' Respondent No,2 is a limited company, registered under the Companies Ordinance, and as claimed, is under the general control and supervision of respondents 1 and 4. Acting through its Secretary, respondent No,3, respondent No,2 by way of proclamation in Daily Dawn, dated 28-1- 1997 called for sealed tenders for the sale of approximately 12000 Metric Tons of Molasses from Layyah Sugar Mills, Layyah Ex-factory on "as it is where it is basis". The tenders were to be opened on 5-2-1997 at 11-30 a.m. The desirous persons were invited to obtain the detailed terms and conditions of the sale from the office of the Secretary. Vide corrigendum, the date was changed to 6th February, 1997, as 5th of February, 1997 was declared as closed day for solidarity with Kashmir Cause. It is the case of the petitioner that when the tenders were opened on 6-2-1997 its bid of Rs,930 per Metric Ton was the highest. However, the same was not accepted and instead the tenderers were called for negotiation to the office of Secretary on 19-2-1997. According to the case of the petitioner, in negotiation, the petitioner offered a bid of Rs,1,161 per Metric Ton which was accepted by the Secretary. The petitioner was directed to execute the sale agreement by 1st March, 1997, as also to submit a demand draft in the sum of Rs,32,83,000 as security amount on the said date. It is the further case of the petitioner that the petitioner tendered the demand draft on the due date alongwith a letter (Annex.'G') but the same was not accepted. Instead a letter was issued under the signatures of the Secretary to all the tenderers to attend a negotiation meeting on 4-3- 1997 at 1-30 p.m. In the Office of the Secretary Industries and Mineral Development Department/Chairman The Thal Industries Corporation Purchase Committee. The scheduling of the fresh meeting gave cause of grievance to the petitioner who thus filed this constitutional petition praying that the act of the respondents for renegotiating the sale of Molasses be declared as illegal and without lawful authority, respondents be restrained from holding the meeting on 4-3- 1997 and further the respondents be directed to complete the formalities of signing the contract of sale in favour of the petitioner and to execute the same in accordance with the terms and conditions of the sale.
2. Report and parawise comments were called for and have been submitted. On an Application filed by M/s. Pakistan Molasses Company, one of the bidders, it was impleaded as respondent No,5.
Although technically the case has not yet been formally admitted but with the consent of all the learned counsel and after hearing them in detail this petition is being finally disposed of.
3. The case of the petitioner is that as a result of the meeting held in the office of the Secretary on 19-2-1997, the petitioner enhanced his offer from the original Rs,930 per Metric Ton to Rs,1161 per Metric Ton which offer was accepted by the Secretary by his letter, Annexure 'D', in which letter the petitioner was called upon to send a demand draft in the sum of Rs,32,83,000 as security by 1st March, 1997. It is contended that this security was offered and the subsequent refusal of the respondents to accept the demand draft and their act of re-scheduling the negotiation meeting on 4-3-1997 is an act amounting to breach of the enforceable contract. It is urged that this cannot be permitted. In opposition, learned Advocate-General, Punjab, has contended that the Secretary has no power to enter into contracts on behalf of respondent No,2, as according to him, under the relevant Memorandum and Article of Association the management of the respondent-Company vests in Managing Agent described therein. The Secretary could bind the company only if he had been so specifically authorised. It is contended that the persons dealing with a limited company and corporation and other artificial persons are supposed to know the working of the corporation and they must be aware that the persons with whom they are dealing on behalf of the artificial person, has the authority to do what he is planning to do. It is urged that the defect in the authority of the Secretary is fatal and the so-called contract or acceptance of offer is not binding on the respondent-Company. It is also urged that the manner in which the Secretary conducted the negotiation meeting on 19-2-1997 is dishonest and the same clearly indicates that the Secretary, who has since been replaced, wanted to favour the petitioner at the cost of the other bidders and the company. Maintainability of this petition is also challenged by the learned Advocate-General on the ground that the contractual rights and liabilities are beyond the purview of Article 199 of the Constitution. Learned counsel appearing for the added respondent has supported the contentions of the learned Advocate-General and has prayed for dismissal of the petition.
4. In reply to the objection as regards the maintainability, learned counsel for the petitioner has relied on case cited as Haji Feroze Ali v. Province of Sindh etc. 1994 M LD 2403 a Division Bench judgment of the Sindh High Court, to show that a Constitutional petition is maintainable in such circumstances against companies which are public companies and are controlled, run or managed by the State or the Province. As regards the authority of the Secretary it is contended that Secretary has all along been representing the company and in dealing with him the petitioner honestly believed that he has the authority to act on behalf of the company and mere defect in authority of the Secretary would not take away the validity of acceptance of offer by him and the same will bind the company.
5. Even if the respondent-Company is amenable to the jurisdiction of this Court as being a person acting in connection with the affairs of the Province, this petition must fail on the ground that it involves resolution of the disputed question of fact viz. Whether a binding contract came into being between the parties and in this connection it will have to be examined whether the Secretary of the Company could accept the offer on his own and bind the company. Now this question cannot be resolved on the basis of assertions made in this petition and the material placed on the record. The matter in controversy can be resolved only by recording of evidence for which the appropriate remedy is a civil suit. While passing order of dismissal of this petition, I will refrain from further commenting on the merits of this controversy as it may prejudice one or the other party in the event a civil suit is filed.
6. There is another aspect of the controversy for which it is necessary that the petitioner should go to the Civil Court. The subject of enforcement of contracts and the consequences of their breach is regulated by the provisions of Specific Relief Act, 1877. Although constitutional jurisdiction is not hedged in by the provisions of Specific Relief Act, 1877, but the jurisdiction being equitable and meant to promote justice, this Court may not entirely ignore the principles contained in the said Act as the principles of the Act also represent the equity. Whether this contract is specifically enforceable and, therefore, approach to this Court's Constitutional jurisdiction for a mandamus is proper, is a question which I will leave open for resolution in some other case.
7. In view of the serious controversy raised as to the existence and validity of the so-called contracts, this petition is dismissed, leaving the petitioner to approach the Civil Court, if so advised.
The parties are left to bear their own costs.