' SARDAR MUHAMMAD ASLAM, C.J.---Intra-Court appeal assails the order passed by learned Judge- in-Chamber on 15-8-2008 dismissing the appellants-plaintiffs application for grant of temporary injunction.
2. Facts need not be repeated as the same find mention in quite sufficient detail in the impugned judgment.. Suffice to say that Government of Pakistan issued a policy for power generation projects in the year, 2002, with an object to create an environment and craft a new set of incentives which, on the one hand offer attraction to the investors and, on the other, keep the consumer prices within affordable. Limits. Investors were invited to invest in the power sector and were assured fullest possible support. Features of the power policy have been cited in paras.16 and 17. Under para. 18, hydel projects in the private sector were to be implemented on Built-Own-Operate-Transfer
(BOOT) basis. Projects based. On "BOOT" were transferable to. The Government of Pakistan at the end of concession period. National Power Regulatory Authority (NEPRA) was to provide the standard forms required for determination of tariff after receiving bids. Letter of interest (LOI) was to be issued under para.41, subject to furnishing of a bank guarantee of the value of US $ 1000 per M.W. Extension was permissible subject to satisfaction of "The Panel of Experts". On 14th May, 2004 in terms of the provision of the Policy, the Government of Pakistan confirmed its interests in the proposal of the appellants-plaintiffs for conducting feasibility study for the set up of an approximate 740 M.W. Private Power Project to be located 5-K.M. Upstream of the existing Munda Dam Head works on the river Sat, N.-W.F.P. Plaintiffs were required to complete feasibility study for the subject project. Plaintiffs submitted final feasibility study report of Munda Multi purpose Dam Project. It was approved with certain observations recorded below:--
(a) The sponsors to give an undertaking, to be made as an integral part of the Feasibility Study Report, to duly consider and address the concerns of the Go N.-W.F.P. At the time of RFP during the EPC Bidding.
(b) The sponsors will prepare RFP in consultation with Go N.-W.F.P. And WAPDA.
(c) Due to nature of the Data and resultant conclusions, panel of Experts jointly and/or individually will not be responsible for reliability of data, contents and conclusions given in the Feasibility Study.
' On 11-11-2006, the feasibility report was approved with the following parameters:--
(i) The Undertaking of AMZO Corporation, dated 8th November, 2006 will be the integral part of the feasibility study.
(ii) The Sponsors will prepare the RFP in consultation with Go N.-W.F.P. And WAPDA.
(iii) Due to nature of data and resultant conclusions, Panel of Experts jointly and/or individually will not be responsible for reliability of data, contents and conclusions given in the feasibility study.
' Appellants-Plaintiffs were required to approach NEPRA for tariff negotiation. Soon after the issuance of feasibility approval a meeting was convened by respondent-defendant No,1 on November, 12, 2006. Respondent-defendant No,3 raised some questions in regard to the raising of height of Munda Dam project to cater for irrigation needs of N.-W.F.P. And flood mitigation.
Appellants-plaintiffs suggested establishment of an expert group to resolve the issues raised by respondents-defendants Nos. 3 and 4, re-iterating that an approach to NEPRA regarding tariff would be made on finalization of issues. PPIB was approached on 6-2-2007 for formation of expert group and on 16-2-2007 inquired as to whether the Government has decided to raise dam height and seeking the details thereof.
3. On 7-3-2008 PPIB informed the appellants-plaintiffs of the impugned decision taken in public interest to change the project into a Public Private Partnership Venture with WAPDA to assume public role. Appellants- Plaintiffs were encouraged to contract WAPDA as a "Potential Private Partner".
4. In written statement, the respondents-defendants attributed failure to the appellants-plaintiffs in fulfilling its obligation and the Government of Pakistan/PPIB was advised to desist the contractual binding sponsors and that the implementation of the project be undertaken either through WAPDA in public sector or through a public private partnership with due share of WAPDA under a new PPP agreement. A committee constituted by Ministry of Water and Power proposing implementation of the project in public sector by WAPDA was endorsed by the board. An application for injunction came up for hearing before the learned Judge-in-chamber, who found that the appellants- plaintiffs have a prima facie case but dismissed the petition on the ground that adequate compensation is available, hence plaintiffs do not suffer an irreparable loss. Balance of convenience also tilted in favour of respondents.
5. Learned counsel for the appellants contends that no fault is attributable to the appellants resulting into impugned action; no notice was issued prior to taking the impugned decision and virtually the appellants have been condemned unheard in sheer violation of the principle of natural justice; the appellants incurred expenses, on preparation of feasibility report, worth more than 15 million US Dollars' the project could not be snatched from the appellants on the ground that tariff was not negotiated by the appellants and that it is in violation of 2002 policy which secures interest of the private investors developing projects on Buit-Own-Operate-Transfer basis. In alternative it was argued that respondents be restrained from creating third party interest for a period of two months and in the meantime suit be decided finally as plaintiffs will adduce documentary evidence alone. Reliance was placed on "Jamil Ahmad v. Provincial Government of West Pakistan and 4 others "Messrs H.A. Rahim and Sons (Pvt.) Ltd. v. Province of Sindh and another 2003 CLC 649, "Arif Majeed Malik and another v. Board of Governors of Karachi Grammar School, 2004 CLC 1029.
