Muhammad Muzammal Khan, J.--This Intra Court Appeal is directed against the judgment dated 18.4.1992 passed by the learned Single Judge in Chambers of this Court, whereby writ, as prayed, was issued against the appellants and order dated 28.10.1987 passed by Appellant No, 2 was declared to have been passed illegally, without lawful authority and hence of no legal consequence, with costs. It was also directed that Appellant No, 1 will not deal with the land otherwise than in accordance with contract between the parties.
2. A short factual background of the case in that M/s. Shoaib Bilal Corporation (Respondent No, 1) owned by Respondents Nos, 2 and 3, deals in land development and consultancy in engineering etc. Land measuring 140 Kanals 5 Marlas known as Remount Depot, Faisalabad, was proposed to be sold, for which respondents out bided for a negotiated price of Rs, 4,20,00,000/- and this offer was approved by Military Land Disposal Committee, Ministry of Defence vide their letter dated 10.2.1982 subject to payment of an amount of Rs, 200,000/- as earnest money. According to measurements, land at the spot, was 124 Kanals 7 Marlas, which was mostly covered by encroachments in form of "khokhas" etc. Inspite of all this, parties executed a registered agreement to sell dated 12.1.1984 and respondents besides Rs, 200,000/-, paid another amount of Rs, 40,00,000/- increasing the earnest money to Rs, 42,00,000/-. This agreement was expressed on behalf of the President of Pakistan, stipulating besides other things that the sale shall be completed in six months, in favour of the respondents or else the respondents shall pay interest to the vendor at the current bank rate until the completion of the sale, the payment shall be made it installments and the vendor shall transfer proportionate area in favour of the purchaser or his nominee. In case of differences, the dispute was to be decided by the Quartermaster General and if purchasers fail to observe these conditions, their deposit was to stand confiscated in favour of the vendor who would rescind the contract and would be entitled to resell the land to anybody else.
3. After conclusion of agreement between the parties, respondents got a site-plan approved from the Municipal Corporation, Faisalabad, for laying out their scheme by carving plots of different sizes commercial, as well as, residential but they faced numerous problems in getting possession of the land, which was covered by sewerage/telephone lines, cultivation of fodder by the Remount Office, setting up of 214 "khokhas" on the land abutting road, setting up of Remount Depot, storage of waste water released by the residents of the area, creating a position of pond, facing of inquiries by the Honourable Federal Ombudsman and Anti-Corruption Committee of the National Assembly of Pakistan and subsequent attempts by the appellants to resale the land subject of contract through open auction on their back. These difficulties resulted in failure of completion of contract within the stipulated time and appellants resorted to resale of the contracted land through open auction but without any success. Appellants after their failure in selling the land through open auction, revived the agreement dated 12.1.1984 in favour of the respondents but burdening them with an additional liability of Rs, 15,00,000/- to enable the appellants to construct an alternate accommodation for their District Remount Office, besides payment of interest on the balance amount for the extended period of default vide agreement concluded on 18.3.1985. Inspite of payment of Rs, 2,16,51,000/-by the respondents, they could only get possession of 53 Kanals and remaining land could not be cleared from encroachments, sewerage/ telephone lines etc. till February 1986. Respondents claimed to have incurred expenditure amounting to Rs, 5,41,45,661.62. In presence of these impediments, the appellants unilaterally fixed 30.11.1986 as the last date for payment of balance amount of Rs, 1,65,69,000/- and respondents' request for extension of time was refused on 28.10.1987 intimating them that their payment stood forfeited, after adjustments relating to interest and expenditure over laying of roads/streets and conveyed rescission of contract.
4. Respondents aggrieved of cancellation/rescission of contract and forfeiture of earnest money, filed writ petition (W.P. 4675/88) wherein they asserted that letter dated 28.10.1987 by Appellant No, 2 was without lawful authority, having no legal consequence because it was not expressed in the name of the President of Pakistan. According to the respondents a matured contract between the parties could only be countermanded by the President, as according to them, the transaction was a complete sale, giving them a right to develop the land and to transfer it by sale, in shape of plots.
