2001 PLP 1066 (YLR)

MUHAMMAD MOOSA K. LEGHARl, J.

Through this petition, the petitioner has prayed for directing the respondents for immediate payment of all the claims of the petitioner lawfully due. The facts as stated in the petition are that the petitioner is 'D` Class Government Contractor worked with respondent No.1 during the year 1995-96. The petitioner carried out the work of filling of cuts and breaches pertaining to Flood fighting of 1995 along Nisar Branch Drain, Ghar Mian Drain, Mehar out fall structure, Kokal Branch Drain, Mehar leading Channel K.N. Shah. The petitioner also carried out the work of De watering of K.N. Shah leading Channel at twelve different portions by engaging private De-watering Machines during the month of July and August, 1995. The petitioner supplied Abkalani Meteral for Ghar/Wagan disposal system. Work orders were issued and after execution of the works necessary checking and measurements were taken by the Sub-Engineers and Assistant Engineers which are the subordinates of the respondent No.1 and the bills were passed by the respondent No.

1. The respondent No. 1 kept the petitioner and other contractors for the similar works waiting for payment for want of release of funds by the respondent No.2. The bills of the petitioner have been withheld by the respondents without any reasonable cause and the petitioner has been running from pillar to post but false hopes are given to him on the grounds of want of funds though other influential contractors has been paid full amounts. Hence this petition. We have heard Mr. Ghulam Sarwar Abbasi learned counsel for the petitioner to satisfy us regarding the maintainability of this petition. Learned counsel has argued that the petitioner has performed certain work for which he is entitled to certain amount to be paid to him in terms of contract. He further argued that the petitioner was a poor man and is facing great hardship. He has further submitted that this Court has wide power to exercise the Constitutional jurisdiction to grant relief to the petitioner. To support his contentions, learned counsel has relied upon the following case law. Muhammad Hisamuddin Ansari v. Chief Secretary, Sindh and 8 others 1990 CLC 1766, Rehan Hassan Naqvi v. Pakistan Defence Officers' Housing Authority 2000 CLC 1535 and Qamaruddin Soomro v. Administrator, Municipal Committee Ratodero and 4 others 2000 CLC

633. The petition under the provisions of sub-clauses (a) and (1)(c) of Article 199 can be tiled by an "aggrieved person" or an "aggrieved party". The petitions can be filed for performance of a legal duty against the functionaries of the State. Admittedly the petitioner before us is a contractor. According to the Schedule Annexure ' A' with the petition he has performed a certain contractual work and according to him he is entitled to certain amount in respect of performance of his contractual obligations. Admittedly the petition relates to contractual obligations which is beyond the scope of Article 199 of the Constitution. It has been consistently held by this Court as well as by the Honourable Supreme Court that enforcement of the contractual liability through Constitutional jurisdiction was not permissible. Reliance can be placed on the case reported in PLD 1958 SC 267, PLD 1962 SC 108, 2001 MLD 69 and 2000 SCMR

117. We have given due consideration to the case-law cited by the learned counsel for the petitioner. We are in respectful agreement to the dictum laid down in the aforementioned authorities, but have to observe that the facts and circumstances of the present petition are absolutely different and distinguishable. It may precisely be stated that in neither of the ruling relied upon by the learned counsel enforcement of contractual obligation was sought by invoking the Constitutional jurisdiction. On perusal of the prayer of the petitioner it is evidently clear that the petitioner claims some amounts of money which are outstanding against the respondents. We are of the opinion that the petitioner has an alternate remedy by filing a suit for recovery against the respondents. It is settled proposition of law that where alternate remedy was available the petition was not maintainable. Reference can be made to the case-law reported in 1999 SCMR 121 case of (M/s. Murad Ali & Co.), 2000 MLD 526 case (M/s. Gold Star), 1998 SCMR 2352 case of (Central Cotton Mills). Even on the ground that the alternate Remedy was available to the petitioner, this petition was not maintainable. In this view of the matter the present petition is not maintainable and is accordingly dismissed. These are the reasons for our short order, dated 10-5-2001. Q.M.H./M.A.K./A-200/K Petition dismissed.