' MUHAMMAD SARDAR KHAN, J.-This petition was originally filed by Subhan Beg of Evershine Oil Agency, Abbottabad, Distributor of Kerosene Oil for Hazara Division, against Pakistan State Oil Company Limited, 125-D, Shahrahe-Pehlvi, P.
0. Box No, 197, Rawalpindi on 8-7-1969, under Article 199 of the Constitution for "an appropriate order directing respondent to supply to the petitioner as Distributor for Hazara Division Kerosene Oil of usual quantity from 13-6-1979 up to date and also in future regularly".
2. It is not denied that the petitioner was originally appointed Distributor of Kerosene Oil for the then Hazara District now Hazara Division by Messrs Daud Petroleum Limited, on the basis of a written agreement. This agreement was not placed on record by either party but considering that it was relevant for decision we asked for it in the course of arguments and a photostat of the same was provided to us by the learned counsel for the respondent. Its correctness has not been disputed by the opposite-party.
3. Daud Petroleum Limited was taken over by the Federal Government somewherein 1974 by an order issued under section 5 of the Marketing of Petroleum Products (Federal Control) Act, 1974 (hereinafter called the 'Act') and transferred to a Corporation namely Premier Oil Company Limited, a company incorporated under the Companies Act, 1913. Subsequently the wo Oil "Marketing Companies" viz. Premier Oil Company Limited ("POCL") and Pakistan National Oils Limited ("PNOL") were .Merged under a scheme of amalgamation called the "Petroleum Products Marketing Companies Amalgamation Scheme, 1976", made in pursuance of section 15 of the 'Act' and section 8 of the ESSO Undertakings (Vesting) Ordinance, 1976 with the Pakistan State Oil Company Limited ("PSO"). From the 'transfer date' and this was notified to be 30th December 1976, the entire undertakings of `POCL' and `PNOL' as disclosed in their respective balance sheets as at 30-6-1976, with all assets, properties, rights, privileges and powers, stood transferred to and vested in "PSO".
Under para. 4 (c) of the Scheme PSO undertook to pay, satisfy, discharge, perform and fulfil all the debts, liabilities, contracts, engagements and obligations whatsoever of POCL and PNOL as at the transfer date and such contracts, deeds were to be of as full force and effect against or in favour of PSO as they were before the transfer date. Thus PSO became a party to the agreement between the Distributor (petitioner) and the 'Company', in place of the latter.
4. Clauses 4 and 7 of the Agreement between the parties seem to have a direct bearing on the outcome of this petition and they need be reproduced. Clause 4 (a) reads :- "The Distributor shall from time to time place written orders with the Company for his requirements of the said products, but the Company shall have an absolute discretion at all times to make or withhold supplies and no orders from the Distributor shall be binding upon the Company until expressly accepted in writing or acted upon by the Company."
' Clause 7 reads :- "The Company shall not be liable for any loss incurred or damage suffered for any delay in shipping or delivering or supplying or failure to ship or deliver or supply any quantity of the said products ordered by the Distributor for any reason or cause whatsoever.
' The Company shall be entitled either to refuse or amend any order or orders and to treat, at any time, any order or orders already accepted or acknowledge as cancelled. Every order by the Distributor, however, shall constitute a firm and irrevocable order and not subject to cancellation by the Distributor without the written approval of the Company."
5. The case of the petitioner is that although under section 20 of the `Act', the Federal Government and the power to revoke the contract or agreement entered into or the obligation undertaken by Daud Petroleum Limited, to supply to the petitioner as its Distributor for Hazara Division the requisite quantity of kerosene oil, if declared to be against the interest of the Company and that, too, in accordance with the manner laid therein, but no such declaration has so far been made, therefore, under section 24 of the said 'Act', respondent is legally bound to carry out the said obligation as the legal successor of Daud Petroleum Ltd. ; but from 13-6-1979 onwards, respondent has totally stopped the supply of Kerosene Oil to the petitioner with the result that the entire population of the Hazara Division to whom the petitioner had been serving through 18 depot-holders, is clamouring but not a drop of kerosene oil has been made available by respondent. And this, according to the petitioner, not only constitutes a violation of its legal obligations to continue unabatedly the supply of kerosene oil to the petitioner which section 20 read with section 24 of the 'Act' had foisted on the respondent but is also motivated by malice. And the petitioner has given details of quite a few incidents to demonstrate that this act of the respondent in not fulfilling its legal obligations to supply kerosene oil was actually based on mala fides.
