1997 PLP 697 (CLC)

(Sd. ) (IMTIAZ AHMED) JOINT DIRECTOR/COMMERCIAL" Under above circumstances, mostly the petitioners of these cases prayed that the respondents be directed to renew contract/agreement of the petitioners, which ended on 3‑10‑1995 and it be declared that the respondents by not deciding their applications for awarding contract/licences have acted illegally and contrary to the spirit of policy of the Government. The petitioners of Constitutional Petition No.915/96 stated that they were granted licences for Rohri Railway Station for three years i.e. 1996 to 1998. Their grievance, however, is that the respondents Nos.4 to 14 of this petition are not residents of Sukkur District, but belong to Punjab, as such the licences should not have been granted to them and their licences be declared illegal and without lawful authority. The case of the respondents is that the licences of the petitioners were for three years and stipulated period had expired on 3‑10‑1995, as such, they were not entitled to their renewal and fresh licences would be issued as per rules on the subject. The vending licences were issued to the petitioners in Form A‑C30 and, inter alia, contained the following terms and conditions: "(b) In addition to the above penalty, it is also hereby expressly agreed that in the event of unsatisfactory working of the Licensee/s of any breach of this Agreement of which the Divisional Superintendent, Pakistan Railways, Sukkur shall be the sole Judge, it shall be lawful for the Railway Administration to terminate the licence forthwith without giving any notice, and without being liable to pay any compensation whatsoever to the licensee(s).

13. On the expiry of earlier determination of the licence the licensee/s shall forthwith remove all his/their belongings, stocks, etc. from the railway premises and failing removal within 48 hours from the expiry of earlier determination, the same shall automatically become the property of the Railway Administration which shall be entitled to take possession thereof and dispose of them in any manner it may deem fit at the expense of the licensee/s who shall have no claim whatsoever in respect thereof against the Railway Administration except or the balance of sale proceeds relaized by their sale after deducting the expenses incurred incidental to their removal and sale.

14. The licensee/s shall be responsible for any damage done to building or railways property in his/their charge. Cost of such damage shall be assessed by the Railways Administration and the decision of the Railways Administration upon any question in this connection shall be final.

6. The licensee/s shall not exhibit, in the said vending Shop/Tea Stall/Tray/Wheel‑barrow any pictures, notices or advertisements of any kind unless authorised to do so by the Railway Administration.

10. Nothing herein contained shall be deemed to create a tenancy or any rights whatsoever in favour of the licensee/s over the said premises or any right of sole or exclusive possession to any part thereof.

11. The licensee/s shall pay such penalty as the Railways Administration may, inflict, for complaints against the licensee/s or their servants, which in the opinion of the Railway Administration are bona fide and substantiated. The orders of the Divisional Superintendent, Pakistan Railways, Sukkur in this context shall be final and no appeal would be entertained against such order.

