Rao Imran Nasir vs Dha etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

W.P.No. 8481 of 2020

Rao Imran Nasir. Vs. Defence Housing Authority, Lahore, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties” counsel, where necessary proceedings 04.02.2021. M/s. Syed Athar Hassan Shah Bukhari, Syed Muzamil Hassan Shah Bukhari, Advocate for petitioner along with Mudasar Altaf Qureshi, Advocate. Mr. Shehzada Mazhar, Jawad Khan Lodhi and Syed Saruir Sohail, Advocate for respondents No. 1 and 2. Mr. Muhammad Abid Hussian Bhutta, Advocate in C.M.No. 865 of 2021.

Mr. Shahzada Khush Bakht Khan, Assistant Attorney General for Pakistan.

Through this constitutional petition, the petitioner has prayed as under:- “In view of the submissions made above it is prayed that the petition in hand be allowed and the impugned letter of termination of the contracts of the petitioner dated 03.07.2020 may kindly be declared illegal, against the law, against the facts, palpably wrong, unethical, unwarranted, the same may graciously be set aside to meet with the ends of justice and possession of the petitioner be restored without further loss of time, in the interest of Justice.”

2.Learned counsel for the petitioner states that the petitioner was awarded Concession contracts by the respondents, which could not be terminated/ rescinded unilaterally hence, the impugned order is liable to be set aside. On the other hand, learned counsel for the respondents have defended the impugned order dated 03.07.2020 whereby the Defence Housing Society, Lahore (“DHA”) for project at Multan has rescinded Concession Contracts dated 13th November, 2017 and 9th March, 2018.

W.P.No. 8481 of 2020

3.Parties have been heard in detail and the position that emerges is that Messrs Amir Rajput Catering Service Multan, a registered company entered into afore-mentioned contracts with the DHA, however, dispute arose later on as to whether the present petitioner could act on behalf of the said company or not when some other claimants raised plea with the DHA that actually they were the real management of the afore-mentioned company and not the present petitioner who was only their employee and had misused and exceeded his authority to enter into contract with DHA on behalf of company. This resulted in the rescission of contracts, which has been challenged through this petition. It prima facie appears that the present petitioner is not a proper party to file this petition as the contracts had been entered into between DHA and Messrs Amir Rajput Catering Service Multan, which was a registered company, whereas the present petitioner has filed this petition being sole proprietor of Messrs Amir Rajput Catering Service Multan having similar name but separate legal entity and in case he claims to be the same legal entity, resolution of the company should have been placed on the record for the purpose of invoking jurisdiction of this Court authorizing him to file this petition on behalf of the company, which has not been done. Furthermore, although the present petitioner has signed the agreement on behalf of the said company, it is yet to be established that he can represent the company in further proceedings. Besides, Article 16 of the agreement provides procedure for resolution of disputes arising of the contract and its Article 16.1 provides resolution of disputes by the parties themselves and Article 16.2 provides for resolution of dispute through arbitration, which is an alternate

W.P.No. 8481 of 2020

remedy available to the petitioner. During the pendency of this petition, one application i.e., C.M.No.4159-C of 2020 has been filed by one Amir Sharif claiming to be real authorized representative of the catering business, who states that present petitioner was earlier working with him/them and had misused his position to enter the aforesaid contracts with DHA without any authority. In the wake of the afore-referred circumstances, the question that emerges for determination is that who actually represents the company that entered into contract with the respondents, when no such resolution on behalf of the company has been filed, which is a pre-requisite for filing constitutional petition on behalf of the company. Reference may be made to PLD 1971 SC 550 (Khan IFTIKHAR HUSSAIN KHAN OF MAMDOT (REPRESENTED BY 6 HEIRS) - versus

MESSRS GHULAM NABI CORPORATION LTD.,

LAHORE). The petitioner has described himself as a proprietor of Messrs Amir Rajput Catering Service Multan and not as a Director of share-holder of the company and the respondents dispute his title and authority to represent the company and have argued that they intended to award contract to the company and not to the proprietorship, hence, disputed questions are also involved in this petition that require recording of evidence and cannot be resolved in constitutional jurisdiction of this Court, for which purpose parties can either invoke jurisdiction of relevant Civil Court or resort to remedies provided by Article 16 of the Contract, which provides for procedure for resolution of disputes, wherein Article 16.1 provides resolution of disputes by the parties themselves and Article 16.2 provides for resolution of disputes through arbitration.

W.P.No. 8481 of 2020

4.In view of what has been discussed above, this petition before this Court is dismissed as not maintainable for the reason that disputed questions of fact requiring resolution through deeper appreciation of facts are involved in the matter and alternate remedy including remedy provided in the contract itself is available. Consequently, all the pending C.Ms have become infructuous and are disposed of, accordingly.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan