1. ' AMIR-UL-MULK MENGAL, J.---By this judgment we propose to dispose of C.P. No,50 of 1992 filed by Malik Gul Hassan and Company praying inter alia as under:-- "It is, therefore, prayed that this Hon'ble Court may be pleased to call the record of the proceedings from the respondents Nos.1--7 and after hearing the parties be further pleased--
(i) to declare that the aforesaid Amending Ordinance I of 1991, Annexure (`X/C' hereto) and the further Ordinance IX of 1991 (Annexure X/F hereto) namely the Balochistan Medical College (Board of Governors) (Amendment) Ordinance, 1991, Ordinances. I and IX of 1991 is ultra vires, unconstitutional and void;
(ii) to declare and hold that the order(s), dated 26-12-1990 (of the respondents Nos.5 and 6 and/or the Superintending Engineer, Executive Engineers (EPWD) are and each of them, cancelling/rescinding the petitioners' contracts, to be without lawful authority, illegal and of no legal effect;
(iii) that the respondents Nos.5--6, and all persons claiming through or under them be restrained by appropriate orders from interfering with the works of the petitioners, or declaring that works undertaken/completed by the said respondents Nos.8--10, or any other contractor to whom the works may now or hereafter be given, shall be deemed to be undertaken/completed by the petitioners and the consequential reliefs be granted to the petitioners;
(iv) that the award of contracts to the respondents Nos.8 to 10 i,e, to each of them, be declared to be without lawful effect, the same being continuation of the petitioners' work/contracts;
(v) that the respondents and all persons claiming through or under them be restrained from depriving the petitioners of their property, assets, machinery or divesting them in any manner;
(vi) that the respondents be restrained from calling any fresh Tender or awarding balance works or part thereof in respect of all works of Bolan Medical College Complex, Quetta except the petitioners;
(vii) that costs be awarded to the petitioners; and
(viii) that such other/further/additional relief or reliefs, writ or writs, order or orders be also granted, as may appear to this Hon'ble Court to be proper or otherwise appropriate in the facts and circumstances of the case."
2. ' However, after this, an amended petition was filed with slight changes in the prayer clause as follows:-- "It is, therefore, prayed that this Hon'ble Court may be pleased to call the record of the proceedings from the respondents Nos.1--7 and after hearing the parties be further pleased--
(i) to declare that the amending Ordinance, namely the Balochistan Medical College (Board of Governors) (Amendment) Ordinance, 1991, Ordinance. I of 1991 and the Balochistan Medical College (Board of Governors) (Amendment) Ordinance, 1992, Ordinance II of 1992, arc and each is ultra vires, unconstitutional and void;
(ii) to declare and hold that the order(s), dated 26-12-1990 (of the respondents Nos.5-6 and/or the Superintending Engineer (PPWD) are and each of them, cancelling/rescinding the petitioners' contracts, to be without lawful authority, illegal and of no legal effect;
(iii) that the respondents 5-6, and all persons claiming through or under them, be restrained by appropriate orders from interfering with the works of the petitioners, or declaring that works undertaken/completed by the said respondents Nos.8--10, or any other contractor to whom the works may now or hereafter be given, shall be deemed to be undertaken/completed by the petitioners and the consequential reliefs be granted to the petitioners;
(iv) that the award of contracts to the respondents Nos.8 to 10 i,e, to each of them, be declared to be without lawful effect, the same being continuation of the petitioners' works/contracts;
(v) that the respondents and all persons claiming through or under them be restrained from depriving the petitioners of their property, assets, machinery or divesting them in any manner;
(vi) that costs be awarded to the petitioners; and
(vii) that such other/further/additional relief or reliefs, writ or writs, order or orders be also granted, as may appear to this Hon'ble Court to be proper or otherwise appropriate in the facts and circumstances of the case."
3. ' It is pertinent to note that the petitioner has also filed several civil miscellaneous applications, many of which were ordered to be disposed of alongwith the main petition. Hence all the civil miscellaneous applications filed, upon which no orders have been passed, shall be disposed of in this judgment.
4. ' Concisely, the facts of the case are that the petitioners is a registered Firm. The Federal Government decided to set up in Balochistan a Medical College/Hospital in the name and style of "Bolan Medical College". For the said purpose different contracts were entered into between the President of Pakistan through Director-General Health, Ministry of Health, Government of Pakistan and the petitioner's Firm, the detail of which has been given in the petition which need not be repeated in the judgment. Thereafter, with the passage of time these agreements were renewed. It is the case of the petitioners that due to many reasons, such as enquiry by Martial Law, paucity of funds, hard weather etc. The petitioner's firm could not complete the assigned work within stipulated period. However, according to the petitioners the respondents expressly acknowledged satisfaction and petitioner's firm was given further contracts.
5. ' It is pertinent to mention here that on 26-12-1990 the Secretary Implementation on behalf- of the Works Committee addressed a Letter No,I.D.ROH(1)/2/90 dated 26-12-1990 to the Superintending.
6. Engineer, Government of Pakistan, Pakistan P.W.D. Quetta to the following effect:-- "As it has been decided by the Works Committee that Pakistan PWD will terminate all the contracts of the present contractor because he has failed to fulfil the contractual obligations. The minutes of the meeting will be issued within a day or so after the approval of competent Authority: 'You are directed to please issue the termination orders in regard to all the contracts of the present contractor today (Malik Gul Hassan and JA./V Traders)'."
