' MAZHAR ALAM KHAN MIANKHEL, C.J.---The petitioners, Messrs Spinzer Travels (Pvt.) Ltd., Peshawar, through Arshad Wadud, Director, having remained General Sales Agent (G.S.A) (subsequently called Passenger Sales Agent) (P.S.A) for Pakistan International Airlines Corporation (PIAC), has filed the instant constitutional petition for issuing directions to the respondents to pay him the commission on the fuel surcharge which with effect from the date of its introduction was collected by the petitioner on behalf of the respondents from the passengers on the fare tickets.
2. Learned counsel for the petitioners argued that the petitioner's Agency is a corporate body, registered under the Companies Ordinance, 1984 and runs the business of Travel Agency under a valid license issued by the Tourist Services Department, Government of Pakistan. The petitioner remained the General Sales Agent for PIA in K.P.K since 1973. On abolition of General Sales Agent system, the Passenger Sales Agent system was introduced under which the petitioner was required to sell only PIA tickets. The petitioner was paid commission by respondent No,1 on the valuation of the tickets after excluding the taxes payable to the Government. According to him, the agreement executed by the petitioner with the PIA was a. Standard agreement approved by the International Air Transport Association (IATA), which is in vogue throughout the world as standard agreement, under which the fare has been defined through Resolution No,818g as, "the fares applicable are the fares (including fare surcharges) for the transportation in accordance with the Member's or BSP Airline's tariffs and shall exclude any charges for excess baggage or excess valuation of baggage as well as all taxes and other charges collected by the Agent." Further contended that the PIA created a charge known as "Fuel Surcharge", which was added to the fare but the commission on the said charge was not granted to the petitioner on the ground that the same was not part of the fare. That it was the statutory function of respondents to fix domestic and international fare on the basis of expenditure plus recoverable profit and the most important ingredient of fare fixation is the cost of fuel and as such fuel surcharge cannot be separated from the fuel cost. The learned counsel placed reliance on the judgment of the High Court of Justice, Queens Bench Division, London, United Kingdom dated 10-12-2012, wherein it was held that "fuel surcharge" is a part of the fare and, therefore, the present petitioner is also entitled to receive commission on the fuel surcharge along with commission paid on the fare excluding government taxes with effect from introduction of the fuel surcharge.
3. On the other hand, the learned counsel for respondents argued that the petitioner has got no cause of action or locus standi to file the present writ petition, which is not maintainable, besides being hit by the principle of 'laches'. Further stated that although PIA deals with IATA accredited as well as non IATA agents for which different agreements are executed, however, the nature of the agreement executed between the parties in this case was not a standard agreement approved by IATA because if it was so, then the petitioner was not required to have executed a separate agreement with the respondents as GSA/PSA. That during the period when the petitioner remained as GSA/PSA with respondent No, 1, the relationship between them was suspended a number of times due to committing irregularities by the petitioner and in December, 2012 his contract was finally terminated due to non-fulfilment of his financial obligations. The fuel surcharge was levied in the year 2001 and till the year 2012 the petitioner never agitated his grievance before a competent Court of law, thus he is estopped by his own conduct to ask for the same at such a belated stage besides, it is nothing less than a counterblast for cessation of his contract.
4. Arguments heard and record perused.
5. We would like to first meet the question of laches, as raised by the opposite side. The petitioner remained as G.S.A/P.S.A for PIA since the year 1973 for which agreements were executed between the parties from time to time. The fuel surcharge was imposed with effect from 1-10-2001, while contract of the petitioner was cancelled in the year 2012. The instant writ petition was filed on 3-12- 2013. In Para.14 of the writ petition, it is stated that despite repeated representations by the petitioner claiming commission on the fuel surcharge introduced by the respondent No,1 (PIA), the respondents failed to acknowledge the demand of the petitioner without tendering any legal justification. It means that the claim of petitioner was a recurring one, so no question of laches would arise, as laches could not be equated with the Law of Limitation. The principle of laches is based on fair play, equity and natural justice. The august Supreme Court of Pakistan in the case of Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others (2004 SCM R 400) has laid down that:-- "The dismissal of writ petition on the sole ground of laches depends upon the facts and circumstances of each case, but there can be no exception to the rule that the delay in seeking the remedy of appeal, review or revision beyond the period of limitation provided under the statute in absence of reasonable explanation, cannot be condoned and in the same manner if the remedy of writ petition is not availed within reasonable time, the interference can be refused on the ground of laches. However, the laches cannot be equated with limitation and by itself is not a sufficient ground to non-suit a person if the equities are not against him and he has not been sleeping over his right or was not indolent. The question of laches in the writ petition is always considered in the light of the conduct of the person invoking the Constitutional jurisdiction of the High Court and the degree of his negligence if any and that if by grant of relief being sought by him no injustice is caused to the opposite -party, the Constitutional petition should not be dismissed merely on the ground of laches without examining the dictates of justice."
Similary, in another case of Umar Baz Khan through L.Hrs v. Sped Jehanzeb and others (PLD 2013 Supreme Court 268), their lordships of the august Supreme Court of Pakistan have held that:-- "Bar of laches could not be over emphasized in a case where the relief claimed was based on a recurring cause of action."
' The argument of learned counsel for the respondents that the writ petition is hit by the principle of laches, is therefore not of such a nature so as to dismiss the writ petition on this sole ground without looking into other aspects of the case.
6. The stance of petitioner is that the agreement, which is executed between the parties is a standard agreement approved by the International Air Transport Association (IATA) and is in vogue throughout the world as standard agreement. Whether P.S.A agreement in this, respect had the status of I.A,T.A accredition, the answer to it is 'No' Under Article-2 of the Agreement, the Passenger Agency Conference Resolution Manual as approved by the IATA has not been made applicable in the case of petitioner, therefore, the respondents are not liable to abide by the Rules/Resolutions of I.A.T.A. If for the sake of arguments, the I.A.T.A Resolution is applicable in the case of petitioner, then in that case, the petitioner under Article-21 of the Resolution ibid was required to have asked for an arbitration. Article-21 of the Resolution ibid reads as under:-- "If at any time any question, dispute or difference may arise between both the parties under this Agreement, either party may as reasonably practicable, give to the other Notice in writing of the existence of such question, dispute or difference, specifying its nature and the point at issue, for conciliation failing which the matter shall be referred to a single arbitrator nominated by the consent of both the parties in accordance with the provision of Arbitration Act of 1940. "
' The petitioner as per above term and condition of agreement was required to have first opted for arbitration before invoking the jurisdiction of this Court.
7. As stated above, when the status of the contract entered into between the parties is not of a standard agreement as approved by the I.A.T.A, then any contractual rights, commitments, undertaking and obligations cannot be interfered with by this Court while exercising its constitutional jurisdiction, for the enforcement of which proper remedy in such like matters lies in approaching the Courts of ordinary jurisdiction. Similar views that no writ can be filed to enforce contractual liability have already been expressed by the august Supreme Court of Pakistan in the cases of Pakcom Limited and others v. Federation of Pakistan and others (PLD 2011 Supreme Court 44), Lahore Cantonment Cooperative Housing Society Limited Lahore Cana., through its Secretary v.
Dr. Nusrat Ullah Chaudhry and others (PLD 2002 SC 1068), and Niazamuddin and others v. Civil Aviation Authority and 2 others (1999 SCM R 467).
8. For the reasons stated above, this writ petition being devoid of substance is therefore dismissed with no order as to costs. However, the petitioners would be at liberty to seek their legal remedy from the competent forums, if available to them under the law.