2008 PLP 1351 (MLD)

GHULAM DASTAGIR A. SHAHANI, J.

Through this constitutional petition petitioner namely Ali Muhammad Mashori has prayed for declaration of the notice issued by TMO, Chamber TMA to be illegal, void, mala fide and without lawful authority and further that respondents Nos. 3 to 8 have no right and authority to interfere with the lawful business (Collection of fees/tax of cattle piri) and not to interfere and to proceed in accordance to the terms and condition of the agreement executed between the parties. Brief facts of the petition are that a cattle piri was leased out in favour of petitioner for an amount of Rs.90,50,000 by TMA, Chamber and such agreement was executed between the parties for a period w.e.f. 1st of July, 2007 to 30th June, 2008, possession of cattle piri was handed over to the petitioner in time and managing all affairs for collection of fees in terms and conditions of the agreement and deposited an amount of Rs.9,00,000 equal to 10% of his offered amount as' security deposit. Not only this but also paid equivalent instalment regularly and discharging his usual duties lawfully without any violative breach of terms and conditions decided by the parties. Further case of the petitioner is that there was a serious anarchy in the Tando Allaahyar District on 27-12-2007, house of petitioner was set on fire and record maintained by the petitioner regarding cattle piri was burnt including office of the respondent No.1, however, due to good relationship developed between the parties and understanding, in last week of April and first week of May, 2008, petitioner paid the amount of instalment directly on assurance that receipt will be issued later on, but all of a sudden received a notice from respondent No.3 for depositing of lease amount of Rs.35,97,

250. On receiving such notice, petitioner approached the concerned Taluka Municipal Officer and explained his position that he had paid the amount of lease to respondent No.3, as such order passed for fresh bid/lease w.e.f. 22-4-2008 under letter No.TMA/Nazim/155, dated 22-4-2008 is without any justification. However present petition is filed on the ground that petitioner is still contractor and is entitled to enjoy the same upto 30-6-2008 and further that respondents Nos. 4 to 10 are not related authority/functionaries with affairs of Taluka Administration and cannot interfere with the affair of cattle piri, and no notice has been issued by the respondents Nos. 1 and 2, who are competent according to him. On service of process written statement/comments filed by the respondent No.1 stating therein that on enquiry respondent No.3 states that he does not want to dispossess the petitioner from the cattle piri upto 30-6-2008, action if required that will be in accordance with law. Whereas in counter affidavit filed by the respondents Nos. 2 to 3 states that petitioner has suppressed the actual fact and made false statement with mala fide intention, as serious disputed question of facts are involved in the present matter and agreement executed between the parties is cancelled by the Competent Authority in view of clause 2 of the agreement due to non-payment of dues worth of Rs.35,9,250 vide order, dated 2-2-2008. In view of the terms and condition of the agreement under Arbitration law, the present petition is not maintainable, and further that present petition is filed with mala fide intention and ulterior motive in order to avoid from payment of legal dues, for which notices were sent to the petitioner who refused with mala fide intention, as such agreement was cancelled and taken over physical possession of said cattle piri and petitioner is no more in possession. Even otherwise under agreement of lease, the petitioner was required to make the payment through 'pay orders/Bank draft through banking channels. So far allegations in respect of removal from official position of respondents Nos. 2 and 3 is concerned, states that they are discharging their duties and never removed and prayed for dismissal of the petition. Heard learned counsel for the petitioner who states that as per agreement petitioner is entitled to continue aforesaid contract (Collection of fee/taxes of cattle piri) upto 30-6-2008 and not in arrears/dues and paid instalments directly with the respondent No.3. He further states that house of petitioner was set on fire, as such petitioner is unable to submit any thing. However he challenged the notice, dated 19-5-2008 issued by the TMO, to be illegal, unlawful and without any justification. On the other hand Mr. Masood Ghani learned counsel for the respondent No.2 states that petitioner is defaulter and an amount of Rs.35,97,250 is outstanding against him and denied that any amount deposited with respondent No.3. He further states that as per terms and conditions of the agreement petitioner was bound to deposit the required amount through pay order or Bank draft/through banking channels and not a single document is brought on record from which it appears that he has deposited the amount directly or through any pay order/Bank draft etc., and there is word against word, which merits no consideration at all. Therefore, petitioner is not entitled for any relief. Mr. Abbas Ali learned Additional Advocate-General on behalf of official respondents. adopted same arguments, as advanced by Mr. Masood Ghani learned counsel for respondent No.2 and further states that petitioner is defaulter in payment of Rs.25,97,250 for which notice was served upon him, and due to non payment contract has been cancelled and petitioner is no more in possession, as such he cannot be protected under the law and present petition is filed by him with mala fide intention and ulterior motive in order to usurp the amount outstanding against him, therefore, the petitioner is not entitled for relief as claimed including consequential relief. Heard learned counsel for the petitioner, as well as learned counsel for respondent No.2, so also Mr. Abbas Ali, learned Additional Advocate-General and with their assistance perused the material available on record. Settled principle of law is that petitioner has to prove his own case and he cannot be benefited on the weakness of other side if any. However, constitutional petition will lie, when there is any violation of law and no other remedy is available and illegality is committed by the officials they have acted beyond their jurisdiction and no notice has been served and without providing an opportunity of being heard, action has been taken not in accordance with law, passed any order or acted without jurisdiction respectively. So far present case is concerned, admittedly contract of cattle piri was awarded to the petitioner, physical possession was handed over to him, agreement was executed between the parties and petitioner was bound to pay instalments as per terms and conditions of agreement and in case of any violation, contract was to be ,cancelled which is ordered by the concerned Taluka Municipal Administration. Notice was served and petitioner is fully aware, burden lies upon him to prove his case and so submit all relevant documents in order to prove alleged payment if any. Not a single document brought on record in order to show that alleged payment is made and there is only word against word from his side which cannot be believed and there must be particulars including date and time and be witnessed by some body else, and all such things are missing in the present matter. Though payment was to be made by pay order or Bank draft, whatsoever as per terms and conditions of the contract in order to continue contract of cattle piri. Not only this but matter was to be referred for arbitration in case of any ambiguity between the parties. However from averments of the petition factual controversy and complicated questions are involved mala fide is also alleged which cannot be resolved under constitutional petition, as framing of issues and recording of evidence is required and civil Court is only forum to determine and decide such factual and complicated questions. Even otherwise civil Court is a Court of ultimate jurisdiction can see any mala fide or illegality done by any forum, tribunal or authority. Reliance is placed on the case of (1974 SCMR 356) Hamid Hussain v. Government of West Pakistan and others, (PLD 1970 180), Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another, respectively. No violation is made nor illegality is pointed out. Remedy is also available, as such without payment of dues petitioner cannot be protected because original act of the petitioner seems to be illegal and without any justification. Looking to the aforesaid circumstances, no interference is required, therefore, we are of the view that petitioner is not entitled for any relief as prayed. Petition is liable to be dismissed in limine. Ordered accordingly. The above observations are tentative in nature and will not effect any other lawful and legal proceedings in respect of aforesaid contract. M.B.A./A-85/K Petition dismissed.