RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of C.Ps. Nos. D-72 to D-78/2004, C.Ps. Nos.
D-940/2002, D-529/2003, D-530/2003 and Misc. Applications Nos.C.M.A. No,248/2004, in C.P.No,D- 212/2003, C.M.A. No,872/2003 in C.P.No,D-974/2002, C.M.A. No,807/2003 in C.P.No,D-976/2002, C.M.A.
No,247/2004 in C.P.No,D-961/2002 and C.M.A. No,1982/2003 in C.P.No,D-149/2003 as these involve common question of law.
2. The facts giving rise to the C.Ps. Nos. D-72 to D-78 of 2004 are that the respondent No,4 Executive Engineer Tubewell Division SCARP Khairpur awarded contract of supply of material and job works to the petitioners through various work orders. The respondent No,2 the Chief Engineer approved the said work orders. The works were completed. Some payments were made to the petitioners but still some payments, as mentioned in each petition, are required to be made. In this background, it is alleged that the respondents Nos. 3 and 4 are avoiding to make payments, therefore, prayer has been made that the respondents Nos.3 Project Director and 4 District Executive Engineer may be directed to pay the amounts mentioned in the each petition with mark-up at the rate of 15% per annum. The work orders have been produced.
3. The facts of C.P. No,D-940 of 2002 are that the contract of supplying stone boulders for emergent work for protection of river erosion was awarded to the petitioner as his tender was found lowest, therefore, work order was issued. The petitioner supplied the material. Some payments were made to the petitioner but still payment of Rs,25,32,418 is to be made which the respondents have failed to pay, hence the petitioner has filed the petition with a prayer to direct the respondents to pay the said amount to the petitioner with mark up at the rate of 15% per annum.
4. The facts of C.P. No,D-529 of 2003 are that the petitioner was awarded contract of earth work for strengthening the weak banks of Nusrat Bridge. The Chief Engineer Sukkur Branch approved the said contract. The petitioner completed the said work to the satisfaction of the respondents Nos.2 to 4. Some payments were made to the petitioner but still an amount of Rs,11,17,666 is to be made, which the respondents have failed to pay, hence the petitioner has filed the petition with a prayer to direct the respondents to pay the said amount to the petitioner with mark-up at the rate of 15% per annum.
5. The facts of C.P.No,D-530/2003 are that the respondent No,4 awarded contract of remodeling of 19 modules of Nusrat Bridge to the petitioner. The said work order was issued to the petitioner.
Respondent No,2 approved the contract. The petitioner completed the work to the satisfaction of respondents Nos.2 to 4. Some payments were made to the petitioner but still an amount of Rs,11,78,887 is to be paid which the respondents have failed to pay, hence the petitioner has filed the petition for recovery of the said amount with mark-up at the rate of 15% per annum with a prayer to direct the respondents to pay the said amount to him.
6. The facts of Constitution Petitions Nos. D-212/2003, D-149/2003, D-974/2002, D-976/2002 and D- 961/2002 are that the petitions were filed for recovery of amounts mentioned therein, as the petitioners had completed the work awarded to them under the contracts executed between the petitioners and respondents. The petitioners were allowed with directions to the respondents to pay the said amounts'within certain periods but the amounts were not paid by the respondents within the required periods, therefore, the petitioners have filed miscellaneous applications of contempt of Court against the respondents. In C.P. No,D-149/2003, the application has been filed against designations, without mentioning the names of the contemners. In other C.Ps. The applications have been filed against Secretary Irrigation, Chief Engineer, Suprintending Engineer, Executive Engineer and Secretary Finance by name.
7. The respondents contested all the petitions. The respondents admitted that the contracts were awarded to the petitioners. The petitioners completed the required work. Some payments were made to them but still some payments are required to be made. The ground for non-payment of amounts is that as there were no funds, therefore the payments were not made. The respondents started correspondence for providing funds for payment with the Government, but so far the funds have not been provided, therefore, the payments could not be made. The respondents stated that as soon as the funds are provided the payments will be made to the petitioners.
8. In petitions Nos. 72 to 78 of 2004, the supply orders have been produced which show that it was agreed between the parties that the paymeh,s were to be made subject to availability of funds and the respondents will not be responsible for any kind of liabilities. The said term reads as under: " The payment will be made subject to availability of funds, and the undersigned is not responsible for any kind of liability."
9. In C.P. No,D-940/2002 it is stated that sanction of technical estimate for the work in question was not obtained. The petitioners had moved Ombudsman where they (Respondents) had submitted their comments that because of non-availability of funds, payments could not be made and as soon as the funds will be provided, the payments will be made to the petitioners.
10. In C.P. No,D-529 of 2003 it was further stated that the petitioners have failed to execute the agreements and did not take any interest to get technical sanction in this regards, therefore, the bill was kept in "memorandum of terms and conditions".
