Authorities on “Contractual Obligations” under Article 199 of the Constitution

1.        2015 YLR 2728 (a) Peshawar

Contractual disputes between private parties and public functionaries were not open to scrutiny under the constitutional jurisdiction. Breach of contracts which did not entail inquiry into or examination of minute or controversial questions of fact if committed could adequately be addressed to for relief under constitutional jurisdiction. High Court while exercising constitutional jurisdiction could sit on the matter if the illegality impugned  could be established without elaborate inquiry. Controversy raised by the petitioner had been controverted by the respondents through documents. Authenticity of said documents/documentary evidence without recording evidence could not be subjected to scrutiny. High Court in constitutional jurisdiction could not go into questions involving minute details nor could it decide facts of which no foundation was laid unless it was shown  that such controversy was devoid of supporting record or perverse. High Court under Article 199 was not to involve itself into investigation of disputed questions of fact which had necessitated taking of evidence. Disputed questions of facts could be determined only by courts having plenary jurisdiction in the matter. Extraordinary jurisdiction was intended for providing an expeditious remedy in a case where illegality of the impugned action of an executive or other authority could be established without any elaborate inquiry into complicated or disputed facts. Controversy between the parties could not be resolved without entering into the process of inquiry in the present case. Constitutional petition was not maintainable which was dismissed in circumstances.

2.        2015 MLD 1447 (b) (Islamabad)  

Enforcement of contract could not be ordered through constitutional petition. Where an alternate and efficacious remedy  was available constitutional petition was not maintainable.

3.        2015 CLC 374 (a) (Sindh)

Constitutional jurisdiction of High Court… recovery of dues, enforcement of contractual obligations; petitioner’s claim was partially admitted by the authorities; alternate remedy of suit was not in the line with principles of equity and good conscience for simple reason that it would not be legally justified to force the petitioner to file a suit for recovery of dues which otherwise were admitted. Liability to make payment, being admitted it had become a ‘legal right’ which was enforceable under law, therefore, dismissal of the constitutional petition on sole technical ground would not be within the scope of law, therefore, dismissal of constitutional petition of sole technical ground would not be within the spirit of law, which was meant to rescue the right of individuals and not to technically knock them out. Contractual obligations could not be enforced in constitutional jurisdiction, and it was not proper to use the sword of technicality for alternate remedy of filing a suit for recovery of amount after about four years in presence of admission of authorities regarding the claim of petitioner. Authorities were directed to clear the admitted claim only and for the remaining (disputed) amount and interest thereupon, the petitioner was directed to approach the civil court for redressal of his grievance. Constitutional petition as allowed in said terms.  

4.        2014 CLD 992 (Peshawar)   

Issue related to resolution of facts which required recording of evidence in order to ascertain whether the petitioner was entitled to any transportation charges, etc or not and if so then to what extent and under what circumstances. When the facts were alleged then the same must be proved through a constitutional petition. Issue raised by the petitioner company having stemmed from contractual obligation and in the contract proper forum had been provided for the redress of grievance of the petitioner, on controversy raised by the petitioner in that petition could not be resolved by the High Court under its constitutional jurisdiction. Constitutional petition as dismissed with the observation that the petitioner company could avail his remedy before the proper forum.

5.        2014 MLD 1130 (b) (Sindh) 

Commitments, undertakings and obligations had to be enforced through courts of ordinary jurisdiction. Petition which fell within the ambit of factual controversy could not be resolved under constitutional jurisdiction. Constitutional petition was dismissed.

6.        PLD 2014 Sindh 378(c)

Petitioner company sought enforcement of contractual obligations against authorities. For implementation of contractual obligation, Civil Court was the most appropriate, adequate and efficacious remedy. In case of contractual obligation for resolution of disputed question of facts the proper way to decide the same was to record evidence so that rights and claims of parties could be determined. Petitioner had approached High Court for recovery of dues for which constitutional petition was not an adequate remedy under the law. Petition was dismissed in circumstances.   

7.        2013 CLD 550 (a) (Sindh)

Contractual obligations between private parties and public functionaries or disputed questions of fact could not  be invoked in such jurisdiction. Doctrine of indoor management whereby one private company sold its shares to another private company without involving National Bank of Pakistan, would not be open for judicial review in constitutional jurisdiction of High Court.

