2003 PLP 50 (SCMR)

‑‑‑‑S. 42‑‑‑Declaratory relief‑‑‑Entitlement‑‑‑Such relief could not be sought in event of non‑creation of any vested right. Sh. Wazir Mohmand, Advocate Supreme Court for Petitioners. Nemo for Respondents Date of hearing: 18th July, 2002 SARDAR MUHAMMAD RAZA KHAN, J ‑‑Gul Nawaz Khan deceased of Janikhel, Tehsil and District Bannu, on 18‑7‑1993 submitted an application before Divisional Manager (Resales), Pakistan State Oil Company Limited, 9‑C Rafique Lane, Peshawar Cantt., for the installation of a tilling station. Spot was inspected by the functionaries of the Company, a feasibility report was also prepared but no agreement was ever signed by the Company. Gul Nawaz .Khan died in the meantime, Rehmatullah Khan, Advocate and others, the legal heirs of Gul Nawaz Khan deceased, while basing their claim on such application of their predecessor‑in‑interest, filed a civil suit against the Government of Pakistan through Secretary, Petroleum and various functionaries of Pakistan State Oil Company for a declaration that they were entitled to the installation of a petrol pump and that the respondents be asked for the specific performance of the agreement qua such filling station and also for the damages in a sum of Rs.40,00,000 which according to the plaintiffs, was incurred on the infrastructure involved including the compensation for mental torture.

2. After serious contest by the defendant, learned Civil Judge‑I, Bannu, vide his judgment dated 20‑11‑1999, non‑suited the plaintiffs. They filed Regular First Appeal No. 1 of 2000, which was heard by an Hon'ble Division Bench of Peshawar High Court and which on 25‑4‑2001 was dismissed. Rehmatullah Khan etc. have filed this petition for leave to appeal.

3. We may proceed from the admitted facts between the parties that no contract or agreement had ever been signed between the parties regarding the insllation of a filling station. The matter never proceeded beyond the submission of an application by Gul Nawaz Khan and a few actions like the preparation of feasibility report etc. It is also a matter of fact that whatever progress is made by the applicants on the spot qua the infrastructure, was a unilateral act sans any agreement or contract between the parties. These conditions being in existence, we have to see as to what relationship exists

4. The first and foremost relationship that apparently strikes the mind is that of creation of agency. Section 182 of the Contract Act lays down that an "agent" is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the "principal". If the relationship between the parties is viewed from such angle, we have no agreement or contract before us in black and' white wherefrom it could be ascertained as to whether Pakistan State Oil had employed Gul Nawaz Khan to do any act for the Company or to represent the Company in dealings with third persons. In the absence of such contract between the parties, we utterly failed to understand as to how could the relationship of principal and agent be determined between the parties. The instant conditions do not at all go to create an agency. Gul Nawaz Khan and his legal heirs, the plaintiffs, cannot assert any rights of an agent, the institution of agency ruled out altogether.

5. The second idea that comes to one's mind can be of a licence. Licence is defined in the Easements Act which we believe is not a case of the petitioners/plaintiffs. Coming to the dictionary meaning of the word "licence" we may refer to Fifth Edition of Black's Law Dictionary, page

829. It defines licence as: "The permission by competent Authority to do an act which, without such permission, would be illegal, a trespass, or a tort. Leave to do things which licensor could prevent. Permission to do a particular thing to exercise a certain privilege or to carry on a particular business or to pursue a certain occupation. Permission to do something which without the licence would not be allowable. A licence is not a contract between the State and the licensee, but is a mere personal permit. Licence with respect to real property is a privilege to go on premises for a certain purpose, but does not operate to confer on, or vest in. licensee any title, interest, or estate in such property. "

6. From the above definition of a licence one can comprehend that it. in simple words, is a permission granted by one to another to do some act or to enjoy a certain privilege. It is not a creation of contract and it does not confer any right upon the licensee to create any interest etc. The petitioners/plaintiffs have remained completely at loss to prove as to whether even a permission in the shape of licence had been granted by Pakistan State Oil to install a filling station. The answer is in the simple negative. What to talk of E the grant of a licence in the instant case and the issuance of any authority in that behalf, the matter has not proceeded legally and technically beyond the filing of an application. Mere filing of application does not create any right for the grant of either an agency or a licence

7. The permission by Pakistan State Oil to Gul Nawaz Khan to sell their petrol in his filling station, if at all granted, would have constituted a licence which even if granted could have been withdrawn at any time. Seen from any angle, no vested right was created by filing an application or even I by submission of a feasibility report. In the event of non‑creation of any vested right, no relief can be sought under section 42 of the Specific Relief Act. In the circumstances, the petitioners were rightly non‑suited by the two Courts below.

8. There being no force in the petition, it is hereby dismissed and leave to appeal is refused. S.A.K./R‑55/S Leave refused