SHAHFIULLAH JAN Versus GOVERNMENT OF KHYBER PAKHTUNKHWA

SHAKEEL AHMAD, J.--- We propose to dispose of Writ Petition No.727-B/2016 and Writ Petition No.728-B/2016 by the common judgment as points of law in both the cases are identical.

2. The brief facts of Writ Petition No.727-B/2016 are as under:-

In the aforesaid writ petition, the plots Nos.35 and 36 category "A" were leased out to the petitioner through registered lease deed for a period of 99 years for establishment of Gulab Agricultural and M/s. Shafi Engineering Works Industry and possession of the plots were also handed over to the petitioner. The respondents Nos.4 and 5 vide notification No.SIDB/DD/SIE/BNU/1106-10 and notification No.SIDB/ DD/SIE/BNU/1131-35 dated 13.3.2015 cancelled the plots in dispute on the ground that he was non-responsive to the clauses of lease agreement and failed to carry out the construction of factory on the plots mentioned above. Not contended with cancellation of plots, the petitioner filed the instant writ petition.

Brief facts of the Writ Petition No.728-B/2016.

In the above writ petition, plots Nos.44 and 45, category "A" were leased out to the petitioner, but subsequently cancelled vide notification No.SIDB/DD/SIE/BNU1141-45 and notification No.SIDB/ DD/SIE/BNU/1146 dated 13.3.2015, alleging therein, violation of conditions of lease agreement. Not satisfied with the same, the petitioner invoked the constitutional jurisdiction of this Court. Prayers in both the writ petitions are one and the same.

3. The learned counsel for the petitioners contended that the impugned notifications, which culminated in cancellation of plots are illegal, without lawful authority, without jurisdiction, based on mala fide and void ab initio. Their next contention was that the notifications of cancellation were issued in violation of principle of natural justice, which resulted in gross miscarriage of justice, therefore, warrants interference. They lastly contended that despite incorporation of arbitration clause in agreement, the constitutional petition is maintainable. The learned counsel for the petitioners in support of their contentions placed reliance on PLD 2016 Peshawar 164, 2003 YLR 1760 and PLD 2015 Sindh 231.

4. In response to the arguments advanced by the learned counsel for the petitioners, the learned counsel for the respondents argued that the petitioners have miserably failed to abide by the terms and conditions of the lease agreement and despite repeated notices, they failed to carry out the construction of factory on the plots in dispute, therefore, the plots were rightly cancelled and that the plots in question have been allotted to different people, after its cancellation. The learned counsel for the respondents also raised objection on the maintainability of the writ petitions and contended that contractual obligations cannot be enforced through constitutional petition, particularly, when it carries arbitration clause. He lastly contended that earlier the petitioners had filed suits on the same subject matter, their plaints were rejected under Order VII, Rule 11, C.P.C. vide judgment and order dated 22.4.2016, passed by the learned Civil Judge-III, Bannu, on the ground that the petitioners have no cause of action to file the suits. Not satisfied with the same, the petitioners filed appeals before the District Judge, Bannu and after dismissal of their petition for interim relief by the learned Additional District Judge-II, Bannu on 19.5.2016, they filed the constitutional petition but, these facts have not been disclosed in the writ petition, on this score alone the writ petitions are liable to be dismissed. In support of his contention the learned counsel for the respondents placed reliance on PLD 2002 SC 1068, 2013 YLR 2132, 2005 SCMR 1782 and 2011 MLD 10.

5. We have carefully examined the record in the light of above submissions.

6. It may be seen that clause "9" of the lease agreement carries arbitration clause, which reads as under:-

"9. Any dispute or difference which may arise between the parties or their representatives with regard to the construction meaning and effect of the deed or any other matter relating to this case, shall be referred to two arbitrators who are to be nominated by each party and in case of difference of opinion between them by the umpire selected by them."

A plain reading of the aforesaid clause shows that arbitration clause had been incorporated in the lease agreement/contract deed 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 the case of "Messrs Gandapur Construction Company v. Government of Khyber Pakhtunkhwa through Secretary (C&W) and 3 others" (2014 YLR 399) it was held 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 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."

In the case of "Sheikh Wajahat Ali v. Government of Khyber Pakhtunkhwa and others" (2013 YLR 2132), 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. Before cancellation of plots in question notices were dispatched to the petitioners on 22.01.1190, 10.11.1990,19.12.1997 and 26.10.1988, intimating the petitioners to start construction work as early as possible, failing which the respondents will cancel the plots as per clause 4 of the lease deed executed between the parties but when the petitioners remained non-responsive and failed to start construction of factory on the plots in question, the same were cancelled, so the objection of the learned counsel for the petitioners that no notice was given to them prior to cancellation of plots is not borne from record. Cancellation of plots in violation of the principle of natural justice is negated from the notices referred to above.

8. The petitioners were allotted the plots in dispute through lease deed. Any violation of the terms and conditions mentioned therein is factual controversy. Contractual obligations and rights have to be enforced through Court of ordinary jurisdiction and should not be enforced through constitutional petition. Reliance is placed on "Haji Amin v. Pakistan Trading Corporation (Pvt.) LTD. and another" (PLD 2009 Karachi 112) wherein it was held as under:-

"Normally a writ for the enforcement of a contractual obligation is not maintainable. However State and any functionary acting under the State has to act in a fair and transparent manner and, if disputed question of facts are not involved relief in exercise of power under Art.199 of the Constitution of Islamic Republic of Pakistan 1973 in appropriate matters have not been denied, merely because issues in the matter relates to contractual obligation."

9. Perusal of the contents of the writ petitions reveals that the petitioners have not disclosed about the filing of earlier suits which amounts to concealment of facts from the Court. Relief under section 199 of the Constitution, being discretionary, therefore, the Court considering the conduct of the petitioners, holds that they have not come to the Court with clean hands and do not deserve the relief sought in the writ petitions. In this respect we respectfully follow the case "Water and Power Development Authority/Lahore Electricity Supply Company Limited through Sub-Divisional Officer, Sheikhupura v. Messrs Bhatti Ice and Rice Mills, Buchiki through Proprietor and another" (2004 YLR 1263) and "Muhammad Ayub Khan Tanoli v. Secretary of Industries, Government of N.-W.F.P., Peshawar and 3 others" 2004 CLC 1500).

10. For what has been discussed above, the writ petitions being bereft of merit are dismissed.

MQ/264/P Petition dismisse