AKHTAR HASSAN, J.- Messrs Shoaib Bilal Corporation owned by the petitioners (Nos. 2 and 3) deal with land development and consultancy in engineering etc. They claimed that their offer to purchase the land in dispute measuring 140 Kanals 5 Marlas known as Remount Depot, Faisalabad, lor a negotiated price of Rs.4 Crores. 20 lacs, was approved by the Military Lands Disposal Committee, Ministry of Defence, vide their letter (Annex A'), dated the 10th of February, 1982. Subject to advance payment of Rs.2 lacs as earnest money. While taking measurements, it transpired that the area was only 124 Kanals. 7 Marlas and that too covered by encroachments. Notwithstanding this shortfall in the area, the parties subsequently executed a registered agreement to sell dated the 12th of January, 1984, whereunder the petitioners paid a further sum of Rs. 40 lacs increasing the earnest money to Rs.42 lacs. The agreement was expressed on he shall of the President of Pakistan stipulating inter alia that the sale shall be completed in six months, or else the purchaser shall pay interest to the vendor at the current bank rate until the completion of the sale; the payment shall be made in installments whereupon the vendor shall transfer proportionate area either to the purchaser or to his nominee: differences arising from the transaction shall be finally decided by the Quarter-master General: and lastly, if the purchaser failed to observe these conditions, his deposit shall stand forfeited entitling the vendor to rescind the contract and resell the land.
2. The petitioners with concurrence of the respondents were able to get a plan approved from the Municipal Corporation, Faisalabad, but they were confronted with numerous problems in getting possession as the area was littered with impediments like passing of sewerage/telephone lines through it: cultivation of fodder in it by the Remount Officer; existence of 214 'khokhas'-especially on.
The front side, dumping of refuse bv the Municipal Corporation; its user as pond for waste water of the city; making of a complaint by someone to the Ombudsman about the alleged mal- administration in regard to this transaction; and unsuccessful open auction of the land conducted by the respondents without cancelling, the petitioners contract. Notwithstanding all this, the agreement dated the 12th of January, 1984, was revived but this time the petitioners were burdened with an additional liability of Rs.15 lacs to enable the respondents to construct an alternate accommodation for the District Remount Officer. They were to pay interest at the bank rate on the balance for the extended period of default. A revised agreement dated the 18th of March. 1985. Was executed between the parties. The petitioners paid the extra amount of Rs.15 lacs, yet they were prevented from implementing the agreement mainly because the respondents could not get the entire area cleared from encroachments, sewerage/telephone lines, etc., till February. 1986. By this time, the Anti-Corruption Committee of the National Assembly of Pakistan initiated a probe into the transaction directing the petitioners to maintain smuts quo. Meanwhile, the petitioners paid Rs.2.16.51,000.00 whereas they could get possession only of 53 Kanals of land for implementation of their scheme, In addition, they effected improvements like roads etc. Increasing their total expenditure to Rs.5.41.45.661.62. Despite it, the respondents arbitrarily find the 30th of November, 1986. As the last date for clearance of the balance ol Rs. 1.65.69.000.00. The petitioners' request for extension of time in this behalf was refused on the 28th of October. 1987. Vide Annex P' informing them that their payment to the tune of Rs.52 lacs stood forfeited after making necessar adjustments relating to interest and expenditure incurred on building ol toad'- streets.
