2006 PLP 991 (MLD)

IJAZ AHMAD CHAUDHRY, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner seeks issuance of direction to respondent No.1 to pay the amount received from respondent No.2 to the petitioner immediately and also prays that the order dated 5-11-2001 passed by respondent No.1 may kindly be declared to be illegal, without lawful authority and of no legal effect and that respondent No.1 may be directed to take coercive measure against respondent No.2 for recovering the balance octroi duty with penalty for the year 1996-97 and pay it to the petitioner.

2. Briefly the facts of the case are that the petitioner obtained collection rights of octroi and the lease for the year 1996-97 of the then Municipal Committee, Kot Addu for a bid of Rs.80 lac after acceptance of the same by the Administrator of the said Committee. The petitioner then filed Writ Petition No.5444 of 1996 before this Court and during the pendency of the same lease deed was executed hence the writ petition having borne fruit was disposed of. Then a dispute arose about payment of octroi duty regarding the oil etc., by PSO or KAPCO. The petitioner filed Writ Petition No.7188 of 1996, which was disposed of on the statement of Administrator showing willingness to discharge his obligations and thereafter vide order, dated 24-3-1997 PSO was held liable to pay the octroi duty. The same was assailed by the PSO by filing Writ Petition No.2234 of 1997. The same was, however, later on withdrawn and PSO issued a cheque amounting to Rs.35,73,252 in favour of the then Administrator, Municipal Committee, Kot Addu. The petitioner then filed Writ Petition No.5069 of 2003 for the release of the said amount, which was disposed of vide judgment dated 30-10-1997 with a direction to the then Deputy Commissioner, Muzaffargarh to decide the reference in accordance with law within two months after providing opportunity of hearing to all the concerned. The petitioner feeling aggrieved of the said order filed I.C.A. No.217 of 1997 which was disposed of vide order dated 25-9-2001 with a direction to respondent No.1 to entertain application of the petitioner and decide the right of the petitioner to the amount received by the Municipal Committee from respondent No.2 as octroi amounting to Rs.35,73,252, but respondent No.1 vide order dated 5-11-2001 declined request of the petitioner. 'Hence this writ petition.

3. Learned counsel for the petitioner contends that admittedly an amount of Rs.35,73,252 was deposited by respondent No.2 with the then Municipal Committee towards octroi duty, which was to be transferred to the petitioner being Contractor and respondent No.l has declined the request of the petitioner on erroneous reasons. Further contends that once an appeal is filed, the matter becomes sub judice and when the appellate authority passes an order, the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order, hence decision of the reference made on 19-12-1997 is not a bar for the rights of the petitioner to receive the amount as Division Bench of this Court while hearing Intra-Court Appeal against the order of the learned Single Bench had passed a specific direction to respondent No.1 to entertain the application of the petitioner regarding refund of octroi amount recovered from respondent No.2. Further contends that factual controversy involved in this case has been admitted by the other party, as such writ of certiorari can be granted as the impugned order passed by respondent No.1 is ex facie without lawful authority; that against contractual obligations flowing from statutory provisions or performance vested in public functionary of statutory body writ jurisdiction can be invoked and this Court can order for payment of dues in writ jurisdiction in spite of alternate remedy; that TMA/respondent No.1, cannot be allowed to accept receipt of Octroi by Contractor upon goods passed by road and at the same time deny the octroi fee upon oil supplied through pipe line. Relies upon PLD 1964 SC 520; 1999 SCMR 467; 1998 CLC 1890 (Lahore); 1998 SCMR 2268; PLD 1984 Karachi 269; PLD 1997 Supreme Court 823; PLD 1971 Supreme Court 516 and PLD 1974 Supreme Court 61.

4. Learned counsel for respondents on the other hand opposes the prayer of the petitioner on the ground that second writ petition on the same subject is not maintainable and principle of res judicata is applicable; that factual controversy cannot be resolved in writ jurisdiction and that contractual obligations cannot be enforced in the Constitutional jurisdiction. Relies upon 2004 CLC 1399; 2003 'CLC 382; 1974 SCMR 51; 2002 SCMR 1061; 2000 SCMR 998; 2000 SCMR 718; 1999 CLC 1489 and 1997 SCMR 1089. Also contends that after the dismissal of the writ petition filed by the petitioner, the reference filed by the then Administration, Municipal Committee for arbitration to the then Deputy Commissioner was decided against the petitioner on 19-12-1997, which having not been assailed by him any further has attained the finality, hence the petitioner is barred to further agitate the said matter.

5. I have heard the learned counsel for the parties and perused the contents of the writ petition as well as the documents attached therewith by both the parties. Admittedly, the petitioner earlier filed Writ Petition No.5069 of 2003 for the release of the said amount, which was dismissed vide judgment dated 30-10-1997 with a direction to the then Deputy Commissioner, Muzaffargarh to decide the reference in accordance with law within two months after providing opportunity of hearing to all the concerned. Thereafter, the then Deputy Commissioner decided the said reference on 19-12-1997 in the following terms: "(a) The Administrator, Kot Adu for the negotiated contract for the year 1996-97, will act as if clauses 49-A and 49-B were the same as they existed when the said contract was advertised for open auction for the first time. Therefore, it would be presumed that the contractor Sh. Lived Ahmad, was given the negotiated octroi contract against Rs.80 lacs for 1996-97 excluding octroi on goods imported by KAPCO at Kot Adu. (b) The Administrator, Kot Adu will ensure that all recoveries are made from those responsible for paying octroi especially for goods as detailed in the terms and conditions above that were procured for KAPCO. The Government is also requested to take suitable action against Mr. Habib Hussain, the then A.C/Administrator, M.C. Kot Adu and others accomplices in accordance with law." No doubt, the petitioner feeling aggrieved of the order passed in Writ Petition filed I.C.A. No.217 of 1997 but at the time of its final disposal admittedly the order passed by the then Deputy Commissioner on 19-12-1997 on the reference was not brought to the notice of this Court and vide order dated 25-9-2001 the said I.C.A. was disposed of with a direction to respondent No.1 to entertain application of the petitioner and decide the right of the petitioner to the amount received by the Municipal Committee from respondent No.2 as Octroi amounting to Rs.35,73,

252. The Deputy Commissioner according to clause No.42 of the Terms and Conditions of the Contract had acted as an Arbitrator and his decision was final. Clause 42 is reproduced as under for ready reference:-

5. I have noticed that both the parties at the time of disposal of I.C.A No.217 of 1997 vide order dated 25-9-2001 had not brought to the notice of this Court the true facts that reference consequent to the orders passed by the learned Single Bench in writ petition was already disposed of by the then Deputy Commissioner, Muzaffargarh as an Arbitrator on 19-12-1997 and prayer of the petitioner for refund of the amount was declined, resulting into passing of the following orders:-- "(2) It is conceded before us that the Committee did not pass any order in writing. That being so, appellant's learned counsel submits that he will be satisfied if this appeal is disposed of with a direction to the respondent-Municipal Committee to decide the question by a written order. (3) Learned A.A.-G. has no objection to the afore-referred prayer but only add that in view of the new dispensation of law the functions of the Municipal Committee have been conferred on, the Tehsil Council which is headed by a Tehsil Nazim. (4) In view of the above, this appeal is disposed of with a direction to the Tehsil Nazim Kot Addu to entertain appellant's application and decide the same strictly in accordance with law and the relevant rules within thirty days of its presentation. Disposed of." A perusal of the above order would show that it ,was not passed on merits, but on the conceding statement of the learned counsel appearing on behalf of the parties that the Municipal Committee regarding the fate of the amount recovered from respondent No.2 did not pass any order in writing whereas the actual position was concealed from the Court that the claim of the petitioner for refund of the amount was already declined by the then Deputy Commissioner, Mozaffargarh on 19-12-1997 while making decision on the reference sent by the Administrator, Municipal Committee, Kot Addu. Hence it could not be said that no decision was earlier made by the Municipal Committee. It is not case of the petitioner that the decision on the reference was passed at his back and he was not in its knowledge as he was duly represented through counsel during the proceedings of the same. The said decision could be assailed by him before the competent forum under the law filed objections to it and now he cannot take the benefit of his own misdeeds that the said award was not made the rule of the Court.

7. Even in the body of the instant writ petition the petitioner has concealed the factum of decision of the Deputy Commissioner on the reference which clearly shows that the petitioner had not come in the Court with clean hands and concealed the material facts. Hence, he is not entitled to any extraordinary relief by invoking Constitutional jurisdiction of this Court. The case-law cited by the learned counsel for the petitioner is not applicable to the facts and circumstances of the present case.

8. So far as the impugned order passed by respondent No.1 is concerned, even during the said proceedings it was not noticed that the claim of the petitioner was earlier declined on 19-12-1997 by the then Deputy Commissioner as an Arbitrator under the arbitration clause of the contract in the terms narrated above. The petitioner cannot be benefited of his own misdeeds and his claim having already been rejected by the competent forum cannot be re-opened.

9. For the foregoing reasons, I do not find any merit in this writ petition, which is dismissed. M.H./J-76/L Petition dismissed.