The petitioner is a limited liability company. As asserted in the petition, it is in the hotel industry and, as such, is engaged in running various hotels in Pakistan.
2. The respondent No.1 Capital Development Authority (C.D.A.) invited bids through an open auction, for the allotment of a lease of land measuring 62 acres approximately, in Islamabad for the purpose of development of a nursery, floriculture and orchardalongwith a mini golf course. The terms and conditions of auction were set out in a brochure issued by the C.D.A.
3. An open auction was held on 12-4-1995 in which five bidders, including the petitioner, participated. The petitioner made the highest bid of Rs.51,500,000. The bid was accepted after some efforts on the part of the petitioner an allotment letter, dated 28-1-1996 was as a consequence, issued to the petitioner setting out the various terms of the allotment including the terms which were to be part of the lease agreement between the petitioner and the C.D.A. After .Issuance of a show-cause notice to the petitioner the allotment letter was cancelled by the C.D.A.
Vide letter, dated 29-7-1997. For reasons, which appear later in this judgment, I will not go 'into a full narration of the factual submissions of learned counsel of the parties, relating to the events preceding the allotment letter and subsequent thereto until its cancellation.
4. As set out in C.D.A.'s letter of 29-7-1997, the allotment letter was cancelled, for non-payment of outstanding duek as per clause 6(ii) and clause 12(xiv) of the allotment letter. Immediately thereafter i.e. On 4-8-1997 the petitioner filed a civil suit inter alia, for declaration and permanent injunction, to challenge the cancellation of the allotment and to restrain the C.D.A. From disposing of the suit-land. Although a copy of the plaint is not available, the prayer made in the civil suit, according to learned counsel, is the same as in this writ petition.
5. An application under Order 39, Rules 1 and 2, C.P.C. Was also moved by the petitioner in its suit seeking a temporary injunction to restrain alienation of the suit-land during the pendency of the suit. The interim relief was denied to the petitioner vide order, dated 12-8-1997 whereby the application under Order 39, Rules 1 and 2, C.P.C. Was dismissed. Thereafter the petitioner challenged the order of the Civil Court through F.A.0. No.52 of 1997 in which a Bench of this Court issued notice to the C.D.A. Vide order, dated 20-8-1997. The civil suit as well as the F.A.O. Are still pending adjudication but, admittedly, the same have not been pursued since August, 1997.
According to learned counsel for the petitioner, this is so because the present writ petition had been filed. From the record it appears that this petition was filed on 10-2-1998 and was fixed for hearing on 11-2-1998 when a report and parawise comments were called for from the respondents.
Thereafter, the case was adjourned from time to time for various reasons including non-availability of counsel.
6. The respondents in their report and parawise comments and also through arguments addressed by their learned counsel have raised a preliminary objection to the maintainability of this writ petition. It has been asserted by them that an adequate alternate remedy is not only available to the petitioner but has, in fact, being availed by it through the civil suit referred to above in which exactly the same relief is being claimed by the petitioner as in this petition. Learned counsel for the respondents has also strongly argued that this petition is an afterthought and has been filed more than six months after the filing of the petitioner's civil suit and that too after the petitioner's application under Order 39, Rules 1 and 2, C.P.C. Was dismissed by the learned trial Court. Since this preliminary objection has substance, learned counsel for the parties were asked to address this issue first.
7. Learned counsel for the respondents, in support of his argument, referred to the case titled Muhammad Idrish v. East Pakistan Timber Merchants Group and another PLD 1968 SC 412, A clearer authority on the point in issue, would be difficult to find. It was held by the Honourable Supreme Court that where it is apparent from the facts of a particular case that the same questions are pending decision in a civil litigation, the High Court should not during the pendency of that litigation, take upon itself to decide such questions while exercising Constitutional jurisdiction. In such cases the parties should be left to pursue their litigation in the ordinary course and should not be allowed to short-circuit the same by a Constitutional petition. The case of Dr. M.O. Ghani, Vice- Chancellor, University of Dacca v. Dr. A.N.M. Mahmood PLD 1966 SC 802 was relied upon by the Honourable Supreme Court. I have gone through the said precedent as well. This authority goes even further than the case of Muhammad Idrish.
