1990 PLP 1 (MLD)

4. By interim order dated 4-10-1989, the Pakistan Railways was directed to file a report and parawise comments to the writ petition within three weeks, which has since not been filed. By order dated 9-10-1989 of this Court, with consent of learned counsel for the parties, a reference was made under Article 2 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, to undertake investigation into the allegations of maladministration on the part of the Pakistan Railways, but without any progress. Refer interim order dated 1-11-1989 admitting the writ petition to a regular hearing.

5. The only question that this Court is called upon to consider in the writ petition is, whether the impugned act of the Pakistan Railways in not supplying the wagons to the petitioner tantamounts to give any undue or unreasonable preference or advantage to or in favour of any particular person or any particular description of traffic or any undue or unreasonable prejudice or disadvantage in any respect whatsoever to the petitioner, in violation of the statutory powers conferred on the Pakistan Railways Administration by section 42-A of the Pakistan Railways Act, 1890 (hereinafter called the Act) and whether during the pendency of writ petition, the petitioner is entitled to interim relief.

6. If this case is intended to take up unfortunate political controversy between certain high personalities, it is indeed deplorable. To my mind it need not involve any such question for resolving the controversy raised in this petition, Suffice it to say that it is desirable that the Pakistan Railways which is a public body and exists for public welfare and convenience, derives revenue from general public and enjoys monopoly in their trade under the Act, should take good care to remove any vestige of suspicion of undue or unreasonable preferential treatment or advantage of any particular class or any particular description of traffic in any respect whatsoever. This is the rationale behind section 42-A of the Act, which must be strictly adhered to.

7. There is no outright refusal on the part of the Railway authorities to supply the wagons. Their stand is that piecemeal demand of a few wagons can be met once in a while, but a consistent supply of fifty to sixty wagons per day cannot be arranged and guaranteed keeping in view the transportation of essential commodities and the defence requirements. It is also their stand that they are not legally bound by any agreement or contract to lift the cargo and they will do so as soon as the pressure of movement of essential commodities is eased. The question, therefore, is whether this plea is prima facie tenable?

8. Mr. Asif Jan further submitted that the Railway administration has given priorities to essential commodities and defence requirements; in pursuant to an international trade agreement between Pakistan and Afghanistan, the goods in transit for Afghanistan are transported only by Pakistan Railways as bounded cargo from Karachi to Peshawar, NWFP, Chaman and Baluchistan; one train operates daily from Karachi to Mughalpura, Lahore, for the bounded cargo; of average 60 to 65 wagons are available for the consumers, which include all importers of Punjab; the State Cement Corporation, to whom an average of 60 to 70 wagons are supplied daily for transport of cement from Hyderabad to Lahore are at times denied the rolling stock for weeks on account of heavy rush of wheat transportation and, therefore, the impugned act is bona fide. Some record has been produced by the Railways, but the most important registers called the priority register and the performance registers, have not been produced although specifically requisitioned by this Court vide order dated 6-11-1989 in C.M. No. 4734 of 1989.

9. Mr. Iftkhar Ali Sheikh, submitted that refusal to supply the wagons is violative of the statutory prohibition against any undue or unreasonable preference or advantage to or in favour of any particular person. He argued that the Pakistan Railways has given undue preference to different parties to the disadvantage of the petitioner. The allegations of discrimination are supported by an affidavit and have been pleaded with particularity in paragraph 19 of the writ petition, which may be reproduced:-- "(a) 13 wagons bearing Nos.44598, 72591, 79158, 59899, 6000, 72376, 72413, 40754, 72543, 72338, 57859, 72345, and 58765 arrived at Lahore from Karachi on 30/9 and 1/10/89. The petitioner is attaching PRs of nine such wagons (ANNEX-Y) (b) Of the 39 wagons bearing Nos. 59936, 56380, 56365, 59991, 26592, 79142, 57769, 14100, 88072, 78243, 58605, 63183, 58204, 69189, 72550, 57842, 56372, 57669, 83560 69220, 58292, 79138, 41337, 58327, 27971, 57721, 58684, 57827, 58684, 58204, 69132, 75544, 57727, 68947, 96387, 79230, 56171, 72526 and 63119, the first 10 wagons have since been unloaded at Lahore Cantt. Railway Station on or about 5/10/89. These wagons were carrying iron and steel scrap from Karachi to Lahore. The other 29 are to reach Lahore Dry Port or Lahore Cantt Railway Station any time. (c) 13 wagons Nos. 49436, 49465, 40941, 49631, 47760, 49473, 49413, 40980, 49470, 49479, 59472, 49405 and 49485 were booked from Karachi destined for Lahore on 26/9/89. They are to arrive at Lahore Dry Port and might have already arrived. (d) 25 containers on board the vessel PLANTIC containing steel scrap were transported to Lahore Dry Port, with RR Nos. 159657, 159658, 159656, and 159655. The scrap bound for godown in Kala Shah Kaku has since left the Dry Port. (e)'The respondent No.1 is also carrying a cargo of 2,000 metric tonnes of scrap from Karachi for Lahore Dry Port which shall reach the destination by 12/10/89. While the petitioner is being denied the facility of using the railways, unreasonable and undue preference is being shown in utter violation of statutory obligations."