11. The respondent No,5, Secretary Finance Department, also filed the comments in which he took the plea that there was no agreement or contract between the petitioner and the respondent No,5 nor the Finance Department was in the picture at any time. The Finance Department is required to place the funds before the concerned departments after the same are placed at their disposal by the Government of Sindh. The disbursement of the amounts is the function of the DDOs concerned and as soon as the Government provides the funds, the same will be placed before the concerned departments for making payments. He has further taken the plea that the petition is not maintainable, as it involves breach of terms and conditions of the contract, therefore, he has requested for the dismissal of the petition.
12. The facts of all the petitions can be summarized that the petitions have been filed by the petitioners for recovery of monies arising out of breach of contractual obligations. In such a situation, a question arises as to whether the contractual obligations or breach of terms of contract can be enforced, through the writ petition or that the writ petitions can be filed to enforce contractual obligations. On the above points we have heard the Advocates for the petitioners, respondents and State Counsel.
13. The learned Advocates for the petitioners have stated that the. Contractual obligations can be enforced through the Writ of Mandamus as the respondents are bound by their public duties to pay the amounts because the works under the contracts were carried out to /the full satisfaction of the respondents and in pursuance of that, part payments were made to the petitioners but the remaining amounts, mentioned in the petitions, have not been paid, therefore, the respondents can be compelled and directed to pay the amounts as it is the liability on State exchequer. They have further stated that the payments have been withheld with mala fide intention in order to deprive the petitioners from their lawful amounts which has materially affected their right as mentioned in Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan (short Constitution) because the petitioners were not dealt with in accordance with law. In support of their arguments they have relied upon Muhammad Tufail Tarar v. Government of Punjab 1999 CLC 1937; United International Associates v. Province of Punjab 1999 M LD 2745, Mahmood Ali Butt v. Inspector- General of Police PLD 1997 SC 823, Owaisco v. Federation of Pakistan PLD 1999 Kar. 472, Pacific Multi National (Pvt.) v. IGP Police PLD 1992 Kar. 283(DB), Multilines Associates v. Ardeshir Cowasjee PLD 1995 SC 423 and Unreported authorities of this Court in C.Ps. Nos. D-1003 of 2002, D-780, of 2002, D- 1005 of 2001, D-72 of 2003, 976 of 2002, D-961 of 2002 and D-462 of 2002.
14. On the other hand the learned State Counsel has stated that the Writ of Mandamus cannot be issued for enforcement of contractual obligations, as for that purpose, the remedy provided under the law, is to file a suit of Specific Performance of Contract or recovery of amount or suit for damages. He has further stated that according to the terms and conditions of the work orders, the petitioners' payments were required to be made subject to availability of funds which the petitioners had agreed in the Petitions Nos.72 to 78 of 2004. He has further stated that the respondents have not refused to make the payments but the payments have been delayed because of the non-availability of funds; that the respondents being the officers of Government Departments are not by themselves authorized to make the payments unless the funds are provided by the Government and for that a budgetary provision is required to be made and the said process is under the consideration of the Government. He has relied upon The State of Pakistan v. Mehrajuddin PLD 1959 SC 147.
15. Mr. Abdul Kadir Shaikh, the learned Advocate for the Finance Department has stated that there are two sets of respondents. One, administrative department who awarded the contract; and the second, Finance Department; that the Finance Department did not play any role in awarding the contract as no allegation has been levelled against the Finance Department nor anything has been prayed against them, therefore, the Finance Department is not necessary party; that no violation of statutory law has been attributed to the respondent No,5; that the procedure of allocation of funds is that the Government places the funds/amounts at the disposal of the Finance Department for disbursing the same to the concerned Departments, for payments; that the Finance Department, as soon as receives the funds from the Government, disburses it to the concerned Departments for payments through the concerned DDOs. He has further stated that the petitioners had no legal right to enforce through the Constitution petition; that the rights, if any, accrued to the petitioner are contractual rights; that there is no legal duty upon the respondents to pay the amounts by themselves but they have to look towards other officials and are bound by the orders of their superiors, therefore, they by themselves are not duty bound to perform their functions in contractual obligations; that the liability under a contract is not a legal duty; that the petitions are not maintainable as the contractual rights and obligations cannot be enforced through a Writ of Mandamus.
16. We have given due consideration to the arguments, perused the record and have gone through the law cited at bar.
17. A perusal of Article 199 of the Constitution shows that the High Court may, provided the other conditions are fulfilled, Make another directing a person performing in the Province functions in connection with the affairs of the Federation, the Province or local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or declare that any act done or proceeding taken in the Province by a such person or local authority has been done or taken without lawful authority and is of no legal effect.
18. It is pertinent to point out that previously High Court had jurisdiction to order to issue a writ of mandamus requiring an act to be done, or a writ of prohibition prohibiting any proceeding or matter or a writ of certiorari removing any proceeding or matter. A comparison of above jurisdictions reveals that the substance of both the jurisdictions is same but there is change of terminology. The Hon'ble Supreme Court of Pakistan in the case, The State of Pakistan v.
