This constitutional petition was filed by a government contractor seeking directions for the payment of an escalation amount of Rs. 3,230,000 plus interest under clause 5-A of a construction contract executed with the respondent department. The respondents contested the claim, alleging that basic price variations were below five percent, the work was completed within six months, and disputed facts could not be determined without recording evidence. The primary legal issue was whether a constitutional petition under Article 199 of the Constitution of Pakistan, 1973, is maintainable when disputed questions of fact exist and the underlying contract contains an express arbitration clause. The Peshawar High Court held that writ jurisdiction cannot be invoked to settle disputed factual questions or where an effective alternate remedy exists. Since clause 25 of the contract provided a specific contractual mechanism for dispute resolution through arbitration, the petition was held non-maintainable. The Court dismissed the petition while granting the petitioner liberty to seek arbitration under clause 25.
' LAL JAN KHATTAK, J.---Through this writ petition the petitioner has prayed for issuance of an appropriate writ for directions to the respondents to pay him escalation amount of Rs, 32,30,000 along with interest.
2. Necessary facts giving rise to the present controversy are that the petitioner, being a government contractor, obtained a contract for the work "Restoration of flood damages in district D.I. Khan for "Katta Khel to Rehmani Khel road" for Rs, 1,59,42,000 through tender duly accepted by the respondent department on 28-2-2011. As per averments of the petition, the petitioner during the process of contract sustained heavy loses for the price hikes in the construction material and increase in carriage charges etc. He, therefore, demanded of the respondents to pay him escalation amount of Rs, 32,30,000 as per clause 5-A of the Contract agreement duly executed between him and the respondent-department.
3. Comments were called for from the respondents which were so submitted. In the Para-wise comments various objections were raised by the respondents on the claim of the petitioner. They responded that the petitioner did not include any escalation claim either in his running bill or final bill as the change in Basic price and current prices was less than 5% at the time of execution of the agreement and the material used in the scheme. So clause 5-A of the agreement is not applicable to the petitioner's case. They added that the scheme was completed within its period of six months, therefore, in such a short period of time the demand of huge escalation amount as is claimed by the petitioner is uncalled for and unjustifiable.
4. Learned counsel for the petitioner contended that in view of clause 5-A of the agreement, the petitioner is entitled to the demanded escalation amount. He contended that respondent- department itself suggested and recommended the payment of escalation amount to the petitioner. He further contended that the demand of escalation is allowed as per notifications dated 30-6-2005 and 2-1-2009 issued by the respondent No, 1.
5. As against the above, learned AAG argued that the points raised by the petitioner in his writ petition cannot be resolved without recording evidence which exercise cannot be undertaken by this court under Article 199 of the Constitution of Pakistan, 1973. He submitted that the controversy in the writ petition is based on question of facts which is outside the domain of this Court to resolve.
6. We have heard learned counsel for the parties and perused, the record of the case with their valuable assistance.
7. Undisputedly, there is a clause in the agreement executed between the parties bearing clause No,25 to the agreement. According to this clause, in the event of any disagreement arising out of the contract, the matter shall first be referred to the Superintending Engineer for decision who shall, after making such enquiries as he may deem fit, give his decision in writing. Not later than three months after the reference is made to him.
8. This clause No,25 of the agreement provides a forum to the parties to settle their disputes out of court through the process of arbitration. This is a forum where all the disputed matters will be discussed by referring to each and every aspect of the case even by recording .Pro and contra evidence by the experts on the subjects.
9. 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 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 his grievance. Here in this case neither 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.
10. However, we, at same time, do not agree with the reply of, the respondents that the petitioner is not entitled to the relief claimed for as neither we can hold so nor it is for the respondents to out rightly reject claim of the petitioner at this stage. The petitioner may, if he so wishes, approach the department for arbitration as per clause 25 of the agreement for the redressal of his grievance. If he so opts for arbitration then in that case the respondents are directed to proceed with the case as per Arbitration Clause of the agreement strictly in accordance with law and merit.
11. In view of the above, this writ petition is dismissed.