MUNIR A. SHEIKH, J.--This judgment will also dispose of ICA No. 250 of 1990 and ICA No.262 of 1990 as all the three ICAs are directed against the same judgment dated 16.9.1990 passed in W.P. No. 6303 of 1990 and involve common questions of law and facts.
2. The dispute relates to M/S Bahawalpur Board Mills 31-Kilo-meter, Sheikhupura Road and the facts giving rise to these appeals shortly stated are that the said Mill was owned by a Company Bahawalpur Board Mills Limited. The appellant allegedly purchased the said Mill in the. Month of November 1985 through Vending Agreement dated 16.11.1985. Sheikh Muhammad Salim Director of the appellant company was allegedly appointed as Chief Executive of Bahawalpur Board Mills Limited. In July 1989 this Mill was leased out to M/S S.T. Trading Company a partnership firm through lease agreement dated 27.6.1989 executed between M/S Bahawalpur Board Mills Limited and M/S S.T. Trading Company through its partner Mr. Tabbasum Shahzad who is respondent No. 1 in this appeal. One of the terms and conditions. Of the said lease was that the lease deed agreement could be determined by a three months notice in writing by either party failing which the defaulting party undertook to pay a penalty of Rs.20,00,000/- to the aggrieved party, as contained in Clause 9 of the said Agreement. The case of the appellant was that in exercise of the option given to the appellant, the appellant issued a notice on 5.11.1989 to S.T. Trading Company informing it that the said lease agreement would stand cancelled w.e.f. 5.1,1990 i.e. On the expiry of three months. This was followed by another notice allegedly given by the appoint on 11.1.1990 informing M/S S.T.
Trading Company that the lease agreement stood cancelled. According to the case of the appellant Mr. Siraj-ul- Islam Managing Partner of S.T. Trading Company handed over the physical possession of the Mill on behalf of the partnership firm to Ch. Ali Muhammad, Director, I BM and Managing Director, Taj Company. Subsequently a dispute arose between Tabbasum Shahzad respondent No. 1 and Siraj-ul-Islam partners in S.T. Trading company which resulted in firing between both of them and their companion . An FIR No. 3/90 under Sections 336, 452, 148 and 149 PPC was registered at Police Station Sadar against Siraj-ul-Islam and others as is manifest from the order dated 7.2.1990 passed by the Magistrate 1st Class, Sheikhupura. It is also recorded in the said order that there was compromise between both of them according to which Siraj-ul-Islam handed over the whole factory to Tabbasum Shahzad respondent No. 1 after obtaining Rs.4,19,000/- from him. It is also stated in the said order that Ch. Ali Muhammad, Managing Director of the appellant company sent his security guards to the factory to resume its control whereupon respondent No. 1 submitted an application before the Assistant Commissioner, Sheikhupura against this act of Managing Director. The Magistrate 1st Class passed order on 7.2.1990 under section 145 Cr.P.C, for attachment of the said Mill till further orders and SHO was directed to seal the premises as there was immediate apprehension of the breach of peace. However, subsequently the said order for attachment and sealing of the Mill was withdrawn vide order dated 10.2.1990 (Annex:'H').
3. Tabbasum Shahzad respondent No. 1 in May 1990 filed a suit for possession of the said Mill under Section 9 of the Specific Relief Act, in which it was averred that between the night of 14/15.2.1990 Ch. Ali Muhammad Director, Taj Company who was impleaded as defendant No. 1 in connivance with defendant No.2 namely Shaikh Muhammad Salim Chief Executive, Bahawalpur Board Mills Limited forcibly took possession from him of the Mill. This suit is still pending. Subsequently after a period of about seven months from alleged dis-possession respondent No. 1 in February 1990, on 1.9.1990 filed another suit for permanent injunction in the Court of Civil Judge at Sheikhupura in which it was pleaded that the possession of the Mill had now been restored to him through the Workers Union because the Workers Union decided to restore the possession of the premises of the Mill to him which was taken over by him as he was entitled to it. This suit is also pending. In this suit an application for temporary injunction was made by respondent No. 1 and the learned Civil Judge passed an order for maintaining Status quo regarding possession of the Mill. Respondent No. 1 yet filed another suit on 26.9.1990 in the Civil Court at Sheikhupura to seek a declaration that the lease agreement between S.T. Trading Company and Bahawalpur Board Mills Limited was still subsisting and had never been properly and validly terminated by the competent authority. It may be mentioned here that according to the case of S.T. Trading Company as made out in ICA No. 250 of 1990 the possession of the Mill was handed over to respondent No. 1 by Workers Union on 31.8.1990.
4. The appellant filed W.P. No.6303/1990 from which these ICAs have arisen complaining that the respondent No.4 along with respondent No.3, respondent No.2 and police contingent consisting of about 100 Constables, raided the said factory premises on 2.9.1990 at about 6.00 P.M. Who tres- passed the premises by scaling over the walls and after giving beating to the labourers and staff of the factory, the possession of the same was unauthorisedly given to respondent No. 1. The application of the appellant for obtaining licence for manufacturing of Paper and Board according to the case of the appellant as pleaded in the writ petition was made to Assistant Collector, Central Excise and Sales Tax, Gujranwala which is still pending. However, the case of the petitioner was it started operating the Mill and manufactured Karaft Liner Board etc. It was prayed that the acts and actions of respondents No.2 to 4 i.e. Police officials be declared without lawful authority and of no legal consequences and the possession of the factory may be ordered to be restored to the appellant-company. Apart from this other prayers for taking legal action against respondents No. 1 to 4 was also prayed for. The learned Single Judge vide order dated 3.9.1990 directed the learned Addl: Advocate-General to get instructions from S.P. Sheikhupura and cause the appearance of DSP City Sheikhupura on the next day. In the meantime Status quo was ordered to be maintained and the guard posted at the mill was ordered not to be disturbed. On 4,9.1990 Muhammad Sharif DSP, City Sheikhupura appeared and the learned Single Judge directed him to approach the disputed premises immediately and submit his detailed report by tomorrow. On 5.9.1990 report was submitted by the DSP according to which the possession of the factory was taken over by respondent No. 1 on 31.8.1990 when it was being guarded by certain security guards of the appellant's company. The correctness of this report was disputed by the learned counsel for the appellant for the reason that an attempt was allegedly made by the DSP to give cover to the highhandedness of the police who allegedly was instrumental in delivering the possession to respondent No.1 and it was not taken through Workers Union on 31.8.1990 as stated in the report. It was brought to the notice of the learned Single Judge that the matter was being enquired by S.P.
Crime Range in pursuance of the direction given by the I.G. Punjab. The case was adjourned to 15.9.1990 and the Law Officer was directed to secure the report of the S.P. Crime Range by that time.
It was ordered that the police functionaries posted at the factory according to the report of DSP, should ensure that nothing from the mill was removed till the said date. The copy of the S.P. Range Crime report was produced before the learned Single Judge on 15.9.1990. After going through the report in which it was stated that it was the police personnels who played the mis-chief and delivered the,, possession of the factory to respondent No. 1 on 2.9.1990 and not on 31.8.1990, th learned Single Judge passed an order on 163.1990 directing the bailiff to sea? The mill and submit his report by tomorrow. After getting the factory sealed on the same day and inventory prepared the learned Single Judge passed another order on the said date i.e. 16.9.1990 which is impugned in these appeals disposing of the writ petition with a direction that in the larger interest of the parties the factory shall remain sealed and directed the Civil"Court where the civil suits are pending to consolidate the said suits and dispose them of within two months. The security guards of the appellant-company was ordered to remain posted at the mill. By another order passed on 17.9.1990 by the learned Single Judge it was directed that the keys of the mill be transmitted to the learned District Judge, Sheikhupura and the appellant-company was allowed to undertake the repair of the premises under the supervision of Mr. Karim Nawaz Awan because it was urged before the learned Single Judge that the construction of walls to raise their heights-was necessary to save guard the material placed in the mill.
5. In all the three appeals the order dated 16.9.90 passed by the learned Single Judge for sealing the mill has been challenged. This ICA (ICA No.222 of 1990) has been filed by the M/S Taj Company Limited (writ petitioner in W.P. No.6303/1990), whereas ICA No.262 of 1990 has been filed by the Workers Union Bahawalpur Board Mill Limited and ICA No. 250 of 1990 has been filed by S.T.Trading Company through Tabbasum Shahzad.
6. We have heard learned counsel for the parties. Mr. Muhammad Anwar Blunder, Advocate, learned counsel for. The appellant in ICA No. 250 of 1990 argued that the writ petition was not maintainable as it was not directed against any act done or proceedings taken by a person performing function in connection with the affairs of the Federation or the Province as contemplated by Article 199 of the Constitution. According to him it was a case between two private persons, therefore, the writ petition was not competent. He also argued that the learned Single Judge while passing the impugned order travelled beyond the scope of the writ petition and the prayer made by the writ petitioner. He also maintained that the learned Single Judge has in fact exercised jurisdiction vested in a criminal court for scaling the property under Section 145 Cr.P.C., the jurisdiction of Company Judge as also jurisdiction vested in a Civil Court to pass an order for consolidation of suits. He also Emphasised that the dispute between the parties, related to rights derived from agreement of lease, therefore, writ was not competent as contractual obligations- could not be enforced through constitutional petition. He also argued that the impugned order is in aid of injustice the scaling of the premises has resulted in the closure of the mill as a consequence of which not only the labour employed suffered financial difficulties the Government Exchequer has also been deprived of huge amount recoverable as excise duly if the mill operates and production is made.
