2007 PLP 1659 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

In view of similarly factual and legal controversy, both the writ petitions (Writ Petition No.6532 of 2006 and 6534 of 2006) are being disposed of through this single order.

2. Petitioners in both these petitions were granted Vending Licence for installation of Stall at Railway Station, Khanewal vide order dated, 15-9-2006 in Writ Petition No.6532 of 2006 and on 23-5-2006 in Writ Petition No.6534 of 2006. However, both these licences were terminated by respondent No.2 by invoking clause 12(b) of the Vending Licence. Through, these constitutional petitions, both the above mentioned termination orders have been challenged on the ground that before termination neither any show-cause notice was issued to the petitioners nor any explanation was obtained from them and that entire proceedings were conducted in an ex parte manner and in violation of the principles of natural justice; and that the ground on which the licence has been terminated is not a part of the conditions of Vending Licence, even otherwise, there was no verdict by criminal Court under the Pure Food Ordinance, the licence could not be revoked on the ground mentioned in the termination order.

3. The report and parawise comments have been received from the respondents. Learned counsel for the respondent submits that respondent No.2 has got the authority in terms of condition 12(b) of the Vending Licence to cancel the licence forthwith without giving any notice and without being liable to pay any compensation whatsoever to the licensee, therefore, the licences were validly terminated/revoked and these writ petitions being not maintainable are liable to be dismissed.

4. I have considered the arguments of learned counsel for the parties and have also gone through the terms and conditions of the Vending Licence.

5. The relevant clause 12(b) of the Licence reads as follows:-- "In addition to the above penalty, it is also hereby expressly agreed that in the event of unsatisfactory working of the licensee/s or breach of any clause of this Agreement, the Railway Administration is authorized to terminate the contract/cancel the licence forthwith without giving any notice, and without being liable to pay any compensation whatsoever to the licensee/s." Even if the above clause is admitted, even then before invoking the said clause, the respondents were obliged to issue notice to the petitioners pointing out their unsatisfactory working or breach of any clause of the agreement, but in the case in hand, the impugned orders were passed straightaway 'without any such notice, .therefore, the termination of the contract even without notice was not called for, because the same has been done without fulfilling the essential requirement of conveying the alleged unsatisfactory working to the petitioners or breach of any clause of the Licence on their behalf. The impugned orders, also suffer from jurisdictional defect as the same fail to point out any violation of Pure Food Rules without trial and conviction by the competent Court under the relevant law i.e. Pure Food Ordinance which alone provides a ground for revoking the licence and in case the petitioners had been tried and found guilty by the competent Court the respondents would have been justified to revoke their licences for committing an act injurious to public health under the Pure Food Ordinance. But merely that samples were found to be substandard by the Laboratory Test from Government Analyst, Multan, is not sufficient to hold that petitioners in both these cases were guilty of commission of offence in the absence of any specific findings by competent Court to this effect, as such findings can only be recorded by a Court and' not by any authority. Lastly, I find that the abovementioned clause providing for cancellation of the licence forthwith even without giving any notice is not only violative of principle of natural justice providing that nobody to be condemned unheard but is also violative of the law declared by the Hon'ble Supreme Court of Pakistan in the case "Federation of Pakistan v. Public at Large" (PLD 1987 SC 304) providing that issuance of notice and affording opportunity of hearing is to be deemed an integral part of every action, hence the said Clause is struck down being against the principles of natural j'istice and respondents are directed not to act in such like manner and in case any action is required to be taken against any licensee the same - can only be taken after giving notice and providing opportunity of hearing.

6. For what has been discussed above, both these petitions are allowed and declaring the termination of contracts of the petitioners as without lawful authority and of no legal effect, the respondents are directed to immediately restore the licences of the petitioners.

7. I was inclined to burden respondent No.2 with heavy costs for terminating the contracts of the petitioners in an arbitrary manner but on the assurance of learned counsel for the respondent that in future the Railway Authorities shall ensure that before terminating the contract not only a proper notice be issued to the contractors but action would also be taken after providing opportunity of hearing, I have decided not to burden the respondent with costs. However, it is-made clear that in case such-like act is repeated by the respondent, in view of above observations this Court would not be slow in burdening the concerned authorities with heavy costs. Copy of this order be immediately sent to respondent No.2 for compliance. S.A.K./M-56/L Petition allowed.