' It is proposed to decide Writ Petitions Nos. 12705 of 1999, 12706 of 1999 & 1207 of 1999 through this common judgment as legal and factual controversy is exactly the same.
2. The relevant facts for the decision of this Constitutional petition are that the respondents processed the case for grant of contract of Dining Car attached with different trains. The petitioner in Writ Petition No, 12705 of 1999 after pre-qualification participated in the bid for grant of contract of Dining Cars attached with 13 Up and 14 Down trains commonly known as Awam Express running between Lahore and Karachi Cantt. The petitioner was the highest bidder for a sum of Rs,10,75,000 in the auction held on 26-11-1998. It was asked to deposit a sum of Rs,2,68,750 being 25% of the bid amount. In addition to this it was also made to pay the fee of the actioner. It was thereafter that the petitioner was informed vide letter, dated 27th November, 1998 that his bid has been accepted. The petitioner waited for the execution of the contract document and delivery of the possession of the Dining Cars, so it could perform its part of the contract but respondents did not take any steps in spite of the reminders. In this background the petitioner was constrained to file his Constitutional petition. The same was admitted to hearing and notices were issued to the respondents, who were represented.
3. Learned counsel for the petitioner argued that the moment the bid of the petitioner was accepted on 27th November, 1998, petitioner became entitled to the possession of the dining cars to perform its part of the contract. It is added that action on the part of the respondents is illegal and mala fide. It is argued that the moment the petitioner performed its part of the contract, an enforceable contract came into existence between the parties and the process was irreversible. It is added that as per clause 22 the Railway was under obligation to hand over the possession of the Dining Cars to the petitioner. It is maintained that although the terms and conditions are one sided and onerous yet the petitioner has solemenly accepted the same but Railway administration illegally and mala fide is trying to avoid to perform its part of the contract. It is argued that the present controversy is exactly in pari materia to the case in W.P. No, 2295 of 1999, accepted by this Court vide judgment dated 17-6-1999.
4. It is argued that respondent No,6 is just part and parcel of Railway. It has no separate entity. It is subsidiary to the Railway and controlled by it. It is added that it was constituted only for the purpose of consultancy and advisory work, therefore, cannot undertake catering business. In this behalf reliance is placed on Commissioner of Income Tax (Central) Karachi v. Messrs Habib Insurance Co. Ltd. Karachi (PLD 1969 Karachi 278) and Fida Ali Yusufali and others v. Graxalt Refineries Ltd. (PLD 1967 Karachi 637).
5. On the other hand, Mr. Masud Mirza, Advocate argued that the process was started in pursuance of the judgment of the Hon'ble Supreme Court reported as Shaukat Ali etc. v. Government of Pakistan through Chairman, Ministry of Railways, etc. (PLD. 1997 SC 342) but subsequently the policy was changed. It is added that a sitting lessee cannot resort to the Constitutional jurisdiction for enforcement of his right. In this behalf reliance is placed on M.A. Naseer v. Chairman Pakistan Eastern Railways (PLD 1965 SC 83) and Pakistan National Shipping Corporation v. Rent Controller, Lahore (PLD 1992 Lahore 305) besides the judgment of Shaukat Ali (supra). It is added that contractual obligations cannot be enforced through Constitutional petition. In this behalf reliance is placed on Zamir Ahmad Khan v. Government of Pakistan (1978 SCMR 327) and 1994 CLC 848. It is argued that in respect of the licence or obligation arising therefrom no writ is competent. It is added, that Railways did not proceed with the grant of contract license because the policy had gone under change. The whole effort of the Railway Administration is to improve the system and give the public better facilities. It is argued that the new policy has been framed, according to which the system of dining cars is being given up because it brought many evils with it and instead catering facilities to the public are being provided on platforms. It is argued that in the meeting held on 28-6-1999 it was decided not to proceed with these contracts and thereafter the petitioner was informed through letter dated 30-6-1999 and a cheque for the refund of the amount received from the petitioner was also enclosed with this letter. It is added that earlier on 8-12-1998 the security of the petitioner had been refunded as per preliminary objection No,IV, It is argued that the operation of earlier judgment dated 17-6-1999 has been suspended in the I.C.A., therefore, the same cannot be made precedent.
