MUZAMIL AKHTAR SHABIR, J. Through this Constitutional petition, petitioner claims the following relief: "It is, therefore, most respectfully prayed that instant writ petition may kindly be accepted and respondents be directed not to cancel the contract of the petitioner as the petitioner was declared successful bidder of the said contract and hand over the possession of the same to the petitioner and he be allowed to complete his contract period, in the supreme interest of justice.
It is further prayed that till the final decision of the main writ petition, respondents be restrained to cancel the contract of the petitioner relating to serial No.3 i.e. Adalti Form, etc. in the supreme interest of justice."
2. It is contended on behalf of the petitioner that on 25.01.2020, auction of different contracts in Jatoi Bar Association, District Muzaffargarh was held by its Executive Committee through Auction Committee and the petitioner participated in the auction to obtain contract for the sale of "Judicial Forms/Adalati Forms, etc." and deposited Rs.25,000/- as security fee wherein he was declared as successful bidder and he also deposited the bid amount of Rs.3,31,000/-; thereafter, the Chairman and Members of the Auction Committee to oblige their blue eyed persons started harassing the petitioner and advancing threats to cancel the contract of the petitioner. It is contended that for the previous year i.e. 2019, same contract was awarded to a petitioner's close relative with whom the petitioner remained attached to perform work to the satisfaction of the representatives of the Bar. Whereas this year, the respondents are threatening to cancel the contract of the petitioner for handing the same over to some other person of their choice, therefore, he prays that the respondents be restrained from doing the same and they be directed to declare the petitioner as successful bidder and to receive security/bid amount from the petitioner and deliver the possession of the premises reserved for the said purpose to him.
3. Messrs Muhammad Shahid Riaz, Assistant Advocate General and Mahar Zameer Hussain Sandhal, Assistant Attorney General for Pakistan, who have entered appearance on Court's call and Mian Arshad Waqas, Advocate/General Secretary Lahore High Court Bar Association, Multan, who has entered appearance as Amicus Curiae, state that the Auction Committee of Tehsil Jatoi Bar Association, District Muzaffargarh is a private entity and not a person performing functions in connection with the affairs of the Federation, therefore, the constitutional petition is not maintainable.
4. Heard, record perused.
5. The petitioner. has filed this Constitutional petition with prayer in the nature of Mandamus and Prohibition against the respondents by claiming to be the highest/ successful bidder in auction proceeding held by auction committee of Tehsil Bar Association Jatoi for sale of "Judicial Forms" mentioned at serial number 3 of list of auction and on the said basis, seeks award of contract from District Bar Association Jatoi for current year with further direction to them to let him complete his contract period and not to cancel the same and also seeks possession of premises to sell "Judicial Forms"/"Adalati Forms".
6. The question arising for determination in this Constitutional petition is that whether the respondents i.e. Chairman and 02-Members of the Auction Committee, Tehsil Bar Associations, Jatoi who are the only three respondents in this writ petition, are persons: as defined in Article 199
(5) of the Constitution of Islamic Republic of Pakistan, 1973 "the Constitution" against whom the Constitutional petition is maintainable or not Relevant portion of Article 199 of the Constitution is reproduced as under: "199. Jurisdiction of High Court.---(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law--
(a) on the application of any aggrieved party, make an order-
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.
(2)
(3)
(4)
(5) In this Article, unless the context otherwise requires-- "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan; and "prescribed law officer" means
(a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and
(b) in any other case, the Advocate -,General for the Province in which the application is made."
7. It is observed that Bar Associations at the District and Tehsil levels have not been created by any statutory provision of law rather the same have been constituted under the supervision of the Pakistan Bar Council and respective Provincial Bar Councils in the Provinces and Islamabad Bar Council for. Islamabad provided under the provisions of the sections 9(1)(h), 55(u) and (v) and 56(n) Legal Practitioners and Bar Council Act, 1973 (XXXV of 1973) ("The Act'). The relevant provisions of the Act are reproduced below: "9. Functions of a Provincial Bar Council and Islamabad Bar Council. (1) Subject to the provisions of this Act and the rules made thereunder, the functions of a Provincial Bar Council and Islamabad Bar Council shall be
(h) to prescribe conditions for the recognition and functioning of, and to recognise and derecognise, Bar Associations; "55. Power of Pakistan Bar Council to make rules. The Pakistan Bar Council may, by notification in the official Gazette, make rules to provide for
(u) the forming, recognition, derecognition and functioning of a Supreme Court Bar Association or any Bar Association at the national level: Provided that no rules made with reference to clause (r) shall have effect unless they have been approved by the Federal Government: Provided further that, for holding the first elections to the Bar Councils to be constituted under this Act, rules with reference to clauses (a),. (b) and (c) shall be made by the Federal Government and notified in the official Gazette.
