Aggrieved for an order dated 23.2.2005 passed by our learned brother Ms. Justice Maulvi Anwar-ul- Haq in Writ Petition No. 3739 of 2004 (M/s. Quality Weaving Mills (Pvt) Ltd. Vs. Government of Punjab and others) this Intra-Court Appeal has been filed by the aforesaid M/s 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 M/s Quality Weaving Mills (Pvt.) Limited on 27.7.1987 upon which the appellant, Quality Waving 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 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 It is the case of the petitioner that this show-cause notice was in fact impliedly withdrawn as thereafter a building plan was approved and the amalgamation of Plot No. 36-A (earlier allotted to the Mills) and Plot No. 33 (the newly allotted plot).Was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 PLD 1996 Lahore 672 (Messrs Chenab Cement Product (Pvt) Ltd. And others vs. Banking Tribunal, Lahore and others), 1997 SCMR 1901 (Syed Wajih-ul-Hassan Zaidi vs. Government of Punjab and others), PLJ 1997 Lahore 490 (Mian Manzoor Ahmad Wattoo vs. Federation of Pakistan and 3 others). 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 PLD 2003 Lahore 741 (Dr. Fozia Amber vs. Government of Punjab and others), 1990 CLC 1772 (Mirza Zafar Ali and 4 others vs. Member (Revenue), Board of Revenue, Punjab and 2 others, PLD 1993 Lahore 141 (Islamia University, Bahawalpur through Vice-Chancellor vs. Dr. Muhammad Khan Malik), PLJ 1997 Lahore 490 (Mian Manzoor Ahmad Wattoo vs. Federation of Pakistan and 3 others), and 1997 SCMR 1901 (Syed Wajih-ul-Hassan Zaidi vs. Government of Punjab and others).
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 the purpose he has referred to PLD 200 Karachi 224 (Abdul Haq and others vs. Province of Sindh and others), PLD 2002 SC 1097 (Federal. Government Employees' Housing Foundation vs. Muhammad Akram Alizai, Deputy Controller PBC, Islamabad), 1998 CLC 1890 (Messrs Huffaz Seamless Pipe Industries Ltd. Vs. Sui Northern. Gas Pipelines Ltd and others) and PLD 1975 S.C. 363 (Salahudding and 2 others vs. Frontier Sugar Mills & Distillery Ltd. Tokht Bhai and 10 others).
5. When vested right have accrued in favour of a party, it cannot be taken away by any State functionaries.
For that he has cited PLD 1969 SC 407 (Pakistan through the. Secretary, Ministry of Finance vs. Sher Muhammad Himayatullah Farukhi), PLD 1991 S.C. 973 (Chief Secretary, Government of Sindh vs. Sher Muhammad Makhdoom and 2 others) and PLD 1991 S.C. 546 (Pakistan through Secretary, Ministry of Commerce and 2 others vs. Salahuddin and 3 others.
6. The order of allotment passed' in favour of respondents No. 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) 1979 CLC 382 (Pakistan Medical Association, Karachi vs. Government of Sind and 5 others).
(ii) NLR 2000 (Civil) Lahore 541 (Khizar Hayat etc. Vs. Municipal Corporation, Faisalabad etc).
(iii) PLD 1958 Supreme Court 104 (Yousaf Ali vs. Muhammad Aslam Zia and 2 others).
(iv) PLD 2000 Karachi 168 (Dr. Zaheer Nasir and others vs. Karachi Development Authority and others).
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) PLD 1963 Lahore 575 (Mehboob Ali Malik vs. Province of West Pakistan).
(b) PLD 1975 Supreme Court 244 (Salahuddin and 2 others vs. Frontier Sugar Mills & Distillery Ltd.
Tokhet Bhai and 10 others.)
(c) 1998 SCMR 237 (Central Board of Revenue and others vs. Shakeel Brothers and others).
(d) 1999 SCMR 467 (Nizamuddin and another vs. Civil Aviation Authority and 2 others).
(e) PLD 1993 Lahore 595 (Ch. Pervaiz Elahi vs. Province of Punjab and another).
(f) NLR 1991 (UC) 723 (Vincent etc. Vs. The Karachi Development Authority etc.)
(g) PLD 2001 Lahore 94 (Ijaz Ahmed and others vs. The State and others.
(h) AIR 1976 Supreme Court 1401 (Tata Engineering and Locomotive Co. Ltd. Vs. The Assistant Commissioner of Commercial Taxes and another).
(i) AIR 1970 Supreme Court 1302 (M/s Mahabir Prasad Santosh Kumar vs. State of U.P. And others ).
8. Writ is maintainable. For that he has pointed to PLD 2002 Supreme Court 1097 (Federal Government Employees' Housing Foundation through Director-General Islamabad and another vs. Muhammad Akram Alizai, Deputy Controller PBC, Islamabad), 1998 CLC 1890 (Messrs Huffaz Seamless Pipe Industries Ltd., vs. Sui Northern Gas Pipelines Ltd and others) and PLD 1975 SC 373 (Haji Noor Muhammad and another vs. K.D.A. And others).
9. Subsequent change of policy cannot affect the rights already accrued. For that purpose he has laid down his hands upon this ruling:--- 1993 CLC 376 (Arshad Mahmood. Vs. Director-General, Lahore Development Authority and 2 others).
10. 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 the civil suit. He has relied upon PLD 2002 Supreme Court 1086 (Lahore Cantonment Cooperative Housing Society Limited, Lahore, Cantt., verses Dr. Nusrat Ullah Chaudhry and others). 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 2002 SCMR 549 (Punjab Small Industries Corporation vs. Ahmad Akhtar Chema), 2005 SCMR 37 (Collector of Customs, Lahore and others vs. Universal Gateway Trading Corporation and another).
11. 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 fulfiled or competed? What was the impact of alleged non- fulfilment 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 Hon'ble 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 in 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 the learned Judge in Chamber cannot be reversed in this appeal.
12. 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 remedy through Civil Court, if, so advised. The appeal IS therefore, dismissed.