3. The petitioners, aggrieved by rescission of the contract and forfeiture of their earnest money etc., brought the present writ petition urging chiefly that the letter dated the 28th of October, 1987, was without lawful authority and of no legal effect. Inasmuch as it was not expressed in the name of the President: that no Officer less than the President could countermand the transaction sanctioned earlier by the President; that the transaction amounted to a full-fledged sale whereunder they were given full authority to develop the land and sell it in the shape of plots to outside customers; that the deal could not have been annulled on account of delay as time was not of the essence of the contract inasmuch as the only penalty provided was to burden the petitioners with payment of interest until completion of the same; and that the dispute was to be settled by the parties' mutual consent rather than unilaterally by the respondents who being public functionaries were not supposed to act arbitrarily. They reiterated that failure on the part of the respondents to get the site cleared Of encroachments etc., assumption of the matter by the Ombudsman, probe into it by the National Assembly, putting the site to public auction and lately burdening them with additional liability of Rs.15 lacs were the main reasons for delay. The\ observed furthermore that the period of fifteen months find for performance should have been counted from the date when the, site was made available to them after clearance of all encumbrances etc. And that on this calculation of the limitation, they had still ample time to complete performance of the contract. Their plea was that the causes for delay were beyond their control, in fact, more ascribable to the respondents' conduct and that they could little afford to be indifferent towards-performance of their own part of the contract especially when a huge amount of Rs.1 crore belonging to them was still retained by the respondents. They asserted that in the peculiar facts and circumstances of the case they could maintain the writ petition, and for that they relied upon The Majlis-i- Intizamia, Jmia Masjid. Ghulam Muhammad Abad Colony. Lyallpur vs. The Secretary to Government of West Pakistan.
Communication and Works Department. Lahore (PLD 1975 S.C. 355) and Sh. Muhammad Shaft vs. The Lahore Improvement Trust (PLD 1959 (W.P.)Lah. 1). Their prayer was to get the order dated the 28th of October. 1987, declared to be null and void; to restrain the respondents from disposing of the land or otherwise interfering with their possession; and to grant them any other relief as might become available in the circumstances of the case.
4. In their parawise comments, the respondents conceded most of the facts narrated in the writ petition. They, however, pleaded that writ petitioners failed to pay the demised amount not only within the period stipulated in the original agreement dated the 12th of January, 1984, but also in the extended period ending the 30th of November, 1986, by virtue of the revised agreement dated the 31st of December, 1984. They traversed the allegation that they had failed to deliver vacant possession of the site to the petitioners till February. 1986, stating instead that possession free from all encumbrances was actually delivered to the petitioners on the 30th of September, 1985. They justified the act of having put life, land to reaction claiming that condition No.15 of the agreement conferred such authority on them - inasmuch as it was an essential consequence of default on the part ot. The petitioners in making payment in time. Likewise, they maintained that cancellation of the contract. By their letter dated the 28th of October, 1987, was quite valid in dial it was issued by the "competent authority".
5. The main objection canvassed by the learned Deputy Attorney-General was that the present writ did not lie inasmuch as it arose out of a matter ex-'contract involving quite intricate questions of fact to determine which the proper remedy was a civil suit. He placed reliance in this behalf on Shamshad Ali Khan v.. Commissioner, Lahore, etc. (1969 S.C.M.R. 122), Al-Mohmood Industries Pakistan) Ltd. v. The Trading Corporation of Pakistan Ltd. Etc. (1974 S.C.M.R. 51). Chief Administrator of Auqaf vs. Muhammad Ramazan, etc. (PLD 1991 S.C. 102). Federation of Pakistan, etc. Vs. Major (Retd.) Muhammad Sabir Khan (PLD 1991 S.C. 476) and Muhammad Saif-ul-Mulk Nasir vs. North- West Frontier Province through Secretary to the Government of N.W.F.P, etc. (1990 CLC (Pesh.) 560).
His second plank was that since the agreement contained an arbitration clause, die same would preclude the writ petition as held in Federation of Pakistan, etc. Vs. Haji Muhammad Saifullah Khan.
Etc. (PLD 1989 S.C. 166).
6. Mr.S.M.Zafar, Advocate for the writ petitioners contended on the oilier hand that the trend of decisions laterly indicated that writs might lie even in mailers ex contract as in many a case those turned out to be an appropriate, efficacious and less expensive remedy. He relied upon Anjuman- e-Ahmadiva. Sargodha vs. The Deputy Commissioner. Sargodha. Etc. (PLD 1966 S.C. 639(645, 646 & 647). The Majlis-i-lntizamia, Jamia Masjid, Ghulam Muhammad Abad Colony. ' Lyallpur v.. The Secretary to Government of West Pakistan. Communication and Works Department, Lahore (PLD 1975 S.C. 355(358)), Muhammad Ashraf vs. Board of Revenue, West Pakistan, etc. (PLD 1968 Lah.