(v) the manner in which and the conditions subject to which elections of Bar Associations at different tiers shall be held."
"56. Power of Provincial Bar Council and Islamabad Bar Council to make rules. A Provincial Bar Council and Islamabad Bar Council may, by notification in the official Gazette, make rules to provide for-
(n) the recognition, derecognition and functioning of Bar Associations."
In exercise of the powers conferred by section 55 of the Legal Practitioners and Bar Councils Act of 1973 and other enabling provisions in this behalf. the Pakistan Bar. Council has framed and notified vide Notification issued in Lahore on the 21st May, 1976 S.R.O. 476(1)176 the Pakistan Legal Practitioners and Bar Councils Rules, 1976, the rules 108-M and 175-C whereof deal with recognition and functioning of Bar Associations, which is reproduced hereunder:- "108-M. (1) Any association of advocates ordinarily practicing at a particular place except the Association at the national level, may apply to the Provincial Bar Council 136 or the Islamabad Bar Council as the case may be for recognition as a Bar Association to which these rules apply. The application shall be filed by the President or Secretary of the Association.
(2) In case the ProvinCial Bar Council or the Islamabad Bar Council refuses .to recognize a Bar Association an appeal will lie against such refusal w the Pakistan Bar Council which shall be filed within a period of two months of the notice of such refusal subject to the power of the Pakistan Bar Council to condone the delay for sufficient cause. The Pakistan Bar Council may set aside the impugned order or pass any appropriate order and it shall also have authority to suspend the operation of order of refusal of the Provincial Bar Council or the Islamabad Bar Council to recognize the Bar Association during the pendency of the appeal.
(3) The Provincial Bar Council or the Islamabad Bar Council as the case may be shall decide an application for recognition of a Bar Association within four months of the submission of an application in this behalf and in case it fails to decide within this period the members of the Bar Association shall be regarded as members of a recognized Bar Association till the question of recognition of such Bar Association is decided by the Provincial Bar Council."
"175-C. (1) Only the following Bar Associations of lawyers shall function in Pakistan:j-
(i) at national level there shall only be. the Supreme Court Bar Association which will function in accordance with Rules framed by the Pakistan Bar Council (ii) In each Province and in ICT there may be High Court Bar Associations at principal seat and at the places of Benches of the respective High Courts.
(iii) In each District there may be a District Bar Association.
(iv) In each Tehsil and/or sub-division there may be a Tehsil or Sub-divisional Bar Association.
(2) No other Bar body of lawyers shall be recognized except for the above Bar Associations.
(3) The Provincial Bar Councils and Islamabad Bar Council shall make Rules regarding recognition/de-recognition and functioning of Bar Associations at High Court, District and subdivisional/Tehsil level."
8. The Bar Associations are provided recognition under the afore-referred rules at all levels including National, Provincial, District and Tehsil levels, all of which are private organizations and therefore cannot be treated as statutory bodies. Neither the office bearers] i.e. the Executive Committee of Bar Associations nor the Auction Committee constituted by them can be treated as holding any statutory existence, official position or status of a "Government Department" or "Authority" having any statutory authority or functioning in connection with the affairs of the Federation and at the most the same can be treated as representatives of the Private Organization and hence, do not fall under the definition of "person" as provided in Article 199 (5) of the Constitution to treat them as amenable to A writ jurisdiction of this Court.
9. As the said Bar Associations for the purpose to conduct their affairs are private organizations autonomous bodies; furthermore, they are not performing functions in connection with the affairs of Federation which is a mandatory requirement for the purpose to institute petition against them in constitutional jurisdiction of this Court, hence this petition is not maintainable, reliance in this behalf may be made to Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707) wherein it is held that constitutional petition is maintainable only if the respondent is working in connection with affairs of federation and not otherwise. Besides, in another case reported as Mohammad Waqas Malik, Advocate v. Islamabad Bar Council through Secretary and 2 others (2017 CLC 1173 Islamabad), even Islamabad Bar Council which is a governing body of Bar Associations in Islamabad and similar to that of Punjab Bar Council under which the Bar Association Jatoi has been registered was held not to be statutory body performing functions in connection with the affairs of Federation and writ petition against it was held not to be maintainable; the same principle would be applicable to the Bar Associations in Punjab who are not statutory bodies performing functions in connection with the affairs of Federation rather the position of Bar Association is even lesser likely to attract writ jurisdiction against them and the Bar Association as well as its Executive Committee and Chairman of Auction Committee or its Members who hold no statutory position could not be treated as of performing functions in connection with the affairs of Federation, therefore, the basic ingredient for entertaining or granting relief in constitutional petition is lacking; consequently, to that extent, the constitutional petition is not maintainable. In similar situation, the constitutional petition against Habib Bank Limited which is a private bank was held not to be maintainable in a case reported as Abdul Wahab and others v. HBL and others (2013 SCMR 1383),
10. Besides, the petitioner states that in view of Article 199 (a) & (c) of the Constitution, reproduced above, the Constitutional petition relating to fundamental right of a person is maintainable even against a private person.
