NIZAMUDDIN and anothers vs CIVIL AVIATION AUTHORITY and 2 others

' ABDUR REHMAN KHAN, J.---Leave was granted in this matter to examine if the corrigendum in clause (3) of the tender notice limiting the concession of "first refusal at the highest bid received", to the plaintiffs in certain suits amounts to discriminating the appellants and it violates Article 25 of the Constitution.

2. Factual aspect of the case is that the appellants approached the High Court in Writ Petition under Article 199 of the Constitution alleging therein that appellants Nos.1 and 2 were occupying as lessees one shop each in terminals Nos.1 and 2, respectively, in Karachi International Aviation Port and Quid-eAzam International Airport, under the respondents. It was on 3-2-1989 that the respondents intended to terminate the lease of all the shopkeepers including the appellants which prompted some of the shopkeepers to file civil suit for various reliefs including issuance of permanent injunction restraining the respondents from dispossessing /he-plaintiffs or transferring/allotting or inviting tenders in respect of the shops in their possession. However, the appellants avoided from filing such a suit in order to "maintain cordial relation with the parent authority being the respondents". The appellants also expected help or hope or in their words "it was understood that they will be subjected to the same treatment as other shopkeepers who had filed suits". These suits were later on compromised as it was agreed upon between the parties therein that on completion of Quaid-i-Azam International Airport everyone of the plaintiffs will be given a right of first refusal "in respect of the tenders of the shops in the said airport at the highest bid received", and that they would have preferential right of allotment. In the tender notice published on 20-8-1992 in Daily Dawn for inviting tenders for shops in the said terminals Nos. 1 and 3, the benefit of the prior right was given to the shopkeepers in the two terminals which obviously excluded appellant No,2 who was lessee in shop in terminal No,2 who protested against this discriminatory treatment. But instead of accepting their grievance they were refused the right of first refusal even regarding shop located in terminal No,1 by a corrigendum whereby the above concession was limited to the plaintiffs in the suits referred to above. The appellants challenged this corrigendum in writ petition in the High Court which was dismissed in limine through the impugned order holding that the appellants had not been discriminated and that no writ can be entertained for enforcing contractual obligations.

3. Learned counsel appearing for the appellants argued that the appellants were as much shopkeepers as the plaintiffs/shopkeepers in the suits referred to above and unless there was distinction with difference the appellants were entitled to the same treatment under Article 25 of the Constitution like the one extended to the plaintiffs. He further submitted that it is imperative for the Government to act fairly and reasonably in its relation with public in matter of contract; and if at all the Government functionaries are allowed to exercise their discretion in some matters it must be exercised equitably and evenly. His submission was that the respondents have failed to treat the appellants adequately and fairly without any valid reason. He argued that even contractual obligation can be enforced through writ petition under Article 199 of the Constitution. He supported his view point by reference to the following cases:-- ' PLD 1990 SC 1092; PLD 1991 SC 14; ' PLD 1992 Karachi 283; 1991 MLD 293 (Karachi); '1995 MLD 15 (Lahore); ' AIR 1975 SC 70; AIR 1979 SC 1628; AIR 1980 SC 1992; and ' AIR 1985 SC 1147.

4. On the other hand learned counsel for the respondents Nos.1 and 2 pointed out that the tender notice was in respect of terminal Nos.1 and 3 and, therefore, no relief can be given to the appellant regarding his shop in terminal No,2 as neither the compromise with the plaintiffs was entered about it nor the writ petition related to it. He also pointed out that the writ petition is vague as it does not disclose which shop the appellants claim out of the number of shops in the two terminals.

He also stressed that other shops have been auctioned to other persons but neither they have been impleaded in the writ petition nor any allegations have been made therein regarding them.

He clarified that in the circumstances of this case the plaintiffs who had filed suits and took part in auction form a distinct clause as against those including the appellants who had not approached the Court for the redress of their grievance. He was of the view that the appellants want a special status for themselves, otherwise they have not been discriminated in any manner. Learned counsel pleading for respondent No,3 argued that his client was one of the plaintiffs in the suits; that he offered highest bid for shop No,3, therefore, that was allotted to him. He pointed out that his client had not been impleaded in the writ petition in the High Court and even in this Court no allegations on the merits of the entitlement of his client have been made. He also stated that no justification has been shown for giving preference to the appellants over respondent No,3.

5. From the arguments advanced at the bar by both the sides it is clear that as no tender had been issued in respect of the sole shop in terminal No,2, therefore, the appellants had no basis or grievance in these proceedings to seek any redress regarding the said shop. It is also to be noted that the appellants had not specified any shop in terminals Nos.1 and 3 against which they have preferential claim. Moreover it could not be shown that any shop was lying vacant so that the claim of the appellants could be considered about it. It appears that all those who had been successful in obtaining shops in the disputed terminals have neither been impleaded nor it has been pleaded that the appellants had better claim against them. Keeping in view all these material defects and hurdles in the way of the appellants in enforcing their right it was not possible for the High Court nor for this Court to give any relief to the appellants, therefore, all the submissions made at the bar would remain only of academic interest. However, it can bardly be disputed by any one that for a society which claims to be organized, civilized and law abiding it is imperative to standby its commitments, undertakings and to be honest and fair in its dealings. It is moreso for a Government respecting rule of law not to discriminate between its citizens and its functionaries cannot be allowed to exercise discretion at their whims, sweet-will or as they please; rather they are bound to act fairly, evenly and justly. The perusal of all the precedent cases cited at the bar by the learned counsel for the appellants enjoins and enunciate with emphasis the above principle, therefore, there is no need to refer to each of them. The argument advanced by the learned counsel for the appellants that as the latest trend of superior Courts in our country and also elsewhere is to enlarge the scope of judicial review, therefore, availability of alternate remedy or matter involving contractual obligation should not pose hurdle in exercise of power of judicial review under Article 199, is too wide and sweeping to be adopted in every case. It is axiomatic principle of law that every case is to be adjudged on its own facts, circumstances and merits. If in a particular case both the parties admit the factual aspect which give rise to the dispute and the Court feels that the matter is of such an urgent nature that the very remedy would get frustrated, if the aggrieved party is directed to seek redress through alternative remedy available under the law, then in that case it would be proper for the Court to entertain the writ petition. Similarly if through alternative remedy an action/order of a lower authority is to be impugned before a higher authority at whose behest the action is taken or order is passed then that cannot be termed as an adequate and efficacious remedy so as to justify refusal of exercise of judicial review. If in every contractual matter giving rise to enforcement of contractual obligation or a dispute which can be redressed through other remedy available under the law. Writ petitions are entertained, then this would defeat that very purpose of law and which competent Courts are established, and vested with jurisdiction under the law. Appellants could also not reasonably complain of discrimination or violation of Article 25 of the Constitution which provides equal treatment to persons placed under similar circumstances. The plaintiffs who resorted to legal remedy for the redress of their grievance and on the basis of certain settlement between them and the respondents, in those proceedings they were held entitled to same concession, cannot be equated with the appellants who remained silent spectators in the contest between the said two parties. Therefore, the disadvantage which was sought to be remedied through the Writ Petition was because of the appellants' own default and omission. The decision of the respondents in creating two classes in the tender for the purpose of some concession in the bid was because of the compromise in the suits which cannot be treated as arbitrary or perverse classification, rather this classification is founded on sound and rational basis.

6. For the above reasons we do not find any merit in this appeal which is dismissed but with no order as to costs.