2016 PLP 118 (YLRN)

M. SOHAIL IQBAL BHATTI, J.

Through this Single Order we intend to dispose of the instant Intra Court Appeal as well as I.C.A. No.81/2013 (Azhar Hayat Khan etc. v. Nazeer Ahmed etc.) as both Intra Court Appeals arise out of the same order passed by the learned Single Judge in Chambers.

2. Through these appeals, the appellants have sought an exception to order dated 07.06.2013 passed by learned Single Judge in Chambers, dismissing the writ petitions filed by the appellants.

3. The facts of the case are that the appellants entered into an agreement with Heavy Industries Texila Education Welfare Trust, (hereinafter referred as HITEWT) regarding holding of a Cattle Market in Serai Kala, Texila, District Rawalpindi, within the Area of Cantonment Board, Texila hereinafter referred as CBT); for a period of 10 years and 3 months commencing from 01.04.2008 and ending on 30.06.2018 for consideration of Rs.3,51,00,000/- per annum; Rs.100,000,000/- (Rupees Ten Crore) were paid in advance in three installments according to the schedule.

4. Vide Memo No.4235/Gen/ HITEWT/SHQ, dated 30.01.2013, the cattle market along with its rights was handed over to CBT with a stipulation that the terms and conditions already agreed between appellants and HITEWT would remain the same. During the currency of the agreement CBT made a publication in Daily Jang on 07.03.2013 for conducting auction of the same cattle market. The appellants being aggrieved by this act of CBT filed a writ petition. The learned Single Judge in Chambers dismissed the same through impugned order dated 07.06.2013 and directed the CBT to hold an open auction after fresh public notice to lease out the rights of collection of fee for holding the cattle market. It was further observed by the learned single Judge in Chambers that the appellants have the right to participate in the said auction.

5. The learned counsel for the appellants while advancing his arguments submitted that the learned Single Judge in Chambers dismissed the writ petition in an arbitrary manner against the terms and conditions of the agreement (emphasis is provided to discuss this question in the later part of this judgment). It was further argued that the appellants have entered into an agreement with HITEWT and the said agreement was intact and could not have been interfered by CBT. It was further contended that no notice of revocation of the contract was given to the appellants; hence the princip of audi alteram partem was violated. And therefore prayed for the setting aside of the impugned order.

6. Conversely, the learned counsel for respondent No.3 whose arguments have been adopted by the remaining respondents, vehemently opposed the maintainability of the Intra Court Appeal on the grounds that the contractual disputes cannot be resolved by the High Court in exercise of its extra ordinary constitutional jurisdiction; the learned counsel has further argued that the agreement relied upon is a result of collusion between the appellants and HITEWT as the said contract/Iqrar Nama was against the provisions of section 21(g) of the Specific Relief Act, 1877. It has been further argued that the contract relied upon by the appellants does not qualify the standards of reasonableness and fairness as the contract was executed without having recourse to open auction, it is further argued that HITEWT had no jurisdiction to award any contract to the appellants and any such contract was void and even not binding on CBT; it is further maintained that respondent No.3 by the order of this Court dated 16.08.2013 has conducted auction of the cattle market for a period of three years @ Rs:100,000,000/- per annum with 10% annual increase which manifests that the contract entered into between the appellants and HITEWT was fraudulent and aimed at depriving the Government Exchequer from huge benefits.

7. We have considered the arguments advanced by the learned counsel of the parties and have gone through the record.

8. The Federal Government through SRO 1087(I)/99 published in the official gazette on 09.10.1999 in exercise of powers conferred under section 282(39) of the Cantonments Act, 1924 made the by-laws which have a statutory force. The opening para of the referred SRO reads as under: - "The following by-laws for the regulation and control of holding cattle market in the Texila Cantonment made by Cantonment Board, Texila, in exercise of powers confers by clause (39) of section 282 of the Cantonments Act, 1924 (II of 1924) read with section 283 thereof are hereby published for general information, the same having been previously been published by the said board, and approved and confirmed by the Federal Government as required by subsection (1) of section 284 of the said Act." Sub-by-law (2) of these by-laws reads as under:- "No person shall, without the authority of the board, except as provided in these by-laws, establish or maintain a cattle market within the limits of the Cantonment." By-law 21(1) reads as under:- Subject to sub-by-law (2), the board may, by publication auction, lease out the cattle market to any person or persons on such terms and conditions as the board may determine. Sub-by-law 29 reads as under:- The entry fee of cattle, rate of receipt of charging and other fee or charges relating to cattle market shall be fixed by the board.

9. The perusal of the above relevant provisions clarifies that all the acts relating to holding of cattle market in CBT are subject to the authority of the board and any contract in regard of cattle market can only be competently entered into by CBT. Reference is made to section 112 of the Cantonments Act, 1924 which reads as under:- Section

112. Contract by whom to be executed: subject to the provision of this chapter, every board shall be competent to enter into and perform any contract necessary for the purposes of this Act. This would now take us to the perusal of section 115 of the Cantonments Act, 1924. Contracts improperly executed not to be binding on the board: If any contract is executed by or on behalf of a board otherwise than in conformity with the provisions of this chapter, it shall not be binding on the board. The perusal of the above provisions of law would now take us to the directive issued by the President Secretariat, which is reproduced below:- PRESIDENT'S SECRETARIATE (PUBLIC) AIWAN-E-SADR. Subject: President's Visit to Heavy Industries Taxila. Reference this Secretariat's u.o. note of even number dated 09 Mar. 2004 on the above subject. During the subject visit, the President also inaugurated HIT Education Complex, (HITEWT) and was briefed about the establishment of HIT Education Welfare Trust and its role for providing equality education to the children of employees of HIT and the local population. The President was pleased to direct as under:- i) Utilization of government land by HIT Education Welfare Trust for constructing HITEC may be regularized by M/s. Defence (DG ML&C Department) on priority basis; and ii) Proceeds derived from the "cattle mandi" be utilized by the HIT Education Welfare Trust for meeting its laid down objectives.

