AIRPORT SUPPORT SERVICES Versus AIR PORT MANAGER, CIVIL AVIATION AUTHORITY, KARACHI
ORDER
1. Facts of the case are that petitioners were awarded Licences for Passenger Facilitation/Assistance Service and also office accommodation at Quaid‑e‑Azam, International Airport, Karachi for three years and one year respectively by the respondent No.l, the petitioners paid the necessary fees for the same and licence agreements were executed between petitioners and respondent No.2 on 15th July, 1995. On 4th October, 1995, petitioner received a letter from respondent No.3 requiring him to provide certain details regarding the registration of petitioners firm to which the petitioners replied by his letter, dated 8th October, 1995. On 12th October, 1995 petitioners received impugned orders of termination of licence agreements and for vacating the office premises and forfeiture of entire security deposit.
2. Petitioners filed this petition with following prayers:‑
(a) Declaration to the effect that the Termination Notices dated 12‑10‑1995 issued by the respondent No.l whereby the Licence Agreements dated 15‑7‑1995 have been terminated and possession of room No.5038 situated at .level‑5 at Jinnah Terminal at Quiad‑e‑Azam International Airport, Karachi, acquired by the respondents Nos.l and 2 are illegal having no force in the eye of law and are liable to be quashed.
(b) Declare that the respondent Nos. l and 2 have exercised their powers arbitrary, unjust and unfair manner illegally with mala fide intention to deprive the petitioner from its legitimate right to ,carry on the passenger Facilitation/Assistance Services at Quiad‑e‑Azam International Airport, Karachi,'as per the Licence Agreements dated 15=7‑1995.
(c) The petitioner claims restoration of Licence Agreements dated 15‑71995 and possession of room No.5038 situated at level 5 at Jinnah Terminal, Quaid‑e‑Azam International Airport, Karachi.
(d) Grant mandatory and permanent injunctions directing the respondent Nos. l and 2, their contractors, agents, servants, employees or any other person or persons acting under their behalf to restore the licence agreements dated 15‑7‑1995 and the possession of room No.5038 situated at level‑5 at Jinnah Terminal, Quaid‑ e‑Azam International Airport, Karachi, and restrain them from interfering in the smooth running of their business of Passenger Facilitation/Assitence Services at Quaid‑e‑Azam International Airport, Karachi.
3. (e)Grant any other relief or reliefs which this Hon'ble Court may deem fit and proper under the circumstances of the petition.
(f) Grant costs of the petition.'
4. Learned counsel for the petitioners argued that the petitioners have been condemned unheard and no prior notice was given for cancellation of the licence and forfeiture of the fees. Learned counsel further submitted that the respondents have exercised the powers arbitrarily, as such remedy by way of involving Constitution jurisdiction is available. He placed reliance to case of Tawakal General Export Corporation v. Collector of Customs (Export) Karachi (PLD 1992. Karachi 199), M/s Abdullah & Co. v. Province of Sindh (1992 MLD 293), Rice Export Corporation of Pakistan v. K.M.C. (PLD 1990 Kar. 186) and Wilayat Ali Mir v. PRA. (1995 SCMR 650).
5. On the other hand counsel appearing for respondents though conceded that no prior notice was issued to the petitioners before termination/ cancellation of the licence which is mandatory under Clause 29(b) of the agreement, but no Constitution petition can be filed for breach of the contract between the parties and the petitioner can approach the competent Civil Court for appropriate remedy. Alternate and efficacious remedy being available to petitioner under the law, he cannot file Constitution petition for redress 'of his grievance. He placed reliance to an unreported case of Nizamuddin and others v. Civil Aviation Authority (C.P.No.2052) wherein it was held that no petition would be maintainable for enforcing contractual obligation between the parties.
6. The impugned order for terminating the Passenger Facilitation/Assistant Service was passed under Clause 29(b) of the agreement while that for the vacating premises under Section 3 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965. Clause 29 of the agreement reads as under:‑‑
7. "In the event of violation of any terms and conditions of this licence, the licesee may be given a written notice, specifying the violation, require the licensee to remove the violation within the time specified. In case offailure of the licensee to remove the violation to the satisfaction of the Airport Manager the latter may take either of the following actions:‑‑
(a) Impose fine up to Rs.500 (rupees five hundred only) on the licensee for each violation of‑ the terms of the licence. The fine so imposed shall be immediately paid by the licensee or else realised from the Security Deposit. The licensee in the latter event replenish, the security deposit by depositing like amount within three days of the imposition of fine.
