P L D 2024 Balochistan 92
Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ
ABDUL RAZZAQ ---Petitioner
Versus
SECRETARY, EDUCATION DEPARTMENT, QUETTA and 4 others ---Respondents
Constitution Petition No.(s)158 of 2021, decided on 29th August, 2022.
(a) Contract Act (IX of 1872)---
----S. 23 ---Constitution of Pakistan, Art. 199(1)(a)(i) --- Specific performance of agreement --
-Writ of mandamus, issuance of ---Scope ---Brother of the petitioner donated his land to the
Education Department for up- gradation of local school for which an agreement was executed
with the Education Department/respondents ---Petitioner asserted that the consideration of
said agreement was the employment of his (brother's) relatives with the respondents ---
Petitioner invoked constitutional jurisdiction of the High Court contending that he was not
appointed by the respondents ---Held, that the petitioner filed constitutional petition on the
strength of an agreement, as such, the petitioner indeed had sought specific performance of agreement through writ of mandamus ---In clause (i) of Art. 199(1)(a) of the Constitution, the
word "law" meant sub -constitutional piece of legislation; and the relevant law, in the present
case, was S. 23 of the Contract Act, 1872---Agreement -in-question was in violation of S. 23
of the Contract Act, 1872, being against the public policy as every agreement against public
policy was void ,and as such, not enforceable ---Respondents were not under obligation to
perform the agreement under provisions of the S. 23 of the Contract Act, 1872, therefore,
they could not be compelled to do an act which they were not required by the law to do---Petitioner was not an aggrieved party within meaning of Art. 199(1)(a)(i) of the Constitution because he had no legal grievance to maintain present constitutional petition--- Constitutional
petition was dismissed, in circumstances.
Umer Said and others v. District Education Officer (Female) and others 2007 SCMR
296 ref.
(b) Specific Relief Act (I of 1877) ---
----S. 21(9) ---Contract Act (IX of 1872, S.23--- Constitution of Pakistan, Art. 199(1)(a)(i) ---
Specific performance of agreement ---Constitutional petition--- Maintainability ---Brother of
the petitioner donated his ancestral land to the Education Department for upgrading of school and an agreement was executed with the Education Department and the consideration of the agreement was employment of relatives with the respondents (Education Department) ---
Petitioner invoked constitutional jurisdiction of the High Court contending that he was not appointed by the respondents despite favourable observations of concerned Complaint Redressal Committee (C.R.C) ---Held, that apart from provisions under S. 23 of the Contract
Act, 1872, regarding public policy etc., the agreement -in-question could not be specifically
enforced/performed under S. 21(9) of the Specific Relief Act, 1877, as in the present case, the agreement appeared to be in perpetuity for all times to come, generation after generation -
--Such an agreement which had cast a duty of performance for a period longer than three years could not, therefore, specifically be enforced ---Section 21 of the Specific Relief Act,
1877, related to specific relief which could not be obtained in a civil suit ---When a law for
the time being enforced places an embargo on the jurisdiction of Court in certain circumstances as prescribed by S. 21 of the Specific Relief Act, 1877, then such embargo could not be brushed away through invoking the constitutional jurisdiction of the High Court ---While exercising jurisdiction under Article 199 (1)(a)(i) of the Constitution, High
Court could not direct respondents to do an act that they were not required by law to do (under S. 23 of the Contract Act, 1872 and S. 21 of the Specific Relief Act, 1877) ---
Observations of the C.R.C. in favour of the petitioner were passed on the basis of donation of land for the school, however, said observations in light of provisions of the law were illegal as such bore no binding effect upon the respondents ---Constitutional petition was dismissed,
in circumstances.
Ms. Sarwat Mukhtiar Hina for Petitioner.
Muhammad Ali Rakhshani, Additional Advocate General for Respondents Nos. 1 to
4.
Muhammad Ali Kanrani for Respondent No. 5.
Date of hearing: 23rd August, 2022.
JUDGMENT
GUL HASSAN TAREEN J. ---Through this constitution petition, the petitioner seeks
setting aside of the appointment order of respondent No. 5 issued by the respondent No. 4.
The petitioner has also sought writ of mandamus against the respondents Nos. 1 to 4, for his appointment against the post of Naib Qasid in Government Middle School Imam Bakhsh Kanrani.
