' The brief facts out of which the present writ petition arises are that respondent No,3 has issued a public notice to construct a Pharmacy inside the Hospital at the front right of the hospital in the month of July, 2003. The petitioner participated in the auction proceedings held by respondent No,3. The bid of the petitioner was highest amounting to Rs,22,500 per month. According to the terms and conditions prescribed in the public notice it reveals that the bidder has to construct building of Pharmacy himself and has to run the same for four years. After the expiry of four years the building constructed by the bidder will become the property of respondents Nos.2 and 3. The Chief Executive of the Social Security Hospital has offered the following proposal to the Commissioner concerned vide letter dated 26-6-2003:-- "(1) Ideally PESSI should itself construct the Pharmacy on the ground floor in the premises within the perimeter wall of the hospital. OR
(2) The bidder may be asked to construct building. In this case he will run the Pharmacy for four years and at the end of four years the Pharmacy will be the property of the hospital. OR
(3) Pharmacy may be constructed by the bidder and the amount thus incurred by the bidder is refunded to him on monthly basis from his monthly payable bills.
' The Pharmacy is being temporarily started within hospital main 'building by using one of the dispensaries in the casualty department.
' Your guidance and help of the development cell in the designing of the building and site-plan in this regard will be highly appreciated."
' The Chief Executive of the hospital also written a letter to the Commissioner concerned on 9-8- 2003 with the following request:-- "Enclose please find an application submitted by Messrs Shoukat Medicos, Faisalabad, the successful bidder. In the tender conditions it was a requirement that pharmacy building will be constructed by the bidder at his own expense within the boundary wall of the hospital.
' In the same contest the case was forwarded to head office for further necessary approval and visit of the representative of Development cell was requested who made his site-plan accordingly.
Now vide head office Letter No, SS.SMO (H.Q.) Los/03/738, dated 15-7-2003, it has been decided that pharmacy within the hospital premises will be constructed at the PESSI expense and visit of Vice Commissioner has also been planned in this connection vide head office letter No, SS .DC(178)/03/1394, dated 29-7-2003.
' The management of the hospital has provided Messrs Shoukat Medicos an accommodation within the hospital building who has started functioning and is paying Rs,22,500 per month with a rebated supply of medicines 7.55% hoping that the pharmacy will be constructed within a short period but with a fear of unlimited delay in the construction of pharmacy building.
' It is requested that the Development cell may please be instructed to construct the pharmacy at their earliest convenience to avoid any further loss to the applicant.
' The Chief Executive subsequently intimated the matter to the Director concerned under the.
Heading Pharmacy on 1-10-2003 with the following request:-- "It is to inform you that vide head office letter under reference the successful bidder has been allowed to construct the building within the hospital premises subject to the determination of the estimated cost and approval of drawings from your office.
' You are kindly requested to please instruct the concerned officer for planning, designing and selection of the suitable site to enable the successful bidder to construct the pharmacy at his earliest.
' Keeping in view the difficulties being faced by the hospital an early action will be highly appreciated."
' The Director Development requested the S.M.O. Under the Heading Pharmacy vide letter 'dated 13- 10-2003 with the following proposal for approval:-- "(i) The Pharmacy may be run in the casualty block by sparing some of the rooms by the hospital authorities.
(ii) The Pharmacy may be run in the basement where we have a sufficient space in the shape of big halls with the independent ramp beside the ward block.
' I am directed that a request may be made to Chief Executive PESSI Hospital, Faisalabad to offer the above said proposal to the firm for establishment of a pharmacy at any of the, above said proposed location. Since the establishment of the pharmacy at the front of the hospital has not been found appropriate."
' Thereafter the Chief Executive of the Hospital requested to the S.M.O. Concerned with the following request:-- "To proceed further necessary decision in this regard may please be communicated to this office as the Chemist Messrs Showkat Medicos is continuously insisting to get the matter resolved. He has requested either to construct the pharmacy or to reassess the rent for the accommodation occupied by him as per market rate because he is paying Rs,22,500 per month and has not been provided the constructed pharmacy so far.
' Kindly also advise that the reassessment of the rent is to be decided through negotiation with this chemist or through re-tendering. Please also keep in mind that in case of re-tendering the contract of Messrs Showkat Medicos will have to be cancelled. The legality may also be considered, while making the decision as the chemist is likely to go in litigation."