10. It is also specifically stated in paragraph 9 of the stay application, supported by affidavit that the respondents are supplying rolling stock to many parties to the exclusion of the petitioner for transportation of steel scrap from Karachi to Dry Port, Lahore/Lahore Cantonment. No counter affidavit has been filed by the respondents.

11. Mr. Iftekhar Ali Shiekh also submitted that according to the minutes of the meeting of the Principal Officers of the Railways held on 16-8-1989, the reasons for reduction in goods earnings of July 1989 were on account of rains in Lahore and Multan Division and less availability of imported wheat for movement ex-port. In this background, he submitted that refusal to supply the wagons was mala fide and not on account of transportation of essential commodities like wheat. He also placed on the record a chart showing open wagons and locomotive stock position between 14-6-1989 to 18-6-1989 to contend that the stock was available to meet the requirements of the petitioner. He further argued that letter No. 463-T/17 (TG) dated 8-10-1987 (Annex A3 to the writ petition) admittedly shows that in the past the administration was regularly supplying the (KC) wagons to meet their demand of iron & steel scrap from Port and their fresh demand of 60 wagons daily from March 1988 was also agreed to be met with. It was argued that there is no material alteration in the locomotive stock position or traffic movement from March 1988 onward and, therefore, the refusal to supply on grounds taken by the respondents is untenable, discriminatory and ultra vires.

12. Mr. Iftekhar Ali Sheikh also submitted that the Senate sub-committee repelled the contention of the Railways that it was busy in transportation of essential commodities. Their investigation reveals that rolling stock was available to meet all the requirements of the parties.

13. The stock and lines position report for the relevant period. an admitted document, which I have perused with the assistance of learned counsel for the parties, shows that the Railway administration supplied the rolling stock for non essential items to the Government, as well as, private consumers in July. August & September, 1989, under the head miscellaneous Commodities but the petitioner was excluded. Prima facie, therefore, it appears that the total exclusion of the petitioner from the supply of the rolling stock is violative of subsection (1) of section 42-A of the Act.

14. When confronted with this, the learned Deputy Attorney-General vehemently submitted that even if it is assumed, but not conceded that undue preference was given by the Railway administration in respect of any particular description of traffic, the petitioner should have lodged a complaint with the Federal Government under subsection (2) of section 42-A ibid, which provides that any complaint that a Railway administration is contravening the provisions of this section shall be determined by the Federal Government.

15. The question, therefore, arises whether in view of the provisions of section 42(2) read with section 41 and 46-A of the Act, is it a fit case for the grant of a temporary injunction? It is well settled that where a statute creates a right and also provides machinery for the enforcement of that right, the party complaining of the breach of the statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of writ. Refer Tariq Transport Company, Lahore v. The Sargodha Bhera Bus Service, Sargodha etc. (PLD 1958 S C (Pak.) 437). The present case is, however, distinguishable, in that, it is the stand of the Federal Government, as well as, the Railway administration that the petitioner has no vested right for the supply of the wagons and that the stock cannot be made available till the pressure of traffic movement is eased. This is also the stand allegedly taken by the Minister for Railways, who represents the Federal Government. The same stand was taken by the Chairman, Railways, who is an ex-officio Secretary of the Railways Ministry of the Federal Government, before the Senate Committee. In the circumstances, the lodging of a formal complaint would be an exercise in futility and not an adequate remedy for redress of the petitioner's grievance. Further, the mere fact that section 46-A of the Act declares the decision of the Federal Government to be `final' does not have the effect of excluding judicial review by means of certiorari. The word `final' in the context of section 46-A ibid merely means `without appeal'. It does not mean without recourse to examination in writ jurisdiction. If the public bodies were to be at liberty to exceed their jurisdiction without any check by the superior Courts, there would be no rule of law in the country.