Mehrajuddin (PLD 1959 SC 147) has traced the history of mandamus and further observed at page 158 as under: "It is clear that there has been change of terminology without change of substance. The occasions for the issue of, for instance, a mandamus remained precisely as they were before as settled by long judicial practice and precedent. By the change in law it does not appear that there has been any extension of the process by way of mandamus into any fields where previously by practice and precedent, it was not available as a mode of relief. The jurisdiction of the High Court to issue a mandamus remaining the same, the order is to be described for the future not as a mandamus, but as an order of mandamus. Conceivably, the reason for the, change is that the form of words prescribed for e.g. a mandamus, not by law, but by practice and precedent in the superior Courts, had become too rigid and limited for adoption to the varying needs of an ever-developing legal system, and therefore latitude was required to be allowed to the Courts to employ such forms of words in issuing a mandamus for the future, as the exigencies of the occasion might require. Since in form such an order would, in numerous cases of novel origin, require to be expressed in terms different from those which had become the set terms of a mandamus, a new description was necessary and hence the description, "order of mandamus"."
19. On the question of order of Mandamus, the basic authority is of the Hon'ble Supreme Court of Pakistan delivered by a Bench of 4 Hon'ble Judges in a case Mehrajuddin (supra). In this authority the Hon'ble Supreme Court has given the scope and object of the order of Mandamus in the following words: "Its object usually is to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers when there is no other adequate and specific legal remedy and without which there would be a failure of justice. A mandamus could not confer a new authority and is neither a law nor a source of law."
20. As to who can claim the order of Mandamus, it has been explained in the following words:- "The person claiming a mandamus, in order to be entitled to receive it must at least have a clear legal right to the performance by the respondent of the particular duty sought to be enforced and a right founded purely on private contract, however, 'clear it might be, is not enforceable by mandamus."
21. About the duties which are to be enforced through order of Mandamus it has been clarified in the following words: "In the case of a public officer the duty must be one which is clearly defined, imposed or enjoined by law as a duty resulting from the office".
22. It has further been observed that before issuance of order of mandamus necessary requirements for issuance of said order are required to be proved to exist.
23. The Hon'ble Supreme Court of Pakistan in another case of Masdul Hassan v. Khadim Hussain (PLD 1963 SC 203) on the principle applicable to issue of the order of mandamus at page 206 has observed as under: "The principles applicable to a writ of mandamus are well-known. They are set out in the monograph' on the subject of mandamus in the 11th Volume of Halsbury's Laws of England in the following words:--
(i) An applicant for an order of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought.
(ii) In order that a mandamus may issue to compel something to be done under a statute, it must be shown that the statute imposed a legal duty.
(iii) It is only in respect of a legal right that mandamus will issue.
(iv) The legal right to enforce the performance of a duty must be in the applicant himself."
24. From the above dictum, the following facts are required to be proved to exist before an order of mandamus can be issued:
(i) Petitioner must have a legal right to the performance by the public officer of the particular duty sought to be enforced.
(ii) The duty of public officer which is to be enforced is plain, positive, specific and ministerial duty presently existing and imposed by law upon officer.
(iii) No other adequate or specific legal remedy available without which there would be a failure of justice.
25. The Hon'ble Supreme Court of Pakistan in the case of Mehrajuddin (supra) has further observed that the statements regarding the nature of the order of Mandamus etc. Were borrowed from a book entitled .Extraordinary Legal Remedies by Ferris . In the said book the term Ministcial ial Duties has been defined at topic No,206 appearing at page No, 238 in the following words: "A ministerial act is one which a person performs in a given state of facts and in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment on the propriety of the act being done. The distinction between ministerial and judicial and other official acts is, that where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial. But where the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not to be deemed merely ministerial."
26. In the same book at topic No,195 with heading "Contract Rights" appearing at page No,195 Contract Rights have been explained in the following words: "The duties enforceable by mandamus, although not necessarily public duties, are those imposed by law. Mandamus will not lie therefore to enforce a right founded purely on private contract, however clear that right may be."
27 Last para of the above portion of the topic has been relied upon by the Hob'ble Supreme Court of Pakistan in the above-mentioned authority.
28. Thus before an order of Mandamus is issued, the above mentioned conditions, as enunciated by the Hon'ble Supreme Court of Pakistan, are required to be proved to exist. It has been observed at page No,159 in the case of Mehrajuddin (ibid) as under:-- "Therefore, it would have been proper for the High Court to have considered in the first instance whether the circumstances which are necessary for the issue of a writ or order of mandamus were proved to exist."