18. This Agreement shall be operative for 3 years from renewable thereafter at the option of the Railways Administration for similar periods of three years, provided that either party shall be at liberty to terminate the contract at any time without assigning any reason and without being liable for any compensation whatsoever, on giving three months' notice in writing to the other party. " Mr. Abdul Fattah Malik learned counsel for the petitioners in C.P. No.D‑915/96 contended that it is the general policy of the railways authorities that such licences should be granted in favour of the persons residing at the places where the railways stations are situated, and such persons should have preference over others. He also argued that this policy was discontinued by the previous regime, but now it has been restored and by virtue of its applicability it is now legal requirement that concerned person should have domicile of the place where he wants to run his business. He also argued that in case of violation of said policy this Court has the jurisdiction to examine the validity and properiety of the acts of the public functionaries. In support of these contentions he cited the case reported as Muhammad Saleem and others v. DCO and others, 1994 MLD 295, wherein it was held that public functionary should refrain from becoming privy to evil designs of private persons for extraneous and illegal consideration. He also relied upon the case of Shoukat Ali v. Secretary, Industries and Mineral Development, Government of Punjab Lahore and 3 others (1995 MLD 123), wherein it was held that functionaries of State while dealing public at large, whether by way of giving jobs or entering into contracts or issuing quota or licences or granting State largess, are required to act reasonably, impartially, and without any arbitrariness and within the defined spheres of their powers. Mr. David Lawarence appearing for Petitioners in C.Ps. Nos.D‑1060 and 1296 of 1995 relying upon the case reported as Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd., Rawalpindi, (PLD 1991 SC 14) submitted that 7 conditions to structure the discretionary powers i.e. open plans, open policy, statements, open rules, open findings, open reasons, open precedents, and fair informal procedure, as laid down in said case were not followed by the Railway Authorities and the petitioners were deprived of their legal rights to get those licences renewed. He also argued that although the petitioners of these two cases had applied for renewal of their licences, but their applications were not decided by the respondents. He relied upon the famous case reported as Saiyyid Abul A'Lla Maudoodi v. Government of West Pakistan and another (PLD 1964 SC 673) to contend that, even in administrative proceedings, the principles of natural justice are to be followed and the petitioners were not heard when they applied for renewal of their licences. Mr. Ghulam Muhammad Durrani, who appeared for most of these cases, submitted that though the petitioners on merit were entitled to renewal of their licences, yet, without any justification so was not done and the others who, either had no experience or were not as much experienced as the petitioners were granted the licences. As against above, Mr. Manzar Alam learned counsel for the Railway Authorities submitted that the licences of the petitioners have expired and after their expiry for fresh licences, as per letter, dated 4th April, 1994 quoted earlier, the vending contracts would be advertised in the press and the petitioners may apply again and their applications alongwith other applicants would be considered on merits. He also argued that it is yet to be ascertained if the petitioners have applied for fresh licences or not and that whether they have fulfilled all necessary conditions in that regard. He submitted that licensing authority has discretion to grant or refuse licence. In support of this contention, he cited the case of Nazir Beg v. District Magistrate, Mardan and others (PLD 1961 Lahore 142) wherein it was held that it is the discretion of the concerned authority to grant or refuse the licence and it could not be claimed as a mater of right. On the grant of such licence, he cited the case reported as M.A. Naser v. Chairman, Pakistan Eastern Railways and others (PLD 1965 SC 83). The relevant observations relied upon are as follows: "From the above provisions it is clear that this agreement merely conferred a right to carry on business of catering in the Refreshment Rooms and on the Buffet Cars. They were not given any general right of occupation but only a right to use Refreshment Rooms allotted to them for the exclusive purpose of catering refreshments. Such a right does not amount to easement as defined in section 4 of the Easements Act or an interest in the property. Nor can it be regarded as a licence coupled with a transfer of property' within the meaning of section 60 of tote Easements Act. Nor can it be suggested that the Contractor was required ' to execute any work of permanent character' in connection with the business. No doubt his business may involve complex arrangements for continued supply of refreshments both solid and liquid but this cannot be regarded as 'execution of a work of a permanent character'." Another observation on said point reads as under: "After fully examining the provisions of the agreement we have come to the un-hasitating conclusion that this licence does not fall either within clause (a) or (b) of section 60 of the Easements Act and, therefore, it was revocable at the will of the grantor. We may, however, point out that there may be cases where parties by special contract may make the licence which is prima facie revocable under section 60 an irrevocable one, but these clauses of this agreement envisage no such intention." Learned counsel also cited the case of Hafiz Muhammad Ishaq and 8 others v. Inspector‑General, Prisons, Sindh and another (PLD 1994 SC 733). In this case, it was observed by the Honourable Supreme Court that looking to the circumstances of the case, where the period of Contract expired, temporary injunction was rightly refused by the trial Court. The main point to be considered in these petitions is that whether in view of the policy referred to earlier, the petitioners could claim renewal of their licences as a matter of right. The petitioners in C.P. No.915/96 have stated that said policy was discontinued by the previous Government, but now it has been restored. Articles 29 to 40 of the Constitution deal with the principles of policy'. The observance of any particular policy, contained in said Articles, depends upon availability of resource in that regard. Under sub‑Article (2) of Article 30, the validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the principles of policy and no action shall lie against the State, any organ, or authority of the State, or any person on such ground, Therefore, validity of an action or law cannot be challenged on the basis of said Article on the ground that it was not in accordance with the principles of policy and no action can be taken against the State or authority in view of the said Article. In any case, these principles cannot be judicially enforced as it is not the responsibility of the Court to enforce them. On this point, the reference can be made to the case reported as Muhammad Khan v. Alain Khan and others (1973 P.Cr.LJ 559) wherein it was observed that the principles of policy were not. justiciable. The "directive principles" of State policy , under the Indian Constitution are also not justiciable as held in the case reported as Balwant Rai v. Union of India (AIR 1968 Allahabad 14 (V 55 C 4). The expressions "policy", "Policy of law" and "public policy" have been described in Corpus Juris Secundum by Francis J. Ludes, Volume LXXII as follows: "POLICY. The word 'policy' is defined as meaning a settled or definite course or method adopted by a Government, institution; body or individual. As applied to a rule of law, 'policy' refers to its probable effect, tendency, or object, considered with respect to the social or political well‑being of a State." "Policy of the law. The term is difficult to define. It has been considered to refer to the purpose and spirit of the substantive laws of a State, whether such laws be found in the Constitution and statutes or in judicial records. The term has been said to be synonymous with 'public policy'." "Public Policy. The term 'public policy' is perhaps the most expansive and widely comprehensive phrase known to the law. It has been said that the doctrine of public policy originated in England in the early part of the Fifteenth Century, and that the principle of public policy owes its existence to the very sources from which the common law is supplied. The phrase is used in several senses, and it may mean the common law or general statutory law or the State, and it may mean the prevalent notions of justice and general fundamental conceptions of right and wrong and it may mean both. It is a vague, indefinite, and nebulous term." It is evident that public policy is a relative term and sometime lacks in precision and oftenly is used indistinctly and there must be pragmatic approach for understanding its real meaning in the light of the circumstances surrounding' E the particular transaction. When a policy or direction is given for guidance to the officers of a department without any statutory backing, no claim of vested right can be based on such policy or direction. This is not spelt out from the policy in question that automatically every licence‑holder, after its expiry, has a legal right for its renewal. On the contrary, so many factors were to be kept in view such as the sanctioned strength of vending stalls and the fact that wheel‑barrows were completely done away with and the licences were to be granted only for stalls and that too after necessary advertisement in the press. Learned counsel for the petitioners have also strenuously argued that fresh licences to some persons have been granted by the Railway Authorities, but the petitioners were not heard in that regard. No law has been cited on the subject that when a licence is granted to one party other shall be informed about it before the licence is issued, nor the petitioners of CP No.D‑915/96 are "aggrieved party" within the meaning of Article 199 of the Constitution. Mr. Mobeen Ahmed Khan learned counsel for the petitioner in C.P. No.1062/95 contended that in view of Article 4 of the Constitution, no action detrimental to the interests of the petitioner can be taken, except in accordance with law. He submits that the petitioner has been discriminated in the way that, in spite of the fact that his case is on better footing, yet, his licence was not renewed, but the licences were granted to the others. Article 4 of the Constitution reads as under: "