11. The said aspect of the matter relating to issuance of writ against private person under Article 199(1)(c) came up for consideration in case titled "Pakistan Olympic Association through President and others v. Nadeem Aftab Sindhu and others" (2019 SCMR 221) wherein the Hon'ble Supreme Court held that constitution petition was maintainable under Article 199(1)(c) of the constitution against any person including the body politic or corporate for the purpose of enforcement of any of the fundamental rights conferred by the constitution. Amplitude of Article 199'(1)(c) was wider than other parts of Article 199 of the constitution and was not restricted to public functionaries only but could extend to private parties, as long as there was a question of enforcement of fundamental rights under the constitution.
12. For reaching the afore-referred conclusion, the Hon'ble Supreme Court relied upon its earlier judgment passed in case titled "Human Rights Commission of Pakistan and 2 others v.
Government of Pakistan and others" (PLD 2009 SC 509).
13. The crux of principles laid down in afore-referred judgments is that it is not every grievance of a party which can be enforced through the Constitutional petition against a private individual but B the same can only be exercised when enforcement of fundamental right is concerned. In the present case, the question of enforcement of fundamental rights is not involved, hence,constitutional petition cannot be exercised against private organizations such as the Bar Association, its Executive Committee or the Auction Committee constituted by it, more so, when the petitioner only seeks enforcement of contract which involves resolution of disputed facts and disputed facts cannot be determined in constitutional jurisdiction of this Court. Reliance in this behalf is placed on the case titled "The Commissioner and another v. Mian Sher Muhammad"
(1972 SCMR 395) and "Pakcom Limited and others v. Federation of Pakistan and others" (PLD 2Q11 SC 44) wherein it has been held that the Superior Courts should not involve themselves into investigations of disputed questions of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary Civil procedure for litigation by a suit. This extra-ordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an Executive or other authority can be established without any elaborate inquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by a court having plenary jurisdiction in matter.
14. Even otherwise, the petitioner is seeking enforcement of contract through the instant constitutional petition which is not permissible as constitutional petition for enforcement of contract is not maintainable where a contract was a private contract and not a statutory agreement, hence as petitioner's contract is not statutory its enforcement cannot be enforced through writ petition. Reliance in this regard is placed on Muhammad AzamSuhail and others v.
Government of Pakistan through Secretary Ministry of Petroleum and Natural Resources, Islamabad and others (1998 SCM R 1549).
15. Furthermore, the petitioner is seeking a direction to private respondents for declaring the petitioner as successful bidder without showing through any document that he had actually been declared as such by the authority competent to do the same, in these circumstances, such a direction cannot be granted through this constitutional petition due to the following reasons; firstly, the constitutional petition against said respondents is not maintainable; secondly, the auction schedule provides for certain terms and conditions to be followed and met with by the b dder before he can be granted contract and whether the petitioner had fulfilled the said conditions was within the domain of factual inquiry which is not permissible through the constitutional petition.
Besides, it is within the jurisdiction of the said Auction Committee or representatives of the Bar Association as per the terms of auction to finalize the matt r by taking into consideration varip is factors and it is only they, who can exercise their discretion to finalize contracts. Reliance in this behalf is placed on case titled "City Schools (Pvt.) LTD, Lahore Cantt. v. Privatization Commission, Government of Pakistan and others" (2002 SCMR 1150) wherein while dealing with the question of issuing direction to the Privatization Commission to confirm auction in favour of the petitioners, who were the highest bidders, it is laid down that true test for deciding a question if in a particular circumstance a contract was made or not was to ascertain whether the parties were of one mind on all material terms and conditions or not. Commission had never agreed to accept the bid offered by the petitioner and re-auction proceedings were never held, as such the same was enough to hold that the commission was not inclined to sell the property as such direction cannot be issued to them through this constitutional petition.
16. For what has been discussed above, this constitutional petition being not ' maintainable against private respondents and devoid of merits is dismissed.