ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C. P. No.D-541 of 2011

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE.

26.03.2014:

PRESENT:

Mr. Justice Naimatullah Phulpoto,

Mr. Justice Salahuddin Panhwar,

1. Orders on office objection No.2.

2. Katcha Peshi.

Petitioner : Qazi Asghar Ali through Mr. Safdar Ali G. Bhutto,

Advocate.

Respondents: S. P. Investigation, Larkano & others.

Mr. Abdul Hamid Bhurgri, Addl. Advocate General for

respondents.

O R D E R.

SALAHUDDIN PANHWAR, J.- Through instant Petition, Petitioner has invoked Constitutional jurisdiction of this Court and has prayed as under :-

a) to direct the respondent No.1 to make payment of total POL charges/dues amounting to Rs.2,54,056/- outstanding against him, to the petitioner, without loss of further time;

b) to direct respondent No.2 to make payment of entire outstanding POL charges/dues amounting to Rs.1,42,240/- outstanding against him, to the petitioner, without loss of further time;

c) to direct the respondents No.1 & 2 further to make additional payment of 8% markup over the above-mentioned principal amounts of dues of the petitioner till the date of final payment of the above-mentioned POL charges/dues to the petitioner, on account of prolonged delay caused by the respondents in making payment of above lawful dues of the petitioner;

2. Pursuant to the notices, respondent No.1 filed statement, wherein it is contended that an amount of outstanding dues of Rs.254056/-, mentioned in the petition, is not correct, but actual outstanding amount is Rs.197, 000/-. It is further stated that outstanding amount of Rs.197,000/- has not been paid to the petitioner due to non-availability of funds and as per policy of Finance Department, previous liabilities cannot be cleared from allocation of regular budget without obtaining prior approval/sanction of the Finance Department. Lastly, it is stated that Police Department has no objection if the decision in favour of the petitioner for actual amount of Rs.197, 000/- instead of Rs.254, 056/-, which included interest at the rate of Rs.8%, is passed. Similarly, respondent No.2 has admitted the claim of the petitioner and has further submitted through statement that matter for allocation of funds amounting to Rs.142,240/- of above dealer will be taken up with competent authority as early as possible for clearance of dues on top priority basis.

3. Learned Counsel for the petitioner, while reiterating the contentions of instant petition, argued that the petitioner is approaching pillar to post for recovery of his dues but respondents are not paying any heed; his claim is admitted by the official respondents, in-spite of that they have not taken his matter seriously to resolve this genuine grievance.

4. On the other hand, learned Addl. A. G., was unable to controvert the admission of the respondents. However, he insisted that instant petition relates to the enforcement of contractual obligation, therefore, same is not maintainable under the law. In support of his contention he has placed reliance on the case of Habib-ur-Rahman Unar & others v. Govt. of Sindh & others (PLD 2004 Karachi 728).

5. While scanning the material available record and on meticulous consideration of contentions raised by respective Counsel, it is manifest that respondents No.1 and 2 have admitted the claim of the petitioner to the extent of Rs.197,000/- and Rs.142,240/- respectively. Further, it is surfaced that respondent No.3 (D.I.G.P., Larkana) has affirmed in his statement that instant issue was referred to I.G.P., Sindh, Karachi for allocation of additional funds to clear the outstanding dues of the petitioner, but I.G.P., Sindh, Karachi returned the same to the then R.P.O., Sukkur for inquiry. Pursuant to that D.P.O. (Larkana and Kamber-Shahdadkot) conducted inquiry into the matter thereby they justified the consumption of fuel and thus further referred to I.G.P., Sindh. It is pertinent to mention here that instant petition is pending since 2011; comments were filed in the same year, wherein petitioner’s claim was partly admitted. In such eventuality, the plea of the learned Addl. A.G. appears to be not in line with principles of equity and good conscious for simple reason that it would not be legally justified to force the petitioner to file a suit for recovery of dues which, otherwise, are admitted. The liability to make payment, being admitted, became a ‘legal right’ which is enforceable under the law, therefore, dismissal of the petition on sole technical ground would not be within spirit of law which is meant to rescue individuals towards their rights and not to technically knock them out. We are conscious of the legal position that there is no cavil in proposition of law that contractual obligation cannot be enforced in writ jurisdiction but we do not find it proper to use the sword of technicality after about four years for filing a suit for recovery of amount where too the respondent (s) cannot deny what they have admitted in this petition. At this juncture it would be conducive to refer the case of Haji Amin v. Pakistan Trading Corporation (Pvt.) Ltd. (PLD 2009 Karachi 112), wherein it is held as under:-

“Normally a writ for the enforcement of a contractual obligation is not maintainable. However State and any functionary acting under the State has to act in a fair and transparent manner and, if dispute question of facts are not involved relief in exercise of power under Art. 199 of the Constitution of Islamic Republic of Pakistan 1973 in appropriate matters have not been denied, merely because issues in the matter relates to contractual obligation.”

6. Accordingly, we are of the considered view that official respondents are under legal obligation to clear the outstanding amount of Rs.197, 000/- and Rs.142, 240/- (admitted claim) of the petitioner without any further delay preferably within two months. It is made clear that such period shall not be extended on any pretext.

7. While parting with this order it is germane to mention that regarding remaining disputed outstanding amount and interest thereupon, the petitioner would be at liberty to approach the Civil Court for redressal of his grievance.

8. Petition stands disposed of in the above terms.

Sd/- JUDGE

Qazi Tahir/*