2001MLD18 (PLP)

(c) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Disputed question of fact‑‑ Respondent authorities cancelled the contract made in favour of the petitioner on the ground that goods to be supplied were not according to the specification‑‑‑Validity‑‑‑Where there was a disputed question of fact between the parties, High Court had no jurisdiction to resolve such question in Constitutional jurisdiction. Muhammad Younis's case 1993 SCMR 618 rel. Rana Sardar Ali Khan for Petitioner. Brief facts out of which the present writ petition arises are that the respondent advertised tender through Daily Nawa‑i‑Waqat dated 25‑4‑2000 for the supply of 100 steel almirahs Petitioner had also submitted his tender in obedience of the advertisement made by the respondents. Petitioner's bid was accepted being lowest. The agreement was also executed between the petitioner and the respondent. Petitioner prepared steel Almariah in accordance with the specification and guage as advertised by the respondents in the tender and according to the terms and conditions settled between the petitioner and the respondent. The respondent visited the workshop of the petitioner off and on and found the almirahs prepared by the petitioner in accordance with the specification as is evident from Annexure attached with the writ petition. Subsequently, the committee of the respondent observed that the guage of almirahs was found to be correct but in weight was not in accordance with the specification. Petitioner was directed to complete the work as per specification alongwith the weight required for this type of almirahs vide letter dated 27‑7‑2000. Subsequently, without any justification the respondents cancelled the contract and security of the petitioner was also forfeited by the respondents. Petitioner challenged the aforesaid order of the respondent through this Constitutional petition. Learned counsel for the petitioner submits that in the original advertisement, the weight was not mentioned and the respondents did not inform the petitioner at the time of inspection that the almirahs were not prepared by the petitioner in accordance with the specification except letter dated 27‑7‑2000. The action of the respondent is without lawful authority.

2. Learned Legal Advisor of the respondents raised a preliminary objection that writ petition is not maintainable as the petitioner wants enforcement of the contract through a Constitutional jurisdiction.

3. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is admitted fact that petitioner wants enforcement of the contract through a Constitutional jurisdiction which is not permissible as per principle laid down by the Hon'ble Supreme Court in the following judgments: PLD 1958 SC 257 (Chanpur Mill Ltd.'s case) PLD 1962 SC 108 (M/s. Momin Motor Company's case) Petitioner and respondents executed a contract of their own sweet‑will Which contain Arbitration Clause 22 which is reproduced hereunder:‑‑ "In the event of any question or dispute arising under these conditions or in connection with this contract (except as to any matters the decision of which is specifically provided for in these conditions) the matter in dispute shall be referred to the decision of the sole Arbitrator who will be an officer serving in LDA to be nominated by the Purchaser. " The aforesaid clause clearly reveals that petitioner has alternative remedy to invoke the arbitration clause. Therefore, writ petition is not maintainable as per principle laid down by the Hon'ble Supreme Court in 1999 SCMR 121. (M/s. Murad Ali & Company's case). Even otherwise according to the petitioner's counsel, the petitioner prepared Almariahs in accordance with the specification whereas the stand of the Department is otherwise, as is evident from impugned order and letter dated 27‑7‑2000. This fact brings the case in the area of disputed questions of fact and this Court has no jurisdiction to, resolve the disputed questions of fact in a Constitutional jurisdiction as per principle laid down by the Hon'ble Supreme Court in Muhammad Younis's case 1993 SCMR

618. In view of what has been discussed above, this writ petition is not maintainable and the same is dismissed. Q.M.H./M.A.K./S‑89/L Petition dismissed.