Messrs UNITED INTERNATIONAL ASSOCIATES through Managing Partner . vs PROVINCE OF THE PUNJAB and anothers

' Being lowest bidder petitioner company was awarded the contract and it supplied three Liquid Nitrogen Horizental Storage Tanks of the specifications mentioned in the purchase order issued by the Government of the Punjab Vide No,1419, dated 14-3-1996. The price of each unit was agreed at Rs,7,80,000 and the total price worked out was Rs,23,40,000. It is not denied that the delivery of the afore-referred items was received on 8-9-1996 but despite the efforts made no payment was made to the petitioner. Through this petition a direction is sought to respondent No,1 to make the payment in terms of the bills submitted. In the comments submitted by respondent No,2 the facts as given in the petition have not been denied. The only ground urged by the respondent for delaying the payment is mentioned in para. 5 of the comments submitted wherein it has been averred as under:-- ' "Necessary withdrawal application for release of funds amounting to Rs,7,79,791 regarding the payment of three liquid nitrogen containers supplied by the petitioner was sent to the Asian Development Bank vide Letter No,P0123, dated 20-11-1996 for direct payment to the Contractor.

(Copy enclosed as Annexure-A). The Bank Authorities during the course of the visit of the Bank Mission on 7-10 January, 1997 pointed out that the department had not obtained prior approval of the Asian Development Bank while issuing the repeat order No,1419, dated 14-31 996 by the former Coordinator (copy enclosed as Annexure-B). They further asked for detailed justification in this behalf and the same was submitted to the Bank Authorities vide Letter No,PA-54, dated 20-1-1997 (copy enclosed as Annexure-C). The Asian Development Bank authorities has not yet released the payment to the Contractor. Regarding bill No,8-9-1996 amounting to Rs,1560208.80 (GOP share), its payment will also be released after receipt of formal approval of repeat order by the Bank authorities as it has already been questioned by the donors. It may, however, be pointed out that GOP share has been received in our Assignment Account on 21-1-1997."

2. Learned counsel for the petitioner submitted that so far as the department is concerned, respondent No,1 personally appeared before this Court on 29-9-1998 to submit that the department had cleared the matter and that the payment has to be made by the Planning and Development Department, Government of the Punjab. Adds that the petitioner has been made to suffer for the last three years and is not being paid his dues.

3. The learned Advocate-General Mr. Ashtar Ausaf Ali on the other hand though not raising any dispute qua the supply of the articles, submitted that the Department had made purchases beyond scope of their requirement; that the price of the containers in question were exorbitant; that the P&D Department, Government of the Punjab had raised objections to the same and since the Asian Development Bank did not release the requisite funds, the Government of the Punjab was not in a position to make the payment. Raising serious objections with regard to the maintainability of this writ petition, the learned Advocate-General contended that the petitioner basically seeks recovery of money on account of performance of a contract; that a Constitutional petition seeking enforcement of a contract is not maintainable as the same would require factual inquiry which exercise cannot be undertaken in these proceedings. A more efficacious remedy, according to the Advocate-General, is available to the petitioner through filing a civil suit before a Court of competent jurisdiction.

4. Muhammad Ashraf, Administrative Officer Livestock and Dairy Development, on Court query, conceded that the petitioner had supplied similar containers in February, 1996 on similar prices which have been quoted for the containers which are subject-matter of this petition and that no inquiry presently is pending qua the contract in question. He further added that the orders for the supply of the containers were placed by the Competent Authority.

5. Heard.

6. There is no cavil to the proposition that ordinarily a writ for the enforcement of a contractual obligation is not maintainable. This is because the enforcement of a contract entails a factual inquiry into disputed questions of fact which is primarily the function of a Court of plenary jurisdiction. In M. Muzaffaruddin Industries Ltd. v. The Chief Settlement and Rehabilitation Commissioner Lahore and another (1968 SCMR 1136) the Hon'ble Supreme Court had refused leave to the petitioner who was seeking enforcement of- a contract. Similarly in Shamshad Ali Khan v.

Commissioner, Lahore etc: (1969 SCMR 122) the august Court refused relief and observed as under:-- ' "At the highest it was a case of breach of agreement for which the remedy did not lie in the writ jurisdiction of the High Court."

