Muhammad Sultan Vs Govt of KPK etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Writ Petition No. 972-A/2025

JUDGMENT

Date of hearing...................21.08.2025..........................................

Petitioners (Muhammad Sultan) By Mr. Junaid Anwar Khan, Advocate.

SADIQ ALI, J.- Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner (Muhammad Sultan) has prayed as under: - “It is, therefore, most humbly prayed that on acceptance of the instant Writ Petition, refusal of the respondents from making the payment of outstanding amount of the petitioner, refusal regarding proper handing and taking over of the site and consequently, non-closure of the scheme by the respondents despite completion of the work may please be declared as wrong, illegal, unlawful, against the law and facts, arbitrary, fanciful, perverse, against the fundamental rights of the petitioner hence being unconstitutional, be struck down and the respondents may please be ordered to pay the outstanding

amount of the petitioner and also to close the scheme after its due handing and taking over or any other writ, order or relief as this Honourable Court deems fit and appropriate in the circumstances of the case, may also be issued/passed.”

2.Facts of the case in brief are that the petitioner is a registered Government Contractor, participated in the respondents’ E-bidding process, was declared successful for the work at S.No.2, and, after administrative approval dated 29.04.2019, was issued a work order, contract agreement, and technical sanction. He duly deposited all requisite charges and securities and executed the construction of 18 shops and 39 cabins, informing the department accordingly.

However, due to departmental negligence, 09 cabins were burnt, and despite repeated requests, neither proper handing/taking over proceedings were carried out nor full payment, including that for boring charges, was released. Although part of the petitioner’s bills were sanctioned and paid, the respondents have unlawfully withheld the remaining amounts, failing to close the scheme or

redress his grievances. Having no other adequate or efficacious remedy, hence, the instant petition.

3.Preliminary arguments heard and gone through the record.

5.Perusal of the record reveals that the petitioner was declared the successful bidder. It is an admitted fact that on 29.04.2019, the Tehsil Municipal Officer issued Administrative Approval, and the contract for Tehsil Local Fund 2018-19 was approved in favour of the petitioner, whereupon an agreement was duly executed between the parties inter se. From perusal of the said agreement, it is reflected that clause “25” of the above referred agreement carries arbitration clause which reads as under:-

Clause 25. “In the event of any disagreement arising out of the contract, the matter shall first be referred to the Director Technical for decision who shall after making such enquiries as may deem fit, given his decision in writing not later than three months after the reference is made to him. This period for decision of the case by the Director Technical may however be extended by the Director General under special condition according to the circumstances justification available in such case. The

contractor shall forthwith give effect and shall proceed with the work whether arbitration intended or not”.

6.A plain reading of the aforesaid clause shows that arbitration clause has been incorporated in the said agreement for resolution of any dispute or difference arising out of the agreement so in presence of arbitration clause in the agreement, the writ petition is not maintainable. In this context, reliance can be placed on the judgment reported as Mumtaz Ahmad vs. Zila Council, Sahiwal through Administrator and others (1999 SCMR 117). In this case dispute relates to the collection of goods exit tax of Zila Council under lease agreement executed between the parties when the petitioners were asked to make payment of bid money, salaries of the employees and other allied expenses, he filed constitutional petition against such demand, their constitutional petition as also their Intra-Court Appeal was dismissed. It was observed that the agreement carries arbitration clause which provided that in case of any dispute between the parties, the matter would be referred to the commission for arbitration and it was held

by the august Supreme Court of Pakistan that petitioners, if felt aggrieved could have invoked arbitration clause or could have filed appeal under the relevant laws and in view of the availability of those remedies, they could not have invoked constitutional jurisdiction. In this behalf, further reliance can be placed on the judgment reported as Raja Muhammad Ramzan and 21 others v.

Union Council, Bajnial, and another (1994 SCMR 1484). In this context, reliance can also be placed on the judgment reported as Messrs Gandapur Construction Company v.

Government of Khyber Pakhtunkhwa through Secretary (C & W) and 3 others” (2014 YLR

399)wherein it was observed as under:- “when the agreement itself provides a forum for resolving a dispute among the parties to the suit then without availing such forum how a disputed question of fact can be placed before the High Court for its resolution. A High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 may issue a writ only when facts are admitted and when there is no alternate remedy to the aggrieved person for resolution of this grievance. Here in this case either facts of the case

are admitted nor the petitioner is divested of alternate forum for the resolution of his grievance as the agreement itself provides him a forum to settle his dispute with the respondent/department. So it is held that in view of clause 25 of the agreement, the instant writ petition is not maintainable”

In this behalf reference may also be made to the case reported as “Sheikh Wajahat Ali v.

