' IJAZ AHMAD CHAUDHRY, J.--- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged the letter dated 18-7-2009 through which the possession of Toll Plaza was taken from the petitioner and the advertisement was published in the Daily "Dawn" Islamabad for re-auction of the Toll Plaza being illegal and unlawful.
2. Briefly the facts narrated in this petition are that the petitioner is registered company and incorporated under the Companies Ordinance, 1984. It is mentioned in the petition that respondent No,1 had called for bids to operate Toll Points in different areas of its territories on Build, Operate and Transfer (BOT) basis. The petitioner company also participated in the bid and after protracted negotiations, the petitioner had been awarded contract on 22-11-2007 for five years to operate one of the Toll Point situated at Kashmir High Way, Islamabad and in this behalf an agreement was also written, which was signed by petitioner's company and respondent No, 1/C.D.A. Through this agreement the petitioner was authorized to collect the revenue from the vehicle, at prescribed rates, which used to enter Federal Capital Territory of Islamabad at the Toll Plaza of Kashmir High Way. It is claimed by the petitioner in. The petition that in consideration of collection of the said revenue, and irrespective of its quantum, the petitioner's company had paid to respondent No,1 a prescribed BOT fee in advance on monthly basis. In addition to BOT fee, the petitioner is required also to construct and establish a permanent new toll plaza thereon after the site is handed over to the petitioner's company by respondent No,
1. The possession of concerned Toll Plaza was delivered to the petitioner's company by respondent No,1 as per the terms and conditions mentioned in agreement dated 22-11-2007 and company of the petitioner started collecting revenue, but however, the possession of the site was partly handed over to the company of the petitioner.
Furthermore, even the electricity had not been provided to the petitioner. It is claimed by the petitioner that he had also commenced the civil work of the erection and installation of new Toll Plaza as per the provisions of the contract. The said civil work was in progress and despite non- cooperation of respondent No,1, the same attained a considerable progress. The petitioner was regularly paying the BOT fee on monthly basis to respondent No,1.. It is claimed by the petitioner in the petition that immediately after the contract was awarded to the petitioner company, a considerable loss of revenue started taking place due to diversion of a considerable amount of traffic to other toll points for certain development work undertaken by respondent No, 1.
Furthermore, on 20th September, 2008 a mishap occurrence in the Islamabad Capital Territory i,e, the Marriott Hotel was attached and a huge loss of life and property was caused. After the mishap caused by explosion at Marriott Hotel, the heavy traffic entering to Islamabad through Kashmir High Way Toll Points was again diverted to I.J. Principal Road (Pirwadahay Road) and thus, a further heavy loss of revenue started to occur to the petitioner company. The said diversion of traffic is still continued by the officials .Working under the administrative control of respondents Nos.5 and 6 but without any lawful order being in existence. It has been mentioned in the petition that under the provisions of the said agreement dated 22-11-2007 the petitioner company is authorized to claim the said loss of revenue from same and stated the same to be under process. The said claims stood approved by the lapse of time under the provisions of the said agreement. Moreover, under the provisions of the agreement, the petitioner company is authorized to adjust the amount of said claims against BOT fee payable to respondent No,1, but with the prior approval of the same. The petitioner submitted to respondent No,1 application for prior approval of the same but received no reply. Further under the provisions of the agreement the prior approval also stood granted by lapse of time and the petitioner started adjusting the amount of said claims against the BOT fee payable to respondent No,1 i,e, C.D.A. On monthly basis. However, respondent No,1 has not made any payment to the petitioner so far on account of the said claims lodged being outstanding in excess of the adjusted BOT Fee. The petitioner company many times requested respondents Nos.1 and 2 to constitute a Dispute Resolute Committee as provided in the contract, but did not intimate to the petitioner of any such Committee. The petitioner also requested to frame issues for the Committee but that was also not done. It has been claimed by the petitioner that Bank Guarantees submitted by the petitioner company to respondent No,1 amounting to Rs,3 million have also been encashed illegally in contravention of the provisions of the agreement and further, without any intimation to the petitioner company. Despite so many requests and reminders, no real facts/reasons and grounds were disclosed by respondents Nos.1 and 2. It is claimed by the petitioner that resorting to a supra agreement without any process of law of the land and without any Court order of a competent jurisdiction, and further, despite the agreement dated 22-11-2007 being alive, in existence and in force, on the commencement of new financial year at midnight of 1st July, 2009. i,e, immediately after the day of 30th June, 2009 was over, with the conspiracy of respondents Nos.3 and 4 for extraneous considerations and without any show-cause notice, without communicating any reason/ground to the petitioner company, entered the site of toll plaza and its office and forcibly removed the staff, took over physical possession of the whole site and started illegally collecting revenue from the vehicles. Respondents Nos.3 and 4 have used the State apparatus illegally for mala fide considerations. Thereafter, the petitioner immediately delivered a letter dated 1-7-2009 to respondent No,2 requesting therein to communicate the reasons and grounds for such an illegal Act and also a copy of the order under which such illegal action was taken, but did not reply in writing. Petitioner served a reminder on 8-7-2009 which is Annexure "C" of the petition to respondent No,2, but that also did not work. After 2nd and 3rd reminder dated 15th July and 18th July, 2009, impugned order dated 18-7-2009 has been served to the petitioner which has been received on 22nd July, 2009, which is illegal and unlawful and is liable to be set aside.