7. In pursuance of the said order the respondents Nos.2 and 3 cancelled all the contracts forthwith.
8. Petitioners have further contended that in addition of the said cancellation all respective construction sites were forcibly entered into by or on behalf of the respondents. The unfinished works were taken over.
9. ' It is equally important to note that an Ordinance namely Balochistan Ordinance XIII of 1989 titled as "Bolan Medical College (Board of Governors) Ordinance, 1989" was promulgated on 18-12-1989 and published in Balochistan Gazette 6-1-1990. The same was subsequently got approved and was passed by the Balochistan Assembly as an Act known as Balochistan Act III of 1990 called as Bolan Medical College (Board of Governors) Act, 1990 coming into force on 4-2-1990. It was to provide inter alia a Board of Governors for. Bolan Medical College for its efficient administration and management of the affairs of the College in a manner provided in the Act.
10. ' To re-capitulate the facts, suffice is to mention that all the contracts of the 'petitioner's firm' were cancelled and the petitioners' firm approached High Court of Balochistan by Constitutional Petition No,132 of 1991. It is important to reproduce the prayer clause, because point of res judicata has been pressed into service. Earlier prayer was as under:-- "It is, therefore, prayed that the order of termination of various agreements be declared as without lawful authority. It is further prayed that respondents Nos.5 and 6 be restrained from interfering with the works of the petitioner. It is further prayed that the respondents be restrained from calling any fresh tenders. It is further prayed that pending decision of the writ petition the respondents be restrained from proceeding any further with the matter."
11. ' This Constitutional petition came up for preliminary hearing and notices were issued to the Advocate-General and Standing Counsel. The petition was, however, dismissed by a Division Bench of this Court vide judgement dated 20-6-1991.
12. ' Feeling aggrieved of the said judgment petitioners went before Hon'ble Supreme Court in Civil Petition for Special Leave to Appeal No,143 of 1991. The Hon'ble Supreme Court passed orders on 15th July, 1991 as under:-- "Mr. S.M. Zafar, learned counsel for the petitioner, has candidly submitted that the petitioner will have to file some other legal proceedings inter alia for impugning the above Ordinance and, therefore, he would not like to press the above petition for leave to appeal, if it is clarified that the observations made by the High Court on the factual aspect of the case, will not be considered as res judicata.
13. 4, Learned counsel for the parties agree that both the parties will be at liberty to raise whatever factual and legal pleas may be available to them in any future proceedings which may be initiated by either of the parties and that any observation in the impugned order of the High Court, will not prejudice either of the parties.
5. We would, therefore, dismiss the above petition for leave as withdrawn with the above observations."
14. ' Heard Mr. Sharifuddin Pirzada, assisted by M/s. Ehsanul Haque Khan, Ashraf Khan Tanoli and Syed Ayaz Zahoor for petitioner, Raja Rab Nawaz, Deputy Attorney-General, Advocate-General Balochistan, Mr. Yahya Bukhtiar assisted by Mr. Muhammad Riaz Ahmad, Mr. Abdus Samad Dogar, Advocate and Mr. Rahim Khan Zarkoon in person.
15. ' Mr. Yahya Bukhtiar learned counsel for respondents 5, 6 and 7 raised an objection that the petition is hit by the principles of res judicata because in C.P. No,132 of 1991 petitioner Gul Hassan Company agitated identical legal points which did, not find favour with a Division Bench of this Court and the petition was dismissed on 20-6-1991. According to him same points in law, cannot be reagitated between the same parties and on the same subject-matter.
16. ' In reply thereto Mr. S.S. Pirzada, the Senior counsel appearing on behalf of petitioner stated that the Hon'ble Supreme Court while dismissing CPSLA No,143 of 1991 observed that "counsel for the parties agree that both the parties will be at liberty to raise whatever factual and legal pleas may be available to them in any future proceedings which may be initiated by either of the parties and that any observation in the impugned order of the High Court will not prejudice either of the parties". He, therefore, submitted that it is unequivocally tantamount to grant of permission to petitioner to raise all or any of the factual and legal pleas already taken, therefore, the question of application of principle of res judicata does not arise.
17. Before anything can be said on the rival contentions raised in this respect, it may be observed that whenever there is a judgement by a competent Court having jurisdiction inter-parties, it will prevent a fresh suit or proceeding between them regarding the same matter. The doctrine of res judicata is of universal application and in fact a fundamental concept in the organization of every judicial system. If a cause has been definitely determined by a competent Court or tribunal it shall be accepted as 'irrefragable legal truth'. However, question for consideration before us is whether or not a party can be deprived to press into service point of res judicata if so directed by any appellate forum or a superior Court.
18. ' Although the Hon'ble Supreme Court while disposing of CPSLA No,143 of 1991 dismissed the petition for leave as withdrawn, but made a specific observation in para. 4 of the order that the counsel for the parties have agreed that both the parties will be at liberty to raise whatever factual and legal pleas may be available to them in any future proceeding which may be initiated by either of the parties and further that observations in the impugned order of the High Court will not prejudice either of the parties.
