ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P.No.D- 279 of 2006

DATE ORDER WITH SIGNATURE OF JUDGE

1. For Katcha Peshi.

2. For hearing of MA 1110/06.

04-05-2010

Mr. Aijaz Ali Hakro, Advocate for petitioner.

Syed Javed I. Bukhari, Advocate for respondents.

The petitioner being a Government contractor and general order supplier has sought declaration against the respondents to set aside the orders dated 29.6.2006 and 8.7.2006 annexed with instant petition as Annexures ‘O & Q’ available at Page 77 and 91respectively, whereby the respondents have threatened the petitioner to forward their name to competent authority to black list and further to recover the balance material of 11 KV Chachro to Islampur Feeder amounting to Rs.3331129.53/- and further amount of Rs.549012/- against over payment claimed by the petitioner.

It is inter alia contended by learned counsel for the petitioner that respondents malafidely without conducting any inquiry or having given an opportunity to explain their case, has attempted to black list the petitioner which is illegal and in violation of principle of natural justice. Learned counsel referred to order dated 18.1.2006 passed by a Division Bench of this Court in C.P.No.D-404/2005 wherein the petitioners had impugned the order dated 2.11.2005 issued by respondents whereby the petitioners were black listed. On perusal of such order it appears that the Division Bench of this Court while disposing of the said petition, was pleased to set aside the order of black listing with further directions to the petitioner to appear before the Chief Executive Officer HESCO/WAPDA Hyderabad on 20.2.2006 at 11-00 AM on which date the Chief Executive shall notify the date of inquiry and the proceedings that may be taken in the instant matter after giving fair opportunity to the petitioner to defend his position. It was further observed that appropriate orders as may be necessary and warranted under the circumstances of the case may be passed. Learned counsel for the petitioner states that inspite of specific directions neither any inquiry committee has been constituted nor any such inquiry has been conducted by respondents therefore, the instant petition has been filed by the petitioner.

Conversely, the learned counsel for respondents have vehemently opposed the maintainability of instant petition on the ground that petitioner who has misappropriated the huge amount by causing loss to the respondents has approached this Court with unclean hands. The learned counsel further submitted that instant petition is otherwise not maintainable as the same relates to contractual obligation between the parties and specific performance of contract therefore, any declaration in this regard cannot be sought by invoking the writ jurisdiction of this Court. The learned counsel for respondents further pointed out that a Civil Suit filed by the respondents is also pending before the competent Court of law where the same controversy is being agitated and the petitioner is defending the same. He submitted that instant petition has been filed to thwart such legal proceedings and further is an attempt to wriggle out from the contractual liability on technical grounds. On a specific query by the Court as to whether after the order passed in C.P.No.D-404/2005 by this Court any inquiry was conducted or opportunity to the petitioner was given or not, to such query, the learned counsel for respondents has referred to the comments filed by respondents alongwith its annexures as well as the statement dated 23.4.2010 wherein several letters including the questionery issued to the petitioner in this regard. Such quersionery and letters issued by the respondents were duly responded by the petitioner through their written letters available on record. It is contended that a detailed opportunity was given to the petitioner to explain his position who has failed to render any satisfactory explanation resulting in the impugned action. It has been further contended by learned counsel for the respondents that respondents have also initiated departmental inquiry against the concerned officers who were hand in gloves with the petitioner and caused financial loss to public exchequer. The learned counsel contends that instant petition involves serious disputed question of facts claims and counter claims by the parties for which Civil Suit is pending before the competent Court therefore, instant petition is liable to be dismissed with costs. In support of his contentions, the learned counsel has placed reliance on the following judgments:-

1. Hira Farooq and another Vs. Pakistan International Airline and 2 others. (2005 MLD 466).

2. Muhammad Zulfiqar Vs. Government of Sindh and others (2003 CLC 1933).

3. Haqbahoo Corporation Vs. P.I.A and others (PLD 2003 Karachi 369).

We have heard the learned counsel for parties and perused the record. In view of contents of petition and the counter affidavit filed by respondents, prima facie the instant petition appears to involve serious disputed question of facts wherein claim and counter claim against each others have been made by both the parties. It further appears that there are serious allegations by respondents against the petitioner relating to their contractual obligation which can only be determined after examining the evidence. As regards the act of black listing the petitioner by respondents is concerned, the remedy by way of filing C.P.No.D-404/2005 has already been availed by the petitioner whereafter, it seems that a detailed opportunity has been given to the petitioner to explain his case. However, on having received no plausible explanation by the petitioner, the respondents have decided to take appropriate action against the petitioner and proceedings in this regard are sub-judice before the competent Civil Court. In view of facts and circumstances of the case and the case law relied upon by learned counsel for the respondents, we are of the view that instant petition is misconceived as petitioner has not made out any case for seeking any discretionary relief of this Court in its writ jurisdiction. Moreover, the contractual obligation and specific performance whereof, in absence of any malafidy or illegality, cannot be enforced through writ jurisdiction.

In the circumstances, the instant petition being devoid of any merits, is dismissed alongwith listed application with nor order as to costs.

JUDGE

Tufail