1998 PLP 898 (CLC)

JAWAID NAWAZ KHAN GANDAPUR, J.‑‑‑Munir Gul petitioner has invoked the Constitutional jurisdiction of this Court and has prayed that a direction be issued to the Peshawar Municipal Corporation (respondent) to abide by the terms and conditions of the contract arrived at between the brother of the petitioner (Nazir Alain) and the respondent. Photo‑stet copy of the deed has been appended with the writ petition as Annexure "B"

2. Mr. Manzoor Elahi Gondal, Advocate, learned counsel for the petitioner present and heard. Record of the case perused carefully.

3. The learned counsel for the petitioner contended that the brother of the petitioner was granted permission Vide: respondent's letter No.Nil, dated Nil (Photo Copy Annexure I ' A') to construct Latrines at Old Sabzi Mandi by demolishing the old one. The needful was accordingly done. Thereafter, an agreement (Annexure 'B') was executed by the brother of the petitioner in favour of the respondent. The learned counsel for the petitioner further submitted that on 16‑4‑1996 the respondent (Municipal Corporation Peshawar) without any rhyme or reason and without giving any notice to the petitioner cancelled the contract Vide: its Order No. 12683 (Copy Annexure ' C'). Hence this petition.

4. It may be stated at the out‑set that a person claiming entitlement for the issuance of writ of Mendamus must, at least, have a clear legal right to the performance by the respondent of a particular duty sought to be enforced. The duty must be one which is manifestly defined, imposed or enjoined by law. In other words or to put it differently, the applicant/petitioner for issuance of mandamus must ex facie show that he has a legal right to the performance of a legal duty by the other party against whom the relief as asked for is sought. In the case in hand, the petitioner seeks to enforce contractual right and liability on terms of the alleged agreement‑deed and says that the deed was arrived at between his brother, Nazir Alain, since dead, and the respondent, therefore, the respondent should have honoured the same even after his death. We have not been impressed by this arguments at all. In point of fact, the petitioner has no locus standi to come to this Court for the redress of his grievance, if any. On the other hand, we cannot ignore a fundamental rule that before a writ of Mendamus could be issued to compel a party to do something, it must be prior shown that the statute had imposed a duty in that respect. This factual position is wanting altogether in the instant writ petition. It is only in respect of legal right that a writ of mandamus can be issued.

5. What legal right the petitioner has to enforce against the respondent especially when he himself is not a party to the deed executed between the respondent and his late brother. The petitioner has, therefore, no locus standi to bring this writ petition. Besides, contractual obligations cannot be enforced through Constitutional petition. In case Messrs Momin Motor Company v. The Regional Transport Authority Dacca and others, reported as PLD .1962 Supreme Court 108, the Hon'ble Supreme Court of Pakistan has held:‑‑‑ "Writ‑‑‑Contractual rights‑‑‑Not enforceable by recourse to writ jurisdiction. "

6. In the circumstances, we are of the view that the petitioner is not legally clothed with a right to enforce a right not vested in him and that no statutory duty is involved nor any legal right is being enforced nor indeed performance of a public duty is being claimed, therefore, a writ of mandamus cannot be issued. This writ petition is devoid of merit/substance and, is accordingly, dismissed in limine. A. A. /9/P Petition dismissed