1155). The Gujarat State Financial Corporation vs. M/s. Lotus Hotels Pvt. Ltd. (AIR 1983 S.C. 848(851)., the Supreme Court Digest (India) (D.F.O., South Kheri i.v. Ram Sarnehi Singh, (1971) 3 SCC 864), and Vincet, etc. Vs. Karachi Development Authority, etc. (1992 CLC (Kar.) 518(B)) in support of his argument dial a writ petition was maintainable against public authority invested with statutory power even though right to relief arose out of alleged breach of contract. Repelling die contention that a civil suit either for declaration or specific performance of the contract was an adequate remedy, the observations made by the Court in the Anjuman-e-Ahmadiya's case were: ".................................................................... It is now settled law that............................................ The alternative remedy available must be a remedy in law. That is a remedial juris and one which is not less convenient, beneficial and effective, if what is sought to; he enforced........ Is "a legal right to the performance of a legal duty" of a public nature" (pp.645 & 646).
"The other adequate remedies provided by law would, in the ordinary circumstances, have reference to the remedies provided by the particular statute itself which has created the right of obligation and not a general remedy at law, as for example by a suit. (P. 647) ......................................... We are clearly of the view.......................... That a suit could not be considered to be an adequate alternative remedy lor disentitling the appellant from getting this relief, for all that the appellant sought was the performance of a public duty in -accordance with law." (p.648)
Similarly, a writ was allowed in the The Mqilis-i-Intizamia's case holding at page 358 that "Therefore, the appellant in this case properly invoked the writ jurisdiction of the High Court, complaining that after the execution of lease in its favour, the Secretary. Communication Department acted without lawful authority.................... ". A contract of lease came up for consideration in the Muhammad Ashraf's case and the view taken was: ".......... Other remedy open-Decision of a question depending on point of law alone which finally bound to come to High Court for decision Writ jurisdiction, in circumstance, a speedier remedy- "Other adequate remedies "-Have reference to remedies provided by particular statute itself which has created right of obligation and not a general remedy at law e.g. By a suit."
The ratio of the The Gujrat Stale Financial Corporation's case falling "in the realm of contract" was: "12. Now if appellant entered into a solemn contract in discharge and performance of its statutory duly and the respondent acted upon it. The Statutory Corporation cannot be allowed to act arbitrarily so as to cause harm and injury, flowing from its unreasonable conduct to the respondent. In such a situation, the Court is not powerless from holding the appellant to its promise and it can be enforced by a right of Anandamides directing it to perform its statutory duty." (Indian Jurisdiction)
They reiterated the same enunciation in the Supreme Court Digest (ladin) holding that "Writ petition maintainable against public authority invested with statutory power even though the right to relief arose out of an alleged breach of contract" (1971) 3 SCC 864)). The above rule was adhered to even in the Vincent, etc. 's case where availability of alternate remedy was held to be no bar to entertaining Constitutional petition. It was held: ".......... Constitutional jurisdiction-Competency to invoke-Availability of alternative remedy......... Would not divest jurisdiction of High Court to entertain Constitutional petition,............... "
7. It is apparent that the trend is now changed and writs could be issued even in contractual case.
The converse authorities, namely, 1969 S.C.M.R. 122 and 1974 S.C.M.R. 51 supported the older view and shall be deemed to be overridden by the Authorities of the Supreme Court of later origin. For the precise reason the ratio of 1990 CLC (Pesh.) 560's case decided by the Peshawar High Court will equally be of no avail as it cannot be squared up wi^i the decision laterly rendered by the Supreme Court. The other two authorities viz. PLD 1991 S.C. 102 and PLD 1991 S.C. 476 did not arise out of contract cases arid hence were of no practical guide in the present context. These did not displace the pile that writ could issue if breach of contract is committed by a public authority in discharge of its statutory functions. Besides, the alternative remedy has not to be expensive, lengthy and obsessive. It has been clearly ruled in those cases that comparatively a writ petition being less expensive, more convenient and more effective may not be denied to citizens merely because they could seek redress in an ordinary civil suit. Mr. S.M. Zafar was fortified in his submission that lately the trend is changing in order to allow easy, effective and quick remedy to citizens. Further, the element of forcing a public authority to discharge its duties is another potent reason to have resort to the High Court for the exercise of its Constitutional jurisdiction. Accordingly, the objection against maintainability of the writ cannot be entertained.
