2005 PLP 233 (MLD)

5. On the other hand, the learned counsel for the respondents states that the writ petition is not maintainable as this Court cannot interfere in the matters pertaining to the contract in exercise of its jurisdiction under Article 199 of the Constitution and also that the funds are not available with the respondents therefore, no direction can be issued by this Court.

6. I have heard the learned counsel for the parties and perused the record with their assistance. It is not disputed that the Government at the relevant time in the year 1999 launched .a Scheme "Anna Ghar" for construction of 4 and 6 Marlas incremental houses, acceptance of tender of the petitioner by the respondent through letter dated 3‑8‑1999 and execution of contract between the petitioner and respondent No.1 on 10‑9‑1999. Thereafter notice was issued to the petitioner to commence the construction work. The petitioner took steps towards mobilization at the site and actually commenced work on 30‑8‑1999; on 2‑5‑1999 respondent No.1 determined the contract by invoking the provisions of clause 75.1 of the Contract (Part‑II‑Conditions of Particular Application) and it was stipulated that the Contract shall terminate on the expiry of 56 days from the date of the said letter and that vide letter dated 23‑9‑1999, respondent No.1 informed the petitioner that respondent No.2 had been appointed as Engineer for the Contract. Whether the petitioner is entitled for payment of the amount against work done by it, reading of certain letters and different clauses of the Contract would be relevant. The letter through which the contract was terminated is No.PHA/Isl/DG(C&M)/GEN‑01/433, dated 2‑5‑2003 addressed to the petitioner firm which reads as under:‑‑ "We hereby notify you that we are terminating the Contract pursuant to Clause 75.1 of the Conditions of Contract, as amended in the Conditions of Particular Application. Accordingly, the contract shall terminate upon expiry of fifty‑six (56) days from the date of this letter. You are requested to cease all Work related activities forthwith and to remove all Contractors Equipment from the Site and to cause any subcontractors to do likewise. "

7. Clause 75.1 of the Contract pertains to termination of Contract for employer's convenience, which reads as under:‑‑ "The employer shall be entitled to terminate the Contract at any time for the Employer's convenience after giving 56 days prior notice to the Contractor, with a copy to the Engineer. In the event of such termination, the contractor:‑‑ (a) shall proceed as provided in sub‑clause 65.7 hereof; and (b) shall be paid by the Employer as provided in sub‑clause 65.8 hereof. " Now clause 65.8 of the Contract reads as under:‑‑ "65.8. If the Contract is terminated as aforesaid, the Contractor shall be paid by the Employer, insofar as such amounts or items have not already been covered by payments on account made to the Contractor, for all work executed prior to the date of termination at the rates and prices provided in the Contract and in addition: (a), (b), (c), (d), (e) and (f) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Provided that against any payment due from the employer under 'this sub‑clause, the Employer shall be entitled to be credited with any outstanding balances due from the Contractors for advances in respect of Contractor's Equipment, materials and Plant and any other sums which, at the date of termination, were recoverable by the Employers from the Contractor under the terms of the Contract. Any sums payable under this sub‑clause shall; after due consultation with the Employer and the Contractor, be determined by the Engineer who shall notify the Contractor accordingly, with a copy to the Employer. " Vide letter No.PHA/Finance/C‑132, dated September 12, 2001 the petitioner firm was informed that "Pending finalization of your claims, Chairman PHA/Minister for Housing and Works has been pleased to authorize making interim payments subject to adjustment on finalization of the bills. PHA certainly appreciates the understanding displayed by you so far, and assures you of fair and equitable settlement of your dues in the near future". It was further stated that "A cheque bearing No.571665 dated September 12, 2001, for an amount of Rs.2,745,500,00 is enclosed herewith as interim payment".

8. Though the petitioner submitted his claims for termination of contract amounting to Rs.42,110,917.00 (including the work done), which had been worked out on the basis of clause 65.8 of the Conditions of Contract as provided in clause 75.1, but he was informed through letter No.PHP/006/r.d./2287 dated 13‑4‑2002 that, "Enclosed herewith please find 2 copies of our final assessment of Contractor's claim amounting Rs.10,994,756.00 (Rupees ten million nine hundred ninety four thousand seven hundred fifty six only) after due consultation with the contractor and PHA as per conditions of Contract".