6. After the petitioner was successful in getting a rule issued from this Court on 10-7-1979, the 11 depot holders of the petitioner whose names have been mentioned in one of the documents annexed to the writ petition marked `E', also applied to be impleaded as co-petitioners on the ground that they were licence holders under the Petroleum Act, 1934 and Sub-Agents of the petitioner and had been officially recognised as such by the respondent and since major part of the supplies of the kerosene oil to the petitioner used to be meant for them and by total stoppage of that supply, they were adversely affected equally, even more, therefore, to avoid multiplicity of Court proceedings, they should be impleaded as such. This application was given on 20-8-1979 and since the respondent did not object to Their impleadment, therefore, they were allowed to join as co-petitioners, whereafter, they jointly filed an amended writ petition, reiterating exactly the same case as was set up in the earlier petition.
7. In its written reply filed on 31-7-1979 respondent raised a preliminary objection, amongst others, to the maintainability of the writ petition and denied petitioner's assertion that kerosene oil had not been supplied to the consumers in Hazara Division. It was alleged that supply to petitioner No, 1 was stopped on the report of the sales officer as petitioner could not account for the oil supplied to him during the period from 1-6-1979 to 12-6-1979, but the people of Hazara Division were receiving supplies of kerosene oil through other agents and distributors. It was urged that respondent was under legal obligation only to the extent that the contract entered into by its predecessor Marketing Company will remain in force and that petitioner was also bound by the contract. And that respondent had not violated any of the terms of the contract but the petitioner had done so.
8. Now it is obvious that the petitioner is asking in this petition for an order requiring an act to be done by the respondent. In other words he is asking for an order in the nature of a writ of mandamus. Now the writ of mandamus is a direction requiring a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of- the Federation or a Province or a local authority to do something he is required by law to do. Its object is to enforce a plain, positive and specific duty imposed by law when there is no other adequate legal remedy available. Therefore, a person claiming a mandamus, in order to be entitled to receive it, must at least have a clear legal right to the performance by the respondent of the particular duty sought to be enforced. And this duty must be one which is clearly defined, imposed or enjoined by law. In other words an applicant for a mandamus must show that he has a legal right to the performance of legal duty by the party against whom a mandamus is sought. Thus in the absence of proof that any statutory duty was involved or any legal right w being enforced or performance of a public duty was being claimed, a mandamus cannot be issued.
9. Now it is obvious that the petitioner wants this Court to issue an order directing the respondent to supply to the petitioner as Distributor for Hazara Division, Kerosene Oil of usual quantity from 13-7- 1979 up-to-date and also in future regularly. It is clear that the petitioner is not possessed of the right to have the kerosene oil supplied to him by any law. It is on the other hand a right conferred on him by an agreement with the respondent. Consequently it cannot be said to be a `legal right'.
Again the duty which is imposed on the respondent to supply Petroleum products to the petitioner in not imposed upon it by any law but flows from a contract between petitions No, 1 and the predecessor of the respondent, namely Daud Petroleum Limited. Section 24 does not create by itself any right in the petitioner but only gives recognition to his right if any to obtain supply as distributor from the selling company, giving continuity to the contract between them on the same terms and conditions as are incorporated therein but not creating any right by its own force. It would, therefore, be wrong to say that section 24 of the 'Act imposes any legal duty on the respondent or confers any legal right upon the petitioner to unabated supply of kerosene oil. The wording of section 24 which reads :- "General effect of vesting of management in a corporation,-(1) Where the management of a managed company has been vested in a corporation under section 22, all contracts, agreements and other instruments of whatever nature subsisting or having effect immediately before the date of vesting, to which such marketing company was a party or which were in favour of or against such marketing company shall, subject to the provisions of section 20, be of as full force and effect against or in favour of the corporation, as the case may be, and may be enforced or acted upon as fully and effectually, as if, instead of the company the corporation had been a party thereto or as if they had been entered into or issued in favour of the corporation.
