1. S. AHMED SARWANA, J.---According to Pakistan Railways Rules and Regulations a licence for city booking agencies for Railways are granted by calling of tenders and the lowest bidder is awarded the contract after financial concurrence of the relevant authorities. It appears that some time in or prior to 1986 an exception was made in the procedure and a city booking agency at Swabi was awarded to a person under the orders of the then Minister for Railways. Taking this as a precedent several persons in 1986 filed applications to the Federal Minister for Railways who ordered that a departure be made from the policy and the persons who had applied for appointment of city booking agents be given the agency after negotiation. A proposal was accordingly prepared and made by the General Manager Railways and forwarded to the Secretary, Ministry of Railways.
2. Government of Pakistan, Islamabad by letter dated 16-7-1986. It appears that thereafter Pakistan Railways (respondent No,1 herein) by letter dated 21-12-190 accorded sanction for award of a contract in favour of Shakil Waqas & Company (petitioner herein) for opening a city booking agency at Hyderabad, inter alia, on the following terms:
(1) The rate of commission i,e, 3.5% on sale of passenger tickets which would not be enhanced later on.
(2) The contract is awarded for a period of one year which will be extended subject to satisfactory working.
(3) The contractor will have to deposit security amounting to Rs,30,000 either in cash or in the form of Defence Saving Certificates duly pledged in favour of F.A. & C.A.O., Lahore." The sanction letter also contained the following condition:- "Furthermore arrangement should be made to execute agreement with the party and six copies duly completed in all respect be furnished at the earliest for final execution in the office." Accordingly petitioner deposited the security amount of Rs,30,000 in the form of Defence Saving Certificates and started functioning from 5-1-1987. It is alleged that some interested persons who were unhappy over the grant of the contract to the petitioner managed to get a notice dated1-10- 1987 issued by the General Manager, Pakistan Railways calling upon the petitioner to show cause within a period of 7 days from the receipt of the . Notice as to why the grant of permission in his favour be not reviewed and the appointment/permission be not rescinded. The said notice was purportedly issued on the basis of the observations of Wafaqi Mohtasib that the Railway administration had not observed the relevant rules of appointment of city' booking agents which required it to call for tenders through Press and award the contract to the lowest bidder and had directed the Railways administration to ensure that what had been done unjustifiably in contravention of law should be rectified and action taken in accordance with law. On receipt of the said notice, the petitioner filed Constitution Petition No,D-201 of 1987 in the High Court of Sindh at Hyderabad. By judgment dated 5-8-1992 the said petition was allowed alongwith another petition in the following terms: "For the aforesaid reasons, we allow these petitions and declare that notice Annexure-A dated 1-10- 1987 (in each Petition) to have been issued without lawful authority and of no legal consequence. It would, however, be open to the respondents to take action for cancellation of the contract/licence of the petitioners strictly in accordance with law, with particular reference to the terms and conditions of the contract." The alleged notice dated 1-10-1987 having been declared of no legal effect, the petitioner continued his business. However, petitioner again received a letter dated 3-5-1993 from respondent No,1 giving him notice of termination of contract of the city booking agency at Hyderabad. The reason given in the notice was that because the agency had been given in 1986 on the directions of the then Federal Minister for Railways deviating from the normal procedure and without execution of a proper agreement the competent authority had decided to give the licence of City Booking Agency Hyderabad by adopting the prescribed procedure of calling of tenders through press in accordance with the policy decision of the Federal Government in order to bring it in line with the other city booking agencies all over Pakistan. The petitioner was accordingly given one month's notice to wind up the booking agency and hand over charge to the authorised Divisional Superintendent on or before 10-6-1993. They were also advised that they could participate in the tender competition for the re-establishment of the city booking agency. The petitioner immediately filed this Constitution petition seeking basically the following relief:-- "(1) That this Honourable Court be pleased to issue to the respondent a direction or order or a Writ in the nature of Mandamus or Prohibition forbearing the respondent not to ask the petitioners to wind up the City Booking Agency, Gari Khata, Hyderabad and to hand over the charge to the official authorised by Divisional Superintendent, Karachi and the notice No,DC-132/32-V, dated 30th May, 1993 be adjudged void and not binding on the petitioner and be further ordered not to interfere with the working of agency in any manner whatsoever and the petitioners be allowed to run the agency without any interference.
