' Aggrieved from an order, dated 23-2-2005 passed by our learned brother Mr. Justice Maulvi Anwarul Haq in Writ Petition No,3739 of 2004 (Messrs Quality Weaving Mills (Pvt.) Ltd. v. Government of Punjab and others) this Intra-Court Appeal has been filed by the aforesaid Messrs Quality Weaving Mills (Pvt.) Limited.
2. The facts in brief, are that in an Industrial Estate of Multan, Plot No,36-A was leased out to Messrs Quality Weaving Mills (Pvt.) Limited on 27-7-1987 upon which the appellant, Quality Weaving Mills (Pvt.) Limited, constructed the required Industry of Cotton Cloth Weaving Unit. As the Mills necessitated extension of that Weaving Mills Unit, so it was in need of more space and place.
Accordingly, they got Plot No,33 allotted for the construction of Cotton Weaving Towel Hosiery Mills and a deed of agreement was executed on 25th of October, 1989, between the Governor of the Punjab acting through Secretary Industries, Government of the Punjab and the appellant's Mills Limited. But on 14-11-1991 a notice was issued by Deputy Director of Industries to show cause as to why the allotment of Plot No,33 not be cancelled which was addressed to the Managing Director of the appellant's Mills. As the appellant's Mills (Pvt.) Limited had failed to commence construction on the plot allotted even, after the passing of a period of 23 months of taking over the possession. It is the case of the petitioner that this show-cause notice was in fact impliedly withdrawn as thereafter a building plan was approved and the amalgamation of Plot No,36-A (earlier allotted to the Mills) and Plot No,33 (the newly allotted plot) was approved by letter dated 9th of July, 1992, by Manager, Industrial Estate. So, in these circumstances, the cancellation of allotment of Plot No,33 and demand of Rs,249,148 through order, dated 27-9-2002 was illegal and unlawful. With these assertions and grievances, the above noted Writ Petition No,3739 of 2004 was filed by the appellant, which was decided through the impugned order/judgment dated 23-2-2005 as indicated above.
3. Learned counsel appearing on behalf of the appellant states that the learned Single Judge in Chamber could not hold that the matter had involved factual controversy. As per learned counsel, as both the plots were unified, so the condonation of delay in the construction and other compliance with terms and conditions was to be held impliedly made by the department and the order of cancellation was to be set aside. Learned counsel has further stressed that the case could be decided without any comprehensive evidence brought on the record and its exhaustive analysis. Learned counsel for the appellant submits that this Court has got authority to entertain a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, '1973, if the order passed by any authority has suffered from malice, whether it be in law or in fact. To support his contention he has referred to Messrs Chenab Cement Product (Pvt.) Ltd. And others v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672; Syed Wajih-ul-Hassan Zaidi v. Government of Punjab and others 1997 SCMR 1901 and Mian Manzoor Ahmad Wattoo v. Federation of Pakistan and 3 others PLD 1997 Lah.
38. He has further argued that power of judicial review was available to this Court in case of illegal exercise power/jurisdiction by any authority. For that purpose he has referred to Dr. Fozia Amber v.
Government of Punjab and others PLD 2003 Lah. 741; Mirza Zafar Ali and 4 others v. Member (Revenue) Board of Revenue Punjab and 2 others 1990 CLC 1772; Islamia University, Bahawalpur through Vice-Chancellor v. Dr. Muhammad Khan Malik PLD 1993 Lah. 141; Mian Manzoor Ahmad Wattoo v. Federation of Pakistan and 3 others PLD 1997 Lah. 38 and Syed Wajih-ul-Hassan Zaidi v.
Government of Punjab and others 1997 SCMR 1901.
4. Elaborating his arguments, it has been stated by the learned counsel that contractual disputes can be settled in writ jurisdiction, if Government functionaries are involved therein. For that purpose he has referred to Abdul Haq and others v. Province of Sindh and others PLD 2000 Kar. 224; Federal Government Employees' Housing Foundation v. Muhammad Akram Alizai Deputy Controller P.B.C.
Islamabad PLD 2002 SC 1079; Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. And others 1998 CLC 1890 and Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244.
5. When vested rights have accrued in favour of a party, it cannot be taken away by any State functionaries. For that he has cited Pakistan through the Secretary, Ministry of Finance v.
