2003 PLP 471 (CLC)

Bringing Light and Life"

5. Apart from other information, at page 6 of the booklet WAPDA Bonds (6th issue) Regulations, 1994 are printed. These are nine in number. However, none of them deals with the question of loss etc. of the bonds and the issue of duplicate. Page 7 contains "Procedure for WAPDA Bonds 6th Issue 1994 Bearer and Registered".

6. Paras./clauses 4 of Brochure and 8 of Booklet are similarly worded and read as follows:‑‑ "The bearer Bonds shall be issued to a purchaser across the counter of designated banks/financial institutions. The issuer of the Bonds the paying Agent or Transfer Agent may deem and treat the holder of any Bearer Bonds as the absolute owner for all purposes (notwithstanding any notice of ownership loss, theft, confiscation or any other similar act thereof). No claim of whatsoever nature is acceptable to the issuer in case the Bonds or coupons are stolen, lost or destroyed, as the case may be. Payment of coupon return and redemption of principal on maturity shall be made to the holder of Bonds without identification.

7. The questions to be determined are:‑‑ (i) The true status of regulations and that of clauses/paras.8/4 as reproduced above. In other words whether these are statutory or otherwise in nature? (ii) Statutory or are not, whether clauses 8/4 are valid and are not in conflict with fundamental. rights as contained in Article 4, Articles 23 and 24(1) of the Constitution of Pakistan 1973. (iii) Whether these clauses are opposed to public policy and, therefore, void under section 23 of Contract Act, 1872? (iv) Whether clause 8 is so oppressive, onerous. and inequitable that a Court will not permit its enforcement?

8. Section 29 of the Pakistan Water and Power Development Authority Act (XXXI of 1958), empowers WAPDA ‑respondent No.1 to frame such regulations as it may consider necessary or expedient, for the purposes of carrying into effect the provision of the WAPDA Act, with the approval of the Government. The regulations as printed, at page 6 of the booklet are not mentioned to have been framed under this section nor it is stated that these have been framed with the prior approval of the Federal Government. Even during the course of submissions, learned counsel for respondents Nos.1 and 2 did not claim that the regulations are statutory. It is, therefore, held that these regulations have not been shown to be statutory in nature. I may add that the regulations are silent on the question of loss of bonds and issue of duplicates. The determination of, the status of these regulations, therefore, strictly is not germane to the decision of the issue involved in this case. However, reference to them may be necessary in the course of judgment.

9. Clause 8 is one of the 15 clauses as printed in the booklet at pages 7 and

8. It may be noted that clause 4 is not an independent clause. In fact clause 8 of the booklet has been printed as clause 4 of the brochure issued by WAPDA on the subject. The booklet does not indicate as to whether the 15 clauses have been issued under any statutory provision. Once again during the course of hearing, learned B counsel for WADPA and for that matter even learned counsel for the petitioner did not advert to the question as to whether these clauses have been issued under any statutory provision or not. It, therefore, has to be concluded that clause 8 is non‑statutory.

10. Clause 8 is one of the conditions under which WAPDA proceeded to sell/issue the bonds and the public at large proceeded to purchase the same. In other words it is one of the conditions of the C transaction between the parties. It is, therefore, in the realm of contract. The further questions, which thus rise for consideration and for resolution are whether the petitioner as the contracting party was aware of this condition? Further assuming that the petitioner and all other subscribers should be presumed to know the conditions, whether this condition is in breach of any Constitutional guarantee or fundamental right and if not whether condition is opposed to public policy and, therefore, void under section 23 of the Contract Act, 1872 and finally even if it is not opposed to public policy whether it is so inequitable, unfair and unconscionable that the Court would decline to uphold and enforce the same.

11. It is apparent that if this clause/condition is allowed to prevail, the petitioner will be deprived of his money for all times to come, unless by a stoke of luck, he was able to retrieve the lost bonds. The condition is expropriatory in nature, as such the Court will not easily lean in favour of its validity. The only justification for such a clause seems to be that it saves the issuer, respondents Nos.1 and 2 from false claims, that is one by the original purchaser who is so shown in the record and the other by a person who happens to hold these bonds either by chance or as a result of some criminal act. So far as the facts of this case are concerned, it is established that nobody has claimed profit against these bonds and no question of claiming money arises as the bonds have yet to mature. Therefore, in this case, even the genuine claim of the writ petitioner is being denied on the basis of clause 8 on the alleged risk of a false claim being put up.