(2) That an injunction be issued restraining the respondents to demand possession and to ask the petitioners to wind up the agency and to disturb the respondents in this respect. On 8-6-1993 ad interim injunction was granted to the petitioner which is still in operation. On or about 15-10-1998 Commercial Manager of respondent No,1 issued an Administrative Circular (Case No,107-RTA/NonStop/FSLD), dated 17-10-1998 stating that with effect from 11-11-1998 the existing quota of C.B.A.'s Karachi and Faisalabad will be curtailed by 50% while the quota of CBA's (HDRA & HDRM) will be abolished in respect of , 107-Up/108-Down Non-Stop Faisalabad Express Train and distribution of accommodation in the coaches between Karachi and Faisalabad would be revised as stated therein. Petitioner immediately filed an application under Order 39, Rules 1 and 2, C.P.C.
3. (M.A. No,799 of 1998) requesting the Court to issue an Order to restrain respondents including the Commercial Manager of the Pakistan Railways from giving effect to the revised arrangement and order them to maintain status quo. On 27-10-1998, the Court ordered notice to the respondents for 28-10-1998 when it was reported that the counsel for the respondent No,1, Syed Jahangir Shah was on general adjournment whereupon the Court issued direct notice to the respondents for 4-11-1998 and extended the status quo till the said date. On 4-11-1998 counsel for respondent No,1 waived notice of the application and sought time to file Objections/Counter-Affidavit Which was granted and both counsel were put on notice to satisfy the Court on the maintainability of the Constitution petition. By consent the hearing was adjourned to 18-11-1998 and the status quo granted earlier was ordered to be continued. Learned counsel submitted arguments on maintainability and on the merits of the case. Mr. Ghayasuddin Baig, learned counsel for the petitioner contended that the Notice dated 3-5-1993 issued by. Pakistan Railways is contrary to law and the principles of natural justice because before issuance of winding up notice neither a Show-Cause Notice for termination was issued nor any enquiry was held against the petitioner for violation of any law or terms of contract between the parties. He relied upon Director-General Health v. Mazharul Qayum (PLD 1959 SC (Pak.) 45) to argue that a Writ Petition is an appropriate remedy when an order is passed by any authority in violation of the rules of natural justice. He submitted that the Court should order respondent No,1 to allow the petitioner to continue to do his business in accordance with the terms contained in the letter of award of contract dated 21-12-1986 reproduced hereinabove. When we asked him as to how the petitioner obtained the contract of the City Booking Agency, he frankly replied that the same was obtained by negotiation and produced a copy of Pakistan Railways' letter dated 16-7-1986 by the General Manager, M&P written to the Ministry of Railway, Government of Pakistan, Islamabad, whereby Pakistan Railways had sought the approval of the Railway Board to make a departure from the established policy of open competitive bidding for City Booking Agencies and award the contract by negotiation as ordered by the then Federal Minister for Railways. At this stage, Mr. Shah, counsel for Pakistan Railways produced a copy of General Manager Marketing letter dated 21-12- 1986 awarding the contract to the petitioner the salient features of which have been reproduced above. He also produced a letter dated 13-1-1996 written by Manager Marketing to the petitioner requesting the latter to attend his office for signing the agreement and petitioner's reply dated 28- 1-1996 informing the Marketing Manager that he would not attend the Railway office for signing the agreement ,till the decision of the present Constitution petition. These three letters were admitted by the learned counsel for the petitioner to be genuine and reflecting the true position, Mr. Shah also placed on record a photostat copy of Pro forma of Agreement between Pakistan Railways and City Booking Agencies consisting of 14 pages which was not challenged by Mr. Baig. Clause XVI(2) of the Pro forma Agreement empowers either party to terminate the agreement by giving three months' notice to the other party. The award of contract letter dated 21-12-1986 sanctioning the City Booking Agency at Hyderabad clearly states that "the contract is awarded for a period of one year which will be extendable subject to satisfactory working". The letter further directs the petitioner as follows:-- "Furthermore arrangements should be made to execute agreement with the party and six copies duly completed in all respect be furnished at earliest for final execution in this office." It is admitted by both counsel that such an agreement was not executed and the only document establishing the relationship between the parties is the letter dated 21-12-1986 which lays down the terms and conditions of the award of contract to the petitioner for opening a City Booking Agency at Hyderabad. According