' MALIK HAMID SAEED, J.--- The Government of Pakistan in the year 1995 announces the Policy Framework and Package of Incentives for Private Sector Hydel Power Generation Projects in Pakistan and thereby invited proposals for construction of Hydel Power Stations in the Private Sector. The petitioner No,1, being an overseas company submitted its proposals for the construction of 75 MW Malakand-III Hydel Power Project (Category-I) and also incorporated a company known as Southern Hydro Limited (petitioner No,2) under the laws of Pakistan as required for the purpose, as an associated company. In response to the proposals of petitioner No,1, a Letter of Intent (LOI) was issued on 26-3-1996 to the petitioners whereby the petitioners were asked to complete certain formalities and after compliance of the same, a Letter of Support (LOS) was issued on 2-5-1996 by the Government of N.-W.F.P. On certain terms and conditions including the execution of Implementation Agreement (IA), Power Purchase Agreement (PPA) and Water Use Licence/Water Use Agreement (WUL/WUA) with PP&IB, Islamabad within 6 weeks of the issuance of the Letter of Support. The Letter of Support also required the petitioners to achieve financial close and payment of the cost of the feasibility study to Private Power Cell of N.-W.F.P. Government.
2. The dispute between the parties started hereafter when according to the petitioners they time and again approached the concerned functionaries of the Government of Pakistan as well as N.- W.F.P. Government for' negotiating and finalising the abovementioned three agreements known as Security Package, but the respondents delayed the matter even beyond the target date set forth for completion of the same, whereas according to the respondents, the petitioners never approached for negotiation within the stipulated period i,e,, 18 months after the date of the issue of the Leper of Support.
3. The petitioners through the instant Writ petition want this Court to issue appropriate orders/instructions/directions to the respondents to forthwith complete the finalisation of the Security Package and that the period mentioned in the Letter of Support for the completion of the Project and the development of the necessary facilities may also be ordered to be counted from the date of the signing of the said agreements and also to extend the period given in the Letter of Support. During the pendency of the writ petition, the petitioners filed an application (C.M. No,639 of 1999) on 7-4-1999 under section 151, C.P.e., read with Article 25 of the Constitution of Islamic Republic of Pakistan to the effect that the Government had also not extended the period in the Letter of Supports issued to some other companies, which also filed writ petitions in this Court, but the Cabinet Committee on 8-1-1999 has allowed extension of the Letter of Support in respect of Matiltan Project and, therefore, the respondents should have extended the Letter of Support of the petitioners on the same terms and conditions as the Matiltan.
4. The respondents in their replies besides questioning the maintainability of the writ petition also averred that the signing of the Water Use Licence/Water Use Agreement during the stipulated period of six weeks was subject to the payment of the cost of the feasibility by the Sponsors (petitioners) to Private Power Cell (P.P.C.) of Government of N.-W.F.P., which was neither.Paid nor a written agreement was reached in this regard regarding the equity participation as envisaged in para.A(1) of the Letter of Support and due to this failure on part of the petitioners, the remaining agreements such as Implementation Agreement and Power Purchase Agreements could also not be finalised and such non-finalisation way the side of the petitioners.
5. In this background of the events narrated above, the petitioners want issuance of a writ of mandamus to the respondents/ Government Functionaries on the following grounds:---
(a) That the Policy (Framework and Package of Incentives for Private Sector Hydel Power Generation Projects in Pakistan) is having the force of law;
(b) that the petitioners are not at fault; and
(c) that the petitioners have been discriminated ' as compared to Matiltan Project.
(latter ground has been taken in C.M. No,639 of 1999).
6. So far as the first point is concerned, the learned counsel for the petitioners could not convince us as to how a mere policy of the Government is having any statutory or Constitutional force and on what ground its violation could be amenable to the writ jurisdiction of this Court. The obligations and rights under the said Policy are purely of a contractual nature. A contract is a private rule- making instrument whereby promises are enforced by law which mainly lays down procedural rules regarding the contract making process. Other than that, a contract depends upon the consent of the parties manifested by their offer and acceptance. If the petitioners are aggrieved of some violations of the Policy, their remedy lies under the specific law before a competent Court and the same cannot be decided in writ jurisdiction. We, therefore, find 'ourselves in agreement with the argument of the learned counsel for the respondents that the obligations arising out of contract cannot be enforced through Constitutional jurisdiction of the High Court. There are a number of authorities on this point, a few of which are hereby reproduced for the sake of convenience as under:--- "A6dul Marian Khalifa v. Engineering-Chief to G.H.Q., Rawalpindi Pakistan (PLD 1959 (W.P.) Peshawar 182).