It was also the case of the respondents that time was not essence of the contract, which could not have been unilaterally cancelled on the ground of delay, simplicitor. They, in this behalf, relied on the agreement itself, which provided payment of interest by the respondents till the completion of sale. It was also pleaded by the respondents that the appellant failed to perform their part of contract, by having the encroachments removed, besides claiming delay on account. of probe into veracity of the agreement by the Ombudsman and Anti-Corruption Committee of the National Assembly. Good faith of the transaction was pleaded to have been ascertained by the appellants themselves, by putting the land to open auction which failed. They claimed their bona fides, basing their averments on the grounds of additional payment of Rs, 15,00,000/- and accepting payment of interest for the extended period. Assertion of respondents before the learned Single Judge in Chambers, also appears to be that period of 15 months fixed for performance of the agreement should have been counted from the date when the site was made available to them, after clearance of all the encroachments and other things from the site, as noted above.
5. Appellants appeared before the learned Single Judge in Chambers of this Court, filed their parawise comments/written statement and mainly urged that letter dated 28.10.1987, impugned in the writ petition, carries a presumption that it was authenticated in the manner specified by the rules framed for disposal of properties of the Federal Government in terms of Article 99(2) of the Constitution of Islamic Republic of Pakistan, 1973, validity of which could not be questioned in any Court, on any ground including that it was not made or executed by or on behalf of the President, Article 129 of Qanun-e-Shahadat Order, 1984 was also pressed into service, for such a presumption.
According to the appellants time was essence of the contract, as the agreement itself provided time limit for completion of :ie terms thereof. They also pleaded that clearance of land from encroachment etc. was none of the concerns of the appellants and delay in completion of the contract, could in no manner be attributed to them. Appellants heavily emphasized on non- maintainability of the writ petition in presence of arbitration clause in the agreement and availability of alternate remedy by way of a civil suit.
6. Learned Single Judge in Chambers of this Court after hearing the parties, concluded that most of the factors, stand admitted 'between the parties and dispute amongst them does not involve determination of factual controversy, requiring recording of evidence. Almost all the case law applicable was thrashed, where after it was decided that time was not essence of the contract, arbitrator nominated in the agreement, himself did not opt to decide the dispute and that availability of alternate remedy does not bar invocation of Constitutional jurisdiction by this Court.
As regards letter dated 28.10.1987 issued by Appellant No, 2 was found to be not expressed on behalf of the President and thus was annulled, as noted above. Appellants were not satisfied with the decision of the learned Single Judge in Chambers of this Court dated 18.4.1992 and had consequently filed this Intra Court Appeal, which was admitted to regular hearing and has now been laid for final hearing before us.
7. Learned counsel for the appellants argued that dispute voiced in the writ petition involved enforcement of contractual liability, determination of which cannot be done under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. According to him, law in this behalf has now changed and recently the Honourable Supreme Court has mandated that no interference in Constitutional jurisdiction be made in such disputes. He relied on Lahore Cantonment cooperative Housing Society Limited, Lahore, Cantt. through Secretary vs. Dr. Nusrat Ullah Chaudhry and others (PLD 2002 S.C. 1068). A reference to Nizamuddin and another vs. Civil Aviation Authority and 2 others (1999 SCMR 467), Muhammad Azam Suhail and others vs. Government of Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad and others (1998 SCMR 1549), Abdul Haq and 'others vs. Province of Sindh and others (PLD 2000 Karachi 224) and Bayindir Insaat vs. Pakistan through Ministry of Communications and 3 others (PLD 2001 Lahore 426) has also been made in support of submissions of the appellants. Learned counsel for the appellants also contended that judgments in the cases of Network Television Marketing Ltd. vs. Government of Pakistan and another (2001 CLC 681) and M/s Wak Orient Power & Light. Limited Gulberg-III, Lahore vs. Govt. of Pakistan, Ministry of Water and Power through its Secretary,. Islamabad and 2 others (PLJ 1998 Lahore 665) including the judgment impugned, are judgments in per curium and are contrary to the view taken by the Honourable Supreme Court and thus do not give good law. He heavily banked his arguments on the judgments in the cases of Dilwar Jan vs. Gul Rehman and 5 others (PLD 2001 S.C. 149), Revenue Employees Cooperative Housing Society Limited and .8 others vs. Mst. Bachoo and others (2001 SCMR 155), Syed Asif Majeed and 5 others vs. A.D.C. (C)/ASC(L), Lahore and 15 others (2000 SCMR 998) and Sh. Azhar Mahmood vs. Government of Punjab through,Secretary, Local Government and Rural Development, Civil Secretariat, Lahore and 2 others.
