Saima Sofia VS NHA etc

Form No: HCJD/C-121

JUDGEMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

W.P. No.5451/2026 Saima Sofia and others Versus Federation of Pakistan through Secretary, Ministry of Communications, Islamabad and others

Petitioners by: M/s. Qasim Nawaz Abbasi and Barrister Muhammad Ali Abbas Raja, Advocates for the petitioners.

Respondents by: Mr. Faisal Bin Khursheed, Advocate for respondents No.2 to 4, Mr. Asad Rehman, A.D, Legal and Mr. Inam-ur- Rehman, DD/Maintenance, Khurram Riaz, AD, NHA.

Date of Hearing: 30.10.2026.

UMAIR MAJEED MALIK, J:- Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners call into question the Termination Notice, dated 11.06.2026, (“Impugned Notice”) issued by the respondent No.2, National Highway Authority (“NHA”), cancelling the Lease Agreement of the Islamabad Bus Terminal Land, measuring 33 Kanal 16 Marla, situated at Jhangi Syedan, Islamabad.

2.The brief facts are that NHA granted a thirty-year lease of thirty three (33) Kanal and sixteen (16) Marla land, situated at Jhangi Syedan, Islamabad, to the petitioner No.3 for establishing a Bus Adda, near Bukhari Filling Station, Motorway Chowk, Islamabad (“Islamabad Bus Terminal”) on N-5 vide a lease agreement, dated 02.12.2003. The

petitioners claim that the physical possession of the leased land was delivered with a delay on 03.02.2012. After receiving the possession and obtaining the requisite approvals, the petitioners developed the Islamabad Bus Terminal by incurring substantial expenditure and commenced operations there. The petitioners have been regularly paying contractual dues. In the meantime, the parties also entered into addendums to the Lease Agreement, dated 23.01.2012 and 21.09.2022.

Subsequently, respondent No. 2 issued the Impugned Notice, dated 11.06.2026, under clause 4.10.1 of the Lease Agreement to prematurely terminate the lease of Islamabad Bus Terminal for the remodeling and up-gradation of Motorway Chowk, including construction of a dedicated loop on GT Road N-5. Being aggrieved by the Impugned Notice, the petitioners submitted representations, dated 17.08.2026 and 11.09.2026, seeking withdrawal of the notice, disclosure of the approved project plans and demarcation of the land required, which remained unanswered. It is claimed that during the pendency of these representations, the officials of respondent No. 2, accompanied by anti- encroachment staff, threatened to demolish the Islamabad Bus Terminal on or about 11.10.2026, hence this petition.

3.Learned counsel for the petitioner, inter alia, argued the Impugned Notice is contrary to clause 4.10.1 of the Lease Agreement, as respondent No. 2 has neither disclosed the approved project plans nor established that the entire leased land is required for the stated public purpose. Learned counsel further contends that the representations filed under Clauses 14 and 15.1 remain undecided, rendering the threatened coercive action by the respondents premature. Learned counsel also

argued that the petitioners’ substantial investment, contractual compliance and the delay exceeding eight years in delivery of possession warranted consideration before the premature termination.

Invoking Articles 4, 18, 23 and 24 of the Constitution, petitioners sought interim suspension of the Impugned Notice and maintenance of status quo regarding possession and infrastructure to prevent irreparable loss pending disposal of the petition.

4.Conversely, learned counsel for respondents Nos. 2 to 4 questioned the maintainability of the petition, contending that the controversy arises from the contractual arrangement between the parties contained in the Lease Agreement, which could only be resolved through the ‘settlement of disputes’ mechanism provided in clause 15 of the Lease Agreement. Learned counsel for respondents No.2 to 4 argued that under clause 15.3 and 15.4 of the Lease Agreement, the parties are required to resolve dispute through arbitration. He contended that the petitioners have an alternate and efficacious remedy available to them under the contract and law, and the petitioners have invoked the constitutional jurisdiction of this court without exhausting the contractual remedy of arbitration. Learned counsel for respondents No.2 to 4 contended that the petitioners have raised disputed questions of fact which could only be resolved in the arbitration proceedings after recording of evidence. Learned counsel while questioning the maintainability of the instant petition, urged that the question of maintainability be decided first. On merits, learned counsel submitted that the lease was validly terminated under Clause 4.10.1 through the notice dated 11.06.2026, with termination taking effect upon expiry of