2. The Prime Minister's Secretariat is requested to consider issuing necessary instructions to M/s Defence for necessary actions in regard to points (i) and (ii) above accordingly, please. Maj. Gen. (Syed Muhammad Owais), For Chief of Staff to the President.

10. Clause (ii) of this letter manifests that only the proceeds derived from the "cattle mandi" were to be utilized by HITEWT for meeting its objectives.

11. It is no where provided in the said directive that HITEWT had been given any authority to execute any contract regarding auction of the cattle market which was the sole prerogative, under the law, of CBT.

12. Any contract or agreement entered into by HITEWT was in violation to law i.e. section 112 of the Cantonments Act, 1924 and any superstructure built over this void act along with all rights and obligations must fall to the ground. Reference is made to PLD 1958 Supreme Court (Pak) 104 titled "Yousaf Ali v. Muhammad Aslam Zia and 2 others".

13. We are also inclined to make reference to section 21 of the Specific Relief Act, 1877 which deals with the contracts not specifically enforceable. Section 21(g) reads as under:- 21 Contracts not specifically enforceable. The following contracts cannot be specifically enforced:

........................................ g. A contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date; ........................................

14. It does not appeal to prudent mind as to why a contract for a period of ten years was executed in favour of appellants against the provisions of law which was otherwise not enforceable under the law. The President's directive reproduced above, even otherwise, does not confer any right upon HITEWT to enter into any contract; except to derive the benefits of the proceeds of the cattle market, execution of a contract with the appellants is an act beyond the powers of HITEWT and amounts to entering into domain of CBT.

15. We are afraid that the contractual disputes between private parties i.e. present appellants and HITEWT cannot be resolved under the Constitutional jurisdiction of this Court.

16. The Honourable Supreme Court of Pakistan in a judgment reported in 1998 SCMR 2268 titled as M/s. Airport Support Services v. The Airport Manager, Quaid-e Azam International Airport, Karachi and others" observed as under:- "While routine contractual disputes between private parties and public functionaries are not open to scrutiny under the constitutional jurisdiction, beaches of such contracts, which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by the Government, semi government or local authorities or like controversies if involving derelictions of obligations, flowing from a statute, rules or instructions can be adequately addressed to for relief under the jurisdiction."

17. It is established from the dictum laid down by the Hon'ble Supreme Court of Pakistan that the dispute raised by the petitioners in the writ petition entails inquiry into controversial questions of fact and also does not involve any derelictions by a public functionary of obligations flowing from the statute, rules or instructions which can be addressed under constitutional jurisdiction of this court.

18. It is a settled law that enforcement of purely contractual obligation could not be the subject matter of proceedings under Article 199 of the Constitution. Reference is made to a Division Bench Judgment of Karachi High Court reported in PLD 1999 Karachi page 472 titled Owaisco v. Federation of Pakistan and others. We cannot hold ourselves back from observing that, even a contract carrying elements of public interests concluded by functionaries of the state has to be just, fair, transparent, reasonable and free of any taint of mala fides.

19. It is the consistent view of the Superior Courts that discretionary relief by way of writ cannot be granted to help retention of ill gotten gain, even where the impugned action has been taken in deviation of certain recognized norms and procedures. Reference in this regard is made to 1989 SCMR 441 (The Engineering-in-Chief Branch through Ministry of Defence, Rawalpindi and another), PLD 1995 Supreme Court 423 (Multiline Associates v. Ardeshir Cowasjee and 2 others), PLD 1974 Supreme Court 106 (Wali Muhammad and others v. Sakhi Muhammad and others) and PLD 2000 Karachi 224 (Abdul Haq and others v. Province of Sindh and others).

20. High Court in writ jurisdiction will not extend the protection of law to a delinquent person to retain a gain, privilege or benefit which was acquired by manipulation. Where the transaction was not transparent and on the contrary, lacked the element of transparency which resultantly caused huge losses to the Government exchequer, the High Court would never come forward to the rescue of the delinquent individuals.

21. In the present case, we are afraid to observe that although the contract entered into between the appellants and HITEWT is a contract simpliciter, (though no right of auction vests with HITEWT), it is lacking the elements of transparency, fairness, justness and reasonableness. This is established from this fact, as is pointed out by the learned counsel for respondent No.3, that in pursuance to the order dated 16.08.2013, the auction of the cattle market was conducted and the auction has been confirmed @ Rs:100,000,000/- (Rupees Ten Crore) per annum with 10% annual increase which is about three times more an amount of Rs.3,50,00,000/- per annum.

22. This casts serious doubts and aspersions upon the transparency of the agreement upon which the appellants are hinging their rights and claims; which was even otherwise entered into without there being any public auction; without prejudice to the fact, that this agreement had been entered in violation to SRO 1087(I)/99 published in the official gazette on 09.10.1999 read with section 112 of the Cantonments Act, 1924 and was therefore not binding upon CBT under section 115 of the Act, 1924.

23. For what has been discussed above, we are not inclined to interfere with the order passed by learned Single Judge in Chambers. The appellants are at liberty to avail their remedy from the Court of Plenary jurisdiction. Resultantly, the instant appeal as well as I.C.A. No. 81/2013 are dismissed. MH/A-32/L Appeal dismissed.