1988 PLP 2267 (CLC)

AMIR‑UL‑MULK MENGAL, J.‑‑ This Constitutional petition is directed against the action taken by respondent No.3, whereby he withheld refunding of the earnest money/security deposit, deposited by the petitioner in an auction proceedings and transferred the amount to respondent No.2. Briefly stated the facts are that the petitioner being a private businessman participated in an auction and as a prerequisite, he deposited a sum of Rs.80,000 as earnest money/security deposit with respondent No.3. The petitioner made highest bid but it was not accepted by the respondent No.l for which the respondent No.l allegedly assigned no reasons. However, on 7‑7‑1985 the petitioner, through his counsel served a notice upon the respondent No. 1 for refunding of earnest money/ security deposit (Rs.80,000). It seems from the record that the petitioner continuously made attempts for refund of the said earnest money through his counsel and his Banker, but of no avail. However, on 10‑7‑1985, the respondent No.8 informed the petitioner to collect the earnest money of Rs.80,000 (Annexure 'C') but when the respondent No. 3 was approached by the counsel of the petitioner for collecting the refund, the same was refused. It was however, contended by respondent No.3 vide his Letter No. 47/TCU/84‑93‑95, dated 24‑7‑1985 that the earnest money of the petitioner is not refundable because the petitioner is in arrears of respondent No.2 in the sum of Rs.83,445 (Annexure 'C'). In fact, it appears that the petitioner got a contract from the respondent No.2 for the year 1984‑85 for collection and excavation of 'sano Bajri stone' other than limestone from Sub‑Division Hub. The petitioner pleaded that because of heavy rains and floods in Hub River, it was impossible to collect /excavate from the river bed‑side the same 'Bajri' and stones and he claimed rebate. The case of the petitioner was forwarded for rebate in auction price/contract for 1984‑

85. However, the consequences of the same are not relevant for the purpose of this petition. The petitioner has challenged the action taken by respondent No.3 whereby his security deposit was transferred to respondent No. 2, and has urged the following points in support of his petition:‑ (1) That the contract of 1984‑85 awarded to the petitioner by the respondent No.2 and the earnest money deposited by the petitioner with the respondent No.3 are two separte and dishonest causes of action. (i) That the respondent No.2 could institute legal proceedings for the recovery of the dues through legal proceedings if he was at all aggrieved. (3)??????? That as per provision of Rule 225, sub‑rule (6) of West Pakistan Municipal Committees Octroi Rules, 1964 (hereinafter called as Octroi rules), the earnest money/security deposit shall be refunded forthwith to the bidder in case his bid is not approved /accepted. Withholding of security deposit or transferring the same is, therefore, without any legal authority. On the other hand, the learned Advocate‑General, Baluchistan contested the aforesaid averments by contending as under:‑ (1) That the Constitutional petition was filed on 25‑10‑1986 whereas the impugned order was passed on 24‑7‑1985. Thus, the same may not be entertained because of delay and laches. (2) That the petitioner has alternate remedy by way of appeal as provided under Chapter XXVIII of the West Pakistan Municipal Committees Octroi Rules, 1964. Since he has not adverted to avail the alternate remedy, he cannot invoke writ jurisdiction of this Hon'ble Court. (3) It was also vehemently urged by the learned Advocate‑General that the matter pertains to contractual obligations and recovery of money, the petitioner may, therefore, move ordinary civil Court for recovery of money, but he is not entitled to come in constitutional petition for the refund of the security deposit. (4) It was lastly contended by the learned Advocate‑General that the petitioner is a defaulter and a sum of Rs.84,445 is outstanding against him by the respondent No.2. Therefore, the extraordinary writ jurisdiction cannot be exercised in favour of a defaulter. Before touching the question whether the action taken by respondent No.3 is or is not without lawful authority, we would like to dilate upon the preliminary question as raised by the learned Advocate‑General about the maintainability of the constitutional petition. The Advocate‑General urged with considerable vehemence that since the petitioner had got an alternate remedy by way of appeal, hence without exhausting such alternate remedy he cannot resort to Article 199 of Constitution of Islamic Republic of Pakistan. An appeal is provided according to the learned Advocate‑General, under Chapter XXVIII of Octroi Rules. Relevant Chapter XXVIII of Octroi Rules regarding appeals is as under:‑ "Notwithstanding anything to the contrary contained in the West Pakistan Municipal Committees (Appeal) Rules, 1960, the appeals against the assessments made and orders issued under these rules shall lie as specified in' the Appendix 'G'. Appendix 'G': Authority making the order.?????????????????????????????? Appellate Authority. under appeal. Any assessment made or any??????????????????????????? Taxation Officer. order issued under these rules by an Octroi Clerk, Jctroi Inspector, Assistant Octroi Superintendent or Octroi Superintendent. Any assessment made 'or any??????????????????????????? Mayor or Chairman order issued under these rules by the Taxation Officer. Any assessment made or any??????????????????????????? Controlling Authority. order issued under these rules by the Chairman. There can be no cavil to the proposition that if an adequate remedy is available to the petitioner by way of appeal or a suit etc. which is also specific, prompt and efficacious, the extraordinary remedy by way of writ would not be competent. But there are circumstances under which the superior Courts of the country have exercised writ jurisdiction in cases where authorities have acted in excess of the jurisdiction or where the alternate remedy is not prompt or efficacious. The word 'adequate' appears to have been used in general sense which connotes not sufficiency but promptness in obtaining relief. In cases where relief sought for is neither convenient nor speedy or efficacious and order passed is in excess of jurisdiction, the superior Courts normally do not hesitate to exercise writ jurisdiction, if otherwise the facts and the circumstances of the case so required. In the instant case, it was the respondent No. 1 who declined to approve the highest bid offered by the petitioner, and therefore, having resort to his authority by way of appeal would not have been efficacious and adequate remedy. The petitioner cannot be penalised to be asked to go before the authority in appeal who has already rejected his highest bid. Reliance, if necessary may be placed on the following authority:‑ P L D 1967 SC page

