1992 PLP 431 (SCMR)

BASHARAT AHMED SHEIKH, J: ‑‑The High Court has accepted a writ petition filed by Neelum Flour Mills, the respondent herein, and hay declared that the order passed by the Director Food with the approval of the Secretary Food which was to the effect that Neelum Flour Mills would not be paid "handling charges" has been declared as having been passed without jurisdiction and has been quashed. The Azad Government as well as Secretary and Director of the Food Department have challenged the judgment of the High Court with the leave of this Court.

2. The facts narrated in the writ petition on behalf of Neelum Flour Mills, in short, are that the Government and the Neelum Flour Mills (hereinafter to be referred to as `the Mills') entered into an agreement on 18‑4‑1984 for milling of wheat. In pursuance of this agreement a Government order was also passed. Handling charges were paid to the Mills for about two suddenly refused to pay these charges and also issued the impugned order on 17‑12‑1986 that the amount already paid on that account shall be recovered from the Mills. A number of grounds were enumerated in the writ petition to challenge the action of the Director Food. It was ultimately prayed that the impugned order calling upon the petitioner to refund Rs.8,832 may be declared illegal, without lawful authority and void. It was also prayed that a writ of mandamus or any appropriate writ may be issued to the respondents directing them to pay handling charges to the petitioner which it is entitled under the agreement dated 18‑4‑1984 as well as the Government order issued in pursuance thereof. In the written statement the respondents adopted the position that handling charges were only to be paid to the Mills with respect of the stock of wheat which was to be transported by the Mills from the Government godown and not from the stock which were to be transported to the Mills godown from the contractor of the Department.

3. The High, Court held that the respondents were under duty by virtue of "doctrine of acceptance by silence" to refrain from realising the amount in question. For this proposition the Court found support from Karachi Gas Co. Ltd. v. Dawood Cotton Mills PLD 1975 SC

193. The High Court also found that the order passed by Director Food with the approval of the Secretary Food was not valid because both these officers were a party to the agreement entered into with the Mills and in that capacity they had no authority to unilaterally stop payment of handling charges or to recover the amount already paid. It has also been observed in the order under appeal that payment to the Mills on account of handling charges had been made to the Mills in accordance with the terms of the agreement and not by mistake, as claimed by the Director of Food.

4. When petition for leave to appeal in this Court came for hearing it was argued, inter alia, by the learned counsel for the appellants that the order of the High Court was unsustainable in view of the legal position, as claimed, that writ jurisdiction could not be exercised for enforcement of contractual liabilities. This point had not‑been raised before 'the High Court but since it was a point which went to the root of the case and related to the jurisdiction of the high Court leave was granted on this point in accordance with the consistent practice of this Court.

5. We have consequently heard detailed arguments on this aspect of the case. We have also heard the learned counsel at some length in so far as merits of the case are concerned. This Court has already laid down the law that contractual liability cannot be enforced through a writ petition, in an un reported judgment Mufti Nazir Hussain v. Azad Government (Civil Appeal No.49 of 1979, decided on 2‑1‑1980); Mufti Nazir Hussain a retired District Qazi was re‑employed as District Qazi as a stop‑gap arrangement necessitated because of the absence of permanent District Qazi who had proceeded to Saudi Arabia for higher studies. His services were terminated after some time, whereupon Mufti Nazir Hussain filed a writ petition in the High Court challenging the termination order. The main ground taken in the petition was that he had been re‑employed on contractual basis that his service would continue till the return of the permanent incumbent from Saudi Arabia and his services therefore could not be terminated earlier. Violation of the principle of audi alteram partem was also made a ground of attack in the impugned order. The writ petition was accepted and the termination order was quashed. The Azad Government challenged the order of the High Court before this Court. The learned Advocate‑General contended before this Court that no writ petition could lie to enforce a contractual obligation. This Court came to the conclusion that by getting the impugned order vacated all that Mufti Nazir Hussain wanted was the enforcement of contractual liability through a writ petition. Muhammad Aslam, J. speaking for the Court observed as follows:‑‑‑ "We find this objection quite forceful as there is no escape from the fact that such a writ petition for enforcement of service contract does not lie. It is well settled that for the enforcement of a contract or an agreement, relief cannot be allowed through a writ of mandamus and the superior Courts have refused to issue directions, as sought by the respondent herein, on the ground that proper remedy is available through a suit in the Civil Courts. To cite a few authorities, we may refer to The Chandpur Mills Ltd. v. The District Magistrate, Tippera and another PLD 1958 SC 267, Pakistan v. Naseem Ahmad PLD 1961 SC 445, Messrs Momin Motor Company v. The Regional Transport Authority, Dacca PLD 1962 SC 108, M. Muzaffar‑ud‑Din Industries Ltd. v. The Chief Settlement and Rehabilitation Commissioner, Lahore and another' 1968 SCMR 1136, Shamshad Ali Khan v. Commissioner, Lahore 1.969 SCMR 122 and Mir Rasool Bux Khan Sundrani & Co. v. People's Municipality, Sukkur and others PLD 1975 Kar.