6. Learned counsel for respondent No 6 argued that as far his client is concerned it was not operating any of dining cars, subject-matter of present three writ petitions, therefore, it was neither necessary nor proper party.
7. Learned counsel for the petitioner while summing up the arguments vehemently denied the receipt of letter dated 30-6-1999 and the cheque enclosed thereto. It was maintained that the plea is false on the face of it as no mention of this fact wss in the written statement submitted on behalf of respondents Nos. 1 to 5. It is added that respondents Nos. 1 to 5 to cover up their criminal negligence are trying to misrepresent the facts. It is submitted that the cheque for Rs,100,000 was issued towards the refund of the security deposited by the petitioner during the pre-qualification process while the security for participation in the auction was Rs,50,000 and was deposited separately. The same has never been refunded.
8. I have given my anxious consideration to the arguments and gone through the record. The controversy is fully covered by judgment in W.P. No, 2295 of 1999. The two questions which require decision are: Firstly field of operation of respondent No,6 and secondly the award of costs.
Respondent No, 6 admittedly is not operating any of the dining cars, subject-matter of these writ petitions, therefore, it is neither necessary nor proper party. The controversy as to its status to undertaking catering business, therefore, is not in issue necessary for the decision of this writ petition.
9. Now coming to the issue of costs, the earlier writ petition was allowed on 17-6-1999 with costs of Rs,50,000. It was hoped that in future respondents Nos. 1 to 5 would perform their duties diligently, efficiently and honestly. It is matter of great regret that in spite of going through the judgment they have failed to improve their conduct and working. On the other hand a false plea that security has been refunded to the petitioner was raised. This was security pertaining to the pre-qualification process and once the petitioner qualified to participate in the auction, the same was not required and was refunded while the petitioner had to furnish fresh security to participate in the auction.
This is not all during arguments another false and cooked up plea of rescinding the contract and dispatching the cheque for the amount of the security and 25% was raised. The petitioner has vehemently denied receipt either of the letter or the cheque enclosed herewith till the time of the arguments on 16-7-1999. The plea is mere concoction and seems to have been introduced with mala fide purpose to get the writ petition dismissed as is clear from the fact that neither this plea was raised in the written statement submitted as late as 14-7-1999 nor the letter was appended.
10. Before parting with the judgment it is necessary to add here that as per learned counsel for the respondents the judgment dated 17-6-1999 has been challenged through I.C.A. And operation of the same has been suspended for the time being. The same has not been set aside and mere admission of the appeal is of no legal consequence.
11. The upshot of this discussion is that the writ is allowed with costs of Rs,100,000 which shall be the personal responsibility of the respondents Nos. 1 to 5 and the same shall be recovered from their salaries. The result is that:--
(i) the respondents Nos. 1 to 5 are directed to decide the fate of the contract of the petitioner expeditiously by 24th July, 1999. Respondent No,1 shall also decide who would be responsible for damages if the suit filed by the petitioner is decreed;
(ii) the Secretary Establishment is directed to ensure that forthwith E&D proceedings are initiated against respondents Nos. 1 to 5 for inefficiency and misconduct resulting in loss to the Railways;
(iii) the respondents Nos.1 to 5 are issued notice to show cause why they should not be proceeded and punished for contempt of Court as they have failed to grant the contract in accordance with the judgment of the Hon'ble Supreme Court in Shukat Ali's case and reiterated in the subsequent order dated 3-12-1998 passed in Criminal Original Nos.23-L of 1997, 24-L of 1997, 25-L of 1997 and 26-L of 1997; and
(iv) the petitioner is at liberty to initiate action against the respondents in accordance with the law.