' SAIYED SAEED ASHHAD, J.--- This petition for leave to appeal has been filed against the ' judgment of the High Court of Sindh, Karachi, dated 30-9-2004 in Constitutional Petition No,D-529 of 1994.
2. Facts requisite for disposal of this petition for leave to appeal are that in response to invitation of bids for sale of the Karachi Hotel Project (Formerly known as Hayat Regency Hotel Project) hereinafter referred to as the "KHP") under the provisions of Karachi Hotel Project Order, 1989 (MLO 105), the petitioners submitted their bid of Rs,220,786,786 which was accepted and a contract was entered into between the petitioners and the respondent. A sum of Rs,50,00,000 was paid by the petitioners along with their bid and the balance price was to be paid within 60 day of acceptance of the contract which the petitioners failed to comply with. The petitioners submitted that non- payment of the balance price within the stipulated period was on account of illegal and unlawful acts for the respondent who flagrantly violated the terms of the bid and demanded payment of balance price without fulfilling his obligations.
3. HaviPg failed to obtain redress from the respondent the petitioners approached the High Court of Sindh by way of above constitutional petition which was dismissed vide impugned judgment on the ground that the same was not maintainable as the High Court in exercise of its constitutional jurisdiction under Article 199 of the constitution of Islamic Republic of Pakistan could not inquire into violation of contractual obligations. Hence this petition for leave to appeal.
4. We have heard the argument of Mr. Farooq H. Naik, Advocate Supreme Court on behalf of the petitioners and Mr. Abrar Hassan, Advocate Supreme Court on behalf of respondent and have perused the record.
5. The petitioners in their constitutional petition filed before the High Court of Sindh had sought the following reliefs:-- "It is, therefore, prayed that this Honourable Court may be please to:-
(a) Declare that the impugned decision of the Custodian to cancel the bid awarded in favour of the petitioners is contrary to law and of no legal effect.
(b) Declare that the decision of the Custodian to invite fresh offer for the project is contrary to law and of no legal effect.
(c) Restrain the Custodian from re-selling the project land/or disposing of the same to anyone other than the petitioners.
(d) Direct the Custodian to execute a conveyance deed in favour of the petitioners for the project on the agreed amount on terms and conditions as may deem appropriate by this Honourable Court.
(e) Such other order as may be necessary or expedient in the interest of justice."
6. From a bare perusal of the prayer to clause it transpires that the prayer sought at clause (d) could not be granted by the High Court in exercise of its constitutional jurisdiction as they related to seeking a direction in respect of the rights of the petitioners in the immovable property known as KHP. As a matter of fact the said prayer amounted to seeking a relief of specific performance of the contract entered into between the above parties which was subsequently cancelled. Specific performance of a contract can be sought only by way of a suit under section 42 of the Specific Relief Act, 1877 (hereinafter referred to as the "Act"). As regards prayer clauses (a) and (c) it is observed that during the course of arguments of constitutional petition before the High Court a categorical and assertive statement was made on behalf of the respondent that on failure of the petitioners to comply with the terms and conditions for the contract in not paying the balance price of KHP within the stipulated period, for which the respondent could not in any manner be held responsible, the respondent cancelled the contract executed between the aforesaid parties, re- advertised the property for invitation of fresh bids and awarded the contract to a third party on much higher price than the price on which the contract was awarded the petitioners were not entitled to the relief at clauses (a) and (c) as transaction had become past closed and further in view of the execution of sale-deed in favour of the third party the question of illegality in cancelling the earlier contract and award of the fresh contract could not be examined unless the sale-deed was cancelled, or annulled, which could be done only by way of a suit under section 39 of the Act. It was submitted on behalf of the respondent that in view of the above factual position has become infructuous and may be dismissed as such.
7. The High Court of Sindh on consideration of the arguments advanced on behalf of the learned counsel for the parties, perusal of the record dismissed the petition on the ground that violation of the contractual obligation could not be inquired into by the High Court in exercise of its constitutional jurisdiction and no relief could be granted to an aggrieved party.
8. Mr. Farooq H. Naik vehemently assailed the above finding of the High Court and submitted that the same was in complete disregard of a large number of cases decided by this Court wherein it has been held that where one of the parties to the contract was Government/public functionary or a statutory body, the High Court. In exercise of its constitutional jurisdiction could inquire into alleged violation of the contractual obligations by the private party so as to determine the validity, legality and propriety of the order of the Government/public functionary with a view to see that the same was passed did not suffer from any malice, illegality personal vendetta or interest.
9. Mr. Abrar Hassan supported the impugned judgment and submitted that notwithstanding the fact that violation of contractual obligation where Government/public functionaries are involved would be open to scrutiny by the High Court in exercise of its constitutional jurisdiction, the fact was that initially as well as on account of subsequent facts the petition was not maintainable as the reliefs sought therein could not have been granted by the High Court in exercise of its constitutional jurisdiction. In this connection he referred to prayer clauses (b) and (d) and submitted that the relief sought therein could not have been granted by High Court ab initio while the reliefs sought in clauses (a) and (c) had ceased to be available after disclosure of the fact that the contract had been awarded to a third party and the property had been transferred in his favour by execution of the sale-deed. Elaborating his arguments he submitted that after execution of the sale-deed, the question of examination or entering into the inquiry with regard to the legality, propriety, correctness and cancellation of the contract in favour of the petitioners and restraining the respondents from re-selling the project was not possible till such time the sale-deed executed in favour of the fresh party was got rescinded/cancelled in accordance with the provisions of section 39 of the Act which course was never resorted to by the petitioners.
10. The sale of KHP to the third party and execution and sale-deed in his favour has not been denied by Mr. Farooq H. Naik, Advocate Supreme Court. It being so, the High Court was justified in dismissing the constitutional petition as so long as the sale-deed in favour of another party remained in force, no useful purpose would have been achieved by examining the question of illegality, or mala fids in cancelling the contract in favour of the petitioners and allegedly awarding it illegally to the party as cancellation/setting aside of the sale-deed could not have been sought in a constitutional petition for which a suit under section 39 of the Act could have been filed. The petitioners did not adopt the proper course available to them under the law and instead resorted to wrong forum for achieving the desired result.
11. For the foregoing facts, reasons and discussion we find that the finding of the High Court in holding that the petition was not maintainable does not suffer from any illegality or infirmity though we do not support the ground on which it was dismissed as not being maintainable because violation of contractual rights/obligations were involved. It was not maintainable because the reliefs by the petitioners could not have been granted to them in exercise of constitutional jurisdiction, some of them ab initio and some of them an account of changed facts and circumstances.
12. Accordingly this petition is found to be without any merit. It is dismissed and leave refused.
13. Above are the reasons of our short order of even date.
THE END