3. Learned counsel for the petitioner has contended that the agreement dated 22-11-2007 is still in operation and without issuance of any notice to the petitioner's company the contract has been terminated by respondent No,1; that even no order has been passed for termination of contract and action of respondent No,1 is coloured with mala fide intention as respondent No,1 wants to give the contract to a favourite person. Learned counsel for the petitioner has pointed out that according to the documents the meeting held on 30-6-2009 at 11.00 p.m. Which was not an official time and how the meeting could be held and the possession of vaid Toll Plaza was taken over at 12.30 a.m.; that under section 49-B of C.D.A. Ordinance, 1960, it is provided that notice has to be served upon the Contractor; that the C.D.A. Had violated the conditions of the agreement as under section 16(4) three months notice was to be given to the petitioner before termination of said contract and there was no notice and this clause cannot be revoked without issuance of notice.
Learned counsel for the petitioner contends that he has attached the documents with the Civil Miscellaneous No,663 of 2009 which shows that on 10-7-2009 the Contractor admitted that only the possession had been taken and no intimation was given to the Contractor about the fate of agreement; that on the other hand wrong comments have been filed by C.D.A., wherein it has been stated that contract has already been cancelled; that respondents may be restrained from further handing over the possession of the said Toll Plaza; that this petition is maintainable as no illegality has been committed in filing of this petition; that respondent No,1 has put the Toll Plaza for re- auction, which action is tainted with mala fide and against the principle of natural justice and writ can be issued in this regard. It is lastly contended by learned counsel for the petitioner that discretion should be exercised in fair means and not in partial. Learned counsel for the petitioner has relied upon:- ,(1) Abid Hassan and others v. PIAC and others 2005 SCMR 23, (2) Capital Development Authority v.
Zahid Iqbal and others PLD 2004 SC 99, (3) Collector of Customs (Valuation) and another v. Karachi Bulk Storage and Terminal Ltd. 2007 SCMR 1357, (4) Shahbuddin Shah and others. v. Deputy District Officer (Revenue) and others 2007 CLC 700, (5) Rizwan Akhtar v. University of the Punjab through Vice Chancellor, Quaid-eAzam Campus, Lahore and 4 others 2003 PLC (C.S.) 1508, (6) S.M. Ismail v.
Capital Development Authority, Islamabad through Chairman and 5 others 2006 CLC 131, (7) Shifa Laboratories. Pvt. Ltd. Through Chief Executive v. Lahore Development Authority, through Director General, L.D.A. Plaza and 3 others 2004 MLD 1377, (8) Messrs Ittehad Cargo Service and 2 others v.
Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116, (9) Sadiq Hussain v. Lahore Development Authority, Lahore through Director-General and 2 others PLD 1995 Lah. 339, (10)
Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another 1995 SCMR 650, (11) Allay Yar v. General Manager, Railways Headquarters, Lahore and another 2001 SCMR 256, (12) Abdul Qayyum Badar v. Lahore Development Authority 1994 CLC 1293, (13) Dr. Zaid Mehmood v. Vice-Chancellor and others 2005 PLC (C.S.) 599, (14) Dr. Prof. Syed Qasim Mehdi v.
Registrar, University of Karachi and 2 others 2009 PLC (C.S.) 245 (15) Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 in support of the contentions.
4. Learned counsel for the respondent/C.D.A. Has opposed this petition on the ground that questions of facts have been raised in the writ petition and whether the loss was caused to the petitioner due to Marriott Blast is a question which could be finalized after recording the evidence; that the force under what circumstances could be deployed also needs recording of evidence; that the meeting was held at mid night as in the day light the possession could not be taken over due to heavy traffic that number of notices were served upon the petitioner; the BOT fee was not being paid by the petitioner, who failed to discharge the financial liability and contract has already been cancelled; that there was no mala fide on the part of C.D.A. To cancel the contract and petitioner can participate in the re-auction proceedings.
5. I have heard the arguments of learned counsel for the parties and also gone through the record.
6. It is not denied that the petitioner had stopped the payment of BOT fee to the C.D.A. Since January, 2009 and the petitioner was also bound to raise the development works at the site, which was also stopped. Whether it was due to the blast at Marriott Hotel that loss occurred to the petitioner, who stopped the payment or it was designed to cause loss to the public exchequer are the disputed questions of facts which cannot be resolved without recording the evidence. Even otherwise, it is a case of contractual obligation and the parties can move for arbitration under the contract, but the writ petition is not maintainable. The case-law cited by the learned counsel for the petitioner runs on different footing, which cannot be applied in the present case. This writ petition having no merit is dismissed.