8. No doubt the agreement contained an arbitration clause but the Arbitrator who was none else than the. Quarter-master General of the Army avoided embarking upon the reference. This point was urged at one time even before the honourable Chief Justice who in his order dated the 20th of May, 1991, was pleased to remark that despite efflux of a long time, the Arbitrator failed to take up the arbitration proceedings and that in view of the changed position, the writ petition may be disposed of on merits. It was thereafter that it was set down for final .Arguments. The attitude of the Arbitrator left no room for the respondents to urge that the writ petition was barred because the arbitration was available as an alternate remedy. In face; the learned Deputy Attorney-General himself conceded his inability to persuade the Arbitrator to proceed with the reference. Thus' objection to the writ petition on that score as well fails.
9. The plea of involvement of the intricate questions of fact would also not be much helpful to the respondents. Actually all the salient facts stand admitted and the question calling for determination was just nominal or peripheral. The initial contract (Annex 'C/l') at page 34 as also the revised one (Annex 'I') at page 53 read with Annex 'J' at page 55 were expressed in the name of the President whereas the cancellation thereof (Annex 'P') at page 90 dated the 28th of October, 1987. Was not so expressed in the name of the President. Instead, it proceeded from the "competent authority" which, according to learned counsel for the petitioners, was neither here nor there. He relied upon Articles 99 and 173(1) & (3) of the Constitution which obligatorily required that all executive actions including contracts made on behalf of the Federal Government were to be expressed in the name of the President. His contention was that any executive action, contract or rescission thereof not so expressed in the name of the President would be void and found support for this view from Rasaldar Major K.S.Muhammad Hasham Khan .v. Provincial Government, N.W.F.P. (PLD 1950 Pesh. 13) as also The Majlis-i- Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur vs. The Secretary to Government of West Pakistan. Communication and Works Department, Lahore (PLD 1975 S.C. 355(358)). He equally relied upon Rule 7 of the Rules of Business, 1973, which contained a similar provision. The above-mentioned were the crises where action not expressed in the name of the Governor was set aside.
If). In reply, the learned Deputy Attorney-General relied upon clause (2) of Article 99 maintaining that a presumption would arise that the letter of cancellation (Annex 'P') was authenticated in the manner specified by Rules arid that validity thereof would not be questioned in any Court on the ground that it was not made or executed by the President. He also referred to Article 129 of the Qanun-e-Shahadat Order, 1984, claiming such a presumption of validity in favour of the letter (Annex P).
11. It is obvious that cumulative effect of the two Articles mentioned above was that in any event any executive action on behalf of the Federal Government had .To be essentially expressed in the name of the President. This obligation is clearly spelt out in clause (1) of Article 99. Clause (2), of course, precludes questioning validity of such orders provided those are authenticated in the manner specified by Rules. Rule 7 of the Rules of Business envisages expressing such orders in the name of the President and in no other way. Tt will be noticed that the letter dated the 28th of October, 1987 (Annex 'P') made no mention of the fact that it was being expressed in the name of the President. Expressing the action in the name of the President is quite different from its authentication by any subordinate Officer in accordance with the Rules made in that behalf. To say that this letter was issued by "competent .Authority" did not satisfy the Constitutional requirement of Article 99 clause (1). Consequently the ratio of the two cases, namely, Pnaldar Major K.S.Muhammad Hasham Khan and The Majlis-i-lntizamia will hit it, and it could not be sustained.
12. The resume of the facts given above would suggest that the crucial reason for rescinding the contract was the petitioners' alleged failure to pay the - amount in time. Initially they had to-pay it upto the 11th of July, 1984, but under the revised agreement this period was extended upto the 31st of March, 1986. No doubt they paid a sizable amount of Rs.3,01,00,000.00 but then the balance could not be cleared by them. The question falling :for determination was whether the petitioners' failure to pay the amount within 'the stipulated period entitled the respondents to rescind the contract. Mr. S.M. Zafar drew attention to clause (4) of the agreement (Annex 'CIV) at page 34 urging that time was not intended to be of the essence of this contract. He emphasized that any default on the part of the petitioners in this behalf was to be visited with payment of interest to the respondents at 'the current bank rate on the balance of the purchase money until j completion of the contract. The clause reads as under: "If from any cause other than the wilful default on the Vendor's part the purchase shall not be completed within the stipulated period as mentioned above, the Purchaser shall pay to the Vendor interest at the current bank rate on the balance of the purchase money until completion".
