1996 PLP 2045 (CLC)

Date of hearing: 8th July, 1996. Petitioner through this Constitutional petition has taken exception to the grant of lease for the collection of Goods Export Tax of the Zila Council, Kasur to respondent No.2 for 1996‑97 effective from 1‑7‑1996 to 30‑6‑1997 for a consideration of Rs.5,30,00,000 on the ground that the same has been secured by respondent No.2 from respondent No.3 Administrator Zila Council in a superstitious manner without holding of any auction. Learned counsel has made an offer that the petitioner is ready to secure the same lease by offering Rs.2 crores more i.e. for an amount of Rs.7,30,00,

000. In order to establish his bona fide he pressed forward his call deposit dated 27‑6‑1996 for an amount of Rs.73 lacs in the name of Administrator, Zila Council, Kasur and stated at the Bar that the same may be forfeited if he does not honour his commitment. In response to notice respondents have entered appearance and detailed comments have been filed by respondent No.3 Administrator, Zila Council, Kasur. A plea has been taken by the respondents that an advertisement was made in the daily "Pakistan" and daily "Sadaqat" on 26‑5‑1996 (Annexures R‑16 and R‑17 with the parawise comments) calling upon the public‑at‑large for the auction of the grant of lease of Goods Exit Tax of Zila Council, Kasur for the year 1996‑97 to be schedules for 2‑6‑1996 at Jinnah Hall, Kasur. The prospective bidders were asked to deposit Rs.20 lacs as security so as to enable them to participate in the auction. According to the learned counsel appearing for the respondents, the auction did take place on 2‑6‑1996 as scheduled and nine bidders participated in the bidding process. The respondent No.2 Muhammad Abdul Waheed was the highest bidder for an amount of Rs.5,30,00,000 as reflected from Annexure R‑

19. Subsequently highest bid of respondent No.2 was approved by respondent No. l Secretary Local Government of Punjab on 23‑6‑1996. Consequent thereto a formal agreement was executed on 24‑6‑1996 and work order was issued on 27‑6‑1996. The new lessee according to the Administrator had deposited total amount of Rs.1,24,58,000 till date. Learned counsel Mr. Maqbool Elahi Malik appearing for the new lessee has challenged the very locus standi of the petitioner, and has further stated that the petitioner was in know of the auction particularly for the reason that he was already holding lease for the year 1995‑

96. He has also stated that the respondent No.2 has secured a vested right after due participation in the auction which cannot be taken away as the same has attained finality. An objection has also been taken that since matter involves factual controversy and the right of appeal is also provided under the Export Tax Rule as such the writ petition would not be maintainable. I have considered the contentions and have gone through the comments submitted by the respondents. The case has been argued at quite some length as such the same is disposed of as Pakka matter. I have noticed that advertisement in the daily newspapers on which great stress has been put by the learned counsel for the. Contractor was published in a slipshod manner. The advertisement in question for holding of auction was only published in Dak edition of the daily "Pakistan" carrying 3 stars (* * *) which papers usually are sent to the places away from Lahore. However, in the local edition which is meant for Lahore and other areas around carrying six stars (* * * * * *) the said advertisement was not published. The Deputy Director Mr. Abdul Hamid Shahid from the office of Public Relations (DGPR) Pas entered appearance in response to Court's call. He has admitted that the advertisement in Dak edition was limited publication though according to him it was required to be published in all the editions so as to bring it to the notice of general public. He has also stated that the moment this illegality came to his notice, he immediately on 2‑6‑1996 through Letter No.PR (Advt.) 96‑IPL‑3439, dated 2‑6‑1996 inquired from the Business Manager of the daily "Pakistan" about this lapse. The letter is as under:‑ Subject: Advertisement. An advertisement (under No.IPL‑3439) of Zila Council, Kasur was released on 25‑5‑1996, for publication. It has been found that the advertisement has not been published in the local edition of the paper while the Dak edition, however, do carry this advertisement. Kindly look into and direct the concerned staff not to do such mischief as it would create problems. Advertisements are to be carried in all the editions invariably." The Production Manager of daily "Pakistan" admitted the default and assured to be more vigilant in future. The reply is as under:‑‑ Rule 4 of the Punjab Local Council Lease Rule, 1990 provides as under:‑‑ "

4. Procedure of auction.‑‑(1) For the conduct of an auction a public notice not less than one daily newspaper and at least seven days before the date fixed for auction shall be given by Local Council." The words 'public notice' have not been defined in the rules. However, the notice shall be published in such a manner that the people/public‑at‑large shall come to know about it. An advertisement publication cannot be termed as a public notice if the public‑at‑large have been deprived of the same. The advertisement in the Dak edition of daily 'Pakistan' as reflected from its publication did not come to the notice of people at Lahore and others living in A the nearby places. Such a limited notice cannot be termed as a public notice and any action taken pursuant to that would have got no sanctity of law/rules. As far as the publication of the advertisement in daily ' Sadaqat' one by the petitioner other by the respondents carrying six stars (* * * * * *) have been produced before me during the course of proceedings. The advertisement in question is present in one paper while in other copy the same is absent. Even otherwise keeping in view the limited circulations of this paper not much reliance can be placed upon the same. It is an established principle of law that if a method is provided for doing a thing in a certain manner that thing must be done in accordance with the procedure prescribed and or not at all. Resultantly this limited publication of the advertisement cannot be termed as a public notice However, at this juncture I do not want to put this blame of not publishing the advertisement in a proper manner on the Administrator as from his side a clear cut direction was issued for the publication of the advertisement in daily papers complete in all respect. The other argument of the learned counsel for respondent No.2 that the appeal is provided under the Public Zila Council Export Tax Rules, 1990 is devoid of any force. Rule 14 of the Punjab Zila Council Export Tax Rules, 1990 provides as under:‑‑ "

14. Appeals.‑‑(1) Notwithstanding anything contained in the Punjab Local Councils (Appeals) Rules, 1980, appeals against the assessment made and orders passed under these rules shall lie before: (i) The Taxation Officer, if the order is passed by the Tax Clerk or Tax Inspector; (ii) the Chairman, if the order is passed by the Taxation Officer, and (iii) the Commissioner, if the order is passed by the Chairman. Reading of this Rule demonstrates that this appeal is provided under any action, assessment or order passed under the Punjab Zila Council Export Tax Rules, 1990 itself. The auction proceedings subject‑matter of this Constitutional petition has been held under Punjab Local Council Lease Rules, 1990. The other ground that the petitioner has got no locus standi has also got no force as he being the prospective bidder has been deprived of participation due to the notice published without taking due care. There is another aspect of this case which cannot be lightly ignored due to this limited publication of the advertisement, the national exchequer has suffered a minimum loss of two crore rupees. The Government functionaries are custodian of the State property and it is their bounden duty to protect and preserve the interest of the State. They shall take all measures to ensure transparency of the auction proceedings. Resultantly this writ petition is accepted and it is directed that a fresh publication be made for holding of auction without waste of much time and the base line for the same would be Rs.7 crores thirty lacs as offered by the writ petitioner. The writ petitioner is also directed to deposit an amount of Rs.18 lacs with the Administrator, Zila Council Kasur which according to the latter is due against him. This amount is, however, subject to the final adjustment of the claims which would be finalized by the respondent Administrator after providing full opportunity of hearing to the petitioner. It is made clear to the learned counsel appearing for the writ petitioner that in case the petitioner does not participate in the forthcoming auction, the call deposit of Rs.73 lacs dated 27‑6‑1996 would be forefeited. There shall be no order as to costs. A.A./M‑129/L???????????????????????????????????????????????????????????????????????????????????? Petition accepted