Petitioner is aggrieved of respondents' action whereby they forcibly took over possession of the premises of commercial complex situates at Faisalabad Rest House (Dark Bungalow), Pakistan Railways Faisalabad from the petitioner without adopting due process of law and issuance of any notice.
2. Facts giving rise to the filing of the captioned Constitutional Petition are that on 12.06.2001 Pakistan Railway entered into a Memorandum of Understanding (MOU) with M/s. Ajami (Pvt.)
Limited and M/s. Napawong Construction Company (Thailand) for the development and construction of a commercial complex, at Pakistan Railways, Faisalabad Rest House (Dark Bungalow), Faisalabad, hereinafter to be referred to be as 'Site'. Eventually, Pakistan Railway vide letter dated 14.07.2001 also included the petitioner company as a party in the Consortium of Investors. After reviewing the technical data by the consultants of the Pakistan Railways a formal Implementation Agreement was executed on 20.02.2002. The petitioner company paid a sum of Rs, 5 million in advance and also made payment of Rs, 40 million as first installment under the stipulations of agreement on 22.06.2001. Where after, Site was handed over to the petitioner on 07.03.2002 and the construction work was followed with effect from 04.04.2002.
3. At one point of time on 6.4.2002 functionaries of Tehsil Municipal Administration, Faisalabad intervened and restrained construction work at Site. However, subsequently through intervention of the district administration, the issue was resolved to the effect that TMA will not intervene and hinder ongoing project at Site. Respondent Pakistan Railway submitted `Lay-Out-Plan 25.6.2002.
However, TMA remained adamant that lay out plan had to be approved by it, whereas Pakistan Railways was insisting through its Consultants and Directors that no such plan approval was required. Later on, the National Reconstruction Bureau confirmed that the Provincial Laws were not applicable to Pakistan Railways' land.
4. Due to ongoing tussle and dispute qua the alleged nonpayment of commercialization fee, other parties to the Consortium of the Project showed their reluctance and lack of interest in the Project.
That is how petitioner company through an Amended Agreement, became exclusive party for purposes of the completion of Project.
5. It was the case of petitioner that on account of "dispute inter se .TMA Faisalabad as well as Pakistan Railway with reference to commercialization fee, petitioner failed to make requisite payments as per agreed payment plan.. In this view of the matter, respondent Pakistan Railways raised demand from the petitioner company for the outstanding amount along with 20% markup for delayed payments. The petitioner company vide letter dated 09.04.2005 elaborated detailed reasons for delay in the construction work and also refuted the liability of 20% markup.
Subsequently, petitioner's plea for waiving off 20% penalty was found favor, and the petitioner was permitted to deposit an amount of 1,00,000/- US Dollars on account of first installment towards payment of outstanding amount
6. At this juncture, construction work was resumed by the petitioner company at Site in accordance with approved plan. However, respondent Pakistan Railways issued notice of termination of contract, and later it was terminated on 07.09.2005. Being aggrieved, petitioner invoked the Constitutional jurisdiction of this Court through WP # 15844/2005. During pendency whereof parties entered into agreement. Consequently, Secretary Pakistan Railway Board, Pakistan Railways issued a letter bearing No, W-II/2002-LA/39, Islamabad dated 17.05.2006 whereby agreement between the parties. Stood revived and implementation agreement dated 20.02.2002 was amended in terms that all the provisions of the agreement would remain unchanged, which was ratified and affirmed by the parties. And pursuant to revival of agreement ibid, this Court disposed of writ petition by means of order dated 25.05.2006 in the following terms: "As the impugned notice has been withdrawn by the Pakistan Railways and agreement between the parties has been revived, no further proceedings are required in the petition and the same is disposed of. Some dispute with regard to payment of penalty and amount of lease due to Pakistan Railways can be resolved by the parties themselves because no substantial issues are involved in that controversy."
7. It may be stated that respondent Pakistan Railway assailed aforesaid order of this Court dated 25.5.2006 before the Hon'ble Supreme Court of Pakistan in CP # 634/2006. And in pursuance of compromise inter se the parties, the Honorable Supreme Court of Pakistan disposed of the lis vide order dated 14.2.2007 in the following terms: Learned counsel for the parties having placed on record compromise Mark 'A' duly singed by them have stated that the judgment of the High Court may be set aside and this petition may be disposed of in terms of the compromise as under:--
(1) The parties agree that the impugned order dated 25.05.2006 in W.P.15844 of 05, of the Lahore High Court be set aside.
(2) The entire subject matter or dispute in writ petition and all other disputes between the parties, arising from Implementation Agreement dated 20.02.2007 be referred to Arbitrator for decision.
(3) The parties have agreed to the appointment of Mr. Justice (R) Mehboob Ahmed, Retired Chief Justice, Lahore High Court, as sole Arbitrator for reference and decision of disputes referred herein above.
(4) The parties jointly agreed that the petition for leave to appear may kindly be accepted in the above terms.
In consequence to the above compromise between the parties and joint statement made by the learned counsel for the parties the judgment of the High Court impugned herein is set aide and this petition after conversion into an appeal, stands disposed of in the above terms, with no order as to the costs.
8. Apparently, arbitration proceedings remained pending with the Sole Arbitrator appointed by the Hon'ble Supreme Court of Pakistan in its order dated 14.02.2007. However, it was on 24.102014 when the employees and staff of the petitioner's company were present at Site heavy police contingent along with Respondents # 3 and 4 allegedly forced their entry into premises. They manhandled the staff and employees of the petitioner and ransacked Site and took forcible possession and also sealed the Site. Hence, this Constitutional Petition.
9. Learned counsel for the petitioner strenuously argued that action initiated by the respondents/Pakistan Railway is totally illegal and void ab initio and speaks volume for misuse and abuse of authority giving rise to grave miscarriage of justice. Grievance is also being raised that before taking any action, no mandatory notice was issued to the petitioner and entire action of the respondents was sheer abuse of authority in utter defiance and violation of principle of audi alterm partem. In this regard, learned counsel heavily relied upon the case reported as Shifa Laboratories (Put.) Ltd. Through Horeble Chief Justice Executive vs. Lahore Development Authorities through Director-General, LDA Plaza and 3 others (2004 MLD 1377).
10. Learned counsel adds that action taken by the respondents suffers from obvious illegalities, perversity and arbitrariness, and it being void ab initio and tainted with mala fides cannot withstand the test of fairness and reasonableness in the eye of law. Learned counsel adds that petitioner's rights duly protected under the law and the binding contract could not be abridged in any manner without observing due process of law and the fundamental requirements of fair trial.
Also contends that reasonable notice of hearing was a sine qua non and discretion was to be exercised by respondent's functionaries circumspectly, fairly and equitably. To elaborate his contentions, learned counsel placed reliance on the case reported as Muhammad Saleem vs. Province of Punjab through Administrator Town Municipal Administration, District Gujranwala and 2 others (2014 CLC 1259).
11. It is next argued that action taken by the respondents/Pakistan Railway amounts to infringement of fundamental rights guaranteed by the Constitution of Islamic Republic of Pakistan, 1973 under Articles 4, 10-A, 18 and 23; that to enjoy the protection of law and to be treated in accordance with law, due process must be followed; that the petitioners were in possession of the Site since 2007 without any objection from the respondents/Pakistan Railway. Suddenly, respondents awoke from deep slumber and became cognizant on their own motion, trespassed the Site for forcible eviction of petitioner's Workers from the Site in a most illegal and unauthorized manner in order to achieve their ulterior motives and illegal objectives.
12. In the context of invocation of alternate remedy by an aggrieved person, learned counsel states that alternate remedy does not debar the jurisdiction of this Court to issue appropriate writ and grant relief to an aggrieved party if impugned order/action on the face of it is manifestly void ab initio, tainted with mala fides and coram non judice. To substantiate his assertions, learned counsel relied on Khalid Mehmood vs. Collector of Customs, Customs House, Lahore (1999 SCMR 1881), Sargodha Textile Mills Limited through General Manager vs. Habib Bank Limited through Manager and another (2007 SCMR 1240) and Dr. Sher Afghn Khan Niazi vs. Ali S. Habib and others (2011 SCMR 1813), Messrs Farooqui Ice Factory, Gambat through. Proprietor and 24 others vs. Revenue Officer Sepco (WAPDA), Rajanpur (PLD 2014 Sindh 443), Mehar Ali Memon vs. Federation of Pakistan through Chairman, Pakistan Railways and 13 others (PLD 2012 Sindh 425) and Sajjad Akber Abbasi vs. Advocate-General Punjab and 3 others (PLD 2014 Lahore 627).