8.        PLD 2012 Lah. 52 (c) = 2012 CLD 298 (c)   

Controversy between the parties hinged upon the pivotal point as to whether the physical work (construction) executed by the petitioner was in accordance with the contract or not. Such question held could not be resolved by High Court in exercise of constitutional jurisdiction under Article 199 of the Constitution as the court had no mechanism to resolve the question involved. Where the disputed questions of facts had been raised, particularly when floating at the surface of the record and arbitration clause was provided in the contract, constitutional petition was not maintainable, however each case had to be decided on it sown peculiar facts and circumstances.  

9.        PLD 2011 SC 44 (m)

1.        PLD 2007 SC 298

Art 199 constitutional jurisdiction of High Court; contractual obligations — principles — Respondent being aggrieved of violation of terms and conditions of contract by bank, filed constitutional petition before High Court which was allowed. Plea raised by Bank was that High Court could not have exercised its jurisdiction under Art. 199 of the Constitution, as the matter pertained to contractual obligation—validity— contractual rights and obligations had to be enforced through courts of ordinary jurisdiction—High Court in exercising its constitutional jurisdiction was loath to interfere in matters arising out of contractual obligations. Normal remedy at law was a suit for enforcement of contractual rights and obligations, High Court could not grant relief under Art. 199 of the Constitution, merely for the purpose of enforcing contractual obligations. Notwithstanding the very extensive nature of the power of High Court under Art. 199 of the Constitution — constitutional jurisdiction could be attracted, where rights have been on statute, law or rules framed thereunder or when obligation or duty vested in a public functionary or a statutory body, performing functions in relation to the affairs of Federation or a Province or a local authority. In such situations even contractual rights and obligations might be enforced in constitutional jurisdiction, which was, however, subject to the important rider of corresponding absence of an adequate remedy. Supreme Court converted petition into for leave to appeal into appeal, set aside the judgment passed by High Court and remanded the case to High Court for decision afresh. Appeal was allowed.

2.        2005 SCMR 25

….. no discretion had been conferred upon the authorities by any statute, enactment, by law or any directive having legal sanctity to violate the Rules, Regulations and Policy to accommodate someone who otherwise could not have been accommodated. Direction to the Appellants was designed to deprive them of their valuable vested and substantive right to proceed on training on Boeing-777 which was professionally higher in category with better technology than Airbus-310 which would result in heavy professional and financial loss to the Appellants. As 27 pilots out of 34 had been sent for training on Boeing-777 in USA in accordance with Training Policy and seniority, the appellants could not be deprived of such training without any reason which would have substantial bearing on their future prospects. Supreme Court noted it with concern that there was need to rescind all discretionary powers in the hands of those enjoying authority in Pakistan International Airlines Corporation which should be exercised in accordance with Rules and Regulations having no element of arbitrariness in them. Supreme Court directed that in future such selections must be fair, transparent and in accordance with the Training Policy and not behind screen of secrecy and doubts as the same would be in the interest of Pakistan International Airline Corporation itself. Whimsical and arbitrary action could create acute feeling of dismay, despair, despondency and deprivation which could effect the performance of Pakistan International Airline Corporation. Such selection must be made on merit/fitness and seniority. Judgment passed by Service Tribunal was set aside and Supreme Court directed the authorities to consider the nomination  of appellants for training on Boeing-777 at USA in the next training course there—Appeal was allowed.

1998 SCMR 2268

while contractual disputes between private parties and public functionaries are not open to scrutiny under the constitutional jurisdiction, breaches of contracts, which do not entail inquiry into or examination of minute or controversial question of fact, if committed by Government, semi Government or Local Authorities or like controversies if involving derelictions of obligations, flowing from a statute, rules or instructions can adequately be addressed to for relief under the jurisdiction. Further a contract, carrying elements of public interest, concluded by functionaries of the State, has to be just, fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premise that public functionaries deriving authority from or under law, are obligated to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviations, if of substance, can be corrected through appropriate orders under  Art. 199 of the constitution. In such behalf even where a contract, pure and simple, is involved, provided always the public element presents itself and the dispute does not entail evidentiary facts of a disputed nature, redress may be provided.

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