2000 PLP 1249 (CLC)

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Factual controversy could not be resolved in Constitutional jurisdiction of High Court. Abdul Rasheed Sheikh for Petitioners. Muhammad Naveed Hashmi for Respondent. Date of hearing: 30th July, 1999. This Constitutional petition filed by Malik Muhammad Aslam and others is that they are auction purchasers two Pharis (Plots) of Sabzi Mandi Gaggo, Market Committee, Burewala, District Vehari, the auction of which was held on 23‑6‑1998. As per, terms the petitioners deposited half of the auction price amounting to Rs.2,35,000 and they were to be given the possession of the auction plots on 1‑7‑1998 but the same was given to them on 26‑7‑1998 after 26 days; and the Market Committee was bound to provide accommodation in the Sabzi Mandi for keeping the vegetables and fruit brought in the Sabzi Mandi for the purposes of its sale which was not provided. This accommodation was not provided in spite of the undertaking given by the respondent before entering into the contract. The petitioners contended that due to heavy rainfalls ‑and due to non‑accommodation of storing onion lying amounting to Rs.1,70,000 was totally destroyed and it caused a serious setback to the petitioners. This 16ss was caused to them due to non‑supply of the accommodation and so requested to balance that loss and also provide accommodation for storing the agricultural produce brought in the market. The respondents instead of balancing the damage caused to the petitioners, demanded the remaining instalments besides income‑tax for which the respondent was not competent to emand and that the respondent was not entitled to charge the market fees from the petitioners.

2. The writ petition was admitted to regular hearing on 19‑10‑1998 and an injunction was granted in favour of the petitioners restraining the respondents from demanding the remaining instalments non‑interference into the possession of the petitioners. The respondent submitted its written statement raising preliminary objection about maintainability of the writ petition and that after expiry of period of lease the writ petition was liable to be dismissed being infructuous.

3. The Market Committee, Burewala had leased out two Pharis,(plots) in Sabzi Mandi through open auction for the period of one year commencing 1‑7‑1998 to 30‑6‑1999. Due to injunction issued by this Court in favour of the previous contractor the possession of the site was handed over to the petitioners after 26 days. It was a contract executed by both the parties and through this writ petition the petitioners wanted the performance of the contract.

4. The main grielance of the petitioners is that the possession of the site was delivered to them after 26 days while it was to be delivered on 1‑7‑1998. The petitioners obtained injunction from this Court on 19‑10‑1998 and according to the contract the lease period of the petitioners ended on 30‑6‑1999 and today 30 days more have been passed, the petitioners are continuing the possession of lease, so this grievance of the petitioners has been redressed. Since subject‑matter of the writ petition is "contractual obligation" and in such cases where there is breach of agreement with jurisdiction cannot be invoked. In this context reference can be made of Shamshad Ali Khan v_ Commissioner, Lahore etc. 1969 SCMR

122. In this case Shamshad Ali Khan petitioner had sought help of this Court under Article 98 of the Constitution to enforce his claim for‑lease of plot of land situated at Mecleod Road, Lahore belonging to Municipal Corporation of Lahore, in which Honourable Judges of the Supreme Court observed:‑ "We feel that the writ petition filed by the petitioner was misconceived. At the highest it was a case of a breach of agreement for which the remedy did not lie in the writ jurisdiction of the High Court. " In the present case the petitioners had claimed that the respondent had not provided them facility of accommodation due to which they suffered a loss of Rs.1,70,

000. This was clearly a case pertaining to the condition of agreement hence the petition is misconceived.

5. The allegations raised by the petitioner in the writ petition are in regard to facts, which could be determined, whether any loss bad been caused to the petitioners due to the breach of the agreement by the respondent, by producing evidence by the parties. So, the factual controversy cannot be resolved in Constitutional jurisdiction of this Court.

6. For the foregoing reasons there is no force in the writ petition which is dismissed. H. B. T/M‑116/L Petition dismissed.