8. In the case of Dr. M.O. Ghani v. A.N.M. Mahmood, the matter before the High Court in writ petition, was somewhat different than the one which was pending adjudication in a civil suit in the Munsif's Court. In fact, during the pendency of the civil suit the Syndicate of the University of Dacca had passed a resolution which, according to Dr. M.O. Ghani had violated an interim order passed by the Munsif's Court. Even in such circumstances, the Honourable Supreme Court had held that Dr. M.O.
Ghani could have asked for amendment of his plaint in the Munsif's Court in order to attack the vires of the resolution of the Syndicate of the Dacca University. This remedy being available to the plaintiff, the High Court, according to the Honourable Supreme Court, should have declined to entertain a writ petition. On this short ground the order passed by the High Court was held to be unjustified and was set aside. Furthermore, in clear terms it was held that resort to the High Court's summary jurisdiction should not be permitted if it amounts to circumvention of the normal processes of law.
9. Learned counsel for the respondents then referred to the case titled Haji Muhammad Ashraf v.
The District Magistrate, Quetta and 3 others 2000 SCMR 238 to -contend that this case sets out the most recent view on the question in hand and such view was consistent with the earlier judgments of the Honourable Supreme Court on the matter cited above. In the cited precedent the case set up by the petitioner Haji Muhammad Ashraf was that he was entitled to retain 'the allotment made in his favour by the Administrator, Quetta Municipal Corporation in respect of a plot of land situated in Quetta. A lease deed in respect of the said plot, had also been executed in his favour and possession thereof handed over to him on payment of lease money. In anticipation of impending action by the Quetta Municipal Corporation to cancel the lease, the petitioner Haji Muhammad Ashraf had filed a suit seeking declaration in respect of his leasehold rights and for a permanent injunction to restrain the Quetta Municipal Corporation from cancelling the lease and dispossessing him. He had also sought interim relief in his suit, which had been granted by the trial Court thereby restraining the Quetta Municipal Corporation from dispossessing the petitioner.
Notwithstanding the said position, it ways alleged that the police forcibly took over possession of the land in question in violation of the interim order of the trial Court. It was, in these circumstances, that the petitioner filed a writ petition to assail his forcible eviction from the land subsequent to the filing of his suit. It was Haji Muhammad Ashraf's contention that the writ petition was in respect of an action, which was not subject-matter in his civil suit. It was further contended by him that in the circumstances narrated above, a civil suit did not constitute an adequate alternate remedy. After considering the contentions of the petitioner Haji Muhammad Ashraf, the Honourable Supreme Court held that the pendency of the petitioner's suit was sufficient to deny relief to him in Constitutional jurisdiction. It was also held that even it the petitioner had been forcibly dispossessed, from the -land in question, as alleged by him, he could have conveniently approached the Civil Court for appropriate relief.
10. Learned counsel for the respondents next cited the case titled Ch. Tanvir Ahmed Siddiky v. The Pr6vince of East Pakistan and others PLD 1968 SC 185 which also support the respondents' contention that where a civil suit is pending in relation to any matter, such pendency would by itself be sufficient ground for denying any relief in respect of the same matter in writ jurisdiction.
Learned counsel for the respondents cited various other authorities to support his objection to the maintainability of this petition. It is, however, not necessary to consider the said precedents because the legal principles, enunciated therein, are by now well-established as set out in authorities discussed above.
11. In response, learned counsel for the petitioner argued that the mere pendency of a civil suit would not oust the jurisdiction of this Court under Article 199 of the Constitution. As a general statement, this proposition of law is not disputed by the learned counsel for the respondents. The circumstances of each case will however, determine whether the High Court will or will not exercise jurisdiction.
12. Learned counsel for the petitioner referred to the case titled Lahore Development Authority/Traffic Engineering anti Transport Planning Agency through Managing Director, Lahore and 3 others v. Metropolitan Corporation, Lahore through Administrator, Jinnah Hall, Lahore and 2 others PLD 1998 Lah. 79 to argue that mere pendency of a civil suit would not bar the jurisdiction of this Court under Article 199 of the Constitution. The cited precedent proceeds in circumstances, which are very different from the circumstances of the present case. As is apparent from the very first paragraph of the said precedent, the only question, which fell for determination therein, was as to whether it was the Lahore Development Authority, established under the Lahore Development Authority Act, 1975 or the Metropolitan Corporation, Lahore, an Urban Local Council, constituted under the Punjab Local Government Ordinance, 1979 which had a right to rent or lease out sites/poles for affixation of neon signs for advertisement purposes. It appears from the report of the case that one of the private parties before the High Court viz. Respondent No.2, had filed a suit.