13. Learned counsel for the petitioner also argued that peaceful possession of the petitioner could be disturbed through the means other than legal, and the respondents to trespass and ransack the premises uuder lawful possession of the petitioner. In this regard reliance was placed on upon Ghulam Muhammad vs. Ch. Khushi Muhammad and another (1985 CLC 457 Lahore) and Ch. Muhammad Nazir Cheema vs.. Mujahid Sher Dil, DCO/Chairman, District Task Force, Sialkot and 3 others (2012 CLC -764).
14. Conversely, learned .Counsel appearing on behalf of the respondents/Pakistan Railways has raised preliminary objection regarding maintainability of the present writ petition on the ground that in presence of alternate remedy, this petition is not maintainable. He also contended that petitioner did not approach this Court with clean hands, inasmuch as, no illegality was committed by respondents while terminating the contract on 07.09.2005 after issuance of notice to the petitioner. Adds that after termination, of contract, petitioner was vested with no lawful authority to retain his possession in absence of any injunctive order/direction from any Court of law. It was also canvassed by the learned counsel that petitioner committed default towards the performance of his contractual obligations and withheld the payments as per original as well as amended schedule dated 16.06.2005 in addition to default in the payment of revised schedule. Therefore, the agreement was validly annulled and lawfully terminated by respondents.
15. It was also respondents' case that while disposing of WP # 15844/2005, this Court had directed the parties to resolve the pending disputes through arbitration as the agreement between the parties stood revived. The said order was challenged in CP No, 634/2006, the Hon'ble Supreme Court of Pakistan referred the matter to the Sole Arbitrator and set aside the order of this Court dated 25.05.2006. Now there is no agreement existing between the parties, hence, the petitioner had become illegal occupant of the premises/Site, therefore, the respondents were entitled to take possession of land in dispute, particularly, so when petitioner did not pay a single penny causing huge pecuniary loss to Government Exchequer. Learned counsel relied upon upon Fateh Sher vs. District Coordination Officer, Vehari and 44 others (2012 CLC 712),
16. Arguments. Record perused.
17. First of all I propose to deal with the point whether Pakistan Railway had the right to take possession of the Site without issuing notice to the petitioner? It is the case of the respondents that agreement between the parties stands terminated by way of the order of the Hon'ble Supreme Court dated 14.02.2007, inasmuch as, by means of aforesaid order, this Court's order dated 25.05.2006 reviving the agreement has been set aside.
18. I am afraid the stance taken by respondents is not only misconceived but seemingly erroneous and preposterous, inasmuch as, contents of this Court's order are absolutely .Conspicuous and unambiguous. For facility of reference, relevant excerpt of this Court's order ibid is reproduced as hereunder: The matter has been posted for further proceedings today. Learned counsel for the respondents placed on record a copy of the Memo. No, W-II/2002-LA/39, Islamabad, 17th May, 2006 which is to the effect that agreement between the parties stood revived and implementation agreement dated 20.02.2002 was amended in terms that all the provisions of the Implementation agreement (not referenced herein) remain unchanged and are hereby ratified and affirmed by the parties.
As the impugned notice has been withdrawn by the Pakistan Railways and agreement between the parties has been revived, no further proceedings are required in the petition and the same is disposed of. Some dispute with regard to payment of, penalty and amount of lease due to Pakistan Railways can be resolved by the parties themselves because no substantial issues are involved in that controversy.
19. Bare perusal of the above order makes it abundantly clear that the agreement stood revived by letters bearing No, W-II/2002- LA/39 dated 17.05.2006 and not by the order of this Court. The letter dated 17.05.2006 states as under:-- "GOVERNMENT OF PAKISTAN MINISTRY OF RAILWAYS (RAILWAY BOARD)
W-II/2002-LA/39 Islamabad, the 17th May, 2006 Muhammad Tariq Rahim & Associates, ----, Leal Advisors & Corporate Consultants, Gulberg 5, Lahore.