294. The case of Syed Ali Abbas and others v. Vishan Singh and others: The relevant observations are hereby reproduced:‑ "There had been in the relevant respect, an excess of jurisdiction and the affected party could not be panalised for hot throwing ,themselves again on the mercy of the authorities who were responsible for such excess. The proper and indeed the only authority whicn possessed power to correct the legal wrong thus done was the High Court acting in its jurisdiction under Article 98 of the Constitution." It is to be seen whether the appeal was an adequate remedy in the? circumstances of the under‑mentioned case. As stated earlier the respondent No.l did not approve highest bid of the petitioner and now by way of appeal the petitioner cannot be thrown on the mercy of the said authority for refund of amount. It would neither be an adequate nor speedy and efficacious remedy. Furthermore, other important feature in such cases, is to see whether the authority passing order was competent or had jurisdiction to pass such orders under law? If an authority is clothed with jurisdiction, it may pass orders which may be wrong but no writ would be competent directly to the High Court without first availing the right of appeal, if so provided. But in the instant case, respondent No.3 had no jurisdiction to withhold or transfer the security deposit. Thus, his action is ab initio illegal and without jurisdiction. vie find support from the following authority of the Supreme Court in this respect:‑ Premier Cloth Mills, Lyallpur v. Sales Tax Officer and others as reported in 1972 S C M R page

257. The relevant observations are on page 261 and are reproduced as under:‑ "Mr. Javed Hasnmi, learned counsel for the appellant, has contended that in cases of absence or excess of jurisdiction or where the impugned order suffers from the illegality on the face of record the writ of certiorari can be issued. In support of his contention, the learned counsel has relied on a decision of this Court reported in Nagina Silk Mill v. Income‑tax Officer. It was held in this case as under:‑ 'In cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record a certiorari may be granted even though the right of statutory appeal had not been availed of." He further relied on a decision of this Court in Usmania Glass Sheet Factory v. Sales Tax Officer. It was held in that case: 'that in a case where the dispute arises between the parties in respect of a fiscal right based upon a statutory instrument the same can be easily determined in writ jurisdiction.' On the basis of these decisions learned counsel contended that High Court should have exercised jurisdiction in respect of the last mentioned two points raised in the present appeal. The contention of the learned counsel is not without force." The learned Advocate‑General totally failed to point out any law under which the respondent No.3 was competent or had jurisdiction to forfeit or withhold or transfer earnest money/security deposit of the petitioner. Since the Chairman i.e. respondent No.3 had no such jurisdiction, therefore, his orders could be challenged in a writ petition. We are, therefore, inclined to hold that the petitioner cannot be non‑suited on this technical ground, The learned Advocate‑General then contended that the petitioner was negligent and totally indifferent in seeking remedy because the impugned order was passed on 24‑7‑1985 and the Constitutional petition was filed on 25‑10‑1986. He slept over his case and did not invoke' jurisdiction of this Court within the reasonable and sufficient time. He, therefore, contended that the writ may be dismissed as being hit by laches. Reliance was placed on the following authorities:‑ (1) 1972 S C M R page