(2) If, on the date of transfer of the management of a managed company to a corporation, any suit, appeal or other legal proceeding by or against such company of whatever nature, is pending, it shall not abate, be discontinued or be in any way prejudicially affected by reason of such transfer or anything done under this Act, but the suit, appeal or other proceeding may be continued, prosecuted and enforced by or against the corporation"; carefully considered, would leave no manner of doubt as to the effect of the vesting of management of a marketing company in a corporation and according to this, all contracts, agreements and other instruments subsisting or having effect immediately before the date of vesting to which such marketing company was a party or which were in favour of or against such marketing company shall be of as full force and effect against or in favour of the corporation, as the case may be, and may be enforced or acted upon as fully and effectually as if, instead of the company the corporation had been a party thereto or as if they had been entered into or issued in favour of the corporation ; subject, of course, to the provisions of section 20.
10. Now this contract or agreement and other instruments have to be of as full force and effect against or in favour of the corporation as if they had been entered into by the corporation and not by the marketing company. Of necessary, therefore, we will have to look into the terms of the contract, agreement or other instrument itself because the contracts, agreements and instruments have to be of as full force and effect nor only against the corporation but also in favour of the corporation, as the case may be. And according to clause 4 (a) of the agreement, respondent has absolute discretion to make or withhold supplies and no orders from the distributor shall be binding upon the company. In essence, therefore, petitioner is not asking for the enforcement of any legal duty upon the respondent or any legal right conferred on him b law, but essentially for the enforcement of contractual rights as against legal rights. It is well settled that any right which arises out of or flows from a contract cannot be enforced through or Petition under Article 199 of the Constitution. In fact the gist of the present matter seems to be the breach, if any, of the contract between the parties. A contract whether held from Government or a company stands on no different footing from a contract held from a private party. A breach of the contract, if any, may entitle the person aggrieved to sue for damages or in appropriate cases, even specific performance, but he cannot invoke constitutional jurisdiction for the redress of his grievances.
Therefore, on this ground alone, the writ petition, even if petitioners succeed to establish a clear case of mala fides, is liable to be dismissed.
11. There seems to be yet another difficulty in the way of the petitioner. The only respondent to the writ petition "Pakistan State. Oil Company Limited Shahrah-e-Pehlvi, Rawalpindi" is neither resident of nor the action impugned in this petition has been taken within the territorial jurisdiction of the High Court at Peshawar. Supply of kerosene oil if any is to be made by Pakistan State Oil Company Limited from Rawalpindi and stoppage of the petroleum products to the distributor has also taken place from there. It is not the case of the petitioner that supply of kerosene oil used to be made to him by someone on behalf of or for -the respondent within the limits of territorial jurisdiction of this Court. And this being so, the. High Court would have no territorial jurisdiction to issue any writ against the respondent.
12. Article 199 (I) (a) (i) of Constitution under which this petition purports to have been filed reads :- "(1) Subject to the Constitution, a High Court may, if it is satisfied that no other, adequate remedy is provided by law :--
(a) on the application of any aggrieved party, make an order-
(1) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, or a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do."
13. A careful perusal of Article 199 of the Constitution would show that. There is a two-fold limitation on the jurisdiction of the High Court under Article 199 of the Constitution in its territorial aspect. The first limitation seems to be that the power is to be exercised by the High Court throughout the territories in relation to which the High Court exercises jurisdiction. This means that the writ issued by the High Court cannot run beyond the territories subject to its jurisdiction. The second limitation appears to be that the person or authority, to whom the writ is issued, must be within the territories subject to the jurisdiction- of the High Court which means that such person or authority must be amenable to the jurisdiction of the High Court either by residence or location within those territories.
14. As stated above, the action of stoppage of supply of kerosene oil to the petitioner or for that matter all the petitioners has taken place at Rawalpindi which lies beyond the territorial jurisdiction of this Court. Respondent does not reside within the limits of the territories over which this High Court has jurisdiction. Consequently no writ even if it were competent can be issued to the respondent. References in this respect can be made to the judgment of the Supreme Court in case of Sabir Din v. Government of Pakistan through Secretary, Ministry of Defence and others (1).
15. In this view of the matter the writ petition is dismissed. It may, however, be added that I have deliberately refrained from entering into the (1) 1979 SCM R 555 question of mala fides so seriously argued before us by Qazi Abdur Rashid, learned counsel for petitioner No, 1, lest my findings prejudice the case of either party if petitioner chooses to approach a competent civil Court for redress.