' Mr. Gulzareen Kiyani, learned counsel representing respondent No,3 assisted by Mr. Masroor Shah advocate, in opposition, forcefully stressed absence of irreparable loss and balance of convenience in favour of the appellants and that a suit for specific performance in the garb of declaration has been filed. Reliance was placed on "Dewan Chand Sabbarwal v. Union of India and another, AIR (38) 1951 Punjab, 426", "Chaudhry Construction Company Ltd. v. Pakistan and others, 1990 CLC 394. Legitimate expectation was not available to the plaintiffs. Reliance was placed on "Union of India and others v. Hindustan Development Corporation and others (1993) 3 Supreme Court Cases 499", "A.C. Roy Co. And others v. Union of India and others, AIR 1995 Calcutta 246", "D.
Wren International Ltd. And another v. Engineers India Ltd. And others, AIR 1996 Calcutta 424."
Reference was also made to section 12(b) and (d) of Specific Relief Act to canvass that where a relief in damages is available, the performance of contract cannot be secured. He referred to sections 21, 22 and 56 (t) and (i) in support of his argument that breach of contract can be adequately compensated and injunction in such a situation is refused and that temporary injunction is preventive in nature and status quo ante can not be granted. Reliance is placed on "Shahbazada Muhammad Umar Beg v. Sultan Mahmood Khan and another, PLD 1970 Supreme Court 139", "Chiragh Din and another v. Chairman Thal Development Authority, 1970 SCMR 29", "Imam Bux v. Province of West Pakistan through the Deputy Commissioner, Khairpur 1970 SCMR 491".
' Qazi Muhammad Jamil, Advocate, with reference to "Irshad Hussain v. Province of Punjab and two others PLD 2003 Supreme Court 344" argued that establishment of a prima facie case is not the only factor to grant injunction. Learned counsel for respondents Nos. 1 and 2 adopted the arguments advanced by Mr. Gulzareen Kiyani Advocate.
6. We have heard the learned counsel at length and perused the record.
7. Before dilating upon the submissions made by the learned counsel for the parties we deem it proper to survey precedents cited by both the sides.
' Civil Servant through a declaratory suit challenged the vires of the order passed by the government directing re-fixation of the pay. Application for temporary injunction for restraining the respondent from implementing the order was dismissed by both the Courts below on the ground that no irreparable loss would accrue to the petitioner if injunction is refused because they would be entitled to refund all their pay which may be illegally deducted. On revision, the learned Judge- in-Chamber after considering section-56 of Specific Relief Act held that balance of convenience and irreparable loss or injury are to be considered together as conditions supplementing each other in the same manner as sections 54 and 56 of the Specific Relief Act are supplementary to one another. While considering the question of balance of convenience one has really to consider whether the inconvenience, in the event of withholding the relief of temporary injunction in all events, exceeds that of the defendant in case he is retrained. The question of damages affording sufficient relief to the plaintiff can generally be considered in a case where it would be convenient for the defendant if an injunction is issued, if the balance of convenience is in favour of issuance of injunction and oppression to plaintiff in case of refusal to issue injunction is great, mere adequacy of relief by some monetary compensation cannot be a ground for refusing the temporary injunction. The general rule is that in the matter of interlocutory order where a breach of right of plaintiff is threatened the proper course for a Court is to maintain the status quo until the disposal of the suit except in the case where such an order may cause a heavy burden on the defendant or where the injunction cannot be issued in view of section 56 of the Specific Relief Act. In nutshell the Court was of the view that wherein an order is prima facie ultra vires, the refusal to issue injunction would be oppressive in such case to the plaintiff and not oppressive to the defendant injunction is issued.
In 2003 CLC 649 ' A learned Judge-in-Chamber of Sindh High Court has decided the suit with the following observation:-- ' It is pertinent to point out that in the present case the civil suit has been filed before the original side of the High Court which is also a constitutional Court. In Shankar Roy Chowdry v. Hea Cotton AIR 1925 Cal. 373 it has been correctly observed that a High Court entertaining a suit on its original side is a superior Court of record; and nothing is beyond its jurisdiction unless expressly barred.
Seeking support from this judgment it becomes more than obvious that this Court exercising original civil jurisdiction and while entertaining civil suits is also a superior Court of record created under the Constitution. Also there is no bar either in the Civil Procedure Code or in the Constitution which prohibits enforcement of the provisions of the Constitution in a civil suit. Even in the aforecited case of Mirpurkhas Sugar Mills Ltd. PLD 1978 Kar. 225, similar observations have been made. In terms of Article 203 of the Constitution the power of superintendence and control is also vested in the High Courts. The High Court while entertaining a civil suit cannot only enforce the provisions of the Civil Procedure Code and Specific Relief Act but it can also enforce provisions of the Constitution including Article 199, being the Court of Superintendence under Article 203. This being so, the nigh Court in a civil suit has obviously the power and jurisdiction to test the validity of laws.
In 2004 CLC 1029 ' The students were expelled from the school on receipt of threatening E-mail allegedly dispatched through the facility available with their father. Expulsion of the students from the school was effected not in the exercise of absolute discretion vesting in the respondent, but on account of certain specific allegations which created a permanent stigma which could also affect the prospects of their admission in any other school. Heavy duty is cast upon Courts to do substantial justice and the rules of adversary system based merely on technicalities not reaching the depth of the matter are now a luxury of the past. Injunction was thus granted against Grammer School, a private body in order to do complete justice.
In PLD 1991 SC 14.
' Chairman, Regional Transport Authority v. Pakistan Mutual Insurance Co.
' Their Lordship while considering structuring discretion found 7, instruments of discretionary power which are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. The discretion is to be exercised reasonably, fairly and justly without giving any cause of complaint to any person who may have interest in the exercise of such discretion. The discretion is not to be exercised arbitrarily or in fanciful manner.
8. Decisions cited by the learned counsel for respondents deal with issue of temporary injunction in a building contract holding that if a contract is lawfully dismissed he has remedy for getting compensation by way of damages as held in AIR (38) 1951 Punjab 426.
In (1993) 3 Supreme Court Cases 499 ' It was held that the Government while entering into contracts or issuing quotas is expected not to act like a private individual but should act in conformity with certain healthy standards and norms.
Such action should not be arbitrary, irrational or irrelevant and decisions rendered without affording an opportunity to explain was, violative of principle of natural justice.
In AIR 1995 Cal 246 ' It was held that doctrine of legitimate expectation cannot be invoked in contractual fields.
' AIR 1996 Cal 424, also deals with doctrine of legitimate expectation.
PLD 1970 SC 139 ' A suit by government servant challenging new seniority list and seeking a declaration that he could not be reverted back to his former post with an application for grant of temporary injunction did not find favour for the reason that if the plaintiff-respondent's suit succeeds ultimately, the interim wrong done to him by his reversion will be set right for which he can also be monetarily compensated for.
1970 SCMR 29 Deals with case where a plaintiff was dis-possessed during pendency of suit by the defendant in exercise of lawful authority. Restoration of possession was refused. So was the ratio in "Inam Bux v.
Province of West Pakistan through Deputy Commission, Khairpur, 1970 SCMR 491.
9. Ratio decided in the aforesaid precedents is that the Courts are called upon to exercise their discretion in a manner to provide substantial A justice and not caught up in niceties and technicalities. Violation of principle of natural justice was not seen with favour, particularly when a fault is attributed or an aspersion is made stigmizing the performance. In building contract, however, damages were found to be adequate remedy and injunctions are refused, normally.
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16. Letter of interest was issued in favour of appellants. Respondents are bound by the conditions set down in it. Appellants spent a huge amount in preparation of feasibility report. It was approved by the PPIB. After its approval reservations were shown by WAPDA and government of N.-W.F.P.
About the Hight of the Dam. Appellants have been consistently, applying to the defendants to resolve this issue enabling them to approach NEPRA, for negotiation of the tariff. No response was given. The project was handed over to WAPDA without granting even an opportunity of hearing to the appellants. Government actions should be transparent, fair and based on certain healthy standards and norms. Decision rendered without granting an opportunity of hearing to explain is violative of law. Admittedly, appellants were not served with notice prior to taking of action through order impugned in the suit. They have been practically condemned un-heard. This act is prima facie ultra vires and in sheer violation of principle of natural justice and is not sustainable in the eye of law. Refusal to issue injunction would be oppressive to plaintiffs-appellants. As far as irreparable loss and balance of convenience is concerned, it is observed that the project is still at the initial stage. Wada has not able to find out an investor. Situation in Swat does not permit to commence with the project in the near future. Appellants have incurred huge expenses and without any fault attributable to them project is being snatched. Stage of awarding of contract has not yet reached.
Award of damages as an adequate remedy by way of some monetary compensation cannot be a ground for refusing injunction when order creates a stigma and is ultra vires on its face.
11. Policy of 2002, do grant an incentive to the private investor to invest in the electricity energy on BOOT basis. Having taken all the steps to the satisfaction of the respondents by preparation of feasibility report approved by respondents and instead of granting him Letter of Support took a somersault to shift the project to public sector. Act of respondents lacks transparency, justice and fair play. Negotiation for tariff could not have been made unless the height and other issues were settled down. Public functionaries and the government are known as noblest of the litigant.
Deviation from the policy announced by the government without any basis cannot be encouraged.
Government should bestow its confidence to the private sector, spending huge amount.
12. Alternative argument of appellants that respondents be restrained from creating a third party interest for a period of two months and the Court seized of the matter may decide the suit, undertaking to produce documentary evidence, only, admitted between the parties. Conditions prevailing in Swat do not allow to undertake the project in near future.
13. From the above reasons, we are of the view that appellants are entitled to the relief claimed for.
The respondents are restrained from creating any third party interest till the decision is rendered in the suit which, shall be decided within a period of two months. Appellants-plaintiffs learned counsel has undertaken to produce documentary evidence, only. If any delay is made by appellants-plaintiff in disposal of the suit, the respondents may make an application for vacation of the injunction.