' This judgment will dispose of Constitutional petitions bearing Nos. 7155, 6804 and 7176, of 1992 as all of these have arisen out of decision rendered by Railway. Committee constituted for the purpose of award of dining cars contract, dated 23-6-1992.
2. The facts of these petitions are fortunately not in dispute. These are that by means of agreements dated 1-7-1989 and 25-11-1989 made between the President of Pakistan acting through the General Manager, Pakistan Railways (hereinafter called respondent No,1)._ and petitioners, Pakistan Railways granted licences for a period of 3 years permitting the petitioners to supply, sell aerated water drinks of approved brand in standard size and to supply and sell the meals and refreshments to the travelling public and Railway servants in and from Dining/Buffet Cars tainting with different trains (completely mentioned in the license-agreements). The period of this licence was three years commencing from 1-7-1989 to 30-6-92 in case of Waseem Catering Co., (W.P 6804/92 and Abdur Rashid. Malik (W.P.7155/92) and from 25-11-89 to 30-6-92 in case of Akhtar Ali &Co (W.P.7176/92). On the expiry of terms of these licences, a Committee comprising of Haji Ghulam Ahmad Balot, ' Minister for Railways, Malik Naeem Khan, Minister for Commerce, Mr.Abdul Sattar Lalika, Minister for Information and Ch. Nasir lqbal Chalianwala, Parliamentary Secretary Railways, was constituted by the Minister Railway to consider the applications for dining cars contracts to the applicants who have applied in consequence of advertisement (Annex. E'). The meeting was held on 23-6-92, The aforenoted Committee decided not to renew the licences of the petitioners and awarded the same to M/s. M.A.Caterers in W.P.No,7155/92, Mrs.Maqsood Shabbir in W.P.No,6804/92 and Khuram Ali in W.P.7176/92 (Respondent No,3 in each petition).
3. While disputing the validity/propriety of the impugned decision Mr.M.A. Gh,ani, Advocate, learned counsel for the petitioners in Writ Petitions Nos.7155/92 and 6804/92, raised the following contentions: ' Firstly, while rendering the impugned decision, the Committee had in fact contravened the policy circulars issued by the Railway Department on 18-7-1970 and 26-2-1992 wherein it was specified that the licensees will be afforded opportunity of hearing in case of cancellation of their licence and further that licence will not be cancelled save the breach of terms and conditions. Banking upon these policy circulars, the learned counsel contended that these were issued by the competent authority and were precise in nature. As such these circulars possessed statutory force, could not be ignored by the Committee. On the strength of these arguments, it was suggested that the impugned decision being in defiance of aforesaid circulars, was null and void and merited to he set aside. Reliance was placed on Khan Faizullah Khan v. Government of Pakistan PLD 1974 SC 291, Akbar Hussain v. Government of the Punjab 1987 PLC (C.S.) 21 and Gulmarajan Khan V.
Government of Punjab etc. NLR 1991 Tax 204.
' Secondly,that the petitioners had 'been performing their duties under the licences and were entitled to renewal under the policy as a matter of right, The Committee passed the decision without affording an opportunity of hearing to the petitioner. The impugned decision, therefore, according to the learned counsel was void ab initio.
' Reference was made to Messrs Shameem Textile Mills, Lahore v. The Republic of Pakistan PLD 1972 Lah.
572.
4. On the contrary Mr. Fazle-Hussain, Advocate, appearing on behalf of respondents Nos.1, 2 and 4, supported the impugned decision by raising twofold preliminary objection. In the first instance it was argued that the petitioners were mere licensee and had no right to invoke Constitutional jurisdiction to enforce their claim for renewal. Reliance was placed on Yousuf Ali v, Muhammad Aslam Zia and 2 others PLD 1958 (Pak.) SC 104, Zamir Ahmad Khan v. Government of Pakistan and another 1978 SCMR 327 and MA. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 Supreme Court 83 and Adamjee Jute Mills Ltd. v. Province of East Pakistan etc. PLD 1959 SC (Pak.)
272. In second instance it was convassed that the impugned decisions were passed by the Committee which was constituted under the law by Railway Minister; that the Committee had the power to pass the impugned decision which was neither arbitrary nor capricious nor fanciful.
5. Mr. Abid Hassan Minto, the learned counsel for respondent No3 in Writ Petition No,6804/92, supported the impugned order and raised preliminary objection to the maintainability of the petitions on the ground that the petitioners had approached the Court with soiled hands.