16. By virtue of section 42-A of the Act, the administration of the Pakistan Railways is prohibited to make or give any undue or unreasonable favour or advantage in favour of any particular person or Railway Administration or any particular description of traffic, or subject any particular person or any particular description of traffic to any undue or unreasonable advantage or disadvantage in any respect whatsoever. If in a given case, preference is given, by the Railway Administration for any particular description of traffic, it may or may not tantamount to "undue or unreasonable preference' depending upon the facts and circumstances of each case. In the instant case, the entire record is with the Railways, but no material has been placed on record to justify the continuous refusal to supply even a single wagon to the petitioner eversince the dispute arose. This is prima facie unjustified.

17. Under section 47(1) of the Act, the Pakistan Railways can inter alia make general rules consistent with the Act, generally for regulating the travelling upon, and the use, working and management of the Railways. The administration of the Railways is, therefore, deemed to have the power of management, unless expressly curtailed by law, to make such arrangements as they consider necessary for the convenience of their customers and in their own welfare. But it cannot be allowed to regulate its traffic to the undue and unreasonable preference or advantage of any person. Here the impugned action of the Pakistan Railways is prima facie calculated to give undue prejudice and disadvantage to the petitioner. The Senate Committee in its report has enumerated tremendous losses suffered by the petitioner in consequence of the impugned action. For facility of reference it is reproduced below:-- "(a) M/s. Ittefaq Foundries had undergone a demurrage of US $ six lacs during this period. (b) There has been a revenue loss of 31 crores to the Government exchequer in the shape of taxes, duties, electricity, tariff, railway charges; etc. (c) The loss to the G.M.P. is to the tune of 55 crores. (d) As many as 3500 workers of M/s. Ittefaq Foundries have been rendered jobless. (e) In the case of continued refusal and the resultant shrinkage in the local availability of iron scrap, the number of jobless workers could increase to 20 thousands. (f) Since the foreign companies have declared Pakistan a troubled area, after this debacle, the insurance cover of the Pakistan bound ships have gone up, resulting into a national loss of precious foreign exchange. (g) The last but not the least the prices of iron bars ( ) and of scrap have shot up from Rs.10.000 to 14,000 and Rs.5,800 to 7,150 per tonne respectively and only God knows where these prices would stop."

18. Thus visualized, prima facie, section 42-A of the Act would come into play.

19. Speaking tentatively there is no justification for this discrimination to the prejudice and disadvantage of the petitioner. The startling proposition that the entire stock is practically engaged in the transportation of essential commodities, defence needs etc., is prima facie not borne out from the record and rather leads to the inference that the respondents are capable of meeting the requirements of the petitioner.

20. Having considered the submissions made by the learned counsel for the parties and the statements of law, the petitioner has made out a strong prima facie case and it would suffer irreparable damage if during the pendency of the writ petition, the respondents are not restrained from violating the mandatory provisions of section 42-A of the Act. The balance of convenience also lies in favour of the issuance of the temporary injunction.

21. It appears to me from the record placed before this Court that it shall not be difficult for the Pakistan Railways to make available to the petitioner at least 30 wagons per day as an interim measure.

22. In view of the above, the respondents are directed to make available to the petitioner Company only that much of rolling stock as is available to a minimum of thirty wagons per day by way of interim relief pending the final disposal of writ petition. The stay application is accepted with costs.

23. In view of the urgency of the matter, the main writ petition be listed for hearing in the month of December, 1989, on which date, the Chairman, Pakistan Railways, shall cause production of the entire record pertaining to the dispute raised in this writ petition.

24. I may also express my deep appreciation of the valuable assistance rendered by the learned counsel for the parties in deciding the stay application. M.B.A./I-150/L Order accordingly.