7. The case of Mr. Abdul Basit, Advocate, learned counsel for the Workers Union appellant in ICA No.262/90 was that the workers who are employed in the mill, are interested only that the mill should work so that they may be able to earn their livelihood. He, however, admitted that so long as the mill was with the appellant-company the workers were regularly paid their wages even when the mill was not functioning. His argument was that the workers in case the mill operates would have the benefit of working for the extra time for which they can earn over lime wages, as such, the workers union got the possession delivered to S.T. Trading Company because according to the union it was in a position to operate the mill as the manufacturing licence had been granted to the said company whereas the same was yet to be obtained by the appellant which might take some time without which the appellant which the appellant could not operate the mill.
8. Learned counsel for the Taj Company Limited argued that the learned Single Judge in the interest of justice should have passed an order for restoration of possession of the mill to the appellant. He undertook that if the possession is restored to the appellant, the appellant shall continue paying the wages to the labourers even for the period for which the mill docs not operate due to want of manufacturing licence. He also undertakes that the appellant shall take effective steps for obtaining manufacturing licence without loss of time and to abide by any order or decree if passed by the Civil Court in the said suits regarding possession.
9. The argument of Mr. Muhammad Anwar Bhinder, Advocate that the writ petition was not competent has not impressed us inasmuch as it was the act of police officials who were made respondents in the writ petition which was brought under challenge and a declaration was sought regarding thereto, as such, it could not be argued that no act of a person performing functions in connection with the affairs of the Province was involved and as such the writ petition was not competent. The learned Single Judge in disposing of the writ petition was vested with wide discretion to pass any order which was thought to be proper and for doing full justice in the circumstances of the case. The argument that the jurisdiction vested in civil and criminal courts and Company Judge under the Company law has been exercised has no force.
10. The question whether the factory should have been ordered to be sealed resulting in stoppage of production has engaged our serious consideration which has the result of depriving the Government Exchequer of excise duly. U is common ground between all the three appellants that the factory should not have been sealed and instead should have been allowed to operate. The question for determination is as to which of the two contesting parties should be deprived the possession till the disposal of the suits by the Civil Court. The case of S.T. Trading Company admittedly is that it was not in possession of the mill from 15.2.1990 til! 31.8.90 when the possession of the same was allegedly delivered to it by the Workers Union. According to the report of S.P. Crime Range, Lahore, the same was delivered to S.T. Trading Company on 2.9.1990. This is a question which has ultimately to be resolved by the Civil Court in the said suits pending before it'; therefore, we would refrain from expressing any opinion and give any finding in relation thereto. Considering that S.T. Trading Company having admittedly remained out of possession of the Mill from 15.2.1990 till 31.8.1990 and having admittedly been delivered possession of the Mill by the Workers Union of its own we do not feel persuaded in agreeing with the learned counsel for the lessee that the lessee is entitled to be delivered the possession of the Mill for the interim period. On the other had Taj Company was admittedly in possession of the Mill when it was got delivered to the lessee by the Workers Union allegedly on 31.8.1990 and in view of the undertaking given by the learned counsel for the Taj Company that it would operate the Mill as early as possible after obtaining licence and would pay daily wages to the workers even for the period for which the Mill docs not operate as it has admittedly been paying earlier wages to the workers even during the period when the Mill was not operating, we have been driven to the conclusion that the Taj Company is entitled to have possession of the Mill pending the decision of the suits. We would have passed for disposal of the appeals in terms thereof but for reasons to follow we have refrained from passing such an order, lt is pertinent to mention here that after the conclusion of the arguments in this appeal and before pronouncement of present judgment proceedings under the Companies Ordinance have been initiated in respect of Taj Company which are pending decision before Mr. Justice Khalil-ur- Rehman Khan, the learned Company Judge of which we have taken a judicial notice. The learned Company Judge has appointed a Board of Administrators to take over, and manage the assets of Taj Company. In this view of the matter it appears appropriate that the learned Company Judge seized of the matter may regulate the affairs of the Mill in question and pass appropriate orders in respect of the above-mentioned suits pending decision in the Civil Court. These appeals arc disposed of in the terms indicated above. There will be no order as to costs.