Subject:- MEMORANDUM - W.P.No, 15844/2005 (M/s. ZARCO REAL ESTATE VERSUS FEDERATION OF PAKISTAN MINSITRY OF RAILWAYS Kindly refer to your letter dated 15.05.2006 on the above subject. It is stated that M/s. ZARECO Real Estate is the part of Consortium (comprising (Pvt.) Ltd., Nopawang Construction Company Limited and ZARECO Real Estate) which entered into an implementation agreement dated 20.02.2002 with Pakistan Railways. M/s. ZARECO has ratified all provisions of the implementation agreement dated 20.02.2002. The relevant clause of the amended agreement dated 25.02.2004 is reproduced below:-- "All the provisions of the IA (i,e, Implementation Agreement) referenced herein remain unchanged and are hereby ratified and affirmed by the parties."
The Executive Committee of Railway Board, during its meeting held on 21.15. Approved the revised schedule submitted by M/s. ZARECO with imposition penalty per annum in terms of clause 19.3 of Implementation Agreement dated 20.02.2002 which is reproduced below:-- "In case of any delay in the making of any payment(s) the Contractor shall additionally pays by way of mark up on the delayed payment(s), a sum equivalent to 20% per annum for the period of delay. Such payment of mark up by the Contractor shall be without prejudice and free of any and all claims demands, andagainst PR to any remedies available to PR under any provision(s)---- this Agreement or under the law.
3. The due payments according to original and revised schedule is as follows:-- Date due as per original scheduleProposed date as per revised scheduleAmount due (Rs, in Million)Penalty @ 20% per annumTotal (Rs, In million)
20.08.200202.05.200515.000 8.000 23.000 20.02.200302.11.200530.000 13.000 43.000 20.08.200302.05.200630.000 16.000 46.000 20.02.200402.11.200630.000 16.000 46.000 20.02.200402.11.200730.000 16.000 46.000 Total 160.600 85.200 245.800
4. In view of the foregoing, the dates of original schedule would be the basis for working out the penalty." -Sd- (ZAEEM AHMAD CHAUDHRY)
Secretary Railway Board, PH: 9206154 Copy to Director/Legal Affairs, Pakistan Railways, Headquarters Officer, Lahore, for information and necessary action."
20. For all intents and purposes agreement between the parties stood revived by the executive committee of Pakistan Railway by accepting the revised schedule with penalty. And after revival of the Implementation Agreement by Pakistan Railway, notices of termination as well as the termination of agreement could not have been issued. Pakistan Railway cannot claim that Agreement is not holding the field as a consequence whereof; petitioner has become illegal occupant of the Site. Obviously in view of admitted facts such claim of Pakistan Railway is held contrary to admitted facts as well as the Iaw regulating respective rights of the parties.
21. It is quite pertinent and significant that Pakistan Railway remained silent for about seven (07) years. It suddenly realized that petitioner had become illegal occupant and spontaneously took cognizance of the situation but without any notice and due process of law. Being confronted, learned counsel for Pakistan Railway is totally unable to furnish any tangible justification and valid explanation for inordinate inaction on the part of respondents.
22. As already observed that agreement between the parties was revived by the Executive Committee of Pakistan Railway and not 'by this Court therefore, the same still holds the field. In this view of the matter, it was incumbent upon respondents to have served notice before taking any action against the petitioner. This was required not only under the agreement executed between the parties but also under the law to be treated in accordance with law. This Court while dealing the pertinent issue of dispossessing a citizen from his personal property in the case reported as Ch. Muhammad Nazir Cheema vs. Mujahid Sher Dil. DCOIChairman, District Task Force, Sialkot and 3 others (2012 CLC 764) held as under: Our constitutional democracy rests on the fundamental principle of RULE OF LAW: Article 4 of the Constitution is its principal manifestation. The said article provides threat "to enjoy the protection- of law and to be treated in accordance with law is the inalienable right of every citizen. "This means that every citizen and every person for the time being in Pakistan enjoys the protection of laws of the land. These laws and the Constitution of Islamic Republic of Pakistan, 1973 are lie a protective shield guarding the life, liberty, reputation,. Body and property of the persons within Pakistan. Any action adverse to the rights of a person, must, therefore, be through the mechanism or in accordance with the every laws, which protect the said persons. To be treated in accordance with law is to proceed against a person strictly under the law which provides protection to the person the first place.