(b) Forfeit the entire Security Deposit and or cancel the licence without incurring any liability or any compensation whatsoever. "Section 3 of Central Government Lands and Building (Recovery of Possession) Ordinance, 1965 reads as under:‑‑
8. "Eviction of outgoing lessees on licensees from land or building.‑‑If, on the expiry, whether before ' or after the commencement of this Ordinance, of the period of any lease or licence in respect of any land or building of which the Central Government is the lessor or licensor or on the determination of such lease or licence on the ground of breach of any covenant imposing an obligation on the lessee or licensee to give up possession of the demised land or building required for any public purpose, the lessee or licensee refused or failed, or refuses or fails, to vacate that land or building and put the Central Government into possession of the same, any officer authorized by the Central Government in this behalf may, notwithstanding anything contained in any other law for the time being in force or in any contract, at any time, enter upon the demised land or building and recover, vacant possession of that land or building by evicting the lessee or licensee and may also demolish and remove the structures, if any, erected or built thereon by the lessee or licensee:
9. Provided that such officer shall, before demolishing and removing any structures under this section, issue a notice to the lessee or licensee calling upon him to remove such structures within the period specified in the notice."
10. Issuance of licence does not create a vested right, licence was granted on the strength of an agreement between the parties. If the licencees are terminated without giving mandatory notice under provisions of Clause 29 of the P' Agreement, it would amount to only breach of contract for which efficacious and alternate remedy by way of filing a suit before the competent Civil Court is available and it will not amount to breach of Constitutional right of citizen. '
11. As regard the authorities cited by the learned counsel for the petitioner, the same are quite distinguishable from the present case. In case of Tawakkal General Export Corporation v. The Collector of Customs (Export) Karachi and 2 others (PLD 1992 Karachi 199) the plea was of lack of jurisdiction in case of M/s Abdullah & Co v. Province of Sindh it was observed that time available for the petitioner to seek alternate remedy was short. Learned counsel has also cited an unreported decision of this Court in C.P. No.D‑2586 of 1983 where the petition was allowed but that case was not for breach of contract.
12. In case of Rice Export Corporation of Pakistan v. Karachi. Metropolitan Corporation (PLD 1990 Karachi 186) it has been held that "normally remedies by way of representation, appeal etc. have to be exhausted before an approach to High Court is made under its Constitutional jurisdiction. Where, however, an action or threatened action is manifestly without jurisdiction, no remedy, for seeking of relief, can be adequate and Constitutional jurisdiction can be resorted to straightaway." In case of Walayat Ali Mir v. Pakistan International Airlines Corporation (1995 SCMR 650) it was observed that "the Constitutional Jurisdiction of the Court was invoked when the discretion is exercised on the whims, caprices and mood of authorities".
13. In the instant case grounds for cancellation of licences have been spelt out in the impugned order which at the most amounts to breach of agreement of contract. The law produced by the petitioners' counsel concerned the orders passed by the authority who has no jurisdiction or discretion is exercised on whims, caprices and .mood of authority or there was no other alternate, efficacious and legal remedy available to the parties. But in the instant case the order passed will at the most simply amount to breach of agreement.
14. Advocate for the respondent has relied upon an unreported D.B. Judgment of this Court in C.P. No.D‑2052 of 1992 (Nizamuddin and another v. Civil Aviation Authority and another) where it has been held that "the petitioners admittedly were lessees of the respondent and they have no right in their favour to file the present Constitution petition. Needless to say that no such petition would be maintainable for enforcing contractual obligation between the parties". The aforesaid Constitution petition is based on same facts i.e. breach of contract and the law laid down in that case .is applicable to the present petition.
15. In our view contractual obligations cannot be enforced by filing Constitutional Petition and proper remedy available with the petitioners would B be by way of filing a suit before a Civil Court, as, for any alleged breach of contract, the parties will have to lead evidence to prove. such. contract which is not possible in Constitution Petition. Moreover, there is clause of arbitration in agreement between the parties which is also a sort of alternate remedy available to the petitioners to resolve the dispute,
16. In view of our above discussion we find no force in this petition which is accordingly dismissed in limine alongwith all the miscellaneous applications fixed for hearing.
17. A.A,/A‑42/K Petition dismissed.