P L D 1480 Lahore 446 (PLP)

This order shall also dispose of other petitions namely W. Ps. -5220, 3826, 5827, 5821, 5829, 5830, 5925, 5926, 5927, 5928, 5917 of 1978, 1435, 2682, 5470, 5632, 6353. 6354, 6355, 6356, 6357, 6358, 6359 and 7043 of 1979, which involve the same question of law as is being raised in this petition.

2. The petitioner is a cement dealer and has been appointed as its stockist by respondent No. 3 on the terms and conditions as am contained in the letter of appointment. The petitioner had to deposit a sum of Rs. 3,500 as security. The contract was terminable only if the petitioner's performance was found unsatisfactory. The petitioner was required to sell the stocks of cement applied to it by the respondent in accordance with the directions issued, leaving the petitioner unable to deviate therefrom.

3. On 24th September 1973. the President of Pakistan promulgated the Cement Stockists (Cancellation of Agreements and Contracts) order, 1978, (hereinafter called the P. O. 18). It was provided therein that notwithstanding anything contained in any other law or away agreement or contract in force, the company, such as the respondent, may terminate without notice an agreement with a stockist. The P. O. 18 excluded any compensation for such an act and also barred the jurisdiction of the Courts to go into any such dispute.

4. Respondent No. 3, acting in exercise of the powers conferred by Article 2(1) of the P. O. 18, issued a letter dated 23rd November 1978, cancellating the stockist agreement with the petitioner. The said action is being now challenged through the present petition.

5. The learned counsel made the following submissions in support of his petition : (1) the impugned order in bad as it confers excessive delegation of power and is thus susceptible-to abuse ; (2) the impugned order is void ab initio as it is not one of the functions covered by the law of necessity under which respondent No. 1 is functioning. (3) Articles 2 to 4 of the P. O. 18 are ultra vires of the power of the President as no remedy or judicial power could be taken away ; (4) the action is discriminatory and also mala fide; (5) three is no application of mind, particularly to see if the petitioner violated any terms and conditions or was inefficient.

6. The learned counsel, however, conceded that respondent No. 3 could lawfully and validly terminate the agreement with the petitioner even if the P. O. 18 had not been promulgated. 1t is also. admitted that the relationship between the parties is contractual. It is to be noted that since the State hiss taken upon itself to enter into the commercial and industrial dealings it has become its day-to-day function to pass such orders with regard to the same. The induction of respondent No. 1 as a care-taker Government would certainly clothe it with a power to run day-to-day administration and in doing so it may promulgate such laws as help it doing the same. Consequently, this petition is not maintainable in view of the law laid down by the Supreme Court in Momin Motor Co. v. Regional Transport Authority (1) and Shams Ali Khan v. Commissioner (2). The first question raised above thus loses whatever merit it might have otherwise.

7. The other question is whether P. O. 18 could exclude payment o claim of compensation and any judicial remedy for the reason that it is not covered by the law of necessity. Reliance is placed on Begum Nusrat Bhutto v. Chief of Army Staff (3). The authority of a legislation functioning) in normal conditions to deprive a person to claim compensation) or to resort to a judicial remedy under a law cannot be doubted. It also cannot be doubted that all the taken over industries having been placed under the control and supervision of the Government, the legislation of the nature referred to above could fall within its day-to-day functioning and not a departure, from some Constitutional right. The Supreme Court in the case of Nusrat Bhutto, referred to above, conceded the very suspension of the Fundamental Rights. There is no other provision of the Constitution preserving the petitioner's right to go to the Courts as the action has been taken under the law. Article 4 stands complied with. There is thus no merit in this contention either.

8. The learned counsel had relied on Sakhi Dater Khan v. Superintendent Incharge (4) and Jia Ram v. Kanduna Wand (5) to argue that even the principles of law have the force of law and the right conferred on the petitioner cannot exist without a remedy. The contention as a broad proposition of law is correct. However, as it has been held above, that the P. O. 18 is a valid law, the right to compensation, if any, and the resort to the Courts could have been taken away. It is to be noted that the law would presume a remedy and the Court, would supply one if there is a right created by the statute but such a presumption holds good if a presumed or existing remedy has not been expressly taken away by a statute. In the case in hand a remedy having been expressly taken away, the Courts cannot supply one. It is to be noted that the law of limitation is one of such statutes which does not demolish the existing right but only bars a remedy. .

9. The next point taken was that the petitioner has been discriminated against inasmuch as that all agreements of agencies issued between 1973-77 have been cancelled. It is to be noted that the respondent created a class proceeded to cancel their agreement by excluding another class of defence personal. The learned counsel has not been able to refer to any other stipulation whereby any exception has been made in the two classes of cases. In this view of the matter I do not think any objection can be taken on this aspect of the case either.

10. The next submission was that the action taken is per se male. fide and so mala fide in law. Reliance was placed on Government of West Pakistan v. Begum Agha Abdul Karhn Shorish Kashmiri (1). As said above. the two classes created are reasonable. It is a commercial arrangement that, has been upset. No Fundamental Rights are enforceable at this stage and no statutory right has been violated. There is thus no merit in this submission either. (1) P L D 1962 S C 108 (2) 1969 S C M R 122 (3) P L D 1977 S C 657 (4) P L D 1957 Lah. 813 (5) P L ,D 1979 Quetta 91

11. The last submission made was about lack of application of mind The fixation of dates in the P. O. 18 and the fact that the respondent could bring about the rescission of the contract even without the P. O. 18 is enough to show that there is no merit in this objection. For the reasons given above, these petitions fail and are dismissed without any order as to costs. k. M. A. Petitions dismissed. (1)PLD1969SC14