1994 PLP 848 (CLC)

"(1) Copy of Notice dated 29‑11‑90 inviting quotations for providing crane services at the Dry Port (Annex. `R/1'). (2) Copy of quotation form to be filled in by the Firms offering the quotations. (Annex. `R/2'). (3) Copy of terms and conditions dated 28‑11‑90 (annex. 'R/3'). (4) Copy of pro forma submitted by the petitioner In column No.4 lifting capacity of the cranes was given as 45 tons ad 50 tons, in column 5, model was shown as 1980 and 1982, in column 6 year of manufacture mentioned as 1980 model. (Annex. `R/4'). (5) Copy of letter dated 9‑1‑91, addressed to the Chairman, Railways, Islamabad by Haji Muhammad Aslam and son (Annex. `R/5'). (6) Copy of letter dated 15‑1‑91 addressed to he General Manager, Pakistan Railways by Haji Muhammad Aslm and Sons (Annex. `R/6'). (7) Copy of the report submitted by the Committee consisting of two Deputy Principal Officers of the Pakistan Railways dated 19‑1‑1991 after inspection of the cranes in the presence in the agents of the writ petitioner. (Annex `R/7'). (8) Copy of the order dated 19‑1‑91, passed by the General Manager withdrawing the letter of acceptance. (Annex. R/8'). (9) Copy of the order dated 20‑1‑91, passed by the General Manager for re‑inviting the quotations after giving wide publicity. (Annex. `R/9'). (10) Statement showing the names and quoted rates which were opened on 9‑2‑1991, but no action was taken because of the interim order received at 13‑30 hours on the same day (Annex. `R/10'). 'Objections to the maintainability of this petition were taken on behalf of the respondent‑Railways in their report and parawise comments by raising the plea that it relates to contractual matters and that the fresh tenders having been received, the same '..is misconceived and is not maintainable'. The respondent‑Railways had also filed C.M.No. 308/91 26‑1‑1991 with the sole purpose of informing the Court that the General Manager, Dry Ports received a copy of the interim order dated 23‑1‑1991 whereby the operation of the impugned order (Annex. `G') was suspended subject to notice with the rider that it will be operative `..if the petitioner is still working as' a contractor:.' whereupon, the Manager, Dry Ports, Moghalpura reported, vide Letter No.76 1‑DP/1 dated 24‑1‑1991, that `.. the petitioner worked in the Lahore Dry Port up to 21‑1‑1991' and his cranes were removed from the premises of Lahore Dry Port on 22‑1‑1991, the contractor has not been working at the Lahore Dry Port after 21‑1‑1991.

5. In support of this petition it is submitted by the learned counsel for the petitioner that the preliminary objection raised on behalf of the respondent‑Railways is not attracted to this case. According to him, the impugned order has been passed without lawful authority and as the petitioner is still working the respondents can be restrained from interfering therewith, in any manner. He has referred to Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407) in support of his contention that as the petitioner had started working as container handling contractor w.e.f. 6‑1‑1991, he had become possessed of certain rights under the law of the land with the result that locus penitentiae i.e. the power of receding was not available to the respondent‑Railways on the very date on which this decisive step was taken. He was of the view that the plea regarding the impugned action being mala fide in fact and in law, was raised in the (amended) writ petition and the same having not been controverted in the written statement, it shall be treated to have been admitted.

6. Learned counsel for the respondent‑Railways has reiterated the preliminary objection to the maintainability of this petition on the strength of MA. Naser v. Chairman, Pakistan Eastern Railways and others (PLD 1965 SC 83) and The Chandpur Mills Ltd. v. The District Magistrate, Tippera and another (PLD 1958 SC (Pak.) 267). He has contended that if at all the petitioner considers himself aggrieved of the cancellation of any contract between the parties by the respondents, his remedy lies in a suit for damages and not in seeking its enforcement through these proceedings. In this behalf he has placed reliance upon Zamir Ahmad Khan v. Government of Pakistan and another (1978 SCMR 327) and Muhammad Hashim v. Zulfiqar Ali Khan, General Manager, West Pakistan, Road Transport Board and others (PLD 1963 (W.P.) Lahore 418). As regards the argument on behalf of the petitioner that the respondents were not left with any right to rescind and/or withdraw their earlier letter dated 6‑1‑1991 by issuing the impugned order, received by the petitioner on 21‑1‑1991, it was contended that even by deposit of Rs.30,000 in the shape of Defence Savings Certificates in terms of letter dated 6‑1‑1991, the petitioner cannot be held entitled to the specific enforcement of the contract and/or to the declaration that the said contract still subsists. The learned counsel has referred to the contents of the report and parawise comments as also the written statement and the documents appended thereto as Annexes R/1 to R/10 in support of his pleas that the respondent -Authorities have controverted the pleas of mala fides, both in fact and in law, and argued that even otherwise the former plea cannot be considered in these proceedings for the reason that it lacks necessary details on the part of the petitioner.

