2000 PLP 1056 (CLC)

10. Adverting to section 45(4) of S.L.G.O., 1979, which reads as follows:‑‑ "45(4). All contracts for transfer by grant, sale, mortgage, lease or otherwise of immovable property or any interest and right thereto or disposal or sale of movable property or for leasing out right to collect taxes shall, subject to the rules, be entered into after inviting offers in an open auction: Provided that if the highest bid is not accepted by the council, approval in writing of Government shall be obtained and Government shall in its order give reasons for not accepting the highest bid: Provided further that a council may with the approval of Government enter into a contract without inviting offers in auction. "

11. It will further be advantageous to refer to rule 5 of the Sindh Councils (Contract) Rules, 1980 which reads as under:‑‑ "

5. Personal responsibility of the authority.‑‑‑ The authority shall be personally responsible of ensuring that‑‑ (i) the contract is made without coercion, undue influence, fraud or misrepresentation of parties; (ii) the parties are competent to make the contract; (iii) the contract does not involve any favourtism; (iv) no official or member of the council is directly or, indirectly interested in the contract except with the sanction of the Government; (v) the contract is in the best interest of the council and in making it full advantage has been taken of the competitive rates prevailing in the market; and (vi) the contract is legally in order."

12. From the above‑referred provisions of S.L.G.O., 1979 and Rules framed thereunder, it is clear that the respondent No.2 S.M.C., is not seized of the authority to enter into any contract for transfer by grant, sale, F mortgage or otherwise immovable property without putting the same in open auction. Only exception is that contract with‑ the approval of Government could be entered without recourse to auction.

13. Rule 5, quoted above postulates that peculier/interests of the E Council are to be safeguarded and ensured while awarding any contract.

14. It is not the case of the respondent No. 2 or 3 for that matter, that for allotment and lease of the subject plot condition of auction was not attracted, as no approval of the Government is available on record. On the contrary, Administrator, S.M.C., has placed on record extract of note No.35 made by Administrative Officer, S.M.C._which reads as under: "The case of Baboo Abdul Karim for grant of two plots is submitted for further orders. If police post is not constructed/established there then the area of 1000 sq. feet i.e. 50' x 20' may be allotted to him at the highest bid of Rs.310 per sq. ft. which has been received in the auction conducted on 20‑4‑1983. A period of 10 years has passed and if put to open auction just now the bid may increase more than Rs.310 per sq. ft. The authorities may decide the case as deemed fit. (Sd.) Raja Abdul Ghani, Administrative Officer, S.M.C., Sukkur."

15. It is as against this office note, that the Administrator, S.M.C., on 30‑10‑1994 passed following order:‑‑ "The Plot NoA1‑A measuring 1160 sq. ft. situated at New Wholesale Fruit and Vegetable Market, Shikarpur Road, Sukkur, is hereby allotted to Mr. Baboo Muhammad Karim Mangal, at the rate of Rs.50 per sq. ft. on usual terms and conditions. (Sd.) Administrator, Municipal Corporation, Sukkur. "

16. Laws are not ornamental piece of Legislature to he preserved on the statute books hilt are framed by the Legislature to be respected and observed in letter and sprit. authority of the executive/public functionaries emanates from law. They do not possess any plenary powers to deal with public c property in the manner they like, ignoring laws regulating, their authority.

17. In the instant case, where provisions of S.L.G.O., 1979 and Rules framed thereunder circumscribe the authority of the S.M.C. to deal with the immovable property or any interest or right thereto, then such authority is to be exercised within the parameters set therein and not otherwise.

18. In a case reported as Kalat Press v. Secretary, Education Department 1998 CLC 833 where the printing work were awarded to one of the respondents; without obtaining approval of the scheme from the Controlling Authority as required under section 10(2) of Balochistan Textbook Board Ordinance (IX‑of 1976) despite having been substantially executed, was struck down.

19. The Administrator, S.M.C. had no authority to allot the subject plot to the respondent No.3 in violation of law referred to above.

20. In the instant case it is one of the examples where the law and rules framed under the law have been flouted to benefit a single individual which is not permissible.

21. Learned counsel for the respondent No. 3 has questioned the locus standi of the petitioner to challenge the transaction which is between the E Sukkur Municipal Corporation and respondent No.3. According to him he has no locus standi to dispute or challenge such transaction. 21‑A. The contentions are totally ill‑founded, " as where the question of disposal of public property or right thereunder is concerned, all the citizens are entitled to have equal and fair opportunity to acquire the same in fair and equitable manner, such being the intent of provisions of S.L.G.O., 1979 referred to above.

22. Under the circumstances, order, dated 30‑10‑1994 passed by respondent No.2 alloting the Commercial Plot No.41‑A, New Wholesale Fruit and Vegetable Market, Shikarpur Road, Sukkur is declared to be F without lawful authority, all actions based thereon, are also accordingly struck down. Resultantly the petition succeeds and the respondent No.2 Corporation is directed to dispose of the subject plot strictly in accordance with law and rules framed thereunder.

23. At the conclusion of the hearing, by a short order petition was allowed and listed C.M.As. disposed of. Aforesaid is the statement of detailed reasons for the final judgment. Q.M.H./M.A.K./M‑34/K Petition allowed.