1997 PLP 1288 (CLC)

JAWAID NAWAZ KHAN GANDAPUR, J.‑‑‑The petitioner has by this writ petition invoked the Constitutional jurisdiction of this Court to issue direction to the respondent:‑‑ Firstly, to amend his tender notice dated 4‑7‑1996 and to invite fresh tenders, .for the supply of the paper in question, from all categories of suppliers i.e., importers as well as local manufacturers, requiring them to quote their rates on F.O.R. Peshawar/Lahore basis; secondly, to fix the rate of security deposit without discrimination between the importers and local manufacturers; thirdly, to open all tenders simultaneously in the presence of the parties, bidding for the tenders, for realistic comparison of rates quoted by them so as to avoid any favour to any individual, group or category of suppliers, and lastly, to delete the cdnditions in the tender inquiry form regarding the unilateral alteration in terms of supply and reference to the arbitrator in the case of dispute. ,

2. In consequence the petitioner has prayed for the issuance of writ of mendamus to the respondent in terms stated above in precise manner.

3. At the very outset it must be stated that a person claiming entitlement for the issuance of writ of mandamus must, at least, have a clear legal right to the performance by the respondent of a particular duty sought to be enforced. The duty must be one which is manifestly defined, imposed or enjoined by law. In other words and to put it differently the applicant for mandamus must ex facie show that he has a legal right to the performance of a legal duty by the other party against whom the relief as asked for is sought.

4. In the first place the petitioner seeks to enforce contractual right and liability on terms devised by him and says that conditions laid down in the Tender Inquiry Form be re‑framed/re‑cast, and then tenders be invited on the terms and conditions as suggested/formulated by him. Secondly he is casting a duty on the respondent to make alterations in the tender as devised by him. He wants that the executive machinery should act in accordance with his wishes. Thus specific performance of a contract is sought in terms dictated by him. Obviously a writ of mandamus cannot be issued to enforce contractual obligations which has not been legally settled between the parties with their mutual consent. The petitioner, to our mind, has no legal right to impose condition of his own choice on the respondent nor is he possessed of a legal right to devise a new mode of performance of functions by the respondent.

5. Again we cannot ignore a fundamental rule that before a writ of mandamus could be issued to compel the party to do something, it must be prior shown that the statute had imposed a duty in that respect. This factual position is wanting altogether in the instant case. It is only in respect of a legal right that a writ of mandamus can be issued. What legal right the petitioner has to enforce a tender notice of his own choice, we have not been able to understand?

6. Moreover another Writ Petition, No.971/95 (Premier Paper Mills v. N.‑W.F.P. Textbook Board) in respect of the same subject‑matter is still pending adjudication in this Court and until its final decision another writ petition is not legally maintainable. We, therefore, hold that the petitioner is not legally clothed with a right to enforce a right not vested in him, nor can he compel the performance of a right not yet born on the premises which do not exist either in point of fact ox law. The petitioner stands bereft of such a right' from its inception. Be that as it may no statutory duty is involved nor any legal right is being enforced nor indeed performance of a public duty is being claimed, therefore, in the circumstances, a writ of mandamus cannot be issued. This writ petition being devoid of merit and substance is dismissed in limine.

7. The order passed on 23‑7‑1996 in C.M. No.957/96 is recalled and C.M. No.95H/96 is dismissed. A.A./2121/P Petition dismissed