19. ' According to Mr. Yahya Bukhtiar in the first instance, it was consented to by the parties and the Court had not made a specific observation in that regard except that in the end of the order petition was dismissed as withdrawn 'with the above uoservations'. But we found ourselves unable to subscribe to this argument, therefore, we would like to attend to the second limb of the argument i,e, even if the Court has made such observations, whether a right provided under law could be taken away by a Court or not? Mr. Yahya Bukhtiar laid much emphasis on the point that right of the parties to raise an objection of res judicata is a right guaranteed by law which can neither be taken away by an agreement nor by any Court. To supplement his arguments reliance was placed on the case titled Shahul Hamid v. Tahir Ali reported in 1980 SCMR 469. From perusal of facts of the case cited, it was found that an observation was made wherein it was held that finding of the Judge Small Causes Court will not operate as res judicata and with the consent of the parties appeal before the High Court had been withdrawn. An exactly similar legal proposition came up for consideration and determination whether doctrine of res judicata would be applicable in such an event. The Hon'ble Supreme Court observed that the main thing to be taken note of is that section 11, C.P.C. Which lays down the principle of res judicata, is mandatory, and as such, a party to a former suit decided by a Court of competent jurisdiction, can avoid its provisions only by taking recourse to section 44 of the Evidence Act (I of 1872) on ground of fraud or collusion or by showing that the previous judgement was a nullity or non-existent in the eye of law. It was further observed that in absence of any such thing a party cannot be estopped from pleading law as contained therein on the well-known principle that there can be no estoppel against statute and neither any Court of law (underlining is ours) nor any agreement can estop a party to plead law which is his "inalienable" right under Article 4(1) of the Constitution. In the end the following observations were made on page 473:-- "It was held that the observation in the judgement of the High Court did not preclude the defendant from raising or the Court from considering any plea of res judicata which may be available to the defendant. All this discussion will show that neither a Court can issue any order nor a party can agree that with regard to any particular operative judgment a plea of res judicata will not be raised in any future litigation. Such order or agreement as discussed above would be a nullity and inoperative."
20. ' On the basis of this Mr. Yahya Bukhtiar urged with considerable vehemence that present petition is hit by the said principle and as this Court has already dismissed Constitutional petition filed by the present petitioner against the respondents on the same subject-matter, a fresh petition by the same parties on the same subject-matter is hit by the principle of res judicata.
21. ' Mr. S.S. Pirzada took exception to this view and contended that this authority is not relevant to the proposition requiring determination by this Court. According to him the earlier decision does not amount to "an operative judgement" finally and conclusively deciding the lis between the parties but the petition has been dismissed in limine which, at the most, could be treated as an `obiter dictum'. If that be so, then the question of res judicata does not arise at all. In support of this contention learned counsel relied on PLD 1978 Lahore 901.
22. ' We have perused the judgement (ibid) which in fact, was a Letters Patent Appeal No,173 df 1971.
23. However, an observation was made by Hon'ble Justice Shafiur Rahman, Judge, Lahore High Court (as he then was ) on page 905 of the aforesaid judgement (ibid) as under:- " When a writ petition is dismissed as infructuous, it is only a fact noted. No finding is recorded. No adjudication takes place. No determination of the dispute is attempted. No decision is given. If any observation with regard to the merits of the controversy of the rights of parties to allay their misgiving or to provide a guideline to the statutory function, it is obiter dictum which in plain words means, 'a judicial opinion not bearing on the elements of a case and therefore not binding'......................................................................................
24. ' The question arises whether Division Bench in the earlier C.P. No,132 of 1991 had dismissed the petition as infructuous in order to attract the observations made in the aforesaid judgement. The plain answer is in negative.
25. ' Of course the Division Bench of this Court in C.P. No,132 of 1991 issued pre-admission notice to the respondents and after hearing the counsel for the parties, dismissed the petition in limine. Here it is pertinent to mention that there is a difference between dismissal of a petition as "infructuous" and dismissal in "limine". A petition when dismissed as infructuous does not necessarily involve any decision neither on facts nor in law. One of the important aspect would be that respondents have either conceded to the allegations or the petitioner's grievance is redressed otherwise or some action is taken after which no further determination is required. Similarly there is difference between dismissal in "default" and dismissal in "limine". In case of dismissal in default judgement is delivered ex parte and an ex parte decision or judgment is liable to be set aside if a defect in the service of notice is pointed out. But as far as dismissal in limine is concerned the opposite-party is generally not heard. This distinction has been ably drawn by Hon'ble Supreme Court in PLD 1961 SC
119. On page 139 (ibid) it was observed as under:-- "A judgement of that kind is delivered where notice is issued to a party, but the party does not appear, and thejudgement is delivered ex parte. In such cases, if there was a defect in the service of notice, the ex parte judgement has to be set aside in continuation of the same proceedings (unless it be a case of fraud when a separate suit will lie). But the case is different where the Court refuses, to issue notice to the opposite-party. In such a case the opposite-party is, properly speaking, not a party to the proceedings at all and surely is not bound by anything decided therein."
26. Generally when the High Court does not find it appropriate to admit for regular hearing a petition and before issuing a notice'to the respondent-party, dismisses the petition after summary hearing it is said to be dismissed in limine. However, in the instant case pre-admission notice was given to the opposite-party and order was passed after hearing counsel for the parties on almost all legal aspects of the matter particularly regarding maintainability of the petition.