In the above context it is further held in the said judgment that: The right to fair trial under Article 10A further buttresses Article 4. The right to fair trial provides for the determination of civil rights and obligations of a person through a fair trial and due process.
Dispossession of the person from property without recourse to the available law or in accordance with law also offends Article 10A and deprives the petitioner of his right to fair trial and due process.
23. It was also of absolute necessary upon the respondent Pakistan Railway to have provided an opportunity of hearing to the petitioner under the principal of "audi alteram partem". An action taken in violation of the said principal will result in setting aside the action impugned. In this regard reference is made to Muhammad Saleem vs. Province of Punjab through Administrator Town Municipal Administration, District Gujranwala and 2 others (2014 CLC 1259), Muhammad Younus us.
Secretary, Ministry of Communications and others (1993 SCMR 122), Shifa Laboratories (Pvt.) Ltd.
Through Chief Justice Executive vs. Lahore Development Authority, through Director-General, LDA Plaza and 3 others (2004 MLD 1377 Lahore), Mst. Rehmat Bibi and others vs. Punnu Khan and others (1986 SCMR 962) and Ch. Shabaz Babar vs. Mrs. Rehmana Babar (2006 SCMR 1032)
24, Even otherwise, under the Implementation Agreement it was incumbent upon Pakistan Railway to issue notice to the petitioner. Reference is made to Article 20 of the Implementation Agreement which requires notice of termination in the following terms:-- 20.2 Termination Notices
(a) Upon the occurrence of any Event of Default, which is not cured within the applicable grace period, if any, PR may, at its option, initiate termination of this Agreement by delivering a notice (a "Notice of Intent to Terminate") of its intent to terminate this Agreement to Contractor. The Notice of Intent to Terminate shall specify in reasonable detail the Event of Default giving rise to such notice.
(b) Following the delivery of a Notice of Intent to Terminate, (i) the Parties shall consult for a period commencing on such delivery date of up to thirty (30) days in case of a failure by the Contractor to make payments when due and up to forty five (45) Days with respect to any other Event of Default (or such longer period as the Parties may mutually agree), as to what steps shall be taken with a view to mitigating the consequences of the relevant Event of Default taking into account all the circumstances. During the period following the delivery of the Notice of Intent to terminate, the Contractor may continue to undertake efforts to cure the default and if the default is cured at any time prior to the delivery of a Termination Notice then PR shall have no right to terminate this Agreement in respect of such cured default:
(c) Upon expiration of the consultation period if any and unless the Parties shall have otherwise agreed or unless the Event of. Default giving rise to the Notice of Intent to. Terminate shall have been remedied, PR having given the Notice of Intent to Terminate may terminate this Agreement by delivering a, Termination Notice to Contractor, whereupon this Agreement shall immediately stand terminated. All powers/authorizations given by PR to the Contractor under this Agreement shall stand revoked upon such termination of this Agreement.
In the above, context, reference is also made to Shabbir Ahmad vs. Kiran Khursheed and 8 others (2012 CLC 1236) wherein this Court has held as under: This requirement of law by virtue of Article 4 is an inalienable right of the petitioners. Under the second part, i,e,, to be treated in accordance with law, the very law which protects the petitioners provides for a procedure to be adopted in case respondent wish to proceed against the petitioners.
25. In the context of objection being raised by the learned counsel for the respondents qua maintainability of the present writ petition, I would suffice to add that it is not denied by the parties that arbitration proceedings are still pending with the Sole Arbitrator since 2007. On the basis of the said arbitration proceedings, it is claimed by the respondents that petitioner should have approached the arbitrator or the Civil Court for the redressal of his grievance. Whereas grievance being raised on behalf of the petitioner is that entire action of respondents being void ab initio predominantly smacks of mala fides, ililteigaalis the dam and jurisdiction and the whole exercise of oppression vitiates the fundamental requirements of due process causing irreparable loss and miscarriage of justice. Therefore, alternate remedy would not and cannot at all be equated with adwquated as well as efficacious remedy.