89. The case of Messrs Sial Das & Co. v. Sales Tax officer, Mirpur Khas. In the said case the Honourable Supreme Court upheld the orders of the High Court dismissing the writ petition whereby the High Court had held that the petition was filed after almost 51 years for which there was no explanation. (2)??????? Second case reported in the same authority on page 210, the case of Saeedur Rehman and 10 others v. Government of Punjab, Lahore and three others. In this case there was a delay of 12 years. Although the impugned order was found to be invalid and the High Court dismissed the petition in limine by holding that the same was hit by laches and the Honourable Supreme Court upheld the order of the High Court. (3)??????? Similarly yet in another case reported in the same authority on page 693, case 'The State of Pakistan through the Secretary, Education Department, Islamabad and three others v. Abdul Qayyum Khan, in which it was observed by the Honourable Supreme Court inter alia as under:‑ "As pointed out by their Lordships of the Judicial Committee in the case of John Obojo Agheyebe, ‑in case of delay two important circumstances are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy. Now in the instant case the delay, is undoubtedly of a long period of three years during which Education Department made alternative arrangements to fill the vacancy caused by the retirement of the respondent. Any belated relief would of necessity result in upsetting .the arrangement to the detriment of those who might have been appointed or promoted in the respondent's place. For these reasons the Court must be reluctant to grant a belated remedy to a petitioner, who has slept over the matter for three years without any reasonable explanation. " Principles enunciated by the Honourable Supreme Court in this case would not help the contention raised by the learned Advocate‑General because in the said case delay was three years during which education department made alternate arrangements to fill the vacancy caused by the retirement of the respondent; and relief if granted, could have upset the arrangements to the detriment of those who had been appointed and promoted in the respondent's place. Here in the case in hand the petitioner has been moving applications /representations for refund of the earnest money/security deposit continuously and even if he is granted relief, it would not upset any arrangement nor anybody would be adversely affected because it is a question of refund of money. Therefore, the authorities are distinguishable on facts as well as on law. On the other hand, the counsel for the petitioner invited our attention to the following authorities:‑ (1) P L D 1961 SC page 105, case of Pakistan v. Sheikh Abdul Hamid, in which it was observed by the Honourable Supreme Court on page 112:‑ "that the point of delay in applying for a writ was also raised, but it is quite clear that Sheikh Abdul Hamid was riot lacking in diligence in' making representations throughout the period from 1949 when he suffered the injury upto 1952 when he filed the petition in the High Court." (2) Noor Muhammad v. Muhammad Iqbal Khan and others as reported in 1985 C L C page 1280, wherein it was observed:‑ "Delay per se is not a ground for refusing discretionary relief in exercise of constitutional jurisdiction. It is true that exercise of discretionary jurisdiction is refused where because of delay some right has come to vest in the opposite party but in the instant case no such rights have come to vest in the respondents. The petitioner has throughout been agitating the matter so as to seek an opportunity to lead evidence." From the above discussion and in view of the authorities mentioned hereinabove, we are not inclined to entertain the preliminary objection as raised by the learned Advocate‑General. The petitioner's counsel invited our attention to Rule 225, sub‑rule (6) which reads as under:‑ Rule 225, sub‑rule (6):‑ "The person whose bid has been accepted at the auction shall forthwith deposit with the officer conducting the auction a sum equal to one percentum of the amount of his bid, as security for the performance of his obligations in regard to the collection of octroi and payment of lease money to the Municipal Committee. The security deposit shall be forthwith refunded to the person making it if the Controlling Authority does not confirm his bid, and where it confirms the bid, the deposit shall be refunded to him after the period for which the collection of octroi was leased to him is over and he has paid up all the dues of the Municipal Committee and has duly performed all his obligations in regard to the collection of octroi." The import of the above‑said rule is that the security deposit shall be 'forthwith' refunded to the person making it, if the Controlling Authority does not confirm his bid. There is no rule or law contrary to the same. However, there is provision for forfeiture of security? deposit under sub‑rule (8) of Rule 225, which provides that. the security deposit can be forfeited only if there is a breach of provisions of these rules or the terms or conditions of the agreement which may be entered into by him with the Municipal Committee. It applies only when bid is accepted. In the instant case since bid was not accepted hence security deposit could not have been forfeited under sub‑rule (8). Factually the respondent did not take any legal action against the petitioner for recovery of dues which were outstanding against N the petitioner as alleged. No action was taken under the West Pakistan Government Dues Recovery Ordinance, 1962. Section 3 of the said Ordinance lays down as under:‑ Section 3 "Government may, by notification, declare that any dues or class of dues recoverable by the Government shall be recoverable from the defaulters, as such if dues were arrears of land revenue. After declaring the same as arrears of land revenue action could have been taken under the Revenue Recoveries Act 1890 (Act I‑of 1890) as arrears of land revenue." Similarly section 72 of the Local Government Ordinance 1980 is regarding collection and recovery of taxes etc. It will be profitable to reproduce the same:‑ Rule 72(1) "All arrears of taxes, rents and other moneys claimable by a Local Council under this Ordinance' shall be recoverable as .a public demand or as arrears of land revenue." Rule 72(2): "Notwithstanding the provisions of subsection (1) the Government may empower any Local Council to recover arrears of taxes, any other moneys claimable by Local Council under this Ordinance by distress and sale of the movable property belonging to the person concerned or by attaching and sale of immovable property belonging to him." In view of clear provisions of the aforementioned law, the respondent No.2 who claims Rs.83,445 as arrears from the petitioner could take proper legal action against the petitioner for recovery of the same. But the Chairman of the Local Council could not be permitted a liberty to take arbitrary action without having any resort to law or rules. In the instant case vide Letter No. 3110, dated 10‑7‑1985 (page 89 of the file) the Chairman District Council, Lasbella while addressing the Chairman Town Committee Uthal requested him to transfer the security deposit to his office because he is a defaulter. and a sum of Rs.83,445 is outstanding against him. To this without issuing any show‑cause notice or giving any opportunity to the petitioner a Bank Draft No. 430565 dated 13‑6‑1985 amounting to Rs.d0,000 was sent to respondent No.2 who ackhowledged its receipt vide Letter No.3520, dated Uthal the 27th October, 1985. These are the total proceedings which were taken in withholding/transferring the security deposit of the petitioner. Undoubtedly, neither the petitioner was given any opportunity to explain his position nor any, action as provided by law was taken for recovery of the dues outstanding against the petitioner. Such action, therefore, on the part of the respondents cannot be termed as legal action and it is~ indeed difficult for us to uphold the same. Our attention was invited by the petitioner's counsel to the case of Construction Ltd. Karachi v. Executive Engineer, Indus Bridge Division, West Pakistan and others as reported in P L D 1975 Kar. page 1059. In the aforesaid case the contractor had not been able to complete the work contracted for within the stipulated time. But he was not given any opportunity to show cause against' demands made by the Government and it was held that since the Assistant Advocate‑General had not been able to show what opportunity, if any was given to the plaintiff /contractor to show cause against the demands of the P.W.D. and in the absence of such opportunity to show cause, the demand could not be justified under the principle of natural justice. In the said case P.W.D. issued instructions to P.W.R. to withhold money due to the plaintiff. It was held that P.W.R. could not be discharged and liable to make the payment of the amount due to the plaintiff merely because they received any such instructions from the defendant No.l. Such withholding of payment was obviously unauthorised and this point hardly needs any further elucidation. Mr. Abbas Ali, the learned counsel for the petitioner further relied on the case of Abdul Latif v. Government of West Pakistan and others as reported in P L D 1962 SC page

