2017 PLP 426 (CLC)

ZAHEER-UD-DIN KAKAR, J.

Through this Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 "the Constitution", the petitioner has made the following prayer: "It is accordingly respectfully prayed that this Hon'ble Court may declare the act of respondents Nos.2 to 4 is illegal and unlawful and without jurisdiction and declare the admission of respondent No.5 in MBBS academic year 2015-16 in the institution of respondent No.4 is void ab initio and set aside the same and direct the respondents Nos.2 and 4 to admit the petitioner in MBBS for academic session 2015-16 in the institution of respondent No.4 (QIMS), in the interest of justice, equity and fair play."

2. Perusal of the record shows that on 6.6.2016, the learned counsel for the petitioner was asked to explain how the petition is maintainable against the private institution (respondent No.4) i.e. Quetta Institute of Medical Sciences "QIMS". The learned counsel sought time to assist the Court on the point and the matter was fixed for 13.6.2016 and on the said date learned counsel once again sought time to appraise the Court about the maintainability of the petitioner. On 13.10.2016, office was directed to issue notices to the parties, resultantly, on behalf of the respondent No.3 (Principal Bolan Medical College "BMC"), the learned AAG filed parawise comments and stated that, it has wrongly been arrayed as a party and this matter pertains to the QIMS. On 19.10.2016, the learned counsel for the petitioner was again directed to assist the Court on the point of maintainability of the petition, but he sought time and in the interest of justice the request was allowed as a last opportunity and the matter was adjourned for 24.10.2016. On 8.11.2016, the learned counsel for the petitioner came up with a plea that the petitioner did appear in a test conducted by the BMC through NTS and on the basis of the same, the petitioner applied in the QIMS. He added that the Government of Balochistan is funding some students in the said institution, therefore, the present petition is maintainable.

3. The real issue for determination of the present petition is that whether a constitutional petition is maintainable against a private institution? There is no dispute to the proposition that a Constitutional Petition does not lie in respect of the bodies which do not have statutory rules or against private entity. There is no denial to the fact that the QIMS is a private organization and is being run without any statutory rules. A relief under Article 199 of the Constitution is pre-eminently a public law remedy and is not available as remedy against private wrongs. It is used for enforcement of fundamental rights of the public connected with public functionaries or to compel the public/statutory authorities to discharge their duties and to act within their bounds or to refrain them from an act beyond their domain. The constitutional jurisdiction of this Court is admirably equipped to serve as judicial control over administrative actions and where a dispute is of a private character, a Constitutional Petition is not maintainable for resolution of such private dispute. The Hon'ble Supreme Court in case reported as Pakistan Red Crescent Society and another v. Syed Nazir (PLD 2005 SC 806), while holding the Bank as a private institution held that "Government control must be particular to the body in question and must be persuasive and on the other hand, when the control is merely regulatory whether under the statute or otherwise it would not be served to make the body a "State". The Supreme Court of India in case Praga Tools Corporation v. Shri C.A. Imanual and others (AIR 1969 SC 1306), while dealing with scope of writ of mandamus, held as under: "

6. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applied for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of reinstatement to any office which is essentially of a private character nor can such an application be maintained to secure performance of obligation owed by a company towards its workmen or to resolve any private dispute."

4. In view of above discussion, we have no manner of doubt that the respondent's No.4 QIMS, being not a person performing function in connection with affair of Federation or Province and also being not governed under statutory rules, this constitutional petition is not maintainable, thus, the same is dismissed in limine. ZC/80/Bal. Petition dismissed.