' SHAFIUR RAHMAN, J.---The Federation of Pakistan, its department (Pakistan Railways) and its functionary (Divisional Superintendent, Karachi) seek leave to appeal against an interim order of the Lahore High Court, dated 8-11-1989 disposing of C.M.No, 4708 of 1989 in a Pending Constitution petition (W.P. No,6234 of 1989). The operative part of the order runs thus:- "The respondents are directed to make available to the petitioner Company only that much of rolling stock as is available to a minimum of thirty wagons per day by way of interim relief pending the final disposal of writ petition. The stay application is accepted with costs."
2. This interim order is based on four observations made by the learned Judge, all of them expressed to be prima fade, and these are:- "(i) In the instant case, the entire record is with the Railways, but no material has been placed on record to justify the continuous refusal to supply even a single wagon to the petitioner eversince the dispute arose. This is prima bacie unjustified.
(ii) Prima facie, therefore, it appears that the total exclusion of the petitioner from the supply of the rolling stock is violative of subsection (1) of section 42-A of the Act.
(iii) Here the impugned action of the Pakistan Railways is prima facie calculated to give undue prejudice and disadvantage to the petitioner. The Senate Committee in its report has enumerated tremendous losses suffered by the petitioner in consequence of the impugned action."
(iv) Speaking tentatively, there is no justification for this discrimination to the prejudice and disadvantage of the petitioner. The starting proposition that the entire stock is practically engaged in the transportation of essential commodities, defence needs etc., is prima facie not borne out from the record and rather leads to the inference that the respondents are capable of meeting the requirements of the petitioners."
3. The writ petitioner's case on facts, in brief, was that according to the established practice the Railways was providing it facility of transporting iron scrap about 1200 wagons per months, that need for wagons increased to about sixty a day, that a request was made when m. v. "Jonathan" with a Cargo of 27,500 metric tons arrived at the Port in June, 1989. On reluctance of the Railways Administration to make the wagons available the learned Ombudsman was approached, apart from the Railways Minister and other functionaries but to no avail. The prayer made was as hereunder:-- "That the inaction of the respondents in not providing requisite number of rolling stock for carriage of scrap on board 'm.v. Jonathan' for transportation to Lahore amounts to refusal to do their lawful duties as public functionaries and a writ may kindly be issued directing them to perform their duties as prayed for on the following grounds:..."
4. The interim reliefs claimed in the application were the following:-- "(i) The respondents be directed to make available to the petitioner company only that much of rolling stock as is available to a minimum of 50 wagons per day.
(ii) Respondents be refrained from giving any undue or unreasonable preference or advantage to or in favour of any particular person or Railway Administration as envisaged by law.
(iii) To let 'm.v. Jonathan' discharge its cargo at Karachi Port even if the wagons are not available."
5. In seeking leave to appeal the learned Attorney-General has taken up the following grounds:--
(i) The parties having agreed, and the Court having acted on that agreement on 9-10-1989 to refer the matter to Ombudsman, there was left no occasion for passing the interim order so soon after such a reference. It was an adequate alternative remedy which was still being availed of by the parties concerned.
(ii) The statutory remedy of a complaint under section 46-A of the Railways Act remained unavailed of by respondent.
(iii) The revival of the interim order and its continuance will amount to violation of law in following respects:--
(a) Section 42-A of the Railways Act prohibits undue preference. Not a single instance has been cited where bulk removal of shreded iron scrap from Karachi to bounded Warehouse up country on wagors had taken place since June, 1989. To allow facility to the respondent/writ petitioner this would amount to undue preference.
(b) Karachi Port Authorities Regulations prescribe the minimum discharge of Cargo after berthing which would require at least 38 wagons per day for over a month. The interim order disturbs this established practice.
(iv) By granting interim relief in terms in which it has been granted there remains nothing on merit to be decided and the decision on merits would become futile after the interim order has taken full effect. This will defeat the very proceedings for the preservation of which the interim order has been passed.
(v) The interim order could not be granted ignoring the requirements of section 56 of the Specific Relief Act particularly, clauses (d) and (I) prohibiting interference in the working of the Departments. This had to be kept in view in this case, in particular because adjustments are required to be made day to day and priorities have to be refixed by the petitioners according to the dictates of public interest alone.
' The appellants can be called upon to discharge a duty under the Railways Act which is within its powers and means considering all the aspects of the case, the commitments and the limitations from which the appellants suffer. It may not be possible in spite of their readiness to observe the interim order of the Court to make available regularly and punctually the required number of Wagons every day till the entire Cargo is unloaded. To call upon a party by an interim order to discharge a duty which is not within its means or capacity at the moment would appear to be highly oppressive and unreasonable in such proceedings.
6. Mr. Khalid M. Ishaque, Advocate, the learned counsel for the respondent/writ petitioners on the other hand contended that:--
(i) The petitioners have yet an opportunity of approaching the High Court under Rule 4 of Order XXXIX of the Code of Civil Procedure seeking appropriate alteration in the order on facts exclusively within their knowledge. It is not a fit matter for appeal.
(ii) The petitioners have not yet disclosed their case either by filing parawise comments or a Report in the matter and it is premature to examine the substance of the controversy on merits raised by them in this Court for the first time.
(iii) The series of steps taken by the respondent before filing the Constitution petition fully justify and satisfy the requirements of exhausting alternate remedies available to them.
(iv) Prima facie the respondent has succeeded in the High Court in showing discrimination, undue preference and mala fides and this amply justified the order passed by the High Court. The learned counsel relied on the decision Satyanarayan Murarka v. Union of India (AIR 1975 Calcutta 316) in support of his contentions.