27. ' Syed Sharifuddin Pirzada then argued that in any case the judgment of the Division Bench in C.P.
28. No,132 of 1991 is not an "operative judgment".
29. ' In other words there was no determination of the rights/liabilities of the parties because the petition was not, even admitted for regular hearing. In order to appreciate this point we have to take resort to the word "operative". "Operative" has been defined in the Concise Oxford Dictionary as to mean "having effect, in operation, efficacious; (Law) expressing intent to perform a transaction; practical not theoretical or contemplative; having principal relevance ('may' is the operative word); or surgical operations; hence 2.n. Worker artisan mechanic, kill-hand; "private detective".
30. We feel it incumbent to draw a distinction between judgments delivered in exercise of Constitutional jurisdiction under Article 199 of the Constitution and judgment delivered by a Court of law exercising its original jurisdiction. In die former case it is not required that evidence be recorded because questions involving factual controversies are generally not entertained in exercise of Constitutional jurisdiction. While exercising Constitutional jurisdiction, a High Court may, if it is satisfied that no other adequate remedy is provided by law.
31. "(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 ' It is not required of the High Court to conduct a detailed inquiry by recording evidence, and on the basis thereof to draw conclusions. Thus, in Constitutional jurisdiction trial does not commence as in the exercise of ordinary original jurisdiction. Therefore, a judgment delivered by the High Court in exercise of its jurisdiction under Article 199 of the Constitution becomes final when Constitutional petition is either dismissed or entertained. However, one factor becomes very pertinent in this regard i,e, to hear the parties or counsel of the parties on all legal issues raised before it. When, therefore, after hearing the parties a Constitutional petition is either entertained or dismissed the judgment is said to be final. In order to fortify the aforementioned view, reliance may be placed on AIR 1964 Madras 194. A Full Bench was constituted to consider the following proposition:- "Whether an order passed, either granting or refusing to grant a writ applied for under Article 226 which has the effect of either reviving or leaving the controversy before the inferior tribunal for adjudication, can be granted as a judgment or final order under, Article 133 of the Constitution."
32. ' The proposition was thrashed out and finally it was concluded that:- "17. From the foregoing discussion, it will be apparent that an order on an application under Article 226, whichever way it goes will be a judgment within the meaning of clause 15 of the Letters Patent, as it will be a final adjudication of all matters in controversy in the writ proceedings and which have the effect of affecting the Constitutional remedy of an aggrieved party. This Court has consistently held that an order passed by a Single Judge on application under Article 226 of the Constitution, whichever way it went and whatever its effect on the proceedings before the inferior tribunal might be, will amount to a judgment capable of being appealed against under_Clause 15 of the Letters Patent."
33. Keeping in view the ratio decidendi of the above case, it may be safely observed on the basis of above analogy that while disposing of a Constitutional petition, any order dismissing or accepting it, after affording an opportunity of hearing to the parties on all controversial points shall be a final adjudication of all matters in controversy thus an operative judgment.
34. ' Another Indian authority as reported in AIR 1957 Punjab 173 (V 44 73 Aug.) (again a Full Bench judgment) while interpreting meaning of judgment, decree or final order observed as under:-- "In order that a decision should fall within the definition of the word `judgment' or 'final order' (1) it must finally decide the rights of the parties and the word 'judgment' means a final judgment and not an interlocutory judgment, and by which right to the relief claimed is decided with regard to all matters in issue, and (2) an order is final if it finally disposes of the rights of the parties and if it does not, it is not final even though it may decide a vital issue in the case. So, in every case the Court has to see whether the rights of the parties are finally determined by a decision. The mere fact that the Court refuses to issue a writ or direction under Article 226 does not take it out of the definition of the words 'judgement' decree or 'final order' but it will depend upon the facts, circumstances and the nature of decision in each case."
35. ' Seen in the light of above observations it may be noted that while deciding C.P. No,132 of 1991 pre- admission notice was issued to the respondents and notice was also issued to learned Advocate- General. The counsel for all the parties were heard almost on all vital issues, including the Deputy Director Project. Thus, the order was passed after hearing the parties on all vital issues. It is manifest from the order that Mr. S.M. Zafar urged that the action had been taken without lawful authority because termination of contract had taken place on the directions of Board of Governors constituted under Bolan Medical College (Board of Governors) Act No,III of 1990 whereas the Board of Governors has no such powers under the said Act. Similarly he argued that the Works Committee constituted by the Board of Governors had no lawful authority to rescind the contract.
36. He has also raised an objection to the action taken by Executive Engineer Pak P.W.D. Who had mechanically on the advice of Board of Governors without applying his independent mind rescinded the contract. It is evident from perusal of the said judgment that Standing Counsel for the Federal Government raised a preliminary objection regarding maintainability of the petition.
37. 14e further submitted that action has been taken in pursuance of Clause 3(c) of the Contract Agreement. In short from perusal of the judgment it appears that all controversial questions were argued by the counsel for the parties and judgment was delivered except that the vires of the two amending Ordinances (Ordinance I of 1991) and (Ordinance II of 1992) which had not been promulgated by then were set at rest. Hence in view of the above discussion we are unable to concur with the view taken by Mr. Sharifuddin Pirzada that the judgment already delivered was obiter dictum or inoperative judgment except the question of challenging the Amending Ordinances.