29. Keeping in view the above dictum of the Hon'ble Supreme Court of Pakistan we have examined the points which are necessary to issue the order of Mandamus. The first point for consideration is whether the petitioners have legal rights. A legal right is a right, which is derived from law. In the present case, the petitioners have not derived any right from any law but a right has been derived from a contract executed between the petitioners and Government officials. Part.IV, Chapter-III of the Constitution deals with the property, contracts, liabilities and suits. It has 3 Articles (Articles 172 to 174). Article 172 deals with "Owncrless property"; Article 173 deals with "Power to acquire property and to make contracts etc." and Article 174 deals with "Suits and Proceedings". Thus Article 173 is relevant for the purpose of present petition which reads as under: "173. Power to acquire property and to make contracts, etc.--
(1) The executive authority of the Federation and of a Province shall extend, subject to any Act of the appropriate Legislature, to the grant, sale, disposition or mortgage of any property vested in, and to the purchase or acquisition of property on behalf of, the Federal Government or, as the case may be, the Provincial Government, and to the making of contracts.
(2) All property acquired for the purposes of the Federation or of a Province shall vest in the Federal Government or, as the case may be, in the Provincial Government.
(3) All contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made in the name of the President or, as the case may be, the Governor of the Province, and all such contracts and all assurances of property made in the exercise of that authority. Shall be executed on behalf of the President or Governor by such persons and in such manner as he may direct or authorize.
(4) Neither the President, nor the Governor of a Province, shall be personally liable in respect of any contract or assurance made or executed in the exercise of the executive authority of the Federation or, as the case may be, the Province, nor shall any person making or executing- any such contract or assurance on behalf of any of them be personally liable in respect thereof.
(5) Transfer of land by the Federal Government or a Provincial Government shall be regulated by law."
30. Thus the contracts are presumably executed in compliance with the provisions of Article 173 of the Constitution. It appears that the learned Advocates for the petitioners have argued that the contractual obligations can be enforced because of Article 173 of the Constitution and through Articles 4 and 25 of the Constitution. The said Articles are as under: "4. Right of individuals to be dealt with in accordance with law, etc.--(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular"
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do."
"25. (1) Equality of citizens.--All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
31. Before we discuss further, it is pertinent to point out that in the field of contract, there are two following different situations, which should be kept in mind:
(1) Situation at the time of entering into contract.
(2) Situation after the execution of contract,
32. From the above provisions of law it is clear that Articles 4 and 25 of the Constitution imports a limitation or imposes an obligation upon the State's executive powers under Article 173 of the Constitution, therefore, equality of opportunity should be applied to matters of public contracts.
The State has a duty to observe equality. In a contract an ordinary individual can choose not to deal with any person but the Government cannot choose to exclude persons by discrimination. At the stage of entering into a contract (situation No,1), the State acts purely in its executive capacity.
It is bound by its obligations to individual citizens, which enter into very exercise of its Constitutional powers. The rule of law, which regulates the operation of organs of Government functionary under the Constitution, is that all the Constitutional powers carry corresponding obligations with that.
Therefore, at that stage there should be no discrimination to exclude any person.
33. However, if the State or its agents have executed a contract and entered into the field of contract (situation No,2), then the relations are no longer governed by the Constitutional provisions but by the legal valid contract which determines rights and obligations of the parties inter se, therefore, no question arises of violation of Articles 4 and 25 of the Constitution when the State or its agents purporting to act within the field of contract, perform any act. In this field, they can only claim rights conferred upon them by contract and are bound by the terms of contract only unless some statute steps in and confers some special authority power or obligation on the State in the contractual field which is apart from the contract. Reference is invited to Erusian Equipment & Chemicals Ltd. v. State of West Bengal reported in (AIR 1975 SC 266) and Premji Bhai v. Delhi Development Authority (AIR 1980 SC 738).
34. In the present cases contracts were executed between the parties, therefore, their relations will be governed by the terms and conditions of the contract only. Nothing has been pointed out by the learned Advocate for the petitioners that any statute attracts which confers any special statutory power and obligation on the State in the contractual field which is in addition to the rights arising out of contract. It is pertinent to point out that the proceedings of writ petition are summary proceeding which I are reserved for extraordinary cases where the exceptional and what are described as act not accurately "prerogative" powers of the Court are invoked.
35. In the present petitions, it will be noticed that the petitioners have claimed payment of monies, which is liability arising out of a contract. Thus the petitioners have not claimed for the enforcement of duty of public officers, but requested for enforcement of liability. Under the law a mandamus can be used only for the purpose of enforcing a public duty and not for the purpose of enforcing a liability. A mandamus only lies to enforce a substantive duty corresponding to a substantive right as distinguished from a duty corresponding to a remedial right under the law.