7. Without touching the merits of the case at this stage, I consider this to be a fit case for grant of leave to appeal to examine the following questions, all of law, of public importance:--
(i) Whether an interim order in terms of Order XXXIX can be passed, making the decision of the pending cause itself inconsequential and futile?
(ii) Whether the requirements of section 56 of the Specific Relief Act even where attracted are not to govern an interim order passed under Order XXXIX, C.P.C.?
' In this respect reference may be made to Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139).
(iii) Whether an interim order could transcend and operate prima facie in violation of the requriements of law and procedure in a given case as is alleged in this one?
' The interim order granted by High Court shall remain suspended meanwhile and these proceedings shall not be taken to in any way interfering with the urgent disposal of the main petition as undertaken by the High Court itself.
' ALI HUSSAIN QAZILBASH, J.--1 have had the advantage of going through the draft opinion of my learned brother Shafiur Rahman, J., proposing grant of leave to examine the points jotted down by him and also that the interim relief granted by the High Court shall remain suspended meanwhile.
With respect, I have a different view.
2. The facts and points in controversy between the parties have been succinctly given in the draft opinion referred to above, I, therefore, need not repeat the same.
3. Mr. Yahya Bakhtiar, the learned Attorney-General, while aruging in support of the petition, we must say, was very sympathetic throughout the proceedings. Though he did not admit the assertion of the learned counsel for respondent No,1 as to the availability of the wagons and locomotives but he vehemently submitted that every effort was being made by the Railway Administration to meet the demands of respondent No,1 but it was not possible to provide any assistance to respondent No,1 because of the non-availability of wagons. He submitted that since June, 1989 all the available wagons have been and are extremely busy in the transportation of essnetial commodities of daily use, petroleum products and defence material, therefore, preference has to be given with regard to the supply of the above commodities including the defence requirement. He lastly submitted that as soon as the pressure on the Railways with regard to the transportation of the above material is reduced, the demands of respondent No,1 will be met at the earliest.
4. As against the above, the case of respondent No,1 before the High Court and here before us was that the Railways' refusal to comply with its long-standing demand was based on mala fide and deliberate mismanagement, as a. Result of which the respondent has not only been put to immense financial loss but that about 3000 of its workers have become jobless. The learned counsel for the respondent submitted that his client was made to run from pillar to post, approached every authority concerned with the matter for relief, but to no effect. He also took us through the records obtained by him from the Railway Authorities in order to establish that in spite of the availability of the wagons and locomotives, no effort, whatsoever, was made by them to meet the legitimate demand of his client. He also submitted that pending of proceedings on the same subject before the learned Ombudsman is no bar in invoking the Constitutional jurisdiction of the High Court and that the interim order under challenge is equitable, just and proper and be maintained.
5. We have considered the arguments of the learned counsel. It is the consistent stand of the Railways that at no stage they have refused the demand of wagons made by respondent No,1. It is only the pressure for transportation of other essential commodities of daily consumption from Karachi downwards which has prevented them in sparing any wagon for transportation of the scrap of respondent No,1. This, in the present situation, seems correct. However, as the case stands, I am of the view that the Railways on the "cargo transportation side" is being grossly mismanaged.
Respondent No,1 has made repeated request, approached every authority which mattered in the matter to provide it with the necessary transportation facilities but to no effect. Lastly it approached the Prime Minister through an application on 26-6-1989 which was taken note of and within four days referred to the relevant authorities with the following: "Please see what can be done to help them out."
' These observations by themselves fully demonstrate the anxiety of the Hon'ble Prime Minister but it seems that the anxiety so expressed became the victim of bureaucratic inaction. It is here that the trouble started. Had any responsible person from the Railway Administration side shared the anxiety of the Prime Minister, he would have definitely sorted out the matter one way or the other and provided some relief to respondent No,1. We have been informed at the Bar that daily one goods train full of other cargo steams out of Karachi to Lahore Dry-Port. If from June, 1989 let us say only five (and not sixty as demanded by respondent No,1) wagons had been provided to respondent No,1 daily, and attached to the above goods trains, a substantial portion of the scrap would have by now reached Lahore and thus respondent No,1 would not have been left with any grievance. This having not been done, we think that respondent No,1 had a prima facie case for ad interim relief.
6. The question that now requires consideration is whether the High Court, was justified to allow thirty wagons a day to respondent No,1 for transporting the scrap. The answer obviously is in the negative for in view of the present prevailing situation this is not realistic. Only the other day it was in the national news, broadcast by radio and television that about two hundred thousand to three hundred thousand tons of fertilizer will be supplied to the various areas in Punjab and for that about 4 to 5 trains would daily transport fertilizer from Karachi to Punjab and other places. For this purpose, the Railways would naturally require 500 to 600 wagons with the required number of locomotives and it may take them a month or two in transporting this commodity alone from Karachi. Besides the above, transportation of other essential commodities of daily use and the defence requirement has also to be kept in view. In case fertilizer and other essential commodities are not supplied regularly as per demand made, a serious law and order situation may arise. So keeping the above situation in view I would reduce the number of wagons allowed by the High Court in its interim order to a minimum of ten wagons daily. However, the procedural constraints and limitations cannot be ignored. Hence the petitioners shall be at liberty to increase the number to the minimum of 30 as ordered by the High Court in case the aforementioned situation eases, or to 38 the minimum allegedly required under the pre-existing `berthing'/`minimum discharge of Cargo', arrangements; or even more, if a swift discharge of cargo, becomes essential due to any special circumstances. Further operative orders on this basis, and in this behalf may, if required, be obtained from the High Court by making an application.
7. For what is stated above leave to appeal is refused.
' MUHAMMAD AFZAL ZULLAH, J.--I agree. USMAN ALI SHAH, J.--I agree. ORDER OF THE COURT ' This petition for leave to appeal, by majority, is dismissed and thus leave to appeal is refused.