(2002 CLC 134) to contend that where the facts are disputed, those cannot be determined or settled in Constitutional jurisdiction of this Court. According to him, grounds "E, F and G" of the writ petition canvassed factual dispute as those assertions of the respondents were denied in the corresponding paragraphs of the parawise comments, filed by the appellants. It has also been emphasized that all the disputes arising out of the contracts had to be determined in terms of provisions of Specific Relief Act 1876, which in itself is a complete code and cannot be overlooked, but these provisions escaped notice of the learned Single Judge in Chambers. In support of this stance a reference to Nizamuddin and another (supra) has been made. Learned counsel for the appellants assertedly argued that there were disputed facts amongst the parties, where-over issues should have been framed and parties should have been given opportunity of proving their respective stances through a regular trial by adopting procedure provided by the Civil Procedure Code, 1908. In this way, it was claimed that the appellants have been condemned unheard. It has further been urged that discretion vesting in this Court, under Article 199 of the Constitution, should not have been exercised in favour of the respondents because they had been a cause of loss to the public exchequer. This discretion should have been refused unless the order impugned is patently illegal or unless some high morale is involved in the case. Referring to judgment in the case of Government of Pakistan through Ministry of Finance and Economic Affairs and another vs. Facto Belarus Tractors Limited (2000 SCMR 112) a support is stretched to the argument above referred, on the ground that though this judgment was reviewed by the Honourable Supreme Court in 2002, but ratio of the case and the law laid down by it, was not upset. In this behalf cases of Rana Muhammad Arshad vs. Additional Commissioner (Revenue), Multan Division and others (1998 SCMR 1462) and Nawab Syed Raunaq Ali's case (PLD 1973 S.C. 236) were also relied. Coming to the arbitration clause in the agreement dated 12.1.1984 (Annex. C/1) and relying on its Condition No, 14, it was argued that in presence of this clause no interference could have been made in the Constitutional jurisdiction of this Court and instead case should have been referred to the nominated arbitrator i,e, Quartermaster General. Judgments in the cases of Mumtaz Ahmad vs. Zila Council, Sahiwal through Administrator and others (1999 SCMR 117), Raja Muhammad Ramzan and 21 others vs. Union Council, Bajnial and another (1994 SCMR 1484), Lahore Cantonment Cooperative Housing Society Limited, Lahore, Gantt. through Secretary vs. Dr. Nusrat Ullah Chaudhry and others (PLD 2002 S.C. 1068) and Muhammad Naeem vs. District Council, Pakistan (2000 CLC 73) were referred. Learned counsel for the appellants also challenged view of the learned Single Judge in Chambers regarding letter dated 28.10.1987, whereby security and earnest money was forfeited, grading to be without lawful authority and of no legal effect, with the assertion that Article 150 of the Constitution and Article 129 of the Qanun-e-Shahadat Order, 1984, create a presumption of regularity of acts done and fix an embargo, to challenge those before any Court. Article 99(2) of the Constitution was also made basis of the argument with regard to adjudication of this letter.
Consequently, it is urged that letter dated 28.10.1987 was competently and lawfully issued by Appellant No,
2. In the end, learned counsel for the appellants submitted that in view of latest judgment by the Honourable Supreme Court in the case of Lahore Cantonment Cooperative Housing Society Limited (supra), order impugned may be set aside because writ petition is not competent for enforcement of contractual obligations, specially where the disputed facts require determination after recording of evidence. Referring to judgment in the case of Nizamuddin and another (supra), it has been pleaded that by entertaining writ petition in the matters, like the one in hand, would defeat the ordinary legal system, which is not the intention of the law makers. A reference was also made to another judgment passed by the Honourable Supreme Court in the case of Muhammad Azam Suhail and others (supra) where contractual appointments were challenged in writ petition and it was found that remedy does not lie in maintaining writ petition.