36. Thus the petitioners have no legal right to the performance of a legal duty by the respondents.
37. The second point for consideration is the duty of public officer. The said duty should be clearly defined, imposed or enjoyed by law as a duty resulting from the office and the object of the petition is to enforce plain, positive, specific and ministerial duty presently existing and imposed by law upon officer. The ministerial duties has already been defined in the earlier part of the judgment which means that law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment of the officer. However, where the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not to be deemed merely ministerial but the said discretion should be exercised reasonably and within his jurisdiction i,e, upon the facts sufficient to support his action. In the above mentioned book of "Ferris" at topic No,208, "To Control Act" at page 240 it has been observed as under: "While an officer may be compelled by mandamus to exercise his discretion one way or another, and not just simply refuse to act at all, yet, after he has honestly and reasonably exercised his discretion, mandamus will not lie, where the act is truly discretionary, to control that discretion as to the particular manner of performance, even though the discretion be erroneously exercised and there is no other method of review or correction provided by law. The writ may not be thus used as a substitute for appeal or writ of error."
38. In the present case, the officials have not refused to make payments, but the payments have been delayed for want of funds. It is also one of the terms of work orders, which have been produced, that payments will be made subject to the availability of funds. Nevertheless, the officials by themselves have no power to release the amounts unless the Government provides the funds to them. As in these cases the required funds have not been provided by the Government, therefore, they cannot be compelled through the order of mandamus to perform their duties which are not within their powers.
39. The third and last point for consideration is that no other adequate and specific remedy is available and without which there would be a failure of justice. Adequate and specific remedy is provided by filing a suit for recovery of amount, specific performance of contract or damages. In the present Constitution petitions the petitioners have prayed for the recovery of amounts. By filing such petitions the petitioners have avoided to make the payment of Court Fees, which are usually to be paid for the suit of recovery of amount or damages. Reliance is placed on a case of Musaffaruddin v. Chief Settlement Commissioner (1968 SCMR 1136).
40. In the above case the High Court had dismissed the petition with a short order on the ground that the writ petition could not be invoked for the enforcement of a contract. Hon'ble Supreme Court of Pakistan observed: "On hearing the learned Advocate for the petitioner we found ourselves in complete accord with the view adopted by the learned Judges in the High Court that the only appropriate remedy open to the petitioner was to file a civil suit for the specific performance of the contract if so advised."
41. In the case of Shamshad Ali v. Commissioner 1969 SCM R 122. It has been observed: "We feel that the writ petition filed by the petitioner was misconceived. At the highest it was a case of breach of agreement for which the remedy did not lie in the writ jurisdiction of the High Court.
The petition is dismissed."
42. Thus all the points which are required to be proved for the issuance of order of Mandamus have not been proved to exist, as such, no order of Mandamus can be issued.
43. The main question in these petitions is whether the breach of contract or contractual obligations are enforceable through writ petition. On this point the law is clear and settled as a Bench of 5 Hon'ble Judges of Supreme Court of Pakistan in a case of Momin Motor Co. v. R.T.A.
Dacca reported in PLD 1962 SC 108 at page 112 has observed as under: "learned counsel then attempted to argue that his client had contractual rights, because he had been made to spend a lot of money on making the road bus-worthy and the understanding was that no other permit-holder would be introduced in this route. The short answer to this contention is that contractual rights, if any, are not enforceable by recourse to writ jurisdiction."
44. The Advocates for the petitioners have cited no authority over ruling or reviewing the above said authority nor we could find any such authority. Thus the above authority is law of the land which is required to be followed by all the Courts of Pakistan. This authority is constitutionally binding upon this Court to be followed, by virtue of Article 189 of the Constitution. It is further pointed out that the Hon'ble Supreme Court of Pakistan took the same view in the cases of Muzafaruddin, Shamshad Ali and Mehrajuddin (supra).
45. On the above point following cases are referred to elucidate the point.
(1) Abid Hussain v. Government of Sindh (PLD 1984 Kar 269). The facts of the case were that the police had seized an amount, which was subsequently deposited before the Government. The petitioner claimed to be its owner. Therefore, he approached the Government agencies for return of the amount but he failed to obtain any order, therefore he filed a writ petition. In this background a Division Bench of this Court observed that one has to distinguish between mere demand for money, whether on account of loan, or, a contract from situations, where a person, although entitled to recover money, is neither seeking enforcement of a contract nor exacting a financial liability, but, is asking for the performance of a public duty. It has further been observed that a distinction has to be drawn in cases, where the claim is for money on account of a contract, as distinct from a claim, when the petitioner makes a claim on a public functionary.
(2) Premji Bhai v. Delhi Development Authority (AIR 1980 SC 738). In this case, at page 744 it has been observed as under: "But after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the Constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of violation of Art.14 or of any other Constitutional provision when the State or its agents, purporting to act within the field, perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory powers or obligations on the State in the contractual field which is apart from contract. (see Radhakrishna Agarwal v. State of Bihar, (1977) 3 SCR 249 at p. 255)".