However, the said suit was not between the two principal parties, who were in contention in the writ petition before the High Court. It was, therefore, held that in the circumstances, the pendency of the private respondent's civil suit was no bar to the maintainability of a Constitutional petition. .
13. It is evident from the above that the cited precedent does not in any manner, help the petitioner as the only question involved therein related to the interpretation of statutory provisions and also because the civil suit referred to in the cited judgment did not relate to the dispute, which was subject-matter of the writ petition.
14. Learned counsel for the petitioner next relied upon the case titled Salahuddin and 2 others v.
Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244. The circumstances of the said case distinguish it from those of the present petition in material particulars. The Honourable Supreme Court did consider the question as to whether the High Court was right in refusing relief on the ground that the appellant had already filed a civil suit on the same cause of action. The Honourable Supreme Court, however, came to the factual conclusion that the learned Judges in the High Court had overlooked the material circumstance that in the civil suit the legality of proceedings of a particular meeting were not under challenge while in -the writ petition before the High Court, it was this matter (which had arisen subsequent to the filing of the suit), which had been assailed. It was primarily on this basis that it was held that the learned Judges of the High Court were not right in refusing relief in writ jurisdiction. Additionally, the Court concluded that the relevant facts were easily ascertainable from the record and there was, as such, no insuperable difficulty in examining the same. It was in the backdrop of these circumstances that the Honourable Supreme Court concluded that the pendency of a 'civil suit did not bar the jurisdiction of the High Court in the circumstances of that case.
15. In the present case; however, it is clear that the facts alleged in the civil suit and the relief sought herein, are the same. There is no action of the respondents which was subsequent to the filing of the petitioner's suit and which has separately and additionally been challenged in the present writ petition. The precedent, as such, does not advance the case of the petitioner.
16. Learned counsel for the petitioner next referred to the case titled Muhammad Talib v. Karachi Development Authority and 4 others 1999 CLC 813. In the said case land claimed by the petitioner; pursuant to a allotment made by the Karachi Development Authority, was cancelled without issuance of any show-cause notice to the petitioner. This had been done on the orders of the Prime Minister. Furthermore, it is apparent from the report that the petitioner Muhammad Talib had not filed any civil suit to challenge the cancellation. These circumstances themselves are sufficient to distinguish the said case from the one in hand. It, therefore, does not constitute precedent for a decision in this writ petition.
17. Learned counsel cited certain other cases which generally set out the principles of law enunciated by the superior Courts in Pakistan in respect of the jurisdiction of the High Court under Article 199 of the Constitution and the manner in which the said jurisdiction is regulated. However, he was not in a position to distinguish the clear judgments of the Honourable Supreme Court which were cited by learned counsel for the respondents and which have been discussed above.
18. Furthermore, I would like to add that the petitioner obviously found I a civil suit to be an adequate remedy, which is why such suit was filed in the first instances. It is only after its failure to obtain interim relief in the said proceedings that the petitioner resorted to, this Court's Constitutional jurisdiction. I find it extremely difficult even to consider, let alone accept the contention implicit in the petitioner's stance and action, that an. Adequate A remedy can become inadequate Merely because the party invoking such remedy has been denied some interim relief.
19. The weight of authority as discussed above is overwhelmingly against the petitioner in the circumstances. I, therefore, have no hesitation in holding that this petition is not maintainable on the ground that 1n adequate alternate remedy is available to the petitioner.
20. At this juncture I would also like to note for the record that learned counsel for both sides addressed extensive arguments on various contractual terms set out in the allotment letter, dated 28-1-1996, the sequence in which various terms and reciprocal promises between the parties had to be performed as also questions of the intention of the parties; their good faith and competing equities. It is quite apparent from the respective contentions of both learned counsel that there are various issues which are disputed between the parties. Such issues are of a nature Which need in- depth consideration for which only the trial Court is the appropriate forum.
21. Learned counsel for the petitioner did argue that the controversies between the parties could be adjudicated in the present proceedings. In support of this submission he referred to the case titled Messrs Essem Hotels (Pvt.) Ltd. Through its Director v. Capital Development Authority, Islamabad through its Chairman and 2 others 1998 CLC 1453. According to learned counsel for the petitioner, the said case was also between the C.D.A. On the one hand and an allottee on the other.