38. ' Reverting back to the issue of res judicata we have to follow the judgment of the Hon'ble Supreme Court as reported in 1980 SCMR 469 because Article 189 of the Constitution envisages that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, is binding on all other Courts in Pakistan. The Hon'ble Supreme Court while dismissing the petition for leave to appeal filed against the decision of the Division Bench has not enunciated a principle of law whereas the Hon'ble Supreme Court has done so in 1980 SCMR 469. Thus, the ratio decidendi on the plea of res judicata as enunciated by the Hon'ble Court shall have to be followed. The conclusion of the above discussion would be that all those matters which were decided in C.P. No,132 of 1991 shall not be open to be reagitated and re- determined.
39. ' Thus we embark upon to attend to the argument where vires of Amending Ordinance I of 1991 and Amending Ordinance II of 1992 have been challenged being ultra vires.
40. ' It is interesting to note that Amending Ordinance I of 1991 has been repealed by the Bolan Medical College (Board of Governors) (Amendment) Ordinance IX of 1991, hence it is no more operative.
41. Similarly Ordinance II of 1992 has repealed Ordinance IX of 1991. Thus, the only Amending Ordinance which has been in vogue was Ordinance II of 1992.
42. ' This Ordinance was promulgated on 13th of May, 1992 by the Governor of Balochistan and published in the Official Gazette on the same day. Article 128(2) (a) of the Constitution provides that every such Ordinance shall be laid before the Provincial Assembly and shall stand repealed at the expiration of three months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of the resolution. It may be noted that the Ordinance was placed before the Balochistan Provincial Assembly and was passed on 27th July, 1992. The Governor of Balochistan gave his assent and it was published as an Act of the Provincial Assembly in the Notification, dated Quetta the 20th September, 1992. It is pertinent to mention here that the petitioner filed Constitutional Petition No,50 of 1992 on 25-2-1992 when Ordinance II of 1992 had not been promulgated. The petitioner moved an Application (C.M. No,1349 of 1992) on 31st of October, 1992 wherein permission was sought to amend the petition challenging the vires of this Ordinance. Thus the application for amending the prayer has been made when Ordinance had already become an Act on 20-9-1992. This application has become infructuous.
43. However, another Application Civil Miscellaneous No,1372 of 1992 was moved on 8-11-1992 seeking amendme'nt in the application already filed where vires of Ordinance II of 1992 had been challenged. It was contended that the same amendment was sought inadvertently and by typing error, otherwise the intent and purpose was to seek amendment to challenge the vires of Act No,VI of 1992. This application was contested by Mr. Yahya Bukhtiar who emphatically opposed the substitution sought for by the petitioner. It was argued that when the earlier Application No,1349 of 1992 had been made, the Act had already been passed but the Act was not challenged, instead Ordinance II of 1992 was challenged. Learned counsel submitted that under the provisions of Order VI, Rule 17, C.P.C., an amendment in the pleadings can be allowed only by the Court but no order has been passed by this Court, therefore, by merely filing an application or an amended petition, it should not be presumed that the amendment sought for has been allowed.
44. ' On the contrary Mr. Sharifuddin Pirzada argued that in fact Act VI of 1992 is reproduction of Ordinance II of 1992 and on account of typing mistake and inadvertently instead of Act VI of 1992 the vires of Ordinance II of 1992 were challenged which in fact were not in force. He contended that the petitioner has been vigilant in challenging the Ordinance and as soon as it was known to the petitioner that the Ordinance has been made an Act of Balochistan Provincial Assembly, the same has been challenged, therefore, the amendment may be allowed in the interest of justice.
45. ' Let us see the grounds upon which the vires of the Ordinances as well as of the Act have been challenged. In the first instance it has been urged that the Acting Governor had been taking an adverse view against the petitioner resulting in issuance of Ordinance in question. Thus, it has been argued that the same has been promulgated in bad faith and is a mala fide piece of legislation.. As to the vires of the Ordinances it would be profitable to reproduce the grounds taken in the petition which reads as under:--
(i) that the legislation i,e, the Ordinance is in excess of the powers of the Provincial Government and is in respect of the Federal Government property and/or contracts on which field it cannot legislate;
(ii) that it is conceived in bad faith and is a mala fide piece of legislation;
(iii) that it cannot be deemed as a law or a valid piece of legislation, inter alia, for the reason;
(iv) that it is a mere executive fiat,' reflecting the will of an individual promulgating it for mala fide/malicious collateral purpose;
(v) that no law sequestering/appropriating property rights can be passed otherwise than as per Constitutional provisions which have not been observed,
(vi) that 'state power' of 'eminent domain' can only be exercised for public purposes, which, in the instant case, is not so. The exercise is transparently mala fide; and
(vii) that the provisions of the Amending Ordinance amounts to entrenchment into the field of judiciary whose role, authority and jurisdiction have been barred which cannot be done and is in violation of the Constitutional provisions/guarantees of the intent and powers of the judiciary."
