1989 PLP 773 (CLC)

PROVINCE OF SIND through Secretary, Local Government Town Planning and Rural Development, Sind Secretariat, Karachi and 2 others‑‑Respondents Constitutional Petition No. 746 of 1988, decided on 19th January, 1989_ ‑‑R. 47‑‑Constitution of Pakistan (1973), Art.199‑‑Peoples District Council (Export Tax) Rules 1976, R.47‑‑Collection of export tax‑‑Lease granted by District Council to respondent by negotiation challenged being contrary to R.47 of District Council Rules 1976 which envisaged collection of such tax by public auction‑‑Petitioner's locus stand to maintain a constitutional petition against grant of such lease has to be proved and only an aggrieved person can file such petition‑‑Mere fact that the respondents have failed to perform an act as required by law is not sufficient to maintain a petition under Article 199 of the Constitution unless the petitioner is further able to show that he had a personal interest in the performance of such duty in accordance with law which has been violated or prejudiced on account of such non‑performance. There are no allegations in the petition that the petitioner had intended to participate in the proposed auction which was to be held on specific date or that the petitioner had made preparations to take part in the proposed auction but was deprived of his right to participate in the proposed auction as the respondent local council failed to hold the auction on the proposed date. Mere fact that the petitioner had a right to participate in the public auction alongwith every other citizen of the country is not enough to maintain a petition under Article 199 of the Constitution unless the petitioner is further able to show that he asserted that right or that the assertion of that right by him was defeated, "denied" or adversely affected on account of some illegal action on the part of respondent. As there is no assertion in the petition that the petitioner had intended or had made preparations to take part in the proposed auction but was deprived of this rights on account of illegal extension of lease by Authority in favour of Local Council he has no locus stand to file this petition to challenge the grant of lease in favour of such respondent. The petitioner is accordingly not an "aggrieved person" within the meaning of Article 199 of the Constitution. Gulab M. Rang for the Petitioner. Khalid M. Ishaque with Rasool Bux Unar for Respondent No.3. G.M. Qureshifor Respondent No.2. Abdul Ghafoor Mangi, Addl. A.G. for Respondent No.l. Date of hearing: 19th January, 1989. SAEEDUZZAMAN SIDDIQUI, J.‑‑The petitioner has filed this petition under Article 199 of the Constitution to challenge the grant of lease right through negotiation in respect of collection of 'Rawangi Mahsool' in favour of respondent No.3 by respondent No.2 for the period from 1‑7‑1988 to 30‑6‑1989. Respondent No.3 was earlier granted lease rights for collection of "Rawangi Mahsool" for the period from 1‑7‑1987 to 30‑6‑1988 by respondent No.2 through public auction. Before expiry of above period of lease respondent No.2 advertised in Press for auction of lease rights to collect 'Rawangi Mahsool' for the period from 1‑7‑1988 to 30‑6‑1989 and fixed the date of auction as 9‑6‑1988. Respondent No.2 before 9‑6‑1988 instituted Civil Suit No. 251 of 1988 before Senior Civil Judge, Hyderabad and obtained orders for stay of the auction of lease hold rights, fixed on 9‑6‑1988. During the pendency of the above suit respondent No.3 recommended to respondent No.1 for extension of lease right to recover export tax in favour of respondent No.3 for the year 1988‑89 for a sum of Rs. 3,50,00,000 which was about 60 lacs more than the amount of lease money for the previous year 1987‑

88. Respondent No.l by order, dated 5‑7‑1988, agreed to the extension of lease in favour of respondent No.3 for the year 1988‑89 (from 1‑7‑1988 to 30‑6‑1989) for a sum of Rs. 3,50,00,000 on the condition that respondent No.2 will withdraw the Civil Suit filed by him against respondent No.3 and will also pay the amount of salaries, pension contribution etc. of Octroi staff amounting to Rs. 13,50,

000. The learned counsel for the petitioner contended before us that the grant of lease to respondent No.2 by respondents 1 and 3 to collect export tax for the period from 1‑6‑1988 to 30‑6‑1989 by negotiations was contrary to the Rule 47 of the District Council (Export Tax) Rules, 1976, which only permitted leasing out of the right to collect tax by the council through public auction. It is accordingly prayed by the petitioner that the extension of lease in favour of respondent No.2 through private negotiation by respondents Nos.l and 3 be declared as without lawful authority and of no legal effect and respondents be directed to dispose of the lease rights for the period 1988‑89 (from 1‑7‑1988 to 30‑6‑1989) by public auction as required by Rule 47 of District Council (Export Tax) Rules 1976. Learned counsel for the respondents on the other hand jointly raised a preliminary objection and contended that the averments in the petition failed to disclose that the petitioner is an 'aggrieved person' and as such he has no locus stand to file the present petition. On merits the respondents jointly contended that respondent No.l under II proviso to clause (4) of section 45 and under section 54 of the Sind Local Government Ordinance, 1979 was fully competent to grant lease through negotiation. In our view it is not necessary in this case to decide whether the disposal of lease rights to collect 'export tax' through negotiation by respondent No.2 with the approval of respondent No.l in favour of respondent No.3 was legal or not as this petition can be disposed of conveniently on the preliminary objection raised by the respondents. The learned counsel for the respondents jointly contended that the petitioner has failed to disclose in his petition the manner in which his personal right, if any has been violated by respondents Nos.l and 3 when they granted lease for collection of export tax to respondent No.3 by negotiation. The contention of the respondent is not without force. Mere fact that respondents have failed to perform an act as required by law is not sufficient to maintain a petition under Article 199 of the Constitution unless the petitioner is further able to show that he had a persona interest in the performance of such duty in accordance with law which has been violated or prejudiced on account of such non performance. We have carefully gone through the memo. of petition filed by the petitioner and find that the only allegation made by the petitioner against the respondents is that their action in extending the lease in favour of respondent No.3 for the period from 1‑7‑1988 to 30‑6‑1989 was in contravention of Rule 47 of District Council (Export Tax) Rule, 1976. There are no allegations in the petition that the petitioner had intended to participate in the proposed auction which A was to be held on 9th June, 1988 or that the petitioner had made preparations to take part in the proposed auction but was deprived of his right to participate in the proposed auction as the respondent No.2 failed to hold the auction on the proposed date. Mere fact that the petitioner had a right to participate in the public auction alongwith every other citizen of the country is not enough to maintain a petition under Article 199 of the Constitution unless the petitioner is further able to show that he asserted that right or that the assertion of that right by him was defeated, 'denied' or adversely affected on account of some illegal action on the part of respondent (See Fazal Din v. Lahore Improvement Trust, Lahore P L D 1969 S C

223. As there is no assertion in the petition that the petitioner had intended or had made preparations to take part in the proposed auction but wash deprived of this right on account of illegal extension of lease by respondent No.l in favour of respondent No.3 he has no locus stand to file this petition to challenge the grant of lease in favour of respondent No.3 by respondent No.l. The petitioner is accordingly not an "aggrieved person" within the meaning of Article 199 of the Constitution. The petition is accordingly dismissed but there will be no order as to costs. A . A /E‑24/ K Petition dismissed.