 (Lahore), 2001 MLD 18 (Lahore) and 2013 CLC (Peshawar) (sic). Learned Astt: A.G also disputed the claim of escalation and contended that it had been on much higher side, while the petitioners had not been entitled to any reimbursement on account of escalation of costs.

6. We have heard arguments of learned counsel for petitioners, learned Astt: A.G for respondents and perused the record.

7. Perusal of record reveals that petitioners have claimed escalation on the basis of Notification No. SOG/W&S/11-129/2005 dated 30th June 2005, which had been issued for adding Clause-5A (Escalation/De-escalation) in the Standard Contract Agreement for procurement of work. Para 7 of Clause-5A added vide the above-mentioned Notification is also relevant for the present case, which is reproduced hereunder for ready reference; "No escalation shall be allowed to the contractor in respect of the period extended for completion of the work due to his own fault." Similarly, Clause (v) of the contract provided for a clause relating to extension of time which required that if the contractor desired extension of time for completion of work on the ground of his having been unavoidably hindered in its execution or any other grounds he shall apply in writing to the Divisional Officer within 30 days of the date of hindrance on account of which the extension is desired. Contractor i.e. petitioners had not been granted any extension according to clause (v) of the contract. Learned counsel for petitioners was asked whether petitioners have ever applied for such an extension, he first submitted that due to militancy respondents had abandoned their offices and they had not been available there, but on second date, to which hearing of the case had been adjourned on his request, he produced some applications claiming that it had been filed before respondents. Said applications have never been annexed with the instant writ petition, respondents have not been able to respond to same and its production at much belated stage makes it totally unreliable for this Court. Respondents have stated in Para 7 of their comments that petitioners had never applied for grant of extension in time, but petitioners have neither chosen to file a rejoinder thereto at any stage, nor have they filed an application for placing on record the documents they are relying on. In such circumstances, we can safely say that extension for time has neither been applied, nor granted in the case in hand. Had extension been granted for completion of the work, then the justification for its delay may have been claimed to be not on part of the petitioners. When the contractors have not been granted any extension of time, then it is difficult for this Court to determine as to whether or not it has been fault of the petitioners that the work could not be completed in the given time. Even otherwise, determination of this question requires a factual inquiry which is beyond the scope of adjudication in constitutional jurisdiction. Hon'ble Apex Court in the case of "Ahmad Developers v. Muhammad Saleh" reported as "2010 SCMR 1057" has held as follows; "Contest on factual controversy could only have been determined through a civil suit and not in constitutional jurisdiction before High Court. Such plea of private respondent was repelled in circumstances. Leave to appeal was declined." In support of said ratio further reliance may also be placed on judgments in the case of "Suo Motu case No. 13 of 2007" reported as "PLD 2009 Supreme Court 217" and the case of "Sardar Naseer Ahmad Mooiani v. Chief Executive/Chief Secretary Government of Baluchistan Quettta" reported as "2007 SCMR 105".

8. For resolution of any dispute, in the case in hand, an arbitration clause had also existed in terms and conditions of the contract. Clause-25 of the contract provided a complete mechanism for dispute resolution, but said clause had never been resorted to by the petitioners in the present case. Hon'ble Supreme Court of Pakistan in its judgment given in the case of "Akcom Limited and others v. Federation of Pakistan and others" reported as PLD 2011 Supreme Court 44 has held, in this respect; "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 with by the High Court while exercising its Constitutional jurisdiction especially in those matters arising out of a contractual obligations. (Millat Tractors E.T. v. Govt. of Pak (PLD 1992 Lah. 68), Ahmad Hassan v. Pakistan Machine Tools Factory (1990 CLC 2007)) Sufi Muhammad Ramzan v. Secretary, Local Government and Rural Development Department, Punjab, Lahore (PLD 1987 Lah. 262), Pakistan Mineral Development Corporation Ltd. v. Pak. WAPDA (PLD 1986 Quetta 181). In such like eventualities the normal remedy to law being a suit for enforcement of contractual rights and obligations would be availed instead of invocation of Article 199 of the Constitution merely for the purpose of enforcing contractual obligations." Similarly in the case of "Project Director, Balochistan Minor Irrigation and Agricultural Development Project Quetta Cantt: v. Merrs Murad Ali and Company" reported as 1999 SCMR 121, Hon'ble Apex Court had also expressed the following opinion; "In the circumstances taken note of by us, the answer to question whether the alleged undertaking by the contractor did make the original dispute in respect of the claim of the appellant to remain covered by arbitration clause and it did not constitute a sufficient cause within the meaning of subsection (4) of section 20 of Arbitration Act for the Civil Judge to refuse to make a reference to the arbitration is in the affirmative. It was clearly a matter within the jurisdiction of the arbitrators. They being the Judges both of fact and law can adjudicate upon the mixed question of law and fact as to whether the said undertaking was or was not pertaining to the claims pressed into service by the Contractor. This job could not be performed by the learned Civil Judge as the question of undertaking did not fall within the four conditions laid down in para. 14 (ante) of this judgment nor did it constitute a sufficient cause within the meaning of subsection (4) of section 20 of the Act to decline the request made in the application. In view of the above, the learned Senior Civil Judge clearly erred in not referring the dispute to the arbitration. The learned Judge in the High Court in the factual background explained above, was, therefore, justified to have set aside the order of the learned Senior Civil Judge and remanded the case to her for appointment of the arbitrators and referring the dispute for their resolution under clause (67) of the Contract Agreement.

9. In light of what has been discussed above, the petition in hand was found to be meritless as well as non-maintainable and same is accordingly dismissed. KMZ/381/P Petition dismissed.