1990 PLP 2007 (CLC)

Syed Ansar Hussain for Petitioner. HA. Jafri for Respondent No.l. Date of hearing: 9th May, 1990. WAJIHUDDIN AHMED, J.‑‑‑The grievance of the petitioner is that a contract dated 28‑10‑1989, pertaining to the purchase and lifting of iron Chips (Scrap) Steel Shavings between himself and the respondent Pakistan Machine Tool Factory (Private) Ltd. (P.M.T.F.) was, from the outset, violated by the latter and; ultimately, cancelled. Constitutional jurisdiction of this Court has been invoked and the Government of Pakistan is cited as the second respondent in this petition as, according to Mr. Ansar Hussain, respondent Pakistan Machine Tool Factory (Private) Ltd. was a taken over Enterprise under the Economic Reforms Order (I of 1972), and Article 3 of such Order overrides all other laws, or anything to the contrary contained in any agreement, contract, memorandum of articles. 1t has further been urged that the respondent No‑1 currently, is functioning as a company under the State Engineering Corporation and, therefore, performing functions in relation to the affairs of the Federation, thereby rendering itself amenable to the jurisdiction under Article 199 of the Constitution of Pakistan. At the outset, we had issued pre‑admission notice to the respondent No.l and that respondent has submitted comments in response, which are on record. The factual position, which is not entirely free from controversy, as is now available on the record, is that the petitioner had contracted, with P.M.T.F. to purchase and lift Steel Shavings/Chips (Scrap) on "as is where is" basis, of an unspecified quantity, as be available upto June 30,1990, the price being Rs.4,711 per metric tonne Ex. P.M.T.F. The petitioner deposited a sum of Rs.200,000 as earnest money, which was converted into security deposit to be refunded on successful completion of the contract or adjusted towards final payment. The lifting was to commence within a week from October 28, 1989 at a minimum pace of 2.00 metric tonnes per month. In case of petitioner's failure to fulfil his obligations, P.M.T.F. was entitled to cancel the contract and forfeit the security deposit or to sell the unlifted quantity, without notice, on the account and at the risk of the petitioner. Alternatively, the lifting period could be extended on such terms and conditions as P.M.T.F. may decide. The contract was not to be sublet, except with the permission in writing from P.M.T.F. In case of any dispute, the matter was to be referred to the Managing Director of P.M.T.F. whose decision was to be final and binding: It is alleged by the petitioner that he could not lift the Iron Chips due to want of machinery and that, on 28‑10‑1989, he made an application to the respondent No. 1 to allow the requisite lifting with the help of necessary machinery. According to the petitioner, no reply was rendered and the matter remained pending till 6‑3‑1990, when letter dated 21‑1‑1991) was received allowing the overdue permission. As such, it is urged that delay was caused by the respondent No.1 and that the refusal of the respondent to permit the petitioner to enter the scrap yard, after the petitioner on 10‑3‑1990 had purchased the cognate machinery, on the ground that the contract stood cancelled, constitutes improper exercise of power. The corresponding forfeiture of the security amount is also, likewise, termed mala tide and contrary to law. The respondent No.1, in reply, submits that under clause 5 of the Contract the petitioner was obliged to arrange for loading and transportation at his own cost and his subsequent request to bring in crushiing machinery in the P.M.T.F. scrapyard, being extraneous to the terms of the contract was first. Verbally, refused on 26‑11‑1989 but. thereafter, as a result of a meeting between the parties, was acceded to subject to conditions recorded in the respondent's letter dated 21‑1‑1990, which, inter alia, included payment of electric charges at commercial rates, provision for cable panel and energy meter for the machinery, crushing to be on tarpaulin (as cement floor was not available), nearest to each keep and such (work) to be carried out during the morning shift on working days only, and the petitioner to be alone responsible for any loss or damage to the machinery or to his staff. It is then said that the petitioner never maintained the minimum required lifting limit of 200 metric tonnes per month and was addressed advisory telegrams dated 10‑1‑1990, 12‑2‑1990 and 20‑2‑1990 and, finally, letter dated 14‑3‑1990. In the meantime, on 6‑3‑1990, when the petitioner alleges to have received letter dated 21‑1‑1990, he appointed one Haji Nisar Ahmad to obtain Steel Shavings/Chips upto 30‑6‑1990 and make corresponding deposits in that behalf. This was followed by the petitioner, on 14‑3‑1990, writing another letter countermanding the authority of the said Haji Nisar Ahmad and appointing one Mohammad Khalid. The first respondent thereupon reacted by informing the petitioner that such appeared to be a case of subletting, which was not permissible under the contract. This refusal is reflected in respondent's own letter dated 14‑3‑1990 wherein the petitioner was cautioned to ensure lifting of 250 metric tons, as agreed by him in his letter dated 6‑3‑1990 to be completed each month. The petitioner was warned that unless he improved his performance within one week such letter should be treated as final notice under the contract. The petitioner, according to the respondent No.1, failed to relent and, accordingly, through letter dated 8‑4‑1990. was informed that clause 8 of the Contract was applied to his case. The respondent P.M.T.F. has expressly denied that the petitioner was refused entry in the scrapyard, as alleged. It also maintains that the security amount has not been forfeited but would be adjusted towards the loss suffered in the sale to a third party for which, as regards the unlifted and accumulated scrap, lenders were sought through the press. We have heard both Mr. Syed Ansar Hussain and Mr. HA. Jafri for the petitioner and the respondent No.1, respectively. In the first place, it is not free from doubt whether the respondent No.1, Pakistan Machine Tool Factroy, is performing functions connected with the affairs of the Federation, within the meanings of the Constitutional provision in Article