Muhammad Himayatullah Farukhi PLD 1969 SC 407; Chief Secretary, Government of Sindh v Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973 and Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others PLD 1991 SC 546.
6. The order of allotment passed in favour of respondents Nos.7 and 8 was mala fide and void, so it could be held null and void by the learned Single Judge in Chamber. He has quoted the following case-law on this point:--
(i) Pakistan Medical Association, Karachi v. Government of Sindh and 5 others 1979 CLC 382;
(ii) Khizar Hayat and others v. Municipal Corporation, Faisalabad and others 2000 CLC 1374;
(iii) Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104;
(iv) Dr. Zaheer Nasir and others v. Karachi Development Authority and others PLD 2000 Kar.
168.
7. Alternate remedy when is not efficacious, the High Court can enter into the domain of factual inquiry and even can record the evidence. He has given a long list of cases, which are enumerated as follows:--
(a) Mehboob Ali Malik v. Province of West Pakistan PLD 1963 Lah. 575;
(b) Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244;
(c) Central Board of Revenue and others v. Shakeel Brothers and others 1998 SCMR 237;
(d) Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467;
(e) Ch. Pervaiz Elahi v. Province of Punjab and another PLD 1993 Lah. 595;
(f) Vincent and others v. The Karachi Development Authority and others 1992 CLC 518;
(g) Ijaz Ahmed and others v. The State and others PLD 2001 Lah. 94;
(h) Tata Engineering and Locomotive Co. Ltd. v. The Assistant Commissioner of Commercial Taxes and another AIR 1967 SC 1401;
(i) Messrs Mahabir Prasad Santosh Kumar v. State of U.P. And others AIR 1970 SC 1302.
8. Writ is maintainable. For that he has pointed to Federal Government Employee's Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller PBC, Islamabad PLD 2002 SC 1079; Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. And others 1998 CLC 1890 and Haji Noor Muhammad and another v.
K.D.A. And others PLD 1975 Kar.
373.
9. Subsequent change of policy cannot effect the rights already accrued. For that purpose he has laid down his hands upon this ruling:-- Arshad Mahmood v. Director-General, Lahore Development Authority and 2 others 1993 CLC 376.
9. Respondent's learned counsel has supported the judgment in question by replying that in the cases of contracts particularly, questions of controversial facts when those are involved, the writ cannot be considered as an appropriate remedy and the party has to seek alternate, efficacious and proper remedy of civil suit. He has relied upon Lahore Cantonment Cooperative Housing Society Limited, Lahore Cantt. v. Dr. Nusrat Ullah Chaudhry and others PLD 2002 SC 1068.
Complicated or disputed questions of facts are not to be investigated, which necessitate taking of evidence and the suit is a proper remedy in that event. He has placed reliance on Punjab Small Industries Corporation v. Ahmad Akhtar Cheema 2002 SCMR 549 and Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another 2005 SCMR 37.
10. The case-law cited by both the learned counsel has been considered by us. It is not denied that there was a deed of agreement executed between the appellant and the Secretary, Industries, Government of the Punjab on 25-10-1989. So, a contract having come into existence, in which terms and conditions for performance of obligations were noted. What were those terms and conditions?
As to whether those obligations were fulfilled or completed? What was the impact of alleged nonfulfillment of terms and conditions upon the contract? Whether those were essence or not?
Whether condition was made due to merger of the disputed plot in the undisputed plot? Certainly require evidence, which exercise usually and normally cannot be taken in this jurisdiction conferred by the Constitution according to Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
The Honourable Supreme Court has held in various cases that contractual obligations or questions arising from a contract are to be resolved through Civil Court because material facts are alleged by one party while the other denies those facts. In such an event, the best and proper Court is the Civil Court for adjudication of factual as well as legal disputes/controversies. The question of mala fide in the instant case revolves upon the foundation of laying facts before a Court of law. It is not a simple case of admitted facts upon which mala fide in law can be determined. So the order passed by thie learned Judge in Chamber cannot be reversed in this appeal.
11. Accordingly, we do not consider it a fit case for interference into the judgment of our learned brother while he was gracing the single Bench. The appellant has rightly been directed to seek A remedy through Civil Court, if so, advised. The appeal is, therefore, dismissed.