'Mandamus---Cannot be issued to enforce contractual or equitable obligations--Writ of mandamus operates only within the realm of statute--Contracts and equity are not within its bounds---Mandamus lies only when the applicant is able to show that there resides in him a statutory right for the performance of which there is a statutory obligation upon the respondent-- Assurances in law belong to the class of guarantees and contracts and, therefore, where the petitioner's claim lies in an assurance which is not based on any provision of law a writ of mandamus cannot be issued' . "
' Hafiz Misbahul Hassan v. The Director-General of Supplies (1984 CLC 1129): 'Constitutional jurisdiction---Matters arising out of breach of contract or failure to honour obligations arising out of agreement, held, cannot be decided in exercise of writ jurisdiction- Petitioner seeking relief to enforce obligations arising out of contract between parties--- Interference declined' . "
"Muhammad Jamil v. Pakistan Railways Board and others (1794 CLC V8).
' Constitutional jurisdiction---Exer- cise of---Principle of locus poenitentiae--- Applicability--- High Court in exercise of its Constitutional jurisdiction, would not interfere if matter involved was a question arising out of contractual obligation---Remady of aggrieved person in case involving contractual obligation lay in filing civil suit for redress of his grievance---Applicability of principle of locus poenitentiae or whether contract was illegally cancelled, were questions which could be adjudicated upon by Courts of plenary jurisdiction."
In view of the above, we are inclined to hold that questions involving determination of contractual obligations, as are involved in the instant case, cannot be entertained in the writ jurisdiction of this Court.
7. Perusal of the Letter of Support issued by the Government of N.-W.F.P. Reveals that being a contingent agreement it required certain acts to be done by the petitioners towards the completion of the Security Package which included the finalisation of three different agreements with different Government agencies. The petitioners for non-compliance of the same blame the concerned agencies (respondents), whereas the respondents on the other hand do not admit their fault and hold the petitioners as responsible for the same. Again, these are disputed questions of facts which cannot be thrashed out in a writ petition for fixing responsibility on either side for their failure in compliance with the requirements of the Letter of Support. As stated earlier, the matter involves contractual disputes and determination of complicated facts, which cannot be permitted to be made the subject-matter of this writ petition. In Ahmed Hassan v. Pakistan Machine Tools Factory and another (1990 CLC 2007) the following observations have been made:--- "Contractual disputes--- Constitutional jurisdiction, exercise of---Contract in question having been concluded pursuant to Economic Reforms Order and entirely in consonance therewith, could not be hit in terms of Art.3, Economic Reforms Order--- Although certain categories of contractual obligations can be enforced in Constitutional jurisdiction, provided always that responding party was subject to that jurisdiction, yet it had never been the practice of superior Courts to interfere in contractual disputes, where controversy involved minute details or when controverted and complicated facts, not easy of resolution, were presented for adjudication---Constitutional jurisdiction, which substantially is discretionary in nature cannot plausibly be invoked in controversial and complicated matters."
8. The petitioners have also questioned the discriminatory treatment of the respondents in the case of Matilton Project and that of the petitioners, but we find that there is no similarity between Matiltan and Malakand-III Projects. In the writ petition with regard to Matiltan Project, the Letter o Support was kept alive under the orders of this Court, whereas in the instant writ petition the position is that only the performance guarantee of the petitioners has been kept intact by this Court and no interim orders hay been passed with regard to the Lette of Support, which stood terminated o 2-11-1997 as per terms of the Letter o Support. Moreover, each project has its own merits and the Government functionaries could not legally be restrained from deciding such matters keeping in view the interest of the public, which differs from area to area and in most cases having no uniformity on the subject also and, therefore, it depends upon the discretion of the Government authorities to handle such matters on more rational basis for the interest of the public, unless it is clearly shown that such a decision involves patent discrimination on their parts.
9. We would also like to observe that the petitioners can institute proper proceedings under the relevant laws before a competent forum for that amount which according to them has been spent for the purposes of carrying out the objects of the Project, and which the respondents deny being frivolous and false, if the petitioners so desire.
10. For the aforesaid reasons, this writ petition being devoid of force and not maintainable is hereby dismissed in limine along with C.M.