It will be noticed that it did not authorise the respondents to rescind the contract and that correspondingly it created a further liability for the petitioners to go on paying interest at the current bank rate till they could make the entire payment for the purposes of completion of the contract. This was the only penalty which the contract envisaged. Learned counsel appeared to be perfectly right in urging that the contract neither in its original shape, nor in the revised version, ever intended to make time of the essence of the contract. There was ample authority to agree to it. Section 55 of the Contract Act provides that where it is- not the intention of the parties that time would be of the essence of the contract, it would not become voidable. This is the rule consistently laid down in Abdul Hamid vs. Abbas Bhai- Abdul Hussain Sodawaterwala (PLD 1962 S.C. 1), Seth Essabhoy vs. Saboor Ahmad (PLD 1973 S.C. 39), Ghulam Nabi, etc. Vs. Seth Muhammad Yaqub, etc. (PLD 1983 S.C. 344), Sh. Muhammad Shaft vs. The Lahore Improvement Trust (PLD 1959 (W.P.) Lah. 1) and Bashir Ahmed, etc. Vs. Muhammad Ramazan, etc. 1988 CLC (Lah.) 1600). Lastly, he urged that if once it was established that time . Was extended in a given case, it would prima facie make it a contract where time was ne......... ,ended to be of the essence thereof. He stressed that the contract in this case was revised in that the period for performance initially contemplated was six months whereas it was increased to fifteen months in the second instance. He contended that by expanding the period the parties disclosed intention that they were not treating time to be of the essence of the contract.
13. Nothing substantial was advanced on behalf of the respondents to meet this point. The contract itself in its clause (4) did not mean treating time to be of the essence so as to abide by it. There penalty impossible in case of default on the part of the petitioners, was quite different, namely, payment of interest until completion of-the contract. The expression "until completion" related to the time frame during which completion of the contract could be had. It was open-ended rather than having a terminal date. Consequently this itself served, by and large, as the largest single indicator showing that the parties never intended to confine completion of the contract within the specified time Had the intention been otherwise, the penalty too would have been somewhat different. The further fact that the parties themselves changed dates for completion of the contract reflected that they were not taking the element of time seriously. Perhaps, this was the compulsion of the respondents who had failed in their effort to get a larger return for this land. They appeared to have kept this ingredient in their mind when they acceded to the petitioners' demand for extending time. Stila further, there were circumstances to lead to the impression that the site was littered with 'khokhas' and what not involving considerable strife for making the site available to the petitioner for establishing residential or commercial premises. Apart, the matter was taken up by the Ombudsman as also the National Assembly for a considerable period practically for no fault of the writ petitioners. The allegations made before these authorities were primarily against the respondents of having committed acts of maladministration in disposing of such a valuable property. It was not denied that these two forums kept the matter under their consideration for a long time. Why should then the petitioners be burdened with the consequences of rescission of the contract? Contrarily, they established their bona fides by having agreed to pay huge amount of Rs.15 lacs which was not included in the initial price. They expended something more in developing the site by constructing roads etc. And besides all else were claiming that no less than a crore of rupees were held up by the respondents on account of differential in the area. These circumstances went a long way to suggest that the petitioners were ever keen to perform their part of the contract. They were confronted with various constraints which to all intents and purposes were beyond their control and hence in equity they could not be visited with the type of penalty the respondents imposed upon them. The impugned order dated the 28th of October, 1987, (Annex P') could not have been lawfully, passed. The writ petition is allowed with costs; the aforesaid order is declared to have been made illegally, without lawful authority and is of no legal effect against the petitioners; and lastly, respondent No. 1 is restrained from dealing with the land otherwise than in accordance with the contract in question.