According to the learned Deputy Attorney General, the Honourable Supreme Court in the cases of Network Television Marketing Ltd. and M/s. Wak Orient Power & Light Limited Gulberg-III, Lahore (supra) relying on judgment reported as The Majlis-e-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur vs. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore (PLD 1975 S.C. 355), held that writ jurisdiction was more efficacious and thus was invocable against the State functionaries or statutory authorities, but this view has been disapproved in the case of Lahore Cantonment Cooperative Housing Society Limited (supra). Principle under which order impugned, inspite of being illegal, interference in Constitutional jurisdiction, is to be refused, was also brought into service.
8. Learned counsel for the respondents supported the judgment passed by the learned Single Judge in Chambers of this Court and refuted the submissions of the appellants by urging that there was no dispute with regard to facts between the parties and thus the writ petition was maintainable, under law. He referred to all the paragraphs of the writ petition, most of which were admitted or not denied in the parawise comments filed by the appellants, except Paragraphs 8 and 9, wherein only dispute with regard to possession was raised as to whether it was given on 3.9.1985 or in 1986, besides, Paragraph 14 of the writ petition, in response to which it was claimed that letter dated 28.10.1987 was issued by Appellant No:2 under the authority by the President. A reference to replies to grounds "E, F and G" of the writ petition has also been made, wherein the only thing urged was that the time was essence of the contract, and that the earnest money paid by the respondents stood forfeited. In this manner, it was claimed by the respondents that all the substantial facts stand admitted by the appellants who though have filed their parawise comments, yet without any counter affidavit, to the one, filed with the writ petition, raising presumption of admission of facts, detailed by the respondents. Learned counsel for the respondents also pointed out that bar of Constitutional jurisdiction, was not urged in the parawise comments and they only raised an objection that since in the case disputed questions of facts are involved, the arbitration clause, should be adhered to. Besides arguing that pending instant ICA appellants themselves delivered possession of 15 Kanals of land, received Rs, 54,27,000/- from the respondents and executed 82 sale-deeds, which shows that appellants have accepted the judgment of the learned Single Judge in Chambers of this Court and this fact was highlighted in an application filed by the respondents (C.M. 471/02) and thus remained un-refuted, he emphasized that interim order dated 3.9.1988 passed in writ petition, shows that respondents had been exerting for arbitration and, as a matter of fact, Quartermaster General, being appointed as an arbitrator, dispute was referred to him, as noted in the interim order dated 20.11.1988. Similar reference is also available in interim order dated 25.1.1989. Respondents also moved C.M. 1806/91 complaining that Quartermaster General is not proceeding in the arbitration matter and prayed that the writ petition may be taken up for hearing. This fact is noted in the order dated 20.10.1991 in the writ petition.
Proceedings in the writ petition were being adjourned, from time to time, awaiting decision by the Quartermaster General, but he ultimately refused to proceed with the matter on the ground that first the writ petition be withdrawn. In this manner, learned counsel for the respondents concluded his, arguments on this aspect that in view of refusal of Quartermaster General to proceed with the arbitration, clause to this effect in the agreement; cannot be relied by the appellants for refusal of invocation of Constitutional jurisdiction by this Court. Learned counsel for the respondents seriously objected to the arguments of the appellants that in view of alternate remedy by way of suit, the writ petition was not maintainable. He referred to Paragraph 15 of the writ petition which was neither denied not admitted by the appellants and thus submitted that no such objection was also raised in the parawise comments. This objection for the first time was raised at the time of hearing of the writ petition, without there being any basis in their reply. According to learned counsel for the respondents, objection with regard to alternate remedy though not raised yet is a matter of convenience of the Court and it does not create a bar for its invocation. He in this behalf relied on the cases of Muhammad Ashraf vs. Board of Revenue, West Pakistan and another (PLD 1968 Lahore 1155), Anjuman-e-Ahmadiya, Sargodha vs. The Deputy Commissioner Sargodha and another (PLD 1966 S.C. 639), The Murree Brewery Co. Ltd. vs. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 S.C. 279), Mst. Kalsoom Malik and others vs. Assistant Commissioner and others (1996 SCMR 710) and Gatron Industries) Limited vs. Government of Pakistan and others (1999 SCMR 1072). Replying to the argument of the appellants that time is essence of the contract, learned counsel for. the respondents argued that normally in the case of immovable property, time is not essence of the contract, especially when vendors by accepting earnest money, had themselves extended the time and also that in absence of any express provision in the agreement, it cannot beheld that time is essence of the contract. A reference in this behalf was made to Abdul Hamid vs. Abbas Bhai Abdul Hussain Sodawaterwala (PLD 1962 S.C. i), Seth Essabhoy vs. Saboor Ahmad (PLD 1973 S.C. 39), Ghulam Nabi and others vs. Seth Muhammad Yaqub and others (PLD 1983 S.C. 344), Faiz Khan vs. Multan Development Authority through Director General and 4 others (PLD 1995 Lahore 429) and Sh. Muhammad Shafi vs. The Lahore Improvement Trust (PLD 1959 Lahore 1). Learned counsel for the respondents submitted that cancellation of contract, without notice, without hearing and contrary to terms/conditions of the agreement itself, was void.