the stipulated ninety-day notice period. He maintained that the premises fall within the approved alignment of the Motorway Chowk upgradation project, sanctioned by the NHA Executive Board on 18.05.2026, which also affects thirty-eight other structures. He argued that disclosure of project drawings was not a contractual prerequisite to termination and that the pending representations did not suspend its operation. Denying the alleged threat of unlawful demolition, learned counsel submitted that any admissible claim for compensation would be considered under the governing contractual terms. He accordingly sought dismissal of the petition on merits as well.

5.In rebuttal, learned counsel for the petitioners contended that respondent No.2 / NHA is a statutory body and the leased land is a public property, therefore, the actions of respondent No.1 related to the leased land including the termination of lease could be judicially reviewed by this Court in its constitutional jurisdiction. Learned counsel for the petitioners contended that the arbitration clause in the Lease Agreement does not oust and curtail the jurisdiction of this Court and power of judicial review under Article 199 of the Constitution. He further contended that during the pendency of the instant petition, the petitioners filed the application under section 20 of the Arbitration Act, 1940 alongwith an application for interim relief, however, the learned trial court did not grant the interim relief to the petitioners, which itself reflects that the resort to arbitration proceedings is, itself, not an adequate remedy. In support of maintainability of the instant petition, learned counsel for the petitioner relied upon Federation of Pakistan v.

Spencer Powergen Company of Pakistan, Ltd. (2026 SCMR 339), Ishaq

Khan Khakwani v. Railway Board (PLD 2019 SC 602), The Murree Brewery Co. Ltd. v. Pakistan (PLD 1972 SC 279), Government of Pakistan v. Messrs Shoaib Bilal Corporation (2004 CLC 1104), Anoud Tasveer Jumani v. Federation of Pakistan (PLD 2026 Sindh 250) and Messr Sieyuan-Neie-Naeem & Company v. Federation of Pakistan,

2022 CLC 516.

6.Arguments advanced by the learned counsels for the parties have been heard and record perused with their able assistance.

7.Since the respondents have raised a preliminary objection regarding maintainability, the same requires determination first. The jurisdiction conferred upon the High Court under Article 199 of the Constitution is extraordinary and discretionary. Ordinarily, where an adequate and efficacious remedy is available under the law, constitutional jurisdiction cannot be invoked merely to provide an additional forum for adjudication of a dispute which the parties have agreed, or the law requires, to be determined through arbitration. The Hon’ble Supreme Court, in Jameel Qadir and another v. Government of Balochistan, Local Government, Rural Development and Agrovilles Department, Quetta through Secretary and others (2023 SCMR 1919), enunciated the principle governing exhaustion of alternative remedies in the following terms:

“13. The writ jurisdiction of the High Court cannot be worn out as a solitary way out or remedy for aerating all sufferings and deprivations. The doctrine of exhaustion of remedies stops a litigant from pursuing a remedy in a new court or jurisdiction until the remedy already provided under the law is exhausted. The underlying principle accentuated in this doctrine is that the litigant should not be encouraged to circumvent or bypass the provisions assimilated in the relevant statute. The extraordinary jurisdiction of the High Court under Article 199 of the Constitution cannot be reduced

to an ordinary jurisdiction of the High Court. It is a well settled exposition of law that disputed questions of facts cannot be entertained and adjudicated in the writ jurisdiction. The expression "adequate remedy" signifies an effectual, accessible, advantageous and expeditious remedy.”

8.The controversy in the present case, when examined in the light of the relief sought, is substantially contractual in nature. The petitioners seek annulment of the termination notice issued under Clause 4.10.1 of the Lease Agreement, challenge the respondents’ assertion that the leased premises are required for the stated development project, seek disclosure and examination of the project plans and demarcation of the land required, and seek protection of their possession and infrastructure. Determination of these questions necessarily require examination of the terms of the Lease Agreement and its addendums, the factual basis of the alleged requirement of the land, the approved project alignment, the extent of land actually required and the effect of the parties’ respective contractual obligations. These are not matters which can appropriately be determined merely on the basis of competing assertions in a constitutional petition, particularly where the parties have expressly provided a mechanism for resolution of their disputes.