(3) Har Shankar v. The Deputy Excise & Taxation Commissioner (1975 SC 1121). In this case it has been observed that those who contract with open eyes must accept the burdens of the contract along with its benefits. Reciprocal rights and obligations arising out of contract do not depend for their enforceability upon whether a contracting party finds it prudent to abide by the terms of the contract. By such a test no contract would ever have a binding force. The jurisdiction of this Court under Article 32 of the Constitution is not to have been entertained.
(4) Radhakrishna Agarwal v. State of Bihar (AIR 1977 SC 1496). In para 12 of the Judgment at page 1500 it has been observed: "The Patna High Court had, very rightly, divided the types of cases in which breaches of alleged obligations by the State or its agents can be set up into three types. These were stated as follows:-
(i) where a petitioner makes a grievance of breach of promise on the part of the State in cases where on assurance or promise made by the State he has acted to his prejudice and predicament, but the agreement is short of a contract within the meaning of Art.299 of the Constitution.
(ii) Where the contract entered into between the person aggrieved and the State is in exercise of a statutory power under certain Act or Rules framed thereunder and the petitioner alleges a breach on the part of the State; and
(iii) Where the contract entered into between the State and the person aggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract, and the petitioner complains about breach of such contract by the State.
13. It is rightly held that the cases such as Union of India v. M/s. Anglo-Afgan Agencies, AIR 1968 SC 718 and Century Spinning & Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council, AIR 1971 SC 1021 and Robertson v. Minister of Pensions, (1949) 1 KB 227 belong to the first category where it could be held that public bodies or the State are as much bound as private individuals are to carry out obligations incurred by them because parties seeking to bind the authorities have altered their position to their disadvantage or have acted to their detriment on the strength of the representations made by these authorities. The High Court thought that in such cases the obligation could sometimes be appropriately enforced on a Writ Petition even though the obligation was equitable only. We do not propose to express an opinion here on the question whether such an obligation could be enforced in proceedings under Art.226 of the Constitution now. It is enough to observe that the cases before us do not belong to this category.
14. The Patna High Court also distinguished cases which belong to the second category, such as K.N. Guruswa my v. The State of Mysore, AIR 1954 SC 592; D.F.O. South Kheri v. Ram Sanehi Singh, AIR 1973 SC 205 and M/s. Shree Krishna Gyanoday Sugar Ltd. v. State of Bihar, AIR 1975 Pat. 123, where the breach complained of was of a statutory obligation. It correctly pointed out that the cases before us do not belong to this class either.
15. It then, very rightly, held that the case now before us should be placed in third category where questions of pure alleged breaches of contract are involved. It held, upon the strength of Umakant Saran v. State of Bihar, AIR 1973 SC 964 and Lekhraj Sathran Das v. N.M. Shah, AIR 1966 SC 334 and B.K. Sinha v. State of Bihar, AIR 1974 Pat. 230 that no Writ or order can issue under Art.226 of the Constitution in such cases "to compel the authorities to remedy a breach of contract pure and simple".
(5) Lekhraj Sathramdas v. N.M. Shah (AIR 1966 SC 334). It has been observed at page 337 as under: "In our opinion, any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Article 226 of the Constitution."
(6) Bachanidhi Rath v. State of Orissa (AIR 1972 SC 843) At page 845 it has been observed as under: "if a right is claimed in terms of contract such a right cannot be enforced in a writ petition."
(7) Divisional Forest Officer v. Bishwanth Tea Co. Ltd. (AIR 1981 SC 1368).At page 1372 it has been observed as under: "Ordinarily, where a breach of contract is complained of, a party complaining of such breach may sue for specific performance of the contract. If contract is capable of being specifically performed, or the party may sue for damages. Such a suit would ordinarily be cognizable by the Civil Court.
The High Court in its extraordinary jurisdiction would entertain a petition either for specific performance of contract or for recovering damages. A right to relief flowing from a contract has to be claimed in a Civil Court where a suit for specific performance of contract or for damages could be filed. This is so well-settled that no authority is needed."
(8) E.G.F. Co-operative Society v. Sipahi Singh (AIR 1977 SC 2149) In this case at page 2154 it has been observed as under: "In the instant case, it has not been shown by respondent No,1 that there is any statute or rule having the force of law which castes a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No,1 was not entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same."
(9) Punjab National Bank v. P.K. Nillal (AIR 1989 SC 1076). At page 1083, it has been observed as under: "the 'authority' or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the Constitutional provisions but by the legally valid contract, which determines the rights and obligations of the parties inter se.
In this sphere, they can only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i,e, BDA in this case) in the said contractual field."
(10) Har Shankar v. DY. E & T Commar. (AIR 1975 SC 1121). At page 1126 it has been observed a under: "on the preliminary objection it was finally urged by the appellants that the objection was misconceived because there was in fact, no contract between the parties and therefore they were not attempting to enforce any contractual rights or to wriggle out of contractual obligations. The short answer to this contention is that the bids given by the appellants constitute offers and upon their acceptance by the Government a binding agreement came into existence between the parties. The conditions of auction become the terms of the contract and it is on those terms that licences are granted to the successful bidders in form L. 14-A of the Rules. As stated in Cheshire and Fifoot's Law of Contract; (Eighth Edn, 1972. P.24).
