ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C.P. No.D-394 of 2018

 

            Petitioner                   :           Jaggan Khan

Through Mr. Mehfooz Ahmed Awan, Advocate

 

Respondent              :           Through Mr. Nisar Ali Shah advocate

holding brief for Syed Ghulam Shabbir Shah, advocate 

 

F.O. Pakistan            :           Through

 

 

 

           

Date of hearing        :           16.07.2020

            Date of Order            :           16.07.2020

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O R D E R

 

 

ADNAN-UL-KARIM MEMON, J: Through this petition, the petitioner is seeking direction to the respondents to make payment of the work done by him i.e. construction of 2D, 4E type quarters, external water supply, sewerage system, underground tank, over hand tank, septic tank, collecting tank, bituminous road, gird cabin etc. at 132KV Grid Station Tharu Shah.

2.  We directed him to satisfy this court with regard to maintainability of the instant petition in view of disputed question of fact; he replied the query and argued that this petition may be disposed of in terms of admission of the official respondents.

3.  We have heard learned counsel for the petitioner and perused the material available on record.

4. Before adjudicating upon the merits of the petition, the question involved in the matter in hand is whether any contractual dispute can be resolved through mechanism provided under Article 199 of the Constitution of Islamic Republic of Pakistan. Our deep concern is on the maintainability of the instant petition.

5.   In the light of above averments, the petitioner in his petition has attempted to show that there was a genuine claim of the petitioner regarding contractual obligation which the government was bound to pay to him.

6.  Now the question before us is as to whether in the present  proceedings we can enlarge the scope of Article 199 of the constitution and dilate upon the alleged contractual obligation in the proceedings.

7.  The dispute between the parties is with regard to certain financial liability mentioned in the contract and without recording the evidence of the parties; it is not possible for this Court to ascertain the fact of actual amount or variation of the amount or any amount at all. It is also a settled principle of law that contractual obligation cannot be enforced through writ petition as it is the mandate of the ordinary jurisdiction to interfere in the contents, variations and applicability of terms & conditions of the contract. 8.   In view of above discussion, prima facie, claim of the petitioner which calls for enforcement of contractual obligation is not proceedable, or amenable to the constitutional jurisdiction. We are fortified with the decision rendered by the Honorable Supreme Court in the case of Nizam-ud-Din and another. Vs. Civil Aviation Authority and 2- others                      (1999 SCMR 467), On the strength of above cited dictum, we are of the considered view that writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan is not meant for dispute relating to terms and conditions of contract. We are of the considered view that if the contract between the private party and the government functionary is under realm of a private law and there is no element of public law, the normal course for the aggrieved party is to invoke the remedies provided under ordinary civil law rather than approaching this Court under Article 199 of the Constitution and invoking its extra-ordinary jurisdiction. It is well settled now that if an order passed by this Court which is against the basic spirit of the judgment of the Honorable Supreme Court, the same cannot be enforced under Article 199 of the Constitution. This Court cannot direct the respondents to pay the contractual liabilities to the petitioner.

9.   In view of the above facts and circumstances of the case and for the reasons as discussed above, we are satisfied no case for indulgence of this Court is made out. Thus we are not minded to proceed further on the instant petition having no merits. Accordingly the same is dismissed along with pending application(s) with no order as to costs.

 

 

                                                                                                JUDGE

                                                                            JUDGE