However, cases are not lacking when Courts have interfered in cases where enforcement of a term of contract is sought 'against the statutory corporation or the Government. In Mohabeer Pito Stores and others v. Indian Oil Corporation and others (AIR 1990 SC. 1031); Kumari Shri Leka v. State of UP and others (AIR 1991 SC 537); in Indo-American Hybrid Seeds v. Chandigarh Industrial and Tourism Development Corporation (AIR 1995 Punjab and Haryana 138, in D.F.O South Kheri v. Ram Sanahi Singh (AIR 1973 SC 205) and in Dwaskadas Masfatia v. Bombay Port Trust (AIR 1989 SC 1642) it has been held that the contracts and any breach thereafter could not be completely excluded from the purview of judicial review. Similarly in Pacific Multinational Private Limited v. Inspector-General of Police (PLD 1992 Karachi 283) it was held that when it is alleged that the State or any functionary acting under the State authority had acted in an unfair or arbitrary manner or there were allegations of discrimination the matter could be brought before the Court for scrutiny under Article 199 of the Constitution. This view was reiterated in Messrs Bresson Manufacturing Ltd.'s case (1995 MLD 15) and in Shoaib Bilal Corporation's case (KLR 1997 Revenue Cases 27). The Hon'ble Supreme Court in Mehmood Ali Butt v. Inspector-General of Police. Punjab, Lahore and 10 others (PLD 1997 SC 823) at page 832 held as under:-- ' "Before parting with this judgment, we may add that the plea that a High Court in exercise of Constitutional jurisdiction vested under Article 199 of the Constitution cannot direct payment of money in any case is without substance. The High Court normally does not entertain a petition under Article 199 of the Constitution to enforce the civil liability arising out of a breach of contract to pay the amount of money due to the claimant and ordinarily leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose but an order for payment of money may be made in Constitutional petition against State or its functionaries to enforce a statutory obligation. It is usual for the Courts to order refund of the money illegally collected as a duty or a tax. The Supreme Court of India has even allowed compensation to the aggrieved person where it was found that the responsibility prima facie was traceable to act of criminal omissions and commissions on part of concerned authorities. The wife of a deceased officer was found entitled to compensation and a sum of Rs,6,00,000 was awarded by the Supreme Court itself in Smt. Charanjit Kaur v. Union of India and others (AIR 1994 SC 1491) as compensation. In the instant case, the High Court was completely seized of the petition instituted by the petitioner himself against the said functionaries and the private respondents and the real cause of the dispute agitated in the petition was decided in accordance with the mode/procedure chosen by the petitioner himself. The liability so incurred cannot be awarded off by raising dishonest pleas."

7. In the instant case, the comments submitted, the statement made by the Secretary Livestock before this Court on 28-9-1998. The statement of the Administrative Officer made today and the arguments of the learned Advocate- , General indicate that there is no factual controversy involved so far as the award of contract and the prices of the items are concerned. The Secretary Livestock appearing in Court on 28-9-1998 stated that so far as his department was concerned, the matter was clear and now it was for the P&D Department to make the payment to the petitioner. This statement till date has neither been disowned by the Government of the Punjab or the learned Advocate-General. The argument of exorbitant price which has been raised by the learned Advocate-General has not been even obliquely alluded to in the comments submitted by respondent No,2 and is not tenable as admittedly the petitioner had supplied similar containers to the Government in February, 1996 on the same prices and the Government had made payment to.

Him. Perhaps it was on account of the credible credentials of the petitioner that he was awarded the contract for the second time for similar containers and on the same price, but the payment is being withheld for no lawful reason. The contract was signed by respondent No,2 on behalf of Government of the Punjab who was admittedly the competent Authority and if the Asian Development Bank had promised to partly fund this project it was an internal arrangement between the Asian Development Bank and the Government and if the Asian Development Bank has backed out to release funds, petitioners cannot be denied the payment as there was no conditionality in the contract that the payment would be subject to the clearance from the Asian Development Bank.

8. The State is a symbol of social contract wherein citizens part with some of their freedom in lieu of the security of life, property and honour to be provided by the State. State in its ideal sense is a repository of justice and its functionaries cannot be permitted to take unfair stand violating all canons of equity. Having accepted the terms of the contract, the delivery of items and the liability to make the payment it would not be fair to non-suit the petitioner merely on the ground that the contractual obligation cannot be enforced through a Constitutional petition. The petitioner had to suffer the agony for the last more than three years, had to incur the cost of filing this petition and has also suffered on account of the depreciation of the value of rupees. I was minded to award special costs but found the explanation of the learned Advocate-General to be reasonable that the delay in making the payment was primarily attributable to withholding funds by the Asian Development Bank.

9. For what has been discussed above this petition is allowed and it is directed that the Secretary, Planning and Development Department, Government of the Punjab, Lahore shall make the payment of the amount in question in terms of the contract and the bills submitted plus eight per cent. Mark-up within a period of thirty days from today.