199. Even if that were so, the fact remains that it is a contractual dispute, which the petitioner seeks to agitate in the present constitutional petition. The contract in question cannot be hit in terms of Article 3 of the Economic Reforms Order, 1972, for that contract has been concluded pursuant to such Order itself and is entirely in consonance therewith. Counsel's reliance, for attack, on Article 3 of President's Order 1 of 1972 is, thus self‑defeating. We are not also unmindful that, subject to well recognized principles, certain categories of contractual obligations can also be enforced in Constitutional jurisdiction, provided always that the responding party is subject to that jurisdiction. However, there are contracts and contracts falling within this genus. It has never been the practice of the superior Courts to interfere in contractual disputes, where the contoversy involves minute details or when controverted and complicated facts, not easy of resolution, are presented for adjudication. Without expressing ourselves on merits, we are afraid that the present case is fraught with these difficulties. Constitutional jurisdiction, which, substantially, is also discretionary in nature, cannot plausibly be invoked in such matters. There is, yet, another difficulty, in the petitioner's way. Where an alternative adequate remedy is provided by law, constitutional relief cannot be granted. Such alternative adequate remedy can be provided by a statute, which has conferred or created a right or, for the matter of that, imposed an obligation, in which case, unless the remedy provided is equally inexpensive, speedy or efficacious, Constitutional jurisdiction may still be invoked, as was opined by Hamoodur Rahman, J, as he then was, in Anjuman‑e‑Ahmadia v. D.C. Sargodha (P L D 1966 SC 639). Manifestly, this principle does not apply to the case in hand, because the right conferred and the obligation imposed, being contractual in nature, is governed by the ordinarily law of contracts and not by any specific or special legislation. It is axiomatic that Constitutional remedies are not to be resorted to in cases where a routine action at law will lie for complete satisfaction. The connotation is that if the remedy applied for is essentially a remedy under the ordinary law then the normal remedy through a suit ought to be pressed, for Article 199 of the Constitution is not intended to be a substitute for ordinary forms of legal action. Now, ordinarily, such remedy, as be relevant in the instant case, could have been sought through a suit and that should have been proper because the minute details and controverted facts could best have been dealt with, on recording and examination of due evidence. Another rule, that in cases where the performance of a specific public duty is involved relief in Constitutional jurisdiction is not (to) be denied merely because some other remedy under the general law, such as a suit, is available, the latter remedy assumed to be equally efficacious, speedy and beneficial, itself stands displaced, when complicated questions of fact, disputes as to title to property or relief, in essence, for damages or compensation etc. come to be confronted. We must, also take note of the fact that the petitioner here has, at his disposal, a still more effective and beneficial remedy by way of arbitration, as expressly stipulated in the contract inter-partes. Under the First Schedule to the Arbitration Act of 1940 an arbitrator is required to decide disputes referred to him within four months from the date of his entering upon the reference. It cannot be gainsaid that a Constitutional petition, speaking generally, cannot be decided earlier than that. Besides, if interim relief in the nature of an injunction etc. be necessary Section 41 read with the Second Schedule to 'hr Arbitration Act duly provides for seeking such relief from the concerned Court, upon the moving of requisite application. It may, however, be said that the arbitration, in this case, is to be that of an officer of the respondent Machine Tools Factory and that the petitioner may not succeed in obtaining a fair deal from such officer namely, the Managing Director, P.M.T.F. Such a notion can easily be dispelled. This kind of arbitration clauses are not uncommon of occurrence, particularly where one of the contracting parties is the Government or an agency connected with it. In such cases, usually, a high enough official is named in the arbitration clause itself, the idea being that no individual has any personal stake or interest in Government or connected affairs and impartiality is assumed. Besides, with a view to check excesses, if any, in arbitration proceedings, under the newly- inserted Section 26‑A of the Arbitration Act, an arbitrator is, now, required to record reasons for the award and unless that is done and the award is a speaking one, it is liable to be remitted back. Such reasons can come up for due scrutiny before a Court of law, upon filing of objections by an aggrieved party and if found to be extraneous, unjust, illogical, fanciful, capricious or otherwise un‑lawful can be deviated from in terms of section 30 of the Act. At any event, it has been said before and may be reiterated that when a person is invested with the high responsibility of arbitrating upon a dispute, both parties reposing confidence in him, it would be in consonance with the trust bestowed that the repository of the trust should transcend all petty considerations as could emerge on his being connected or associated more closely with one rather than the other party to the dispute. It is indeed for this reason and this assumption that both parties, before the emergence of disputes, place confidence in a named arbitrator, even though he may be an officer of or otherwise connected with one of them, the fact that he holds a high enough office, guaranteeing in itself complete impartiality and untainted judiciousness. We have no doubt that the foregoing observations would remain paramount in the consideration of the named arbitrator, if and when that forum is approached. Being of the view that, for the foregoing reasons, Constitutional jurisdiction could not adequately be invoked, we had dismissed this petition on 24‑4‑1990 and with it Misc. 868/90. We have now recorded the reasons for such dismissal. A.A./A‑897/K Petition dismissed.