The letter impugned in the writ petition by Appellant No, 2 was graded to be unilateral, thus was asserted to be rightly annulled through the order impugned. In support of these assertions, judgments in the cases of The Majlis-i-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony Lyallpur vs. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore (PLD 1975 S.C. 355), Messrs United International Associates through Managing Partner vs. Province of the Punjab and another (1999 MLD 2745), Pakistan Agro-Forestry Corporation (Pvt.) Ltd. vs. Government of Pakistan, Ministry of Commerce through Secretary of Commerce and another (1999 CLC 1301) and Network Television Marketing Ltd. vs. Government of Pakistan and another (2001 CLC 681) were referred. Learned counsel for the respondents also emphasized on the fact that arbitration clause does not bar exercise of writ jurisdiction by this Court as held in the cases of Anjuman-e-Ahmadiya and The Majlis-i-Intizamia, Jamia Masjid (supra) and Messrs Airport Support Services vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1988 SCMR 2268) and it was claimed that it was the duty of the appellants to take the matter to arbitration before passing the order dated 28.10.1987. Commenting on nature of the letter dated 28.10.1987, which was not in the name of the President, Articles 99(1) and 173(3) of the Constitution, were relied to urge that the letter was violative of the Constitution and in this behalf judgments in the cases of Resaldar Major K.S. Muhammad Hasham Khan vs. Provincial Government, N.WF.P. (PLD 1950 Peshawar 13), The Majlis-i-Intizamia (supra) and Ch. Barkat Ali .vs. The West Punjab Province (PLD 1952 Lahore 200) were emphasized to be relied. Learned counsel for the respondents seriously refuted prayer of the appellants in the instant ICA by elaborating scope of it, which is said to be, not a regular appeal like an appeal from a subordinate Court to the High Court, but its sphere is claimed to be like review under Order XLVII, Rule 1 CPC meant to correct some error apparent on .the face of the record. Judgments in the cases of Babu Ram Ashiok Kumar and another vs. Antarim Zila Parishad (AIR 1964 Allahabad 534) and Muhammad Siddique vs. The District Magistrate, Lahore and 3 others (2000 MLD 240) were referred. According to the learned counsel, without there being any such error apparent on the face of the record, no interference by this Bench is permissible under law. Rule of Audi Alteram Partem is said to have been violated by the appellants in cancelling the contract without notice and hearing the respondents, which according to terms of the contract itself, could not have been done, single handedly by the appellants and, according to the learned counsel, in such like cases this Court had been issuing writs in the cases of The Murree Brevery Co. Ltd. vs. Pakistan and 2 others (PLD 1970 Lahore 821) and Network Television Marketing.
Ltd. (supra). He also asserted that it was the duty of the appellants to seek arbitration or file a suit for termination of contract before forfeiture of deposits/securities of the respondents because they cannot be judge, of their own cause, by cancelling the contract unilaterally. He, in this behalf, referred to the case of Anjuman-e-Ahmadiya, Sargodha and Pakistan Agro-Forestry Corporation (Pvt.) Ltd. (supra): Respondents submitted that they were not defaulters under the agreement dated 12.1.1984 which provides that property will be handed over to the respondents free of all encumbrances, but there existed sewerage/ telephone lines, lease by DRO for fodder cultivation, encroachments by 214 "khokhas", use of part of land as dump by Municipal Corporation, Major part of land lying low by 2 to 10 feet and having become a pond of sullage water, determination of complaints by the Ombudsman and Anti-Corruption Committee of the National Assembly which, to the detriment to the interest of the respondents, was advertised through public media like radio/TV/press and an effort by the appellants to sell out the land through public auction and, these obstacles were not cleared by the appellants themselves, who should not be permitted now to turn back and to say that the respondents were on the defaulting end.
