SHAUKAT ALI and others vs GOVERNMENT OF PAKISTAN through Chairman, Ministry of Railways and others

' AJMAL MIAN, J.---By this common judgment, we intend to dispose of the above 30 petitions for leave to appeal which are directed against the judgments of learned Single Judge/Division Bench passed in the above Writ Petitions and I.C.As. The leading judgment was passed in I.C.A. No,376 of 1995, which is covered by Civil Petition for Leave to Appeal No,1340/L of 1995. The petitioners were operating either stalls at Railway platforms or running wheel barrows for the provision of eatables, drinks and other similar services at the Railway platforms. Some of the petitioners were running dining cars/racks. All of them were granted licences by the Railways. Since the Railways declined to renew the above licences, though the petitioners had been operating in some cases for more than 20 years, they approached the High Court through the writ petitions and then I.C.As. The learned Single Judge and the learned Judges of the Division Bench declined to grant any relief to the petitioners in the aforesaid writ petitions and I.C.As. It will be advantageous to reproduce para. 11 from the judgment of the Division Bench dated 5-5-1996 passed in I.C.A. No,376 of 1996 and other connected I.C.As. And writ petitions, which reads as follows:--- "11. On behalf of the respondents it has also been canvassed that best the refusal of the Railways to renew the contract is a breach of an assurance or obligation existing in favour of the appellants/writ petitioners and such a breach cannot be rectified in exercise of the Constitutional jurisdiction. It is maintained that the enforcement of contractual rights and obligations are beyond the scope of Article 199 of the Constitution. The argument again has force. In terms of the law declared by the Supreme Court in M.A. Naser (supra) and Zamir Ahmad Khan (supra), the conclusion is unavoidable that any right existing in favour of the appellants/petitioners cannot be enforced through mandamus and if the appellants/petitioners strongly feel that there has been a breach of contractual obligation existing in their favour, they have to resort to an action for damages or to seek specific performance if possible by filing a suit and not by filing a Constitutional petition."

2. It may be observed that in the above-quoted para. Of the impugned judgment, the learned Judges of the Division Bench have relied upon the judgments of this Court in the case of M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83 and in the case of Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmad Khan PLD 1975 SC 667.

' In the first case, the appellant under the agreement with the Railway Administration in the erstwhile East Pakistan was a contractor for carrying on business of catering in the refreshment rooms at various Railway Stations in erstwhile East Pakistan named in the agreement and in the buffet cars. His agreement was terminated. The matter came up for hearing eventually before this Court in the form of an appeal arising out of the suit. This Court, while dismissing the appeal, observed as follows:--- "From the above provisions it is clear that this agreement merely conferred a right to carry on business of catering in the refreshment rooms and on the buffet cars. They were not given any general right of occupation but only a right to use the Refreshment Rooms allotted to them for the exclusive purpose of catering refreshments. Such a right does not amount to easement as defined in section 4 of the Easements Act or an interest in the property. Nor can it be regarded as a licence 'coupled with a transfer of property' within the meaning of section 60 of the Easements Act. Nor can it be suggested that the Contractor was required 'to execute any work of permanent character' in connection with the business. No doubt his business may involve complex arrangements for continued supply of refreshments both solid and liquid but this cannot be regarded as "execution of a work of permanent character".

' Mr. Pal faintly suggested that provision regarding assignment of the benefits of the agreement indicates that it was intended to be an irrevocable licence. This suggestion, however, overlooks the fact that such assignment was only permissible with the consent of the Administration. After fully examining the provisions of the agreement we have come to the unhesitating conclusion that this licence does not fall either within clause (a) or (b) of section 60 of the Easements Act and therefore, it was revocable at the will of the grantor. We may, however, point out that there may be cases where parties by special contract may make the licence which is prima facie revocable under section 60 an irrevocable one, but these clauses of this agreement envisage no such intention.

' Thus this being a revocable licence, the revocation thereof cannot be prevented by injunction. In a case like this the licensee is entitled to a reasonable notice in accordance with the provisions of section 63 of the Easements Act. If however, the licence is revoked without reasonable notice the remedy of the licensee is by way of damages and not by way of an injunction.

' It may also be pointed out that as this contract cannot be specifically enforced, clause (f) of section 56 of the Specific Relief Act will operate as a bar to the grant of injunction. Section 21 of the Specific Relief Act provides that "The following contracts cannot be specifically enforced:---

(a) a contract for the non-performance of which compensation in money is an adequate relief; (b)

(c)

(d) a contract which is in its nature revocable". Then section 56 says "An injunction cannot be granted-

(a) ........................

(b) ........................

(c) ........................

(e)

(f) to prevent the breach of a contract the performance of which would not . Be specifically enforced."

' From the above provisions it is clear that as this is a revocable licence and as adequate relief may be obtained by way of damages this contract cannot be specifically enforced and as such no perpetual injunction can be granted in this case."

' Whereas in the case of Government of Pakistan v. Zamir Ahmad Khan supra, this Court has dilated upon as to the right conferred on a licensee in respect of a licence issued to him under the Export Control Act, 1950, read with Import Policy Order, 1972, while dealing with an appeal arising out of a writ petition, and held that a licence is mere privilege and not a right under the above provisions of law.

3. There cannot be any cavil with the proposition propounded in the case of M.A. Naser (supra).

However, we may observe that even in case of a licence if the action of the State functionary concerned is prompted with malice/mala fide, the Court may interfere with. The case of the petitioners was that they were denied the renewal of the licences because the Railways wanted to favour and in fact favoured third parties on political considerations. In order to support the above allegation, they had filed certain statements indicating that certain persons were given similar licences after the petitioners were denied. We might have granted leave. However, Mr. Wajeehuddin Parvez, Chief Commercial and Terminal Manager, Pakistan Railways, has filed the following statement duly signed by him and by the learned counsel for the Railways, Mirza Masood-urRehman, Senior Legal Adviser, Pakistan Railways, which reads as follows:--- "In re: ' C.P. No, 1332/L/96 to CP No,1341/L/96 C.P. No, 1342/L/96 to CP No,1352/L/96 C.P. No, 1362, 1364 and 1365/L/96 ' C.P. No,1368 to 1371/L/96 ' C.P. No,1378-1379, 1382/L/96 ' It is humbly submitted that licences of the abovementioned petitioners having already been expired instead new licences have been issued to different persons at different railway stations who are working there as such.

' It has been decided now that all these licences shall be auctioned in a transparent manner with the prerequisite of experience in the business. The Railway administration is going to issue notices to all existing licensees under the clauses of agreement with a fortnight.

' After the expiry of the above notice open bid will be invited through press. All these petitioners will be allowed to participate in the open auction."

4. Since the Railways intend to grant licences in the above term in order to ensure that no one is discriminated or favoured for the reason other than the well-being of the people and the country at large, no purpose will be served .By granting leave. 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 Concept 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 than no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of any State functionary. It is hoped that the petitioners who had been earning livelihood for considerable long period on the basis of licences granted by the Railways, will be treated fairly.

5. We, therefore, dispose of the above petitions on the basis of the above undertaking.