46. ' These arguments require no consideration at such a belated stage and at a time when the Ordinance lost its efficacy; secondly because the Ordinance has been passed by the Assembly and is now an Act and the grounds urged as against Ordinance in our opinion are no more available against the Act because the Act is neither an executive fiat nor the result of an individual promulgating an Ordinance but reflects the will of the people as it has been passed by the Assembly.
47. ' As far as the Act is concerned, admittedly the petitioner has not challenged through a direct application seeking amendment to challenge the vires. We have already mentioned that two Civil Miscellaneous Applications No,1372 of 1992 and C.M. No,1349 of 1992 have been filed. In the second application it has been prayed that the grounds challenging the Ordinance may be read as the grounds for challenging the Act and thus an amendment sought to be made in the main petition.
48. ' It is pertinent to mention that although no express orders were passed by the Court allowing permission for the said amendment, which was otherwise hotly contested, the petitioner had submitted at a belated stage (6-11-1994) an amended petition in the office upon which Mr. Yahya Bukhtiar took exception.
49. Be that as it may, the vires of an Act can only be challenged in so far as it is found to be inconsistent with the rights conferred by Chapter of Fundamental Rights to the extent of such an inconsistency. But the Courts being creature of the Constitution can examine vires of an Act in a limited way G by examining the legislative competence or such other limitations as are found in the Constitution. Reference, if any, may be made to PLD 1983 SC 457 and PLD 1987 Karachi 296.
50. Seen in the light of aforementioned principles it may be observed that Amending Act VI of 1992 was placed before Balochistan Provincial Assembly which was the competent legislature to pass it.
51. Then the Governor of H Balochistan has given his assent on it, thus it became an Act duly passed by the Provincial Assumably. Therefore, as far as legislative competency the ,same is settled accordingly.
52. ' However, Mr. S.S. Pirzada on the basis of PLD 1991 Quetta 7 and PLD 1993 SC 341 argued that High Court can declare a particular enactment as unconstitutional if the provisions thereof are found inconsistent with Part II (Fundamental Rights). In this respect an argument was advanced that contract is a property and the old notion that contractual obligations should necessarily be determined by a competent Civil Court had undergone a substantial change. If it be so, then a right to property cannot be taken away without notice and opportunity of hearing. Reliance was placed on AIR 1989 SC 1629 and our attention was particularly drawn to the following observations made in AIR 1954 SC 119:-- "A contract or agreement which a person may have with the company and which may be cancelled by the Director in exercise of powers under Ordinance will undoubtedly be the property within the meaning of the two Articles "
53. Before proceeding further it may be observed that the Constitution provides for protection of property rights as envisaged in Article 23 and Article 24 of the Constitution. But bare perusal of the said Articles would show that there is a rider clause which is very pertinent reading "save in accordance with law".
54. The word property has been defined in Article 260 of the Constitution which may include any right, title or interest in property, movable or immovable and any means and instruments of production.
55. Thus, the word has been used in its general legal meaning.
56. As far as contracts are concerned these may fall within the meaning of property but rescinding of contracts and affect flowing therefrom are matters which include thorough probe, recording of evidence and settling rival pleas between the parties. If the contract contains provisions empowering one of the parties to rescind the contracts and such party in exercise of such rights do so, it would be very difficult to determine that a right to property has been taken away against the provisions of the Constitution. In other words if it is intrinsic in the contract and the parties have voluntarily bound themselves with certain conditions as laid therein, and one of the parties in exercise of such right has taken action within the purview of the contract agreement, in our calculated view this would not necessarily form a basis to challenge such action in exercise of Constitutional jurisdiction, as contractual obligations can best be settled through proper proceedings in a Court of competent jurisdiction.
57. Undoubtedly the contract in the instant case has been rescinded by one of the parties in exercise of a right as contained in the agreement caluse, therefore, it cannot be said that the right to property as provided under Article 23 and Article 24 have been violated because as stated in the very beginning of this discussion, that right to property is protected "save in accordance with law".
58. It is case in which one of the parties alleged certain violation in the contract particularly the time factor in which petitioner's firm bound itself to complete the contractual obligation within a stipulated period, failing which it M shall render itself to consequences including rescinding of the contract.
59. ' Whether it was right in doing so is a matter requiring thorough probe and detailed inquiry. Thus, it does not conveniently provide a basis upon which such action could be adjudged on the touchstone of Article 24 of the Constitution. Besides, the right to acquire, hold and dispose of property is subject to reasonable restrictions in the public interest and the question whether a restriction imposed by law is or is not reasonable or in the public interest is for the Court to determine. We are conscious of the fact that Article /4 provides that no person whether a citizen or a foreigner, whether a natural person or an artificial person i,e, a firm or a corporation shall be deprived of a property otherwise than in accordance with law. But sub-Article (1) of Article 24 of the Constitution contemplates cases of deprivation other than those of acquisition and possession taking under caluse (2) which seems to refer to complete deprivation.
60. ' Be that as it may as far as the present case is concerned this in fact requires taking of evidence whether the petitioner's firm was justified in not completing the contracts of construction buildings of Bolan. Medical College within the stipulated period and was justified in taking more than a decade in completing the contractual work so also escalating the expenditure from Rs,7 crore to more than Rs,100 crores are questions which require taking of evidence. As such on this ground the action of official respondents rescinding the contracts and the Amending Act validating such action cannot be called in question in Constitutional jurisdiction.