"In order to determine whether, in any given case, it is reasonable to infer the existence of an agreement, it has long been usual to employ the language of offer and acceptance. In other words, the Court examines all the circumstances to see if the one party may be assumed to have made a firm "offer" and if the other may likewise be taken to have "accepted" that offer. These complementary ideas present a convenient method of analyzing a situation, provided that they are not applied too literally and that facts are not sacrificed to phrase."
"Analysing the situation here, a concluded contract must be held to have come into existence between the parties. The appellants have displayed ingenuity in their search for invalidating circumstances but a writ petition is not an appropriate remedy for impeaching contractual obligations."
46. Now we will deal with the case-law cited by the Advocates for the petitioners:
(1) Pacific Multi National (Pvt.) v: IGP Police (PLD 1992 Kar. 283 (DB)). The facts of the case were that the Government invited tenders for the purchase of Helicopter in which the petitioner also participated. The petitioner's bid was lowest but the contract was given to some other party, therefore, the petitioner filed a writ petition challenging the said. Contract. The petition was dismissed on merits but it was observed that the petition under Article 199 of the Constitution was maintainable by observing that it could not be ignored that the State has a Constitutional obligation to act fairly even when performing an administrative function, therefore, when a party complained before the Court that the State while awarding a contract to a party had acted in an unfair or arbitrary manner or had discriminated against one of the parties who contested for the award of the contract, such grievance can be looked into by superior Court in exercise of its powers of judicial review under Article 199 of the Constitution. We have already observed that such a right can be agitated before the court while discussing the provisions of Article 173 of the Constitution. We are also of the same view. This case pertains to situation. No,1 as mentioned above. In this authority the Division Bench of this Court on the question of contractual obligations (situation No,2) further observed as under: "There can be no cavil with the proposition that enforcement of a purely contractual obligation cannot properly form the subject-matter of proceedings under Article 199 of the Constitution."
(2) Owaisco v. Federation of Pakistan (PLD 1999 Kar. 472) (D.B). The facts of the case were that the Government called tenders for supply of 119 tons of security ink by sea on F.O.B. Basis. The petitioner and two other contractors participated in the bid. The petitioner was not awarded the contract for which he was illegible but it was given to other party, therefore, he filed the petition. About the situation No,1 same view, as that in case of Pacific Multi National Pvt. (supra) was taken. However while dealing with situation No,2 it was further observed that in ordinary circumstances purely contractual obligations could not be the subject-matter of proceedings under Article 199 of the Constitution. (situation No,2).
(3) Mehmood Ali v. Inspector-General of Police (PLD 1997 SC 823).
The facts of the case were that the petitioner filed a petition for directing the respondents viz police officials to register FIR on allegation that the offence was committed on some monitory transactions. The private parties entered compromise on Holy Quran before the Court, which was accepted under which the private persons were to pay some amount to the petitioner. In this background the arguments that High Court in exercise of Constitutional jurisdiction vested under Article 199 of the Constitution cannot direct for payment of money in any case was found to be without substance. This authority is not applicable in the facts and circumstance of the present case.
(4) Muhammad Tufail Tarar v. Government of Punjab 1999 CLC 1937. A Single Bench of Lahore High Court held that the Constitution petition is maintainable when the petitioner completed the contract but the Provincial Government did not clear the dues on the ground of lack of funds as there was no factual controversy involved in the petition.
(5) United International Associate v. Province of the Punjab (1999 M LD 2745)
' In the above case another Single Bench of the Lahore High Court also took the same view as taken in the case of Muhammad Tufail Tarar (supra).
(6) "C.P.Nos. D-1003 of 2002, D-780 of 2002, D-1005 of 2001, D-72 of 2003, D-976 of 2002, D-961 of 2002 and D-462 of 2002."
' In the above unreported authorities the Division Benchs of this Court allowed, the Constitution Petitions in respect of recovery of amounts arising out of contracts.
(7) Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423).
' In the above authority, at page 435, the following observation has been made: "We, therefore, hold that the earlier judgment of equal Bench in the High Court on the same point is binding upon the second Bench and if a contrary view had to be taken, then request for constitution of a larger Bench should have been made." At the same time the Hon'ble Supreme Court of Pakistan in a case of Province of the Punjab v. S. Muhammad Zafar Bukhari (PLD 1997 SC 351) and at page 364 on the question of judgment per incuriam has observed as under: "Halsbury's Laws of England, Fourth Edition, Volume 26 in paras.577-578, has commented on the "judgment per incuriam" as under: "A decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of House of a Lords' decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of statute or rule having statutory force. A decision should not be treated as given per incuriam, however, simply because of deficiency of parties, or because the Court had not the benefit of the best argument and as a general rule, the only case in which decision should be held to be given per incuriam or those given in ignorance of some inconsistent statute of binding authority." The judgment of the High Court is not only judgment per incuriam having been passed contrary to the Judgment of the Supreme Court but is also without jurisdiction as the High Court had wrongly assumed jurisdiction in the case, which did not vest in it in view of the provisions contained in Article 212 of the Constitution."
