2009 PLP 739 (YLR)

SAGHIR AHMAD, J.

The case of the petitioner Company is that pursuant to Letter No.13876-80 dated 3-5-2002 issued by Superintending Engineer (E), MEPCO Circle, Rahim Yar Khan the acquired land was proposed to be leased out and the petitioner after fulfilment of requirements the petitioner-Company stood the successful bidder. Thereafter, the petitioner-Company was also called upon to deposit the amount of lease for half of the year, which was also done, whereafter, an agreement/undertaking was also reduced into writing. It is averred that petitioner spend a huge amount to make the land cultivatable. In the meanwhile, some Quality Courier Services lodged complaints and pursuant thereto the Chairman WAPDA not only black listed the petitioner-Company but also cancelled the lease of the agricultural land vide, impugned Letters No. 2095/ DG(S&I)/ DSHQ dated 20-11-2004 and No.54290-91/PMC dated 2nd of December, 2004. These letters black listing the petitioner-company and cancelling lease in it's favour, have been impugned through this writ petition on the ground that lease process was initiated for the benefit of MEPCO which is subsidiary company of WAPDA, therefore, Chairman WAPDA was not authorized to interfere in the matter; that even if there was some irregularity in the auction proceedings the same could be rectified through proper course to law and not by way of complaint and that as the entire process has been initiated at the back of the petitioner without even issuing any notice to explain its point of view, thus, the impugned letters are against the spirit of audi alteram partem.

2. Report and parawise comments have been received, wherein, certain disputed questions of facts have been agitated with regard to the lease of the disputed land in favour of the petitioner-company which cannot be resolved without taking evidence, but I am afraid this exercise cannot be undertaken by this court in its constitutional jurisdiction. The Hon'ble Supreme Court of Pakistan in the case "Shah Wali and others v. Ferozuddin and others" (2000 SCMR 718) has categorically laid down that "High Court could not decide the controversy which was purely a factual one." Similarly in another case "Punjab Small Industries Corporation v. Ahmad Akhtar Cheema" (2002 SCMR 549), it was held that:

"Superior Courts should not undertake to investigate disputed question of fact necessitating taking of evidence, which can more appropriately be done in a suit--Constitutional jurisdiction is intended primarily for providing an expeditious remedy, where illegality of action of executive or other authority can be established without elaborate inquiry into the complicated or disputed fact." Therefore, so far as this writ relates to the question of cancellation of lease, the same is dismissed and the petitioner, if so advised may avail the alternate remedies.

3. As regards, black listing of the petitioner Company, it is frankly conceded by learned counsel for the respondent WAPDA that before issuing such a directive, no notice was issued to the petitioner. In this view of the matter the above act of the respondent WAPDA so far as it black lists the petitioner-Company, is violative of settled principle of natural justice. In the case reported in PLD 1987 SC 304, issuance of prior notice to the party against whom some adverse action is proposed to be taken, is Constitutional right of such party. Further in "Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others" (1998 SCMR 2268), it has been made obligatory for public functionaries to issue notice to the party before making any adverse order against it and the order should also reflect reasons for its making. In this view of the matter, this Constitutional petition to the extent of black listing the petitioner-Company, is allowed and matter is referred back to the concerned authority, and if still deemed appropriate to black list the petitioner-Company the said authority shall issue a notice to the petitioner and. only after affording him proper opportunity of hearing, shall pass a fresh order.

4. This writ petition is partly allowed and disposed of accordingly. H.B.T./M-454/L Order accordingly.