384. In the said case action was taken under Revenue Recoveries Act (Act I of 1890) and a notification was also issued but no proper opportunity was afforded to the petitioner although two letters were addressed for demand for deposit of Government dues to the petitioner, but it was observed by their Lordships of the Supreme Court that the Deputy Commissioner acted in haste and disposed of the matter in slipshod and irregular manner which resulted in injustice. It was further observed that the order of the Deputy Commissioner could not validly have been taken without giving the petitioner an opportunity of being heard. As observed hereinabove, the respondent No.3 failed to take action under any law. He acted on the letter of the respondent No.2 according to whom the petitioner was liable to pay a sum of Rs.83,445 which was outstanding against him. Be that as it may, the said amount could be realised from the petitioner by respondent No.2 by resorting to legal proceedings or taking action under law. Admittedly no legal action was taken for the recovery of the dues outstanding against the petitioner by respondent No.

2. Adverting to sub‑rule (6) of Rule 225 of Octroi Rules, the Chairman Town Committee, Uthal was obliged under the law to have refunded the security deposit forthwith. From the above discussion we are inclined to hold that the action taken by respondent No.3 is without lawful authority and thus is of no legal effect. We, therefore, direct the respondent No.3 to make payment of the security deposit (Rs.80,000) to the petitioner forthwith. However, respondent No.2 is at liberty to take legal action for the recovery of the outstanding dues against the petitioner if he so wishes. The petition is allowed with costs throughout. H.B.T./306/Q?????????????????????????????????????????????????????????????? Petition allowed.