47. Analyzing the above legal position, we are of the considered view that it is a unanimous opinion of the Hon'ble Supreme Courts of Pakistan and India that a petition to enforce the contractual obligations does not lies, therefore, the petitions are not maintainable.
48. As regards the miscellaneous applications of contempt of Court filed in the remaining petitions, the allegation is that the directions of the Court that the amounts be paid within a certain period which were found due against the Government arising out of contractual obligation have been violated, therefore, the prayers were made in the applications that the contemners who are public officers may be punished.
49. A Bench of 4 Hon'ble Judges the Supreme Court of Pakistan in the case the State of Pakistan v.
Mehrajuddin (supra) has observed that usual method of enforcing a judgment granting an order of mandamus is through contempt proceedings. But a condition has been imposed that the mandamus must be of an absolute nature. At page 166 it has been observed as under: "It remains to consider the propriety of the proceedings in contempt commenced in two of these cases by the High Court. It is true that the usual method of enforcing a judgment granting an order of mandamus is by commitment for contempt, but such a mandamus must be of an absolute nature. An order directing the reinstatement of a person in a great public Department is not one which can be executed on the instant. It involves a great many considerations such as seniority, suitability, salary, and treatment of the period of absence etc., which are exclusively within the competence of the relevant executive authorities and can only be decided by those authorities after a good deal of examination and case, involving the exercise of discretion and judgment in regard to many complex matters. Therefore, an order directing the reinstatement of a person cannot be regarded as an absolute order of mandamus, non-compliance with which may peremptorily be visited by a proceeding in contempt. In the present cases, the orders of mandamus were themselves incompetent and therefore for that reason as well, the High Court should have hesitated before issuing the notices in contempt which they did. The notices were directly instrumental in securing payment of sums of money to two of the petitioners, and although in the case of Mr. Ashraf Beg, the Railway administration itself appears to have suggested the making of the payment. It is clear that in the case of Mr. Ali Akbar Khan, the amount was paid under a direct threat of peremptory action against the General-Manager personally. We can see no ground upon which this action can conceivably be held justifiable within the legal rights appearing in the case, and the jurisdiction of the High Court. It represents a diversion of the due and orderly administration of the law into a new and (we say so with due respect) an improper course, which cannot be supported and must not be allowed to become a precedent for the future."
50. The above authority has been relied upon by the Hon'ble Supreme Court in another case of Islamic Republic of Pakistan v. Muhammad Saeed reported in 1961 SC 192. In the said case which was about contempt proceedings, it was argued as a second contention that the order not being of an absolute character could not be enforced by such a procedure. The said argument was accepted by observing at page 198: "The second ground taken by the appellant must also, in our opinion, be upheld. This Court did point out in the case of The State of .Pakistan and another v. Mehrajuddin (PLD 1959 SC(Pak) 147) that the method of enforcing a judgment granting an order of mandamus by commitment for contempt is appropriate only where the mandamus is of an absolute nature, but where the order involves the consideration of other relevant executive authorities and can only be decided by those authorities after a good deal of examination and the exercise of discretion and judgment, the said procedure is not appropriate".
51. Keeping in view the above principle, now it is to be seen whether the order through which the petitions were disposed of are of absolute nature. The test for judging the order that it is of an absolute nature or not, is to be seen whether performance of the order is within exclusive competence of the relevant executive authorities and further to see whether the same can be decided by those authorities after a good deal of examination and care involving the exercise of discretion and judgment in regard to many complex matters or not. In the present case it was not exclusively within the competence of the officials of the department to execute the orders as the performance depends upon providing ninth through budget which is to be provided by the Government. The same can be granted by taking into several considerations involving exercise of discretion and judgment and further considering many complex matters, such as financial constraint, availability of funds and so on and so forth. Thus the orders cannot be termed as of absolute nature. Therefore, following the decisions laid down by the Hon'ble Supreme Court of Pakistan in the above referred authorities the contempt applications are not maintainable. Hence, the applications are dismissed.
52. Further more in C.P. No, D-149 of 2003 the application has been filed against official designations without naming such officials. The, contempt proceedings are to be filed against a person by name who had allegedly violated the order of the Court so that he may be convicted if found guilty. Thus, the contempt proceedings cannot be filed against designations therefore on this ground also the Miscellaneous Application in the above C.P. Is not maintainable.
53. In the light of what has been stated above the Constitution petitions and listed miscellaneous applications are dismissed.