7. While exercising his right of reply the learned counsel for the petitioner submitted that the petitioner has not asked for a declaration that the contract is still extant but his prayer is that the impugned letter has been passed without jurisdiction in that the competent authority in relation to the execution etc. of contracts for loading and unloading of goods is the Chief Commercial Manager but the same has been issued/passed by respondent-General Manager, Dry Port, Pakistan Railways.

8. I have considered the arguments addressed at the Bar and have also been taken through the material placed on the record. I am not inclined to agree with the learned counsel for the petitioner that the instant petition has no concern with the contractual obligations admitted to have taken a beginning between the petitioner and the respondent‑Railways. Copies of the letters, exchanged between petitioner and' the respondent‑Railways between 12‑12‑1990 and 21‑1‑1991, including the impugned order/letter dated 01/1991, are available on the record. The respondent‑Railways had specifically mentioned in their letters dated 3‑1‑1991 and 6‑1‑1991 that the petitioner has to sign the agreement with them and that the same was under process, then it is not the case of the petitioner that any agreement containing terms and conditions of the container handling contract was finalised up to the time of the withdrawal and cancellation of the Letter of Acceptance No.44 LDP/Publicity/HQ, 29‑DP/Cont‑loading‑unloading/HP dated 6‑1‑1991 by the respondent‑Railways vide the order, impugned herein. The contention on behalf of the petitioner that factum of commencement of work by him, as desired by the respondent‑authorities in their letter of acceptance dated 6‑1 1991, can be equated with a decisive step being taken by him to deprive the respondent‑Railways their chance to rescind/recall the same, does not advance his case as were bit in that all that was done by either party has a clear nexus with the agreement/contract between the parties. It is the case of the petitioner himself that he commenced work under the contract. Even the reliefs claimed by the petitioner, namely, the setting aside of the order/letter withdrawing and cancelling the letter of acceptance, issuing of a restraint order against the respondent‑Railways from interfering with his working and the suspension of the operation of the impugned order with a view to allowing him `.. to perform his duty in accordance with letter of acceptance dated 6‑1‑1991', speak volumes about the endeavours of the petitioner to keep the contract intact and to obtain its enforcement through these proceedings. It is well -recognised principle of law that the High Court in exercise its writ jurisdiction will not interfere if the matter involved is a question arising out of contractual obligations. See Messrs Momin Motor Company v. The Regional Transport Authority, Dacca and others (PLD 1962 SC 108), The Chandpur Mills Ltd. v. (1) The District Magistrate, Tippera and (2) The Province of East Pakistan (PLD 1958 SC (Pak.) 267), Muhammad Hashim v. Zulfiqar Ali Khan, General Manager, West Pakistan, Road Transport Board and others (PLD 1963 (W.P.) Lahore 418), MA. Naser v. Chairman, Pakistan Eastern Railways and others (PLD 1965 SC 83), Abdul Hamid Khan v. Settlement and Rehabilitation Commissioner and 2 others (1975 SCMR 406), Syed Muhammad v. The Settlement and Rehabilitation Commissioner and others (1976 SCMR 61), Zamir Ahmad Khan v. Government of Pakistan and another (1978 SCMR 327), Zafar Iqbal and another v. Inspector‑General, Frontier Corps, Balochistan, Quetta and 2 others (1990 MLD 2329) and Millat Tractors Employees Trust and 2 others v. Government of Pakistan through Secretary, Ministry of Labour, Manpower and Overseas Pakistan, Islamabad and 6 others (PLD 1992 Lahore 68).

9. Having concluded that the terms of the contract, discernible from the communication exchanged between the parties on the subject of "Container Handling Contract", cannot be enforced through Constitutional jurisdiction, I have no hesitation in holding further that the remedy, if at all available to the petitioner in the facts and circumstances of this case, lies in claiming damages from the respondents for its cancellation from the Courts of plenary jurisdiction. The applicability of the principle of lochs poenitentiae or that the contract was illegally cancelled are questions which can be adjudicated upon by the aforementioned forums and there appears to be no compulsion in law to dilate upon the same, here, lest any opinion expressed may prejudice the case of either party, particularly when the instant petition is being dismissed on the ground of non‑maintainability.

10. In view of the foregoing discussion, this petition is dismissed as not maintainable leaving the parties to bear their own costs. Needless to say that C.M. No.692/91 had become infructuous and is disposed of as such. H.B.T./M‑1343/L Petition dismissed.