61. ' Another premises on which the Act has been challenged was that the Provincial Government cannot enact a law on a Federal Subject. Again nothing has been placed before us that the property was a Federal property. Of course the project had been taken over by the Federal Government but the intent was to construct a Medical College and a Hospital to cater for the needs of the people of Province of Balochistan. For the said purpose with the approval of the Federal Government, Board of Governors and other Committee were formed to which no exception was taken by the petitioner. The Federal Government has never challenged the jurisdiction of the Provincial Government to run the affairs of the College, rather it had supported before the Court such actions and even the Act validating the rescinding of contracts not only in this petition but in the earlier petition filed and dispose of by a Division Bench of this Court.
62. ' Mr. Pirzada, however, challenged the validity of the provision whereby actions of the Works Committee were revalidated with retrospective effect. It so happened that the Works Committee had only recommended, for cancellation of the Contract and the Executive Engineer Pak. P.W.D.
63. Being nominee of President of Pakistan vide letter, dated 26th of December, 1990 has been pleased to rescind the contract for plausible reasons:-- "According to terms of agreement you have failed to achieve the progress commensurate with time and have rendered yourself liable for penal action under clause 4(c) page 14 of the agreement. Your contract work is, therefore, hereby rescinded with immediate effect under clause 3(c) of agreement page 14."
64. ' At the cost of repetition it may be reiteiated that this question was raised by Mr. S. M. Zafar in C.P.
65. No, 132 of 1991 and the same has been decided by a Division Bench of this Court which dismissed the petition.
66. It is otherwise an established rule that when the statute expresses itself to have retrospective effect, it would not be termed as necessarily unjust. Maxwell on the Interpretation of Statutes (Twelfth Edition, page 225) observed:-- "There may be occasions and circumstances involving the safety of the state, or even the conduct of individual subjects, the justice of which, prospective laws made for ordinary occasions and the usual exigencies of society for want of provision fail to meet, and in which the execution of the law as it stood at the time may involve practical public inconvenience and wrong."
67. ' There is no denying the fact that different buildings about which contracts were executed with the petitioner-firm have taken a longer spell of time than agreed and the amount of Rs,7 crore was enhanced from more than Rs,100 crores. The authorities, therefore, thought it expedient to complete the building and hospital etc. Rescinding the contract and re-distributing the work to different contractors in order to complete the same. It appears to us that keeping this in view the Amending Act was passed where clause 13-A in section 7 was incorporated validating all the rescinding of contracts. While sitting in Constitutional jurisdiction we are not inclined to take exception to such an act which prima facie was intended to take steps for completion of buildings of Bolan Medical College in order to meet the dire needs of the people of the Province.
68. Even otherwise judicial review of Statutes, Acts or legislative instruments cannot be permitted to be challenged on the ground of mala fides. Such enactments o legislative instruments being matter solely within the competence of law-givers and the same cannot be reviewed on the basis of mala fides. Reference, if any, may be made to PLD 1988 Lahore 171. In such circumstances it is not possible for us to strike down Clause 13-A of section 7 of the Amending Act by dint of which contracts already rescinded had been validated.
69. ' Besides we don't see any mala tides on the part of the authorities who rescinded the contracts of the petitioner. When it was found that due to petitioner's fault buildings of Bolan Medical College, its attached hospital and other concerned buildings could not be constructed within the stipulated period and the petitioner's firm however, managed escalation worth crores of rupees, it was thought proper to rescind the contracts. Petitioner's default in terms of extraordinary delay, receiving over payments, mis-monetary losses against no return were the reasons which prevailed with the Works Committee to recommend for rescinding of the contracts. We have also perused the reasons advanced by the petitioner's firm during arguments that delay occurred due to acute weather and non-availability of funds. It was also argued that when Martial Law was imposed the work was ordered to be stopped. At a cursory view we do not find it as cogent reasons because the petitioner's firm had clearly undertaken to complete the work assigned within the stipulated period.
70. The acute weather of Quetta is known to all which must have been taken into consideration while fixing the time for completion of work. Thus, we do not find any mala fides on the part of the Works Committee or the Executive Engineer Pak P.W.D. To rescind the contrcats. As such prima facie the mala fides in enacting Amending Act VI of 1992 is not available. However, for rival contentions a detailed inquiry and recording of evidence is required which exercise can be done before a Civil Court and not in Constitutional jurisdiction.
71. ' Another argument advanced was that contract could not have been rescinded without notice and opportunity of hearing to the petitioner's firm. A Plethora of authorities was relied. The important one being PLD 1988 SC 645 and 1994 SCMR 2232. The relevant portion of the latest judgment is on page 2239-2240. The same is reproduced hereunder:-- "From the above stated cases, it is evident that there is judicial consensus that the Maxim audi alteram pertem is applicable to judicial as well as to non-judicial proceedings. The above Maxim will be read into as a part of every statute if the right of hearing has not expressly provided therein."
72. ' But in the instant case the Project Director denied that the petitioner firm did not know at all or was totally unaware of the proposed action being taken against it. He submitted that several notices had been issued to the firm dating 18-6-1988, 6-8-1988, 10-8-1988, 4-4-1990, 13-5-1990, 14-5-1990, 15-5-1990 and 10-8-1990 (Annexure XII). During arguments'the Project Director while giving the background of the project and substandard work by the petitioner's firm argued that this firm utterly failed to construct this building in accordance with the terms of the contract agreement. He submitted that late Malik Gul Hassan was an influential person who swayed the authorities by getting different work and contracts despite lacking resources and experience, in an unilateral manner. We will discuss factual aspect at a subsequent stage of the judgment. However, according to the Project Director petitioner was well aware that the work was of substandard and Expert Committee declared it as dangerous building and suggested that the same could be utilised only after fixing of steel oars, other there was every chance of its total collapse.
73. ' Keeping in view the above circumstances it cannot be safely concluded that the petitioner's firm was totally unaware of substandard work and particularly the period within which the project had to be completed. In the peculiar circumstances of this case, therefore, it cannot be said that the action has been taken without notice to the petitioner's firm. We are, therefore, not inclined to declare the action of rescinding the contracts as unlawful on this ground.
74. ' Besides, it was brought to our notice during arguments that the remaining and incomplete work of the Project had been handed over to different contractors who have already spent huge amount after rescinding of contracts. Some of them have been implcaded as party and some have not been impleaded about whom an application has been submitted at a very belated stage for their impleadment. At this stage it would be very difficult for us to allow this petition in view of the fact that the remaining unfinished project had already been given to different companies after rescinding of the contract in 1991 and they have started work spending crores of rupees on the same. In such circumstances present petition is not maintainable because the rights and liabilities of different companies require recording of evidence in order to determine civil liabilities which cannot be undertaken in exercise of Constitutional jurisdiction. Civil miscellaneous application for impleading them as party at this belated stage would serve no legal purpose in the circumstances as discussed in this judgment.
75. It is well-settled that issuance of writ under Article 199 of the Constitution is discretionary with the Court. Therefore, a writ is neither issued as of right or of course and the same can be refused keeping in view the Q conduct of the petitioner. As far as conduct of the petitioner is concerned, the Project Director addressed us in detail. He frankly argued before us in the open Court that late Malik Gul Hassan being an influential person got the contracts in violation of the contract laws and contract code. It was further argued that even cancelled contracts had been revised with enhanced rates and conditions were changed in accordance with the whims and wishes of the petitioner without proper vetting by the Law Division as provided under the Rules. According to him although the firm was incapable in experience and short in resources, the Ministry of Health awarded contracts on the single tender basis to this firm. He contended that Contracts Nos. 10-22 were cancelled but subsequently revised and reallotted on enhanced rates to the petitioner's firm unauthorisedly and in an unlawful manner. On the basis of record brought by the Project Director it was argued that Block A of Boys Hostel and Block-B of Boys Hostel had to be completed by May, 1977 and August, 1977 respectively whereas the College Buildings and Teaching Hospital were to be completed in May, 1978 and September, 1978 but the petitioner's firm totally failed to complete it within the time prescribed. He also strongly repudiated that no payments were to be made to the petitioner's firm. On the other hand an amount of Rs,3 crore was given to the petitioner's ,firm in the month of May/June, 1979 (Annexure IV). The funds so released could not be properly utilised by the petitioner, Realising that the petitioner's firm utterly failed in completing the construction of project within the stipulated period, its mismanagement unjustified delay, glaring irregularities, poor quality control and over payments, the authorities at last decided to transfer the project against the wishes of petitioner from Ministry of Health to Pak. P.W.D. He also argued that strength of concrete used was 1/3rd to 1/2 of "specified strength", which is indicative of the fact that the petitioner's firm used low strength of concrete.
76. ' As a result of this substandard work there was no option left but to revise the design. He submitted that about 90% of the College Building was completed below specifications besides being beyond time schedule. Thus, the remaining construction work of the hospital building etc. Worth of Rs,27 crores was left over by the petitioner which would be executed by the fresh agencies as already decided by the Works Committee.
77. ' These allegations which if proved would certainly entail serious consequences.
78. ' Keeping in view these allegations, we are not inclined to exercise our Constitutional jurisdiction by giving discretionary relief in favour of petitioner.
79. ' The maintainability of the petition was challenged by Mr. Yahya Bukhtiar on the ground that during pendency of petition Malik Gul Hussan has expired and his legal heirs have not been brought on record, therefore, the Court may declare the petition as not being maintainable. This was duly replied by Mr. S.S. Pirzada that it being a registered firm any of the Directors particularly the one nominated by Malik Gul Hassan would be a party to agitate the petition. The objection raised by Mr. Yahya Bukhtiar does not appeal us and we are not inclined to dismiss this petition for this technical reason which otherwise is not available in view of relevant provisions of C.P.C.
80. ' In the end it may be noted that a civil miscellaneous application was moved by the petitioner for appointing a committee to prepare an inventory of goods, equipments and machinery of the petitioner at site. It may be pointed out that the Project Director had already given a list but the same was not accepted by the petitioner. In such view of the matter a Committee under the Chairmanship of Registrar of this Court was constituted to do the needful. The report of the Committee has been submitted and forms part of the record.
81. ' From all what has been stated above, we see no merit in this petition which is dismissed. However, we leave the parties to bear their own costs.