According to him the petitioners in W.P. No,6804/92 were grantee of licence of two rakes in trains known as Tezrao. The Committee by impugned decision awarded licence to respondent No3 as well as M/s. Rana '& Frontier Caterers in place of the petitioners. The petitioners, in the circumstances could have the grievance only against Rana & Frontier Caterers and not respondent No3 (Mrs. Maqsooda Shabbir). This aspect of the case was intentionally and maliciously suppressed in this petition and Rana & Frontier Caterers was not impleaded as party.
Furthermore, the petitioners had already filed a Constitutional petition bearing No,5934/92, which was still pending adjudication in this case. The petitioners had no, authority to file a second petition on the same cause of action and against the same order.
6. In reply to the submissions made by the learned counsel for the respondents, the learned counsel for the petitioner contended that as regards the filing of first petition it was sufficient to state that at that time the impugned order was not passed and the petitioners had come to this Court in order to forestall respondents Nos.1, 2 and 4 from passing any order adverse to the petitioners by means of claiming a writ of prohibition. As regards the question of licence, the learned counsel reiterated that the orders were violative of policy circulars noted above which were of statutory force and could not be overlooked by the Committee.
7, From the above narration of facts, circumstances of the case and the submissions made by the parties, two questions emerge for decision (i) as to whether the petitioners are licensees and had a vested eight of claiming renewal of their licence after the expiry of their terms of licences under the policy circulars noted above (ii) whether the petitioners can invoke constitutional jurisdiction in order to claim enforcement of rights flowing from the agreement which are mere licences simplicity.
8. Since both the questions are interconnected, I will examine both the questions jointly. The answer to these questions turns upon the definition of licence contained in section 52 of the Easements Act, 1882. There is no dispute that the agreement executed by the respondents in favour of the petitioners are licenses. The case of the petitioners is that these are not licences simpliciter but are licences followed by grant of right of their renewal. Before I proceed further, I feel it appropriate to refer to section 52 ibid which reads as under:- "When one person grants to another or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or an interest in the property, the, right is called a licence."
From the plain reading of aforenoted provision, it becomes clear that the licence is a right in personam granted to an individual or to certain number of individuals to do or continue to do, something in or upon property of grantor which in its absence will be unlawful. Licences are of two kinds, namely, a bare licence which is purely matter of personal privilege and a licence coupled with grant of interest. A bare licence is always revocable at the pleasure of the licensor. In sort the whole effect of licence is to render an act lawful which without that licence would have been unlawful and if the licence is revoked the effect of revocation is merely to remove the permission or jurisdiction so that the act becomes unlawful. The case of Wood v. Leadbitter '18 M&W 838 is a.
Leading case on the subject. In this case it was held:- "The Court there said 'A mere licence is revocable but that which is called a licence is often something more than a licence:' it often comprises or is connected with, a grant, and then the party who has given it cannot in general revoke it so as to defeat his grant to which it was incident. It may further be observed, that a licence under seal (provided it be a mere licence) is as revocable as a licence by parol; and, on the other hand, a licence by parol, coupled with a grant, is an irrevocable as a licence by a deed, provided only that the grant is of a nature capable of being made by parol. But where there is a licence by parol, coupled with a parol grant, or pretended grant, of something, which is incapable of being granted otherwise than by deed, there the licence is a mere licence: it is not an incident to a valid grant, and it is therefore, revocable."
' The view taken in Wood v. Leadbister was followed in Muhammad Hashim Zulfigar All Khan, General Manager etc. PLD 1963 Lah. 418 and Ahmad Din v. Abdullah Bhai and others PLD 1962 Kar.
663 and was again reiterated in MA. Maser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83. Since the facts of the instant case are in great deal similar to the facts of M.A. Naseer's case (supra). I will examine this case in detail.
' By an agreement dated 12-12-1953, East Bangal Railway granted MA. Maser a contract for a period of 3 years to sell refreshment at Refreshment Rooms of Railway Station Chittagong Laksam, Chandpur, Akhaura, Kalatura, Sylhet Bazar, Dacca, Mymensingh, Sitakund and Arikhola and on Buffet Cars on trains. The said agreement was terminable on 17-12-1956 or not less than six months' notice, in writing by either party to the agreement. If it was not so determined the agreement would continue subject to termination at any time in any subsequent year on not less than six months' notice in writing given by either party desiring to cancel it. On 6424962, the Chief Traffic Manager informed the Contractor to hand over the charge of refreshment rooms and buffets trains, run by him by 31-124962, as his licence was revoked. The contractor tried to seek redressal of his grievance from the Railway authorities but in vain. It was on 3-1-1963 that the Contractor filed a suit in the Court of Ist Munsif, Dacca for declaration that their contract agreement dated 12-12-1953 was still subsisting and for injunction restraining the Railway authorities from interfering with his right of catering in the terms of agreement. The suit Was contested by Railway as well as Provincial Government and was decreed by the Court of first instance, On appeal, his decision was reversed and the suit was dismissed on the ground that the plaintiff had no enforceable claim flowing from agreement which was a mere licence. The decision of the first Appellate Court was affirmed by the second Appellate Court as well as the Letters Patent Bench of High Court of Dacca. Feeling aggrieved from the above decision, the plaintiff filed leave to appeal which was also dismissed.
After review of relevant law, it was held that:-- "From the above provisions it is clear that this agreement merely conferred a right to carry on business of catering in the refreshment rooms and on the Buffet Cars. They were not given any general right of occupation but only a right to use the Refreshment Rooms allotted to them for the exclusive purpose of catering refreshments. Such a right does not amount to easement as defined in section 4 of the Easements Act or an interest in the property. Nor can it be regarded as a lincence 'coupled with a transfer of property' within the meaning of section 60 of the Easements Act. Nor can it be suggested that the Controller was required 'to execute any work of permanent character' in connection with the business. No doubt his business may involve complex arrangements for continued supply of refreshments both solid and liquid but this cannot be regarded as 'execution of a work of permanent character.'
' Mr. Pal faintly suggested that provision regarding assignment of the benefits of the agreement indicates that it was intended to be an irrevocable licence. This suggestion, however, overlooks the fact that such assignment was only permissible with the consent of the Administration. After fully examining the provisions of the agreement we have come to the unhesitating conclusion that this licence does not fall either within clause (a) or (b) of section 60 of the Easements Act and therefore, it was revocable at the will of the grantor. We may, however, point out that there may be cases where parties by special contract may make the licence which is prima facie revocable under section 60 an irrevocable one, but these clauses of this agreement envisage no such intention.
' Thus this being a revocable licence, the, revocation thereof cannot be prevented by injunction. In a case like this the licensee is entitled to a reasonable notice in accordance with the provisions of section 63 of the Easements Act. If, however, the licence is revoked without reasonable notice the remedy of the licensee is by way of damages and not by way of an injunction."
' The view taken in Wood v. Lead bitter was `reaffirmed in Government of Pakistan v. Zamir Ahmad Khan PLD 1975 SC 667.
9. Guided by the aforesaid enunciation of law I have no difficulty in coming to the conclusion that the agreements in favour of present petitioners are mere license and privilege. From the perusal of the agreements, it is evident that the applicants were given permission to sell aerated water, drinks of approved brands of standard size and to supply and sell meals and refreshment to travelling public and Railway servants, in or from Dining and Buffet Cars running with different trains; the petitioners were merely given a right to use the Dining and Buffet Cars trains over which they had no dominion whatsoever and no grant of interest was made in the agreements. It was made clear that the agreements/licences in favour of the petitioners were revocable and terminable at the pleasure of the licensor. These agreements further provided that in the event of dispute the aggrieved party had a remedy to approach arbitrator named in the agreement. The terms of the licences were fixed. From the examination of the aforesaid terms and covenants of the licences, it is amply clear that these were a licences simpliciter within the meaning of section 52 of the Easements Act and were not coupled by any grant of 'interest in the property of the Railway Department. By no stretch of imagination, it can be treated as irrevocable licence. The upshot of this discussion is that the licences granted to the petitioners were mere permission/privileges and in no way enured any right whatsoever in favour of the petitioners. 1, therefore, have no hesitation in coming to the conclusion that these petitions are wholly misconceived and the petitioners have no right to claim enforcement of right of renewal, if any, in Constitutional jurisdiction of this Court.
' Having concluded that the agreements/licences in favour of the petitioners are licences simpliciter, it is hardly necessary to deal with the remaining point that the policy circulars created any right of renewal in favour of the existing licensee. I have gone through the, policy circulars. They do not lead to such interpretative inference. Even if it is accepted that these policy circulars have got some statutory force they cannot improve the case of the petitioners who are mere licensees.
The authorities cited by the learned counsel proceeds on distinguishable facts and are hardly, applicable to the instant case.
' In the light of foregoing discussion these Petitions are found to be without any merit and are accordingly dismissed in limine.'