9. We have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record. Undeniably, objection with regard to availability of alternate remedy by way of civil suit was not raised in the parawise comments by the appellants, which for the first time, was raised at the time of hearing of the writ petition before the learned Single Judge in Chambers of this Court. Writ petition was filed in the year 1988 and was taken up for final hearing on 29.3.1992, after lapse of almost four years, such an objection at a belated stage, not only left the respondents to a situation wherein they were debarred from having redress from the Civil Courts, on account of lapse of time, but also created a right in them to have decision from the forum not objected by the appellants. In similar situation another Division Bench of this Court in the case of Muhammad Ashraf (supra) took the view that objection at a belated stage on the ground of "other remedy open to the petitioner" cannot be entertained. In this precedent case, writ petition was filed in 1964 and respondents, therein, did not raise any objection to its maintainability till the time the petition was taken up for final hearing in 1968. In this case as well, objection was raised at the time of hearing of petition, without there being any counter affidavit and it was held that since the point requiring determination was only of Law, the petition cannot be thrown out on such an objection, at the fake end of the conclusion of the proceedings. Even otherwise, availability of alternate remedy in form of a suit, is not a bar of jurisdiction by this Court in exercise of powers of judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, rather is a rule, regulating its jurisdiction and convenience. It is settled by this time that power of judicial review do vest in this Court especially in the case, where an order is attacked on the ground that it was wholly without authority. Where a statutory functionary acts in an unjust and oppressive manner the High Court in its exercise of writ jurisdiction has an authority to grant relief to the aggrieved party. Learned counsel for the respondents has rightly referred .to the judgments in the cases of Anjuman-e- Ahmadiya, Sargodha, The Murree Brewery Co. Ltd., Mst. Kalsoom Malik and others and Gatron (Industries) Limited (supra). In all these cases, it was held that rule about invoking Constitutional jurisdiction under Article 199 of the Constitution, is rule of convenience and discretion, by which Court regulates its proceedings and is not a rule of law. All the material facts emerging out of the contract between the parties, including both the agreements dated 12.1.1984 and 18.3.1985, terms thereunder, payment of price, transfer of possession of part of land, facing of difficulties by the respondents of taking over possession of the entire land under occupation of encroachers, scrutiny of sale by the Honourable Ombudsman and inquiry by the Anti Corruption Committee of the National Assembly, are not disputed between the parties. A comparative study of the writ petition and parawise comments, reveals that all the salient facts between the parties are not disputed.
Honourable Supreme Court in the case of Messrs Airport Support Services (supra) held that contracts concluded by State functionaries have to be just, fair, transparent, reasonable and free of any kind of mala fides, and all such aspects remain open for judicial review by the superior judiciary. In this case, the rule was founded on the premises that public functionaries, deriving authority from or under law, are obliged to act justly, fairly and equitably. Deviation, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution, even in those cases where a contract pure and simple is involved, provided always that public element presents itself and the dispute does not entail evidentiary facts of disputed nature. In the most latest judgment of the Honourable. Supreme Court in the case of Lahore. Cantonment Cooperative Housing Society Ltd. (supra) it was held after considering the entire earlier case law that a contractual liability involving disputed questions cannot be adjudicated by the High Court in its Constitutional jurisdiction and that wherever there is a dispute regarding facts particularly referring to a contractual liability requiring extensive recording of evidence, the only competent, forum is Civil Court because recording of evidence is not permissible in exercise of Constitutional jurisdiction. Scan of case law on this point shows that older view that in contractual matters Constitutional jurisdiction of this Court, is ousted as expressed in the cases of Shamshad Ali Khan vs. Commissioner, Lahore etc. (1969 SCMR 122) and Al-Mahmood Industries (Pakistan) Ltd. vs. The Trading Corporation of Pakistan Ltd. and another (1974 SCMR-51) appears to have undergone a radical change giving expansion to the judicial review by the superior Courts, in the matters where facts are not disputed because the remedy by way of suit is not only expensive, lengthy and obsessive, as compared to writ jurisdiction, which is less expensive, n' ore convenient/effective and expeditious. The change in "stair decisive" as noted above is not without basis and as such invocation of Constitutional jurisdiction should not be refused to the citizens simply because they can move to the Civil Courts, deserting easy, effective and quick remedy of writ. Learned Single Judge in Chambers of this Court, has exercised discretion in favour of the respondents, on the basis of lawful considerations as the facts are not disputed and the controversy could be resolved without recording of evidence, thence, we are not persuaded to interfere in such an exercise.