9.The Hon’ble Supreme Court of Pakistan, in the case of Pakcom Limited and others v. Federation of Pakistan and others, PLD 2011 SC 44, held that:-

“48. It hardly needs any elaboration that violation of a contract or failure to abide by the terms and conditions mentioned therein or to honour obligations arising out of an agreement cannot be decided in exercise of Constitutional jurisdiction and such controversies should be resolved by approaching the appropriate forums provided by law.”

10.The same principle has been reiterated in Messrs Sprint Oil and Gas Services Pakistan FZC, Islamabad v. Oil and Gas Development Company Limited (OGDCL), Islamabad, 2024 SCMR 117, wherein it was observed that:-

“10. The High Court’s jurisdiction under Article 199 of the Constitution may also not be invoked when contracts have to be interpreted, and all the more so when they are technical and/or complex, as in the instant case, 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 the present case, Clause 15 of the Lease Agreement contains a mechanism for settlement of disputes, including arbitration.

Significantly, the petitioners themselves seek, in prayer clause C, a direction for invocation and implementation of that very mechanism.

Section 20 of the Arbitration Act, 1940 provides a statutory mechanism for seeking appropriate relief in respect of an arbitration agreement. The petitioners have, in fact, already invoked that jurisdiction during pendency of the instant proceedings. The fact that interim relief was not granted by the learned Court seized of the arbitration proceedings does not, by itself, render the statutory remedy illusory or constitutionally inadequate.

12.The mere fact that one of the contracting parties is a statutory authority does not, by itself, transform every contractual dispute involving that authority into a matter warranting adjudication under Article 199 of the Constitution. The constitutional jurisdiction of the High Court remains available where a statutory authority acts without lawful authority, in violation of a mandatory statutory obligation, or in circumstances attracting a recognised exception to the rule of alternate

remedy. However, no such exceptional circumstance has been demonstrated in the present case. The principal controversy remains whether the termination was permissible under Clause 4.10.1 and whether the factual circumstances relied upon by NHA satisfy the contractual requirements for such termination.

13.The respondents No.2 to 4 have correctly asserted that the existence of an arbitration clause in the contract between respondent No.2 and the petitioners leaves no option to invoke the constitutional jurisdiction of this Court, rather the parties should invoke arbitration Clause of the agreement. It is also trite law that where there is an arbitration clause in the contract between the parties, a writ petition cannot be instituted to challenge the termination and or to seek specific performance of the contract. In this regard, reliance is placed on the cases of Mumtaz Ahmad v. Zila Council, Sahiwal (1999 SCMR 117), Daewoo Pakistan Motorway Services Limited v. Government of Pakistan through Secretary, Communications, Ministry of Communications, Islamabad (2024 YLR 1457), OPI Gas (Private) Limited v. Government Holding (Pvt.) Limited (2021 M L D 1916), Mehr Muhammad Yousaf Gill v. Government of Punjab (2019

MLD 1739).

14.Likewise, the petitioners’ apprehension regarding demolition of the structure raised by them cannot, in the circumstances of the present case, furnish an independent basis for assuming constitutional jurisdiction. The Arbitration Act, 1940 provides a mechanism for seeking interim protection under section 41(b) read with the Second Schedule thereof. The availability of such relief before the competent

forum means that the apprehension of coercive action does not, by itself, establish that the agreed and statutory remedy is inadequate or inefficacious.

15.It is, therefore, appropriate for this Court not to enter into the merits of the rival claims of the parties concerning the validity of the termination, the actual requirement of the leased land, the approved project alignment, the extent of the land required or the petitioners’ entitlement to compensation. Any determination of those matters at this stage would effectively amount to adjudication of the contractual dispute which the parties have agreed to place before the competent forum.

16.For the reasons recorded above, no case has been made out for invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and the instant petition is, accordingly, dismissed as not maintainable.

17.However, the petitioners shall be at liberty to avail the appropriate remedy before the appropriate forum under the law. It is clarified that the observations recorded herein are confined to the maintainability of the instant petition and shall not prejudice either party before the appropriate forum.

(UMAIR MAJEED MALIK)

JUDGE

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