to this letter the contract was awarded for a period of one year and was extendable subject to satisfactory working. The letter does not state that the- Pakistan Railways does not have the right to cancel the contract after expiry of one year. It is interesting to note that the petitioner himself committed a breach of the aforesaid contract by not executing a formal agreement as required by said letter/award of contract even after he had been asked by Pakistan Railways to do so in 1996. The period of one year of the sanction/award of contract in favour of the petitioner expired on 21- 12-1987. Thereafter, it was at the discretion of the Pakistan Railways to continue with the contract or terminate the same. In 1987 on the instructions of Wafaqi Mohtasib, Pakistan Railways tried to rectify the mistake it had made by making a departure from the established practice, and procedure of awarding the licence of city booking agencies by competitive bidding but could, not succeed on account of the Constitution Petition No,D-207 of 1987 filed by the petitioner. In 1993 Pakistan Railways again tried to give the licence of City Booking Agency, Hyderabad by adopting the prescribed procedure of calling tenders through the Press in accordance with the policy decision of the Federal Government in order to bring it in line with the city booking agencies all over Pakistan but again its effort of good governance was thwarted because the petitioner filed a Constitution petition and obtained a temporary injunction. The purpose of this Petition is patently to enforce the contract of City Booking Agency, Hyderabad awarded to the petitioner and obtain an order of injunction to restrain Pakistan Railways from terminating the agency. It may be pointed out that this contract cannot be specifically enforced. Section 21(a) of the Specific Relief Act provides that a contract for the non-performance of which compensation in money is an adequate relief cannot be specifically enforced. Further section 56(f) of the Specific Relief Act clearly states that an injunction cannot be granted to prevent a breach of contract the performance of which would not be specifically enforced. In view of the aforesaid provisions the relief claimed by the petitioner cannot be granted. It would not be out of place to state here that Pakistan is an Islamic State where all persons are equal in the eyes of law and bound-to obey the law. These principles of obedience to law and equality before law were preached, practised and finally declared by the Holy Prophet (p.b.u.h.) in the Khutba-tul-Hujjat-tul-Wida. An example of the application of these principles was set for posterity by the great Caliph Hazrat Ali (r.a.) when he appeared before a Qazi to answer a claim filed against him. These principles have been incorporated, inter alia, as Articles 4 and 25 in the Constitution of . Islamic Republic of Pakistan, 1973. The Hon'ble Supreme Court of Pakistan in Shaukat Ali and others v. Government of. Pakistan (PLD 1997 SC 342), while discussing Articles 18 and 25 of the Constitution observed as follows:-- "We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic Concepts of fair-play and social justice. The State functionaries like Railways are expected to act fairly and justly, in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise. While discharging official functions, efforts should be made to ensure that no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of the State functionary." In the present case Pakistan Railways is attempting to follow the Injunctions of Islam, the Constitution and the law laid down by the Hon'ble Supreme Court and the petitioner is doing its best to oppose such efforts which cannot be appreciated or supported by any reasonable person.
4. The contract of City Booking Agency, Hyderabad is purely a commercial transaction between Pakistan Railways and the petitioner. It is well-established that contractual rights and obligations must be enforced through the ordinary Civil Courts and Constitution petition under Article 199 of the Constitution cannot be used for the purpose of enforcing a commercial obligation. (See 1968 SCMR 1136 and PLD 1992 Karachi 283). Mr. Ghaiyasuddin Baig, learned Counsel for the petitioner cited the following cases in support of his arguments that the Constitution petition was maintainable.
(1) Government of Punjab v. Rao Shamshair Ali Khan and others (1987 SCMR 222);
(2) Abdul Hamid v. Sub-Divisional Magistrate City and Tribunal, Hyderabad (PLD 1977 Karachi 575);
(3) Abdul Karim v. Secretary, Government of Sindh and others (PLD 1977 Karachi 802); and
(4) Abdul Saeed and another v. Khalil-ur-Rehman and others (1987 SCMR 410). We have read the aforesaid judgments and find that none of them is applicable to the facts and circumstances of the present case. The case of Sirajuddin (1987 SCMR 222) relates to litigation in respect of immovable property which was pending before the Assistant Commissioner and was being dealt with under the provisions of Dir, , Chitral and Swat (Administration) Regulation, 1969.