' The intimation was sent to the petitioner by the respondents vide letter dated 8-7-2004 with certain terms and conditions and thereafter respondents issued a tender notice in the daily "Jang" dated 8-8-2004. The petitioner being aggrieved filed this Constitutional petition.
2. The learned counsel of the petitioner submits that the contract has been concluded between the parties as is evident from the correspondence between the parties, which is attached with the Constitutional petition at pages 12 to 18. He further submits that the respondents have no lawful authority to rescind the concluded contract unilaterally, which is not in consonance with the mandatory provisions of the Contract Act i.e, sections 4, 7 and 8. In support of his contention, he relied upon Government of N.-W.F.P. v. Bahadur Khan 1986 CLC 1457, Syed Noor Muhammad Shah v.
Fakir Muhammad and 10 others PLD 1976 Karachi 14 and PLD 1991 AJ&K 26 (There is no judgment at the cited page). He further submits that petitioner has invested huge amount on the representation of the respondents, therefore, respondents have no lawful authority to wriggle out from their representation on the well known principle of promissory estoppel. He further submits that respondents are public functionaries, therefore, they have no lawful authority to take the law in their hands and by-pass the terms of the concluded contract. He further urges that action of the respondents is based on mala fide.
3. The learned counsel of the respondents submits that the Constitutional petition is not maintainable as the petitioner wants enforcement of a contract executed between the petitioner and the respondents. He further urges that the petitioner has not approached this Court with clean hands as the petitioner has concealed the material facts from this Court. He further submits that petitioner has alternative remedies to file a suit before the competent Court for enforcement of the contract. He placed on record copy of a civil suit filed by the petitioner against the respondents for specific performance of the agreement of lease dated 26-6-2003 for the grant of mandatory injunction, directing the respondents to implement the aforesaid agreement and for the grant of permanent injunction restraining the defendants from interfering in the business and possession of the plaintiff in respect of the premises situated in the Social Security Hospital, Faisalabad in any manner, whatsoever. He further submits that petitioner has filed the suit against the respondents in the Court of Senior Civil Judge Faisalabad on 14-7-2004. Uncertified copy of the same along with the order sheet has been placed on the record. The order sheet reveals that the case was entrusted by the Senior Civil Judge to the Civil Judge 3rd Class, Faisalabad.
5. The learned counsel of the petitioner- in rebuttal submits that respondents have not mentioned this fact in the contents of the report and parawise comments. He further submits that petitioner has no other efficacious remedy, therefore, in spite of filing the civil suit by the petitioner before the Civil Court, the Constitutional petition is maintainable in view of the action initiated by the respondents against the petitioner qua the concluded contract. He further urges that he has no knowledge qua the suit filed by the petitioner against the respondents.
6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
7. Without adverting to the contentions of the learned counsel of the parties, it is admitted fact that the petitioner as well as respondents Nos.2 and 3 did not mention a single word qua filing of the suit by the petitioner against respondents Nos.2 and 3 in the Court of Civil Judge, Faisalabad. It is no doubt counsel of the respondents Nos.2 and 3 has presented a copy of the suit along with order .Sheet during the arguments, which reveals that the petitioner has filed suit for specific performance of the agreement of lease dated 26-6-2003 on 14-7-2004. The contents of the suit is exactly the same, which is borne out from the letter of the Chief Executive of the hospital dated 26- 6-2003 which is at page 12 of the Constitutional petition, which is attached by the petitioner himself. As the petitioner has concealed material facts qua not mentioning a single word with regard to filing of the suit by the petitioner against respondents Nos.2 and 3 in the Court of Civil Judge, Faisalabad, this fact brings the case in the area that the petitioner has concealed the material facts from this Court. It is settled principle of law that Constitutional jurisdiction is discretionary in character where the petitioner has concealed the material facts then it is a good ground not to exercise discretion in favour of the petitioner as per law laid down by the A Honourable Supreme Court in the following judgments:-- ' Abdur Rashid v. Pakistan and others 1969 SCMR 141 ' Principal, King Edward Medical College, Lahore v. Ghulam Mustafa and others 1983 SCMR 196 ' As mentioned above, the petitioner has already filed a civil suit before filing the Constitutional petition against the respondents on 14-7-2004, therefore, I am not inclined to exercise my discretion in favour of the petitioner as per law laid down by the Honourable Supreme Court in Ch. Tanbir Ahmad Siddiky v. Province of East Pakistan and others PLD 1968 SC 185.
' In view of what has been discussed above, this Constitutional petition has no merits and the same is dismissed.