Government of Khyber Pakhtunkhwa and others” (2013 YLR 2132) wherein it was held that:-

“Arbitration having been provided in the lease/contract agreed deed for resolution of any dispute or difference arising out of the deed, constitutional petition was not maintainable”

7.In the instant case, the petitioner has based his case on the above referred agreement. It is by now settled that contractual rights, commitment, invoking an obligation have to be enforced through courts of ordinary jurisdiction and should not be interfered with by the High Court while exercising its constitutional jurisdiction especially in those matters arising out of contractual obligations. Normally a remedy

under the law in such like eventuality being a suit for enforcement of contractual rights and obligations by invoking provisions of Arbitration Act, 1940 would be availed instead of invocation of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this behalf reliance can be placed on the judgment reported as “Zonal Manager, UBL and another v. Parveen

Akhtar” (PLD 2007 Supreme Court 298) wherein it was ruled that contractual rights and obligations had to be enforced through courts of ordinary jurisdiction, High Court in exercising its constitutional jurisdiction was loath to interfere in matters arising out of contractual obligations. In this behalf further reliance can be placed on the judgment reported as “Messrs OPI Gas (Private) Limited v. Government Holding (Pvt) Limited and others” (2021 MLD 1916 Islamabad), wherein it was held that “when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the constitutional jurisdiction of the High Court for the issuance of a writ”.

8.It is also by now settled that when law provides a remedy to another authority fully competent to give relief, any indulgence to the contrary by High Court is likely to produce a sense of distrust in those authorities and to case an underserved reflection on their integrity and competency and would defeat legislative intent. If the remedy sought for, is in substance a remedy, which is available under the ordinary law, then a suit, and not the extraordinary remedy, under this Article should be the appropriate remedy, for, the remedy provided by Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not intended to be a substitute for the ordinary forms of legal action.

9.In addition, the law is well settled that constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, cannot be exercised in matters involving disputed questions of fact, which require recording of evidence. The scope of this Court under Article 199 of the Constitution of Pakistan is dependent on the questions which are devoid of factual controversies, therefore, this Court cannot

interfere in such like matters where disputed questions of facts are involved. Reliance is placed on the case of Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others Vs. Intizar Ali and others (2022 SCMR 472), wherein it was held that:- “21. So far as the argument of Hafiz S.A. Rehman, learned Sr. ASC that as factual controversy is involved, these appeals are liable to be dismissed is concerned, even on this point alone the impugned judgments are liable to be set aside because it is settled law that superior courts could not engage in factual controversies as the matters pertaining to factual controversy can only be resolved after thorough inquiry and recording of evidence in a civil court. Reliance is placed on Fateh Yarn Pvt Ltd. v. Commissioner Inland Revenue (2021 SCMR 1133). Admittedly, the learned High Court while passing the impugned judgments had went into the domain of factual controversy, which was not permissible under the law. We have noticed that in Civil Appeal No.1213/2020 although the respondents had filed the civil suit but they were not appointed on regular basis and most of them do not have the required qualification/ experience at the time of their appointment. Learned counsel had stated that no question of law of public importance within the meaning of Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, is involved in these appeals. However, this argument of the learned counsel is

misconceived. The question of applicability of Article 212(3) of the Constitution arises only when any party has approached this Court against the judgment passed by the Federal Service Tribunal but except Civil Appeals Nos. 1218 to 1220/2020 same is not the case here, therefore, this has no relevance in the present proceedings. Even in the aforesaid Civil Appeals, the respondents were neither regular employees nor they had the requisite qualification/ experience at the time of their appointment nor had they filed the application within thirty days within the purview of Section 7 of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012, therefore, as discussed in the preceding paragraphs, the learned Service Tribunal could not have directed for their reinstatement.”

10.Further reliance may also be placed on the cases titled “Messrs Fateh Yarn Pvt. Ltd.

Faisalabad Vs. Commissioner Inland Revenue Faisalabad and others” (2021 SCMR 1133), “Director Military Lands and Cantonment Quetta Cantt. Quetta and Others VS. Aziz Ahmed and others” (2023 SCMR 860), “Pecial Secretary-II (Law and Order), Home and Tribal Affairs Department, Government Of Khyber Pakhtunkhwa, Peshawar and others Vs. Fayyaz Dawar” (2023 SCMR 1442) and

“Messrs Sprint Oil and Gas Services Pakistan FZC, Islamabad VS. Oil and Gas Development Company Limited (OGDCL), Islamabad” (2024 SCMR 117), wherein it has been held by the Hon’ble apex Court that:

“High Court’s jurisdiction under Article 199 of the Constitution may not be invoked when contracts have to be interpreted, and all the more so when they are technical and/or complex, nor when evidence is required to be recorded. In the exercise of its writ jurisdiction, under Article 199 of the Constitution, a High Court also does not enter into the realm of disputed facts.”

11.In wake of the above, this petition being not maintainable is hereby dismissed in limine with no order as to cost.

Announced:

Sd/J U D G E

Hon’ble Mr. Justice Sadiq Ali Hon’ble Mr. Justice Aurangzeb Shahid/*