2. The petitioner's counsel, Ms. Sarwar Mukhtiar Hina, Advocate contends that an
agreement was executed on 12th December, 2006 ("agreement"), whereby the petitioner's brother namely Ali Hassan donated his ancestral land to the Education Department for up-gradation of primary school to middle school. The learned counsel added that employment of the brother and relatives of said Ali Hassan in the school was consideration for donation of the land through such agreement. The learned counsel contends that the petitioner was not appointed against the advertised vacancy of Naib Qasid by the respondents Nos. 1 to 4, though the Complaint Redressal Committee ("C.R.C.") passed favourable remarks in favour of the petitioner because of donation of land for school. In rebuttal, the learned Additional
Advocate General supported the impugned appointment. Messrs Muhammad Ali Kanrani and Hazrat Ali Kakar, Advocates, representing the respondent No. 5 contend that the agreement sued upon is void and placed reliance upon the judgment of the Hon'ble Supreme Court of Pakistan titled as Umer Said and others v. District Education Officer (Female) and others, reported 2007 SCMR 296.
3. We have heard the learned counsel for the parties and perused the record with their
able assistance. The petitioner has filed the instant petition on the strength of an agreement. Indeed, the petitioner has sought specific performance of the agreement through writ of mandamus. For the purpose of this petition, we refer to Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), which reads:
"199. Jurisdiction of High Court. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, --
(a) on the application of any aggrieved party, make an order --
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) ----------"
In clause (i) the word "Law" means, sub -constitution piece of legislation. The relevant
law in the case is section 23 of the Contract Act, 1872, which reads:
"23. The consideration or object of an agreement is lawful, unless - it is forbidden by
law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
The agreement is violation of the referred provision of law, as such, is against public
policy. Every agreement against public policy is void in view of the referred provisions of law as such not enforceable. The respondents Nos. 1 to 4 are not under obligation to perform the agreement under the referred provision, therefore, they cannot be compelled to do an act which they are not required by the law to do. (section 23 of the Contract Act, 1872)
4. The case law referred to by the learned counsel for the respondent No. 5 bearing titled
Umer Said and others v. District Education Officer (Female) and others reported 2007 SCMR
296 is relevant. The relevant portion reads:
"4. This Court in 1993 SCMR 1287 has categorically observed that the policy of making appointments against land grants is tantamount to the sale of public office for property, and further, that it was not only against the Constitution but also not conductive to public interest. We reiterate that such appointments are void ab initio. Amazingly, in the instant cases, the competent authority has, in flagrant disregard of the aforesaid verdict of this Court, had terminated the services of the petitioners because they could not donate lands to procure the job. "
Apart from section 23, the Contract Act, 1872, the agreement cannot be specifically
enforced/performed under section 21(g), the Specific Relief Act, 1877. Section 21 (9), reads:
"S. 21. The following contracts cannot be specifically enforced:
----------
(9) A contract, the performance of which involves the performance of a continuous
duty extending over a period longer than three years from its date."
In the present case, the agreement appears to be in perpetuity for all times to come,
generation after generation. Such an agreement which has cast a duty of performance for a
period longer than three years cannot, therefore, specifically be enforced.
Section 21 relates to a specific relief which cannot be obtained in a civil suit. When a
law for the time being enforce places an embargo on the jurisdiction of court in certain
circumstances (as prescribed by section 21), then such embargo cannot be brushed away through invoking the constitutional jurisdiction of this Court. While exercising jurisdiction under Article 199(1)(a)(i), this Court cannot direct respondents Nos.1 to 4 to do an act which they are not required by law to do (section 23 of the Contract Act and section 21 of the S.R.A.).
In such view of the matter, the petitioner is not an aggrieved party within the meaning
of Article 199(1)(a)(i), the constitution because he has no legal grievance to maintain this constitution petition.
5. So far as the favourable observations of the C.R.C. in favour of the petitioner are
concerned, the same were passed on the basis of donation of land for the school. In the light of above discussion, such observations of the C.R.C are illegal as such, bearing no binding effect upon the respondents Nos. 1 to 4.
For what has been discussed above, we do not find any merit in this petition which is,
resultantly dismissed.
MQ/20/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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