9. Cumulative effect of reading of the above stated documents and clauses 75.1 and 65.8 of the Contract, I am led to the conclusion that the petitioner was entitled to payment of the amount of Rs.1,09,94,756, which amount is mentioned in the letter dated 13‑4‑2002 of the respondent. The petitioner has already been paid an amount of Rs.2,745,500.00 through Cheque No.571665 dated 12‑9‑2001, therefore, I hold that the petitioner is now entitled for Rs.1,09,94,756 minus Rs.2,745,500 from the respondent.

10. The objection raised by the learned counsel for the respondent that this Court cannot interfere in the matter pertaining to the Contracts in exercise of its jurisdiction under Article 199 of the. Constitution of Islamic Republic of Pakistan, 1973 is repelled because no factual controversy is involved in the matter. Awarding and termination of the contract is admitted. An Engineer was appointed, who was competent to decide the claim of the petitioner in consultation with the employer, which has been done and the petitioner was communicated. The portion of the amount assessed has already been paid to the petitioner. Ordinarily a writ for enforcement of the contract is not maintainable for the reason that the enforcement of the contract requires factual inquiry into the disputed questions, which is the function of the Court having jurisdiction. For this view, I am supported by the case reported as Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others (PLD 2001 SC 116), wherein while interpreting the provisions of Article 199 of the Constitution and the question that a concluded contract whether open to judicial review it was held by the Hon'ble Supreme Court that, "High Court in exercise of its Constitutional jurisdiction was possessed of power to examine the validity of order in regard to grant of a concluded contract and strike down the same on the grounds of mala fide, arbitrary exercise of discretionary power, lack of transparency, discrimination and unfairness etc. provided the challenge was made promptly and contentious questions of facts were not involved". In the case of Messrs Airport Support Services v. The Airport Manager, Quaid‑e‑Azam International Airport, Karachi and others (1998 SCMR 2268) it was held that "While routine contractual disputes between private parties and public functionaries are not open to scrutiny under the Constitutional jurisdiction, breaches of such contracts which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by Government, semi Government or Local Authorities or like controversies if involving derelictions of obligations, flowing froth a statute, rules or instructions can adequately be addressed to for relief under the jurisdiction". In the case reported as Messrs Wak Orient Power and Light Limited through Chief Executive, Lahore v. Government of Pakistan, Ministry of Water and Power through Secretary, Islamabad and 2 others (1998 CLC 1178 Lahore DB) it was held that. "Remedy of Constitutional petition would be permitted to be resorted to in cases involving contract between private persons and State Statutory functionary for such remedy was considered to be more efficacious and speedy remedy as compared to civil suit or arbitration proceedings". In the case reported as Muhammad Tufail Tarar v. Government of Punjab and others (1999 CLC 1937), where the contractor completed the work for the Provincial Government, who did not clear his dues, cheque issued by the Government was bounced by the Bank for lack of funds, it was held that. "‑‑‑civil suit was the proper remedy for recovery of money but where the amount was admitted and even the amount was paid through the cheques, which were bounced by the Bank and there was no factual controversy involved. Constitutional petition was maintainable, and the petition was allowed in circumstances".

11. In reply to the petition, contents of Para. No.10 of the petition have not been denied by the respondent but it is stated that the claim of the petitioner arising out of termination under sub‑clause 75.1 was verified by the respondent No.2 and payment of verified amount recommended by respondent No.2 is pending due to non‑availability of funds from the Government. It is the principle of law contained in Order XII, C.P.C. rule 6, C.P.C. that any party may, at any stage of a suit, where admissions of fact have been made either in the pleadings or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the Court may upon such application make such order, or given such judgment, as the Court may think just. I am fortified for this view by the cases reported as Macdonald Layton and Company Pakistan Ltd. v. Usin Export‑Import Foreign Trade Co. and others (1996 SCMR 696) and Lal Muhammad v. Additional District Judge, Gujranwala and others (1983CLC 770). Non availability of funds from the Government to respondent No.1, to my mind, is no ground not to make the payment for the work done by the petitioner for no fault of his, when he has been knocking the door of the respondent by writing continuously. For what has been discussed above, this writ petition is allowed. The respondent No.2 is directed to make payment of Rs.1,09,94,756 minus Rs.2,745,500, with interest to the petitioner within one month of the passing of this order. The petition is disposed of. M.I./U‑18/L Petition disposed of.