26. Jurisdiction conferred upon this Court under Article 199 of the Constitution is to be exercised by this Court when "it is satisfied" that no adequate remedy is available to an aggrieved person. This Court also jealously guards and ensures whether any action taken or order passed is in accordance with law. Applying this criteria and touchstone on the facts and circumstances of each case if it is found that any order/action is palpably illegal, void ab initio, mala fide, ucoram non judice and seemingly violative of fundamental rights and due process of law, this Court has ample power and jurisdiction to intervene to invalidate such action/order even in presence of alternate remedy. It is needless to emphasize that in the peculiar facts and circumstances of this case, having recourse to Civil Court or the Sole Arbitrator can neither be efficacious nor adequate.
Therefore, it is held that writ petition is maintainable before this Court. Reference in this regard can be made to the law laid down by the Hon'ble Supreme Court of Pakistan in Khalid Mehmood vs. Collector of Customs, Customs House, Lahore (1999 SCMR 1881). Relevant excerpt is reproduced as under.
As to bar of jurisdiction, it is to be noted that Article 199 of the Constitution of Islamic Republic of Pakistan. 1973 opens with word to the effect that the High Court may exercise its powers under such Articles only "if it is satisfied that no other adequate ,remedy is provided by law". Adequacy of the alternative remedy, therefore, if there is another remedy available, should always attract the attention of the High Court.
Of such alternative remedies also there are some, which would still leave the jurisdiction of the High Court virtually unaffected, if the order, complained of, is so patently illegal, void or wanting in jurisdiction that any further recourse to or prolongation of the alternative remedy may only be counterproductive and, by invocation of Article 199 the mischief can forthwith be nipped in the bud.
In such matters, of course, neither the alternative remedy would be adequate nor may bar of jurisdiction in the Sub-Constitutional Legislation come in the way of the High Court in exercising its Constitutional jurisdiction.
Similar law was expounded by the Honorable Supreme Court of Pakistan in the case reported as The Murree Brewery Co. Ltd. Vs. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1971 SC 279). Relevant excerpt reads as follows: "The rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of barring jurisdiction, but a rule by which the Court regulates its jurisdiction.
One of the well-recognized exceptions to the general rule is a case when an order is attacked on the ground that it was wholly without authority. Where statutory functionaries act mala fide on in a partial, unjust and appropriate manner, the High Court, in the exercise of its writ jurisdiction, has power to grant relief to the aggrieved party."
Respectful reliance is also placed to the case of Dr. Sher Afghan Khan Niazi vs. Ali S. Habib and others (2011 SCMR 1813) as under: The question of adequate or alternate remedy has been discussed time and again by this Court and it is well settled by now that "the words "adequate remedy" cannot an efficacious, convenient, beneficial, effective and speedy remedy. It should be equally inexpensive and expeditious To effectively bar the jurisdiction of the High Court under this Article the remedy available under the law must be able to accomplish the same purpose which is sought to be achieved through a petition under Art.199. The other remedy in order to be adequate must be equally convenient, beneficial and effective. The relief afforded by the ordinary law must not be less efficacious, more expensive and cumbersome to achieve as compared to that provided under the Article. This depends on the circumstances of each case. "Gul Ahmad Textile Mills Ltd. Vs. Collector of Customs (Appraisement) 1990 MLD 126, Pak, Metal Industries v. Assistant Collector (1990 CLC 1022), Allah Wasaya vs. Tehsildar/accordingly 1st Grade (1981 CLC 1202), Syed Riaz Hussain Zaidi us.
Muhammad Iqbal (PLD 1981 Lab, 215) Abdul Hafeez v. Chairman, Municipal Corporation (PLD 1967 Lah. 1251).
27. For the foregoing facts and reasons, this Court finds that it is a fit case for interference and invalidation of impugned action. Consequently, Writ Petition is allowed with direction that respondent Pakistan Railway shall forthwith restore the possession of the petitioner at Site.
However, Pakistan Railway would be at liberty to proceed in the matter in accordance with law as well as in terms of Implementation Agreement.