10.Condition 14 of the agreement dated 12.1.1984 (Annex.C/1) provides arbitration in case of dispute between the parties and it was none else than the Quartermaster General of the Army, to whom the matter was referred but he refused to proceed with the matter as noted in the interim orders passed in the writ petition dated 3.9.1988, 25.1.1989, 20.5.1991, 8.6.1991 and 12.11.1991. The learned Single Judge in Chambers has rightly remarked that once the Honourable Chief Justice through an order dated 20.5.1991 was pleased to remark that despite afflux of a long time, the arbitrator failed to take up the arbitration proceedings and in view of the changed position, writ petition may be disposed of one merits. After this order the writ petition was taken up for final hearing. Under law, arbitration clause is no remedy, which can bar jurisdiction of this Court, vested in it under Article 199 of the Constitution, being not a remedy provided by law. Besides this, arbitrator having already refused to proceed with the matter, it cannot be used as a weapon just to non-suit the respondents. Law considers a remedy to be adequate and the only which has been provided by law, not less convenient, beneficial and effective for enforcement of legal rights. Our this view gets support from the judgment of the Honourable Supreme Court in the case of Anjuman-e-Ahmadiya, Sargodha (supra). This view was reaffirmed in subsequent two cases of The Majlis-i-Intizamia, Jamia Masjid and Messrs Airport Support Services (supra). Under this arbitration clause, appellants themselves were under obligation to refer the matter to the arbitrator, before passing order of rescission dated 28.10.1987, which was apparently passed without giving a show-cause notice to the respondents, without providing them an opportunity of hearing and in violation of principle of Audi Alteram Partem. We accordingly, find that this aspect of the case was rightly concluded by the learned Single Judge in Chambers and calls for no interference in this appeal. Reliance by the learned counsel for the respondents on the cases of Mumtaz Ahmad, Raja Muhammad Ramzan and 21 others, Lahore Cantonment Co-operative Housing Society Limited and Muhammad Nadeem (supra) is also not misplaced.
11.Initial contract (Annex.C/1) and the revised (Annex.I) read with Annex. J, reveal that those were expressed in the name of President, whereas cancellation of contract through letter dated 28.10.1987 impugned in the writ petition was not so expressed in the name of the President and, instead, proceeded from the "competent authority". Articles 99 and 173(1)(3) of the Constitution, require all the executive actions, including contracts made on behalf of Federal Government, to be expressed in the name of the President. Any executive action, contract or rescission thereof, not so expressed in the name of the President, would be void. Appellants have neither referred to any letter by the President, equipping Appellant No, 2, with the authority to pass any such order nor they have produced any document of authority before the learned Single Judge in Chambers or during the course of hearing of this appeal, as such, we are unable to attach any kind of regularity or presumption as urged by the learned counsel for the appellants, especially in presence of Rule 7 of the Rules of Business, 1973. In the cases of Resaldar Major KS. Muhammad Hasham Khan and The Majlis-i-Intizamia, Jamia Masjid (supra), actions impugned were not expressed in the names of Governors of the Provinces concerned, hence those were adjudged to be void. This brings us to conclude that original contract having been expressed in the name of the President, could be rescinded only by the President and by none-else, below his rank, without authority from him.
12. In absence of any specific clause regulating time factor for execution/completion of contract, making it as an essence of the contract, normally in the cases of immovable property it is not so, as claimed by the appellants. Courts have to decide this matter taking into account conduct of parties and circumstances of the case resulting into non-completion by the date fixed in the agreement. Respondents were to pay the price of the land, under the original agreement to sell, upto 11.7.1984, but this agreement stood revised and the time fixed was extended upto 31.3.1986. By this time, a considerable amount of Rs, 3,01,00,000/-, had been paid and the remaining amount, could not be paid on account of non-clearance of land in question, wherefrom sewerage/telephone lines passed, D.R.O. had leased out a part of the land for cultivation of fodder, was littered with 214 "khokhas" these encroachers had occupied frontage of the land in question.