5. The High Court noticing patent irregularities and illegalities in the proceedings going to the root of the case, in exercise of its Constitutional jurisdiction, remanded the case to the competent forum for a fresh decision after taking into consideration all the legal and factual questions involved in the case. On Appeal the Supreme Court confirmed the judgment of the High Court. This judgment is not relevant as no patent illegality or irregularity by a quasi-judicial Tribunal is in issue in this case. The case of Abdul Hamid (PLD 1977 Karachi 575) relates to Sindh Crimes Control Act of 1975 wherein a learned Division Bench of this Court finding that the proceedings taken against the petitioners were in violation of the provisions of the said Act, declared the proceedings to be without jurisdiction and lawful authority as the Sub-Divisional Magistrate had assumed jurisdiction without complying with law. In the present case we have not been shown any provision of law which has been violated by Pakistan Railways or that Pakistan Railways has in any manner acted without jurisdiction or lawful authority in issuing the impugned notice to terminate the contract.
6. This judgment is irrelevant to the facts of this case. The case of Abdul Karim (PLD 1977 Karachi 802) relates to the interpretation of Sindh People's Local Government Ordinance, 1972 which contains an observation of the Court that the action of a local authority can be assailed by filing a Constitution petition. No doubt this authority contains the aforesaid observation but it relates to a situation where the local authority exercised its power in violation of statutory rules/regulations. In the present case we have not been shown how Pakistan Railways has violated any statutory rule or regulation in issuing the impugned notice to the petitioner. Similarly the case of Abdul Saeed (1987 SCMR 410) is not applicable to the present case. Mr.Baig further argued that the contract of the City Booking Agency was given to the petitioner on the recommendation of the Minister, which are binding on the Department (PLD 1973 Note 150 at p.
7. 230) and therefore, the petitioner's agency could not be cancelled as long as he was working satisfactorily and no mala fide was alleged. This argument is not valid because as already, stated above no person including a Minister is above the law and any order passed by a Minister in violation of law has no sanctity in law. The award of contract of city booking agency contrary to the established procedure was not only violative of the established law and discriminatory but also against the Injunctions of Islam and consequently liable to be cancelled at any time in accordance with law. In the instant case it is an admitted position that in violation of the prescribed procedure of the then Federal Minister ordered Pakistan Railways to give the contract of City Booking Agency at Hyderabad to the petitioner which was not proper on his part. In 1987 Wafaqi Mohtasib had directed Pakistan Railways to call for tenders through Press and award the contract of city booking agencies to the lowest bidder. No appeal was filed against such directions. Wafaqi Mohtasib's directions are still in the field. If Pakistan Railways does not implement the same, the relevant officers can be punished for disobedience. Pakistan Railways is trying to rectify the mistake it had made in 1986 by now awarding the contract of City Booking Agency, Hyderabad according to the prescribed procedure so as to bring it in the line with the other city booking agencies all over Pakistan. Such steps on the part of Pakistan Railways are highly commendable and it cannot be accused of violating any law or having issued the notice of termination in violation of the principles of natural justice. All the citizens are equal in the eyes of law and every citizen should be given an opportunity to compete for the agency which would be to the advantage of Pakistan Railways and in consonance with law. This Court would not pass any order or issue any injunction restraining Pakistan Railways from following the Injunctions of Islam, the provisions of the Constitution and the law of transparency and good governance laid down by this High Court and the Hon'ble Supreme Court of Pakistan. On the other hand it would appreciate and encourage such good acts by Pakistan Railways in setting good tradition of obedience to law for others to follow. In light of the above discussion, we are of the confirmed opinion that the action of Pakistan Railways in rectifying the past mistakes and making efforts to give the contract of City Booking Agency, Hyderabad afresh is in accordance with law and they should not be restrained from doing so. The petitioner has not come to this Court with clean hands. It has used the process of this Court to impede the process of justice, transparency and good governance. The petition is misconceived, mala fide, abuse of the process of this Court, not maintainable and is accordingly dismissed alongwith the pending application. In view of the frank and honest admission of facts by the learned counsel for the petitioner, there will be no order as to costs.