4. Right of Individuals to be dealt with in accordance with law, etc.‑‑(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be and of every other person for the time being within Pakistan.

2. In particular‑‑ (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do. The right of individual to be dealt with in accordance with law is universal in nature. The word 'law' as used in this Article and defined by the various superior Courts, includes, statute law, judge‑made law, and the principles settled by superior Courts in exercise of judicial or quasi judicial powers. The phrase "equality before law" does not mean that all citizens are to be treated alike under all circumstances. A classification can always be held to be valid if based on actual and real differences existing between different persons/groups. In these cases, ex facie, neither there is a violation of any statutory law nor of a Judge‑made law, nor of principles settled by the superior Courts. It is noted that basically in these matters the petitioners want further extension of their licences on the basis of said agreement. It is significant to note that as per terms of the agreement, the licence was for three years and after its expiry it could only be renewed at the option of the Railway Authorities, which admittedly they had not exercised in favour of the petitioners. Besides, the contractual obligations cannot be the subject‑matter of the proceedings under Article 199 of the Constitution. On this point reference can be made to the case reported as Ashraf Ali Akanda v. Abdul Awal, Deputy Magistrate and Special Officer (Aboriginal) Netrokona Camp and others (PLD 1968 Dacca 962). Licence is defined in section 52 of the Easements Act, 1882, as a right to do or continue to do, in or upon the immovable property of the grantor something which would in the absence of such right be unlawful and such right does not amount to an easement or an interest in the property. As held in various cases, a licence may be purely personal, gratuitous or contractual, and that first two clauses of mere licences are revocable and the third class, may or may not be revocable and its real test would be the terms of the contract. In these cases, the licences were revocable as either party was at liberty to terminate the contract at any time without assigning any reason and without being liable for any compensation whatsoever on giving three months' notice in writing to the other party. In fact, in these cases even there is no violation of the agreement as the licences of all the petitioners, except of the petitioners of C.P. No. 915/96 have already expired. For fresh licences the petitioners would have to follow the prescribed procedure. In consequence, we do not find any merit in these petitions and the same are dismissed in limine with no order as to costs. The licences of petitioners of C.P. No.915 of 1996 will remain operative till they expire. A.A./S‑60/K Petitions dismissed.