12. The language used in clause 8 is permissive. The . second sentence reads:‑‑ "The issuer of the bonds the paying agent or transfer agent may deem and treat the holder of any bearer bonds as the absolute owner for all purposes..." This would show that it is only an enabling condition. In other words the issuer .... is not bound to treat the holder as absolute owner. This obliges the issuer etc. to hold inquiry in a given case and then decide whether to accept the claim of the original purchaser or not. Of course the next sentence is couched in absolute language but this has its own peculiar features which make it inequitable as it gives undue advantage to the issuer of the bonds over the investor and purchaser of the bonds. I fail to understand as to why the issuer should decline to pay the money to the purchaser of bond/investor when the bonds are lost/destroyed permanently through fire, floods, earthquake, war and other calamities over which the investor has no control but which are inherent risks of human living. In case of permanent loss/destruction, there is no holder to claim the money. Why should such a money be expropriated by the issuer is beyond pale of reasoning as well as equity. However, this will be the precise result if plea of respondents Nos.1 and 2 is accepted.

13. Let's take another case. Supposing the bonds are taken in possession by another person through a criminal act, for instance by deceit or through theft. According to this clause the criminal would be entitled to receive the money as against the purchaser/investor. Why should the criminal act be made so attractive and profitable has not been answered by learned counsel for respondents Nos. 1 and

2. I am very clear in my mind that a criminal cannot and must not be allowed to reap IH the fruit of his crime. This clause, therefore, is in conflict with the clear and undisputed public policy that a criminal deserves to be punished II rather than rewarded. The clause, therefore, is void, being opposed to public policy, under section 23 of the Contract Act, 1872.

14. There is still another aspect, There is nothing on the present record suggesting that at the time of purchase of the bonds, the petitioner ever learnt of or was made aware of the conditions of the transaction, particularly the so‑called clause

8. It is not even clear whether this J condition was given wide publicity in press or through electronic media or by conveniently making available the brochure and the booklet at all the sale points. This aspect is important as the Court will not permit one of the contracting party to take advantage of an unusual and onerous condition and thus deprive the other party from its legitimate g right/property. Reference can be profitably made to The Pakistan General Insurance Company Ltd. v. Fazal Ahmad PLD 1960 (W.P.) Lah. 135 and Hakim Ali v. Muhammad Salim and another 1992 SCMR 46.

15. Since clause 8 has not been shown to have any statutory force, Article 23 of the Constitution does not seem to be attracted. The condition, however, seems to be violative of the protection provided by Article 24(1) of the Constitution. It says "no person shall be compulsorily deprived of his property save in accordance with‑law....". Undisputedly, the bonds are property, petitioner can only be deprived of M this property in accordance with law. In this case no law has been brought to the notice of the Court permitting compulsory deprivation. As noted only clause 8 has been pleaded. Clause 8 does not amount to law. It is only a condition of sale of bonds. The condition has been held to be onerous and highly inequitable, which cannot be given effect to by any Court.

16. My answers to questions. framed in para. 7 are: Question No. (i) No. Question No.(ii) Partly yes. Question No. (iii) Yes. Question No. (iv) Yes.

17. For the reasons I hold that clause 8 is unusual, unfair, highly onerous, inequitable, un‑Constitutional and is also opposed to public N policy and, therefore, void and unenforceable. The denial of respondents, therefore, to issue the duplicates of the bonds or fresh bonds in lieu‑ of the lost bonds is hereby declared as without lawful authority and consequently of no legal effect. Respondents, Nos.1 and 2 are directed to issue the duplicates or fresh bonds minus the coupons which have already been encashed by the petitioner against a bond 1 indemnifying respondents Nos.1 and 2 against any possible loss which they may suffer. The needful would be done within one month. As the question involved is difficult, the parties are left to bear their own costs. S.A.K./A‑313/L Petition accepted.