878. No doubt some of these authorities, as pointed out by the learned counsel for the respondent, pertain to agreements about property, but the principle enunciated in them is the same; namely that the Courts, while exercising extraordinary writ jurisdiction, do not issue orders or directions for the enforcement of contractual obligations. (1) Pakistan and (2) Administrator of Karachi v. Naseem Ahmad PLD 1961 SC 445 contains almost an identical case where the police employees sought through writ mandamus a direction from the High Court for their re‑instatement on the basis of service contract. The High Court issued the writ for restoring the Government servants to their offices. Against this decision, the Government went in appeal before the Supreme Court where overruling the High Court's view, it was held `a writ of mandamus does not lie to restore a Government servant to office'. In view of this state of law, and agreeing with the contention of the learned Advocate‑General, we hold that the respondent herein could not seek his remedy as stated in the writ petition, through the extraordinary writ jurisdiction of the High Court and if so advised, he could seek his relief through a suit before a civil Court."

6. The learned counsel for the respondent vehemently contended that even if the rule that contractual liability is not enforceable through a writ petition is assumed to be correct the present case was not hit by the mischief of this rule. He contended that the appellant did not pray in his writ petition that the contractual liability may be enforced. What was prayed before the High Court was that the order passed by the Director Food that handling charges would not be paid to the Mills and that the amount of handling charges already paid may be recovered from the Mills was without lawful authority. In light of Mufti Nazir Hussain's case and other judgments mentioned in the observations quoted above, the distinction sought to be created by the learned counsel is superficial and has no force. A similar argument was raised in Mufti Nazir Hussain's case but was repelled. The simple question before us is this: under what authority the Mills claims that handling charges should be paid to it? There is no law which provides for payment of handling charges. It is only the contract between the parties which provides for the payment of handling charges. Therefore, it is a simple case of enforcement of contractual liability. We find force in the argument of Sardar Rafique Mahmood Khan, the learned counsel for the appellants, that the phraseology of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 clearly indicates that jurisdiction conferred by that section is exercisable only if the petitioner before the High Court bases his grievance on violation of a law and thus any grievance which is based on violation of a contract is clearly excluded.

7. When this judgment was being written the learned counsel for the respondent, Mr. Farooq Hussain Kashmiri, sent a request that the judgment of Madhya Pradesh High Court Messrs Shree Ganesh Trading Co., Saugor v. The State of Madhya Pradesh and others AIR 1973 MP 26 may also be considered. We have gone through the judgment. One of the points which has been laid down in that judgment is that writ jurisdiction can be exercised in respect of matters arising partly out of contracts and partly out of statutes. There is no such situation in the present case and the rights of the parties are only governed by the contract under reference. Without going into the question whether handling charges are payable to the Mills or not, we are of the view that the case is clearly hit by mischief of rule that a writ does not lie to enforce a contract. The appeal is accepted and the writ petition filed by the respondent stands dismissed. Since this legal, objection was not raised before the High Court there would be no order as to the costs. A.A./320/S.C.A. Appeal accepted.