1993 PLP 19 (MLD)

MUNAWAR AHMED MIRZA, CJ.‑‑Facts giving rise to the petition are concise and simple.

2. The Chairman, District Council Lasbella, respondent No.1 advertised the auction, for the rights to collect, "District Tax" concerning financial year 1992‑93 with effect from 1‑7‑1992 till 30‑6‑1993 which was scheduled for 30th June; 1992; during working hours. Admittedly petitioner alongwith two call deposits of Rupees one Million (Rs.10,00,000 each) attended the office of respondent No.1 on the appointed date viz. 30‑6‑1992 and kept on waiting till working hours to participate in the proposed auction. Since no one else turned up therefore auction could not be held. Accordingly respondent No.1 communicated the postponement of auction to Secretary, Local Government of Balochistan, Quetta through wireless message No. 2427‑28 of even date which is reproduced below for ready reference: ‑‑ "FROM CHAIRMAN DISTRICT COUNCIL, LASBELLA. TO SECRETARY LOCAL GOVERNMENT BALOCHISTAN QUETTA. (W) COMMISSIONER KALAT DIVISION AT KHUZDAR. NO.2427‑28/ DATED 30‑6‑1992. DATE FOR AUCTION OF RIGHTS FOR COLLECTION OF DISTRICT TAX WAS FIXED FOR 30‑6‑1992 BUT ONLY ONE PARTY APPEARED. HENCE. NO AUCTION WAS CONDUCTED. NEXT DATE FOR RE‑AUCTION IS BEING FIXED FOR INFORMATION PLEASE."

3. It appears that subsequently on the same day i.e. 30‑6‑1992 somehow respondent No.1 negotiated with respondent No.3 and awarded contract for collecting "District Tax", to him, for a sum of Rs.10.5 million. Information in that behalf was conveyed to Secretary, Local Government Balochistan through wireless message No.2429‑30, which is also reproduced hereunder: ‑‑ FROM CHAIRMAN DISTRICT COUNCIL LASBELLA TO SECRETARY LOCAL GOVERNMENT BALOCHISTAN (W) COMMISSIONER KHUZDAR No.2429‑30/ DATED 30‑6‑1992 THE DATE FOR AUCTION OF RIGHTS FOR COLLECTION OF DISTRICT TAX FOR 1992‑93 WAS FIXED FOR 30‑6‑1992 BUT ONLY ONE PARTY APPEARED (.) HENCE NO AUCTION WAS MADE (.) HOWEVER ONLY PARTY M/S BALOCHISTAN TRADERS KARACHI SUBMITTED HIS OFFER FOR Rs.1,05,00,000 (ONE CRORE AