P L D 2020 Lahore 400 (PLP)

MUHAMMAD SAJID MEHMOOD SETHI, J.--This judgment shall also decide I.C.As. Nos. 433 and 435 to 439 of 2009 and 226 of 2015, as common questions of law and facts are involved in all these cases.

2. Through this and connected Intra Court Appeals, consolidated judgment dated 06.03.2009, passed by learned Single Judge in Chambers in W.P. No.11148/2003, has been challenged, whereby writ petitions filed by respondents were allowed in the following manner:- "

26. For what has been held above, these petitions are accepted and impugned action of the respondents (UBL and IDBP) whereby the rate of return / profit on Mahana Monafa Certificates and Uni'Sona Certificates, has been reduced unilaterally, is declared to be without lawful authority and of no legal effect. Respondents are held legally bound to pay the depositors the profits, on the agreed terms, as expressly incorporated in the Certificates. The petitioners are entitled to profit at the agreed rate, till final payment in respect of their investments."

3. Facts of this case, in precise, are that consequent upon promulgation of 'Uni Sona Deposit Scheme' by United Bank Limited, respondents made investment under the terms and conditions of said scheme. However, before maturity of said scheme, appellant-Bank decreased the rate of profit and conveyed it to respondents vide letter dated 09.12.1999, which necessitated the respondents to approach this Court through various writ petitions. The writ petitions have been decided through impugned consolidated judgment dated 06.03.2009, declaring the impugned decrease in the rate of profit to be without lawful authority and of no legal effect. Hence, this and connected appeals.

4. Learned counsel for appellants submit that issue involved in these cases relates to contractual obligations, which cannot be agitated before this Court in exercise of constitutional jurisdiction; that since appellant is a private bank, therefore, writ petitions are not maintainable against it; and that issue to this extent has already been decided by this Court vide judgment dated 08.03.2019 passed in I.C.A. No.37/2015, titled Noor Badshah through L.Rs. v. United Bank Limited through its President and others, following the ratio settled by Hon'ble apex Court in Abdul Wahab and others v. HBL and others (2013 SCMR 1383).

5. On the other hand, learned counsel for respondents submit that appellants have agreed, through advertisements, to pay fixed ratio of profit on investments made under said schemes but subsequently same was arbitrarily decreased by appellant bank; that fundamental rights of respondents had been infringed due to unilateral actions of appellant-Bank; and that writ petitions filed by respondents were rightly allowed by learned Single Bench. In support, they relied on order dated 01.12.2008, passed by Hon'ble Supreme Court of Pakistan in Civil Petition No.317-L/2005, Human Rights Commission of Pakistan and others v. Government of Pakistan and others (PLD 2009 Supreme Court 507), Suo Motu Action regarding non-payment of retirement benefits by the relevant departments and others (2018 SCMR 736) and Pakistan Olympic Association v. Nadeem Aftab Sindhu (2019 SCMR 221).

6. Arguments heard. Record perused.

7. The common grievance agitated by respondents through writ petitions relates to decrease in profit rate on their investments made under 'Uni'Sona Deposit Scheme'. The question of maintainability of writ petition against private bank, for the purpose of exercise of constitutional jurisdiction of this Court, has already been dealt with and decided by the Hon'ble Supreme Court of Pakistan in the case of Abdul Wahab (supra), wherein it has clearly been laid down that writ petition is not maintainable against a private bank as it does not qualify the status of a person/authority within the meaning of Article 199 of the Constitution. The main reason for said conclusion was that after privatization of bank, it was a private institution having no concern with the affairs of Federation or Province, whereas the State Bank of Pakistan ('SBP') is only a regulatory body for all the banks operating in Pakistan in terms of Banking Companies Ordinance, 1962 and such regulatory role and control of SBP does not bring a bank within the meaning of a person or authority performing functions in connection with affairs of the Federation, which was also followed by Full Bench in the case of Noor Badshah (supra), relevant observations of which are reproduced as under:- "

12. Needless to observe here that constitutional petition is maintainable under Article 199(1)(c) of the Constitution against any person including the body politic or corporate for the purpose of enforcement of any of the Fundamental Rights conferred by the Constitution but, as observed by the learned Single Bench, claim of the appellants (employees of a private bank) regarding release of grade increments and recalculation of their pensionary benefits etc. is indeed a dispute of private character with the employer bank regarding terms and conditions of service contract, governed under non-statutory rules, and remedy of constitutional petition under Article 199 of the Constitution is pre-eminently a public law remedy and is not generally available against private wrongs. Constitutional jurisdiction of High Court is equipped to serve as a judicial control over administrative actions and where a dispute is of a private character and not for enforcement of fundamental rights as of public duty, constitutional petition is not maintainable for resolution of such private dispute.

13. Undoubtedly, directions under Article 199(1)(c) of the Constitution can be made to any person, which in appropriate circumstances can include a private person, for enforcement of Fundamental Rights conferred by Chapter 1 of Part II of the Constitution in cases involving (i) Bonded or forced labour; (ii) Wrongful detention; (iii) Restoration of liberty and freedom of movement; (iv) Likelihood of any hazard to life by pollution; but enforcement of any right qua service benefits arising out of non-statutory rules or contract is not amenable to writ jurisdiction as rightly held by the learned Single Bench in the impugned judgment."

8. Undoubtedly, subject matter of the constitutional petition seeking enforcement of terms of Uni Sona Deposit Scheme has emanated from a contract and the enforcement of the same does not confer legal character. High Court, in ordinary circumstances, cannot embark upon the interpretation of terms of contract and its enforcement. In cases involving disputed facts, such rights cannot be enforced by taking recourse to such jurisdiction. If in every contractual matter, giving rise to enforcement of contractual obligations or a dispute, which can be redressed through remedy available under the law, constitutional petitions are entertained, then the same will defeat the very purpose of law under which competent Courts are established and vested with jurisdiction under the law. This remedy is primarily a public remedy and is not generally available against private wrongs. This jurisdiction is equipped to serve as a judicial control over administrative actions and where a dispute is of a private character and not for enforcement of fundamental rights as of public duty, constitutional petition is not maintainable for resolution of such private dispute. It, being discretionary and extra ordinary, is exercised in grave cases rather than in routine. Despite expansive nature of powers and jurisdiction, it does not enable a High Court to act as an appellate forum. Various trappings or limitations are required to be satisfied before jurisdiction is to be assumed by High Court. Reliance is placed on Noor Muhammad Qureshi and another v. The Divisional Superintendent, Pakistan Railways, Quetta (1979 SCMR 157), Lahore Cantonment Cooperative Housing Society Limited, Lahore, Cantt. through Secretary v. Dr. Nusrat Ullah Chaudhry and others (PLD 2002 SC 1068), Pakcom Limited and others v. Federation of Pakistan and others (PLD 2011 SC 44), Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others [2019 SCMR 648 = 2019 PLC (CS) 928] and Maj. (Retd.) Syed Muhammad Tanveer Abbas and another v. Federation of Pakistan through Secretary, Ministry of Interior and another (2019 SCMR 984).

9. Needless to say that only exception to it is when State functionary, acting under the statute, has to act in a fair and transparent manner and if disputed questions of fact are not involved. Relief in exercise of constitutional jurisdiction in appropriate matter cannot be denied merely because issues in the matter are relating to contractual obligations. High Court has power to examine the validity of the order in respect to grant a contact and can strike down the same on the basis of mala fide, unfairness and lack of transparency apparent on the record provided that challenge is promptly made and question of fact is not involved, which requires evidence to resolve it and in that case the party can be relegated to seek remedy before Civil Court. Routine contractual disputes between private parties and public functionaries are not bound to scrutiny under constitutional jurisdiction, especially in absence of above elements. Unless Government instrumentality was involved or a clear breach of any statutory provision was committed by the party, contract having no statutory backing, the violation of any provision thereof, if any, will surely not be justiciable under constitutional jurisdiction. The actions, being relating to the contract, are far from having legal infirmities warranting constitutional interference.

10. Learned counsel for respondents contended that learned High Court is empowered to issue directions against any private person in terms of Article 199(1)(c) of the Constitution, hence, writ petitions were rightly allowed. In support, the case law mentioned in their arguments was also referred. Suffice it to say that the Full Bench has already ruled while deciding the case of Noor Badshah (supra) that writ could be issued against a private person for enforcement of fundamental rights granted by the Constitution, in exceptional circumstances mentioned therein, and also held that the judgment delivered by Hon'ble apex Court in the case of Abdul Wahab (supra) has neither been over-ruled nor writ petition was held to be maintainable against private bank by Hon'ble Supreme Court of Pakistan in the judgments referred by learned counsel for respondents. Further-more, in C.P. No.317-L of 2005, the matter was regarding the scheme issued by Industrial Development Bank of Pakistan, which is a statutory bank and even in that case, question of maintainability of constitutional petition against a private bank was not involved. Furthermore where the relief is regarding enforcement of contractual stipulations/obligations and infringement of any condition of such a contract at the most entitles the aggrieved person to avail alternate remedy for breach of contract before the Court of plenary jurisdiction. In such a situation, it cannot be argued that fundamental rights of such a person have been violated conferring upon him right to enforce the same in terms of Article 199 of the Constitution. High Court can only interfere where the rights are based on statute, law or rules framed thereunder, or when obligations or duties vest in public functionary or a constitutional body, performing functions in relation to affairs of federation or a province, or a legal authority. In such a situation, even contractual rights and obligations might be enforced in constitutional jurisdiction, which is however, subjected to important rider of corresponding absence of an adequate remedy. Reliance is placed on Zonal Manager U.B.L. and another v. Mst. Perveen Akhtar (PLD 2007 SC 298), Hazara (Hill Tract) Improvement Trust v. Mst. Qaisra Elahi (2005 SCMR 678), Abdul Wahab and Noor Badshah (supra).

11. It is re-emphasized that relief sought by respondents in the present case is primarily with regard to enforcement of contractual obligations between private parties and same cannot be enforced or granted while exercising discretionary jurisdiction of High Court. Appropriate remedy for such matters is through suit before the Court of competent jurisdiction. Furthermore, facts as averred by the respondents were disputed by the appellants. However, respondents are at liberty to avail any other alternate remedy available to them under the law before the relevant forum, including State Bank of Pakistan, if so advised.

12. For what has been discussed above, since writ petitions filed by respondents are not maintainable against appellant-bank, therefore, this appeal, along with connected appeals, are allowed. The impugned judgment passed by learned Single Judge is set-aside and writ petitions stand dismissed. MH/U-9/L Intra Court Appeal allowed.