The sullage water falling in the land in dispute, was not blocked though appellants had claimed that removal of all these obstacles was the duty of the respondents, yet it is unimaginable that all these things could have been done by a man in the street. Vacant possession of the land was to be handed over by the appellants and 'delay if any, in this behalf can, in no manner, be attributed to the respondents. Undeniably, complaint dated 11.4.1984 before the Honourable Federal Ombudsman remained pending for a year and was publicized on radio/TV/Press about mal- administration in conclusion of the agreement, besides it respondents were also required to maintain status quo during that period, then the matter was taken up by Anti-Corruption Committee of the National Assembly, where the matter remained pending for considerable period.
All these things went against the interest of the purchasers who were to further sell out the plots carved by them over the land subject of the agreement because in presence of such disputes no body could have come forward to purchase it from the respondents and in this manner delay could not be attributed or at the least, it was not at all intentional on part of the respondents.
Appellants as well, before revising the contract on 18.3.1985 attempted to sell out the land through open auction which undisputedly failed and then accepted in creased earnest money and interest on the unpaid amount for the remaining period, extended the time, cannot be heard saying that time was essence of the contract. Our this view gets support from the cases of Abdul Hamid, Seth Essabhoy, Ghulam Nabi and others, ,Fait Khan and Sh. Muhammad Shafi (supra). It goes without saying that agreement itself does not give an authority to the appellants to rescind it because there is no such provision therein and instead it created a liability for the respondents, to pay interest at the bank rate on the unpaid sale price till completion of the contract. This was the only penalty, which was provided in the agreement. The agreement with such clause of interest, cannot be termed to have come to an end by mere non-payment of balance sale price or time was essence of the contract.
13.Rescission of contract through letter dated 28.10.1987 is unilateral, as the respondents were never called upon to show-cause against such rescission, they were not allowed to explain the realities as noted above and admittedly were not determined by Appellant No, 2 before such an action. Law does not favour such one sided decision of the matter brought to writing with concurrence' of the parties. In the 'given circumstances, this Court could not sit as a silent spectator and allow the State functionaries to deal with the rights of the citizens, single handedly and to confiscate their hard earned money, without determining fault, if any, on their part. We get strength from the judgments in the cases of Nizamuddin and another, Messrs United International Associates through Managing Partner, Pakistan Agro-Forestry Corporation (Pvt.) Ltd. and Network Television Marketing Ltd. (supra).
14. We also find a considerable force in the arguments of the learned counsel for the respondents that scope of Intra Court Appeal is not similar to the appeal filed from a subordinate Court to the higher Court under the provisions of Civil Procedure Code. Ambit of appeal under Section 3 of the Law Reforms Ordinance, 1972, is like a review petition under Order II XLVII, Rule 1 CPC meant to correct some error apparent on the face of the record. Besides all other handicaps, we feel that it is not possible for the ICA Bench to substitute its own viewpoint in place of the one given by the learned Single Judge in Chambers of this Court and that too, after due appraisal of law applicable and being alive to the objection to the of invocation of Constitutional jurisdiction. Another ICA Bench of this Court has already contributed to our this view in the case of Muhammad Siddique (supra). Another judgment from the Indian jurisdiction, in the case of Babu Ram Ashiok Kumar and another (supra) also supports this view.
15. We are informed that after issuance of writ through, the judgment impugned, appellants have received an amount of Rs, 54,27,000/- from the respondents handing over possession of additional 15 Kanals of land and executed/registered 82 sale-deeds in favour of different purchasers from the respondents because there was no prohibitory injunction by the I ICA Bench, hearing this appeal. It is astonishing that the appellants themselves on the one hand are doing the needful after receipt of money under the agreements dated 12.1.1984 and 18.3.1985 and on the other hand, urge before the Court that contract stood rescinded. It is not less than blowing hot and cold in the same breath, principle of estoppel applies with all force against the appellants and they do not deserve any indulgence, on this ground, as well.
16. For what, has been discussed above, we are of the considered view that this appeal has no merit in it, as no interference is called for in a well-reasoned judgment of the learned Single Judge in Chambers of this Court. This appeal consequently has no substance in it and is accordingly dismissed with costs.