Contractual terms similar to the ones in the present case, were considered by the learned Judge in the said case also. I, however, note that on the factual plane mere are material differences between the present case and those set out in the case of Messrs Essem Hotels (Pvt.) Ltd. For one it is significant that the petitioner in the cited precedent had not earlier filed a civil suit to agitate the same matter which was subject of its Constitutional petition before the High Court.
22. Learned counsel to: the petitioner repeatedly emphasized the obligations of the C.D.A. Under the allotment letter including its obligation to deliver possession of the land in question as a condition precedent to the payment of any of the instalments due under clause (1) of the allotment letter.
The stance of the petitioner in relation to its payment obligations appears to have been adopted only in its civil suit and then in this petition. The petitioner's letters to the C.D.A. Dated 3-2-1996, 12- 2-1996 and 22-4-1996 immediately following the issuance of the allotment letter reflect a different position which prima facie appears to be consistent with the assertion of the C.D.A. Learned counsel for the respondents has asserted breaches of contractual obligations on the part of the petitioner. He in particular, referred to the aforenoted letters written by the petitioner in February and April, 1997, to the C.D.A. Which, according to him, would justify the conclusion that the petitioner was fully conscious of its obligation to make payment of the instalments referred to in clause .(1) of the allotment letter regardless of possession but had, in bad faith, deliberately refused to make such payments on self-created pretexts. On this basis, he argued that it was not the breach of contract by C.D.A. Which was material and necessary for the petitioner to succeed but it was the breach of contract by the petitioner and its lack of bona fides, which would afford to C.D.A. a valid defence to the petitioner's suit, even if a breach of contract on the part of C.D.A. Was established.
23. The preceding paragraphs set out briefly some of the controversies between the parties which are of a substantial nature and which will need to be gone into by the Civil Court at a proper trial. It is the existence of these controversies requiring trial which further distinguish this case from the case of Messrs Essem Hotels (Pvt.) Ltd., apart from the important distinction noted in paragraph 21 above.
24. As noted above, I have consciously avoided a detailed discussion of the controversies arising between the parties, as any such discussion could influence the trial Court and thereby prejudice either party. The trial Court being a Court of plenary jurisdiction will no doubt, give full consideration to the facts, the law and the equities necessary for resolving the dispute between the parties.
25. Before parting with this judgment, I would like to address the argument of learned counsel for the petitioner that the petitioner has been discriminated against in a manner which is not Constitutionally permissible. According to him, a plot of land allotted to Serena Hotel, Islamabad had been cancelled but pursuant to a special dispensation, the cancelled allotment was restored.
In support of his contention, he has drawn my attention to a note issued from the Prime Minister's Secretariat, Islamabad which is as under:-- "Prime Minister has been pleased to accord approval to the restoration of allotment of plot of 5- Star Hotel Serena in Sector G-5, Islamabad with condonation of delay in construction and waiver of restoration charges as a special dispensation and gesture of goodwill to His Highness Prince Karim Agha Khan in view of the valuable service rendered by His Highness in the development of Pakistan "
26. The allegation of discrimination against the petitioner on the above basis is wholly devoid of merit. First of all, it is to be noted that in the Serena Hotel case, restoration of allotment was made as a special dispensation in view of valuable services rendered in the development of Pakistan.
There is no assertion on the part of the petitioner that any similar services had been rendered by it to Pakistan which would merit similar it was not the C.D.A. But the Prime Minister who had made the special dispensation. The petitioner has not made any representation to the. Prime Minister to justify treatment which is similar to that given to Serena Hotel. Thirdly, the petitioner's learned counsel has not advanced any argument to show that the executive authority exercised by the Prime Minister, on considerations set out in the above-referred note, are justiciable. It would, thus, appear that the exercise of authority, as aforesaid, is legitimately within the domain of the executive. Finally, it is to be noted that if at all the justiciable, it would result in the cancellation of the restoration favouring Serena Hotel but would not result in any condonation of breach of agreed terms on the part of the petitioner. For all these reasons, I find that the petitioner has not been dealt with in a discriminatory manner.
27. In view of the foregoing discussion, this petition is dismissed.