1998 PLP 1256 (SCMR)

ZIA MAHMOOD MIRZA, J.

Petitioner Company seeks leave to appeal against the judgment of a learned Division Bench of the Lahore High Court, Lahore, dated 5-5-1996 dismissing its Writ Petition No. 1070 of 1996 which was filed against the orders of Railways Authorities dated 12-7-1995 and 1-10-1995 granting catering licences of 7-Up/8-Dn Tezgam (one Rake) to respondents No.4 to 6.

2. As per the averments made in this petition, petitioner company was allotted three rakes of dinning car attached with Tezgam, a railway train running between Rawalpindi and Karachi Cantt, for a period of three years i.e. from 6-7-1992 to 5-7-1995, with a right of further renewal for three years on the condition of good performance in accordance with the Railway Policies of 1970 and 1992. The Government of Pakistan, however, issued a Notification dated 10-9-1994 which laid down the following conditions for allotment of dinning cars:- (1) Enlistment with Pakistan Railways as "Approved Catering Licencee"; (2) Deposit of security amount of Rs.25,000 per rake and proof thereof to be attached with the application; (3) Ten years experience; and (4) Payment of income-tax.

3. According to the petitioner, it applied for the catering licence of the dining car of Tezgam and appended with the application security deposit receipt of Rs.75,000 but the licences were granted to respondents Nos.4, 5 and 6 (one rake each), for a period of three years, although they had not applied for the same nor did they fulfil any of the aforenoted conditions. Feeling aggrieved, the petitioner challenged the action of the respondent authorities in the Lahore High Court, Lahore, through Writ Petition No. 1070 'of 1996 contending that the impugned action was violative of the policies framed by Pakistan Railways in 1970 and 1992 which had the status of law and prayed that the impugned orders of allotment of Catering Licences in favour of respondents Nos.4 to 6 be. set aside and "Respondent Railways may be directed to renew the period for further three years and allow the petitioners to continue their business on the three rakes of dinning cars attached with Tezgam 7 up/8 down in accordance with the Railway Policy of 1992 as there has been no complaint against them".

4. Petitioner's writ petition was taken up by a learned Division Bench of Lahore High Court alongwith some other connected matters (Intra-Court Appeals/Writ Petitions) and dismissed vide judgment dated 5-5-1996 impugned herein. The learned Judges relied upon the cases of M.A. Naser v. Chairman, Pakistan Eastern Railways and others (PLD 1965 SC 83) and Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmad Khan (PLD 1975 SC 667) wherein it was held that a licence was a mere privilege and not a right; even an application followed by deposit of licence' fee does not confer upon an applicant any legal right; and that an agreement of licence cannot be specifically enforced and in the event of a breach, the remedy is an action for damages. Learned Judges, with reference to a previous decision of Lahore High Court in some Intra-Court Appeals also observed that "the Railways cannot be compelled to grant the vending licences." With respect to the argument raised on behalf of the petitioner that the policy instructions relied upon by it had the force of law, learned Judges observed that even if that be so, it would not improve the case of the petitioner because even under those instructions, it was within the discretion of the Railways authorities to renew the licence or to decline to renew it. The learned Judges also observed that the licence of the petitioner having expired on 5-7-1995 and thereafter licences having been granted to respondents Nos.4 to 6 on 1-10-1995 who are running their rakes since then, Writ Petition filed by the petitioner on 10-1-1996 seeking cancellation of the licences granted to the said respondents and for a mandamus for renewal of its licence "is belated in the facts and circumstances of the case. The petitioner did not approach this Court immediately after the expiry of his lease on 5-7-1995 nor soon after the grant of the licence to respondents Nos.4 to 6 on 1-10-1995. This petition, accordingly merits dismissal on this ground also".

5. We have heard the learned counsel for the petitioner. Main thrust of his argument was that in view of the policies framed by Pakistan Railways in 1970 and 1992, petitioner was entitled to the renewal of its catering licence for another three years which was illegally refused by the respondent-authorities. The policies relied upon by the petitioner have not been placed on the present record. It is, therefore, not possible to ascertain whether in terms of the policies, the petitioner was entitled as of right to further extension/renewal of the licence earlier granted to it or the matter rested in the discretion of the authority. It has, however, been held by the learned Judges of the High Court that according to the policy instructions relied upon by the petitioner, it was within the discretion of the Railways to renew the licence or to decline the renewal. That being so, it was rightly held by the learned Judges of the High Court that a writ of Mandamus could not be issued to the respondents for the renewal of petitioner's licence and that too after the expiry of the period of original grant. Refer Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmad Khan (PLD 1975 SC 667).

6. The relief in writ being discretionary, learned Judges have rightly dismissed the petitioner's writ petition on the ground that it did not approach the High Court immediately after the expiry of the period of its licence nor soon after the grant of licnece to the respondents.

7. In the aforesaid view of the matter, we do not find it a fit case for interference by this Court. This petition is accordingly dismissed. A.A./T-4/S Leave refused.