IJAZ AHMAD, J. --- The petitioner is a company incorporated under the laws of Pakistan, engaged in the business of marketing and distribution of Liquefied Petroleum Gas (L.P.G.) under Licence from Oil and Gas Regulatory Authority (OGRA) Ordinance, 2002. The respondent No. 1 is a public limited company incorporated under the provisions of the Companies Ordinance, 1984. Control and 54% of the shares respondent No. 1 vest in the Federal Government which appoints its Managing Director and Members of the Board of Directors. The respondent No. 1, in pursuance of long term association with potential private business partners in Auto gas business having requisite infrastructure and capability, contacted the petitioner. An agreement dated 25.3.2010 was executed between the petitioner and the respondent No. 1 whereby the respondent No. 1 agreed to place reliance on the petitioner for the supply and delivery of L.P.G. To the Auto Gas Stations and to assist in the establishment or, where specified by the respondent No. 1, to establish and operate the L.P.G. Auto Gas Stations. The agreement stipulated independent business relationship between the parties.
The agreement was to continue for a period of 10 years. The agreement could be terminated under Article 7 of the said agreement.
2. It is contended by the learned counsel for the petitioner that in pursuance of the execution of the said agreement, the petitioner spent Rs. 10,000/- Million between 25.3.2010 that is the date of signing of the agreement till 20.4.2010.
3. It is further argued that the petitione/learnt of some development on the end of the respondent No. 1 that it was preparing for the recession of the contract. The respondent No. 1 in a letter dated 6.5.2010, addressed to the petitioner, communicated the latter about the decision made by its Board of Management in its 188th, 189th and 190th meetings that it had decided not to carry forward the business relationship with the petitioner. Primary reasons assigned to reaching this decision was that the petitioner was involved in multiple cases of litigation. The respondent No. 1, as the next step vide letter dated 11.5.2010, rescinded the agreement dated 25.3.2010 between the parties. The reason assigned in this letter was that the petitioner had made misrepresentation as to its financial health to induce the respondent No. 1 to execute the agreement in question.
4. When questioned about the maintainability of the petition, the learned counsel for the petitioner contends that the respondent No. 1 is a public limited company incorporated under the provisions of the Companies Ordinance, 1984. Its control and 54% of the shares vest in the Federal Government, respondent No. 2 which appoints the Managing Director and Members of the Board of Directors and the said respondent is performing the functions in connection with the affairs of the Federation. He places reliance on 1998 CLC 1890 titled "Messrs. Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd.- and others", 2009 CLD 937 titled "Echo West International (Pvt.) Ltd., Lahore. v. Government of Punjab through Secretary and 4 others" 2001 CLC 681 titled "Network Television Marketing Ltd v.
Government of Pakistan and another", 1998 CLC 1178 titled "Messrs Wak Orient Power and Light Limited through Chief Executive, Lahore v. Government of Pakistan, Ministry of Water and Power through Secretary, Islamabad and 2 others" and PLD 2001 Supreme Court 116 titled "Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others" and argues that in such-like cases where the, majority of the shares, administration and control vest in the Government, Even in contractual matter, a writ petition is maintainable. It is further argued that after having entered into contract whereby the mutual rights and duties of the parties were fully determined and ascertained, the respondent No. 1 could not unilaterally rescind the agreement and the rescission, if at all permissible, could only be done if the grounds mentioned in Para No. 17 of the agreement were available and that the letter of rescission does not specify the reasons for so doing, which according to him were non-existent. It is further contended that having resort to the course of law for resolution of the dispute does not disentitle one of the parties from continuation of the agreement and does not equip the other party with a pretext for rescission of the contract.
5. On the other hand, the learned counsel appearing for respondent No. 1 contends that the alleged agreement between the petitioner and respondent No. 1 in its letter and spirit is, in fact, a license which does not create any right in favour of the petitioner. A licensee thus has no right to insist the implementation of the terms of the license. Reliance is placed on PLD 1965 Supreme Court 83 titled "M.A. Naser v. Chairman Pakistan Eastern Railways and others". The learned counsel further argues that this Constitutional petition is not maintainable as the respondent No. 1 is a public limited company, it is not funded by the Federal Government and its affairs are governed by its own independent Board of Governess, therefore is not amenable to the Constitutional jurisdiction of this Court. Reliance' is placed on PLD 1990 Supreme Court 452 titled "Printing Corporation of Pakistan v. Province of Sindh and others". It is further argued that even if the document dated 25.3.2010 termed by the petitioner as an agreement, is so construed, the same is not enforceable even by institution of the suit because Section 21 of the Specific Relief Act, 1877 bars a legal action for enforcement of the agreement where the loss caused or apprehended to be caused, be measurable in terms of money. Reliance is placed on 1986 SCM R 820 titled "Messrs Pakistan Associated Construction Ltd. v. Asif H. Kazi and another", 2007 Supreme Court 298 "Zonal Manager, U.B.L. And another v. Mst. Perveen Akhtar and 1999 SCM R 467 titled "Nizam Din and another v. Civil Aviation Authority and 2 others". It is further argued that in cases where contractual obligation between two parties in question, this Court cannot be resorted to for its enforcement.
6. On the other hand, learned counsel for the petitioner argues that in such-like cases, this petition is competent and this Court can set aside the order of rescission made unilaterally in violation of the terms of the agreement.
7. I have heard the learned counsel for the parties and have also gone through the record.
8. I would like to address the first point, first. Ordinarily, this Court, in its Constitutional .Jurisdiction shall not embark upon the enforcement of the contractual liabilities between the parties. The performance of the contract has to be adjudicated by the Court of the first instance in a law suit.
However, the contention of the respondent No. 1 on the premises that the instant petition is not maintainable in .View of Section 21 of the Specific Relief Act, 1877 is not acceptable. The bar contained in the said section comes into play when the loss sustained is arithmetically calculable.
This pre-condition is not available in the instant case. This argument of the learned counsel is, therefore, repelled. The case-law cited by the learned counsel for the respondent No. 1 does not apply to the, instant case. In PLD 1990 SC 452 titled "Printing Corporation of Pakistan v. Province of Sindh and others", the Honourable Supreme Court of Pakistan refused to accept the argument that owning the 60% shares by the government will, in all circumstances, lead to the conclusion that the corporation is controlled by the government. This is not the sole argument advanced by the learned counsel for the petitioner to establish that the Constitutional petition against the respondent is maintainable. In case cited as 1986. SCMR 820 titled "Messrs Pakistan Associated Construction Ltd. v. Asif H. Kazi and another", it was held that resurrection of contract, in its full form and effect, could not be allowed through an interim injunction. The cited case deals with an altogether different situation. The ratio in this case is that the whole relief cannot be granted by way of interim injunction. In case cited PLD 2007 Supreme Court 298 titled "Zonal Manager, U.B.L.
And another v. Mst. Perveen Akhtar, it was held that contractual rights and obligations had to be enforced through Courts of ordinary jurisdiction; High Court exercising its Constitutional jurisdiction would be loath to interfere with such matters. There is no cavil to this proposition. The apex Courts in exercise of their Constitutional jurisdiction have to be slow in interfering with such matters. The same judgment postulates that when obligation or duty vested in a public functionary or the public body is in question, even contractual rights and obligations might be enforced in exercise of the Constitutional jurisdiction. The judgment cited as PLD 1965 Supreme Court 83 titled "M.A. Naser v.
Chairman Pakistan Eastern Railways and others" deals with the determination of rights conferred under licence, it is held that a licence does not confer any right enforceable through Specific Relief Act, 1877.
9. For what has been discussed above, I am of the view that the respondent P.S.O. Is controlled and principally owned by the Federal Government. Its Managing Director and Members of the Board of Directors are appointed by the Federal Government. It is engaged in the business of processing distribution and marketing of petroleum products and L.P.G. All of these functions are as vital to the economy of the country as the blood for keeping a man alive. Exploiting, processing and supplying of energy are one of the vital and most important functions of the State. The respondent No. 1 although sitting behind a corporate veil, is in fact performing the functions in connection with the affairs of the federation, so it is amenable to the Constitutional jurisdiction of this Court.
10. The High Court in exercise of its Constitutional jurisdiction is possessed with power to examine the validity of order in regard to grant of a concluded contract and to strike it out if the same be made in a male fide manner by arbitrary exercise of discretionary power, provided the challenge is made promptly. Reliance is placed on PLD 2001 Supreme Court 116 titled "Messrs lttehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others", 1998 CLC 1178 titled "Messrs Wak Orient Power and Light Limited through Chief Executive, Lahore v Government of Pakistan, Ministry of Water and Power through Secretary, Islamabad and 2 others". In order to determine whether a person could be treated as "performing functions in connection with affairs of Federation or the Province the criterion" must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State. As I have already discussed the exploitation, processing and supply of the fuel in developed industrialized state or a developing state are as vital the activities and functions of the state as is supply of the fresh blood of the living being. The companies which are funded by the Federal or Provincial Government and which are under the dominative control of State and provide amenities of life of citizens, and in substance are instrumentalities of the State and discharge the function which fall within the area of the State, the actions taken and the orders passed by the such institutions are subject to, judicial review of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan. Such functionaries are bound to follow the rules of fairness and neutrality while awarding and rescinding contracts. The reliance is placed on 1998 CLC 1890 titled "Messrs Huffaz Seamless Pipe Industries Ltd.. v. Sui Northern Gas Pipelines Ltd. And others", 2009 CLD 937 titled "Echo West International (Pvt.) Ltd., Lahore v. Government of Punjab through Secretary and 4 other? And PL;b 2001 Karachi 30 "Pak.
Shaheen Containers Services (Pvt.) Ltd. v. Trustees of Port of Karachi and others".
11. The contention of the learned counsel for the respondent No 1 that the transaction in question is in fact grant of licence is not supported by the record. The agreement dated 25.3.2010 executed between the parties (Annexure-D) terms itself an agreement which under the ordinary law casts rights and duties on both the parties. The recital of the document leaves no room to term it is a licence or a unilateral award of some concession. The document in question is an agreement and not a licence. The fourteen-days progress report published in routine by the petitioners shows a huge investment made towards the execution of the contract. The media reports exhibit the expression of complete satisfaction of the respondent No. 1 over the credibility and the competence of the petitioner to undertake and execute the contract. Clause 17 of the agreement, stipulates the breach of agreement or becoming insolvent as condition for termination of the contract. None of these conditions were available to justify the recession of the contract by respondent No. 1. The respondent No. 1 in its letter dated 6.5.2010 (Annexure-P) has informed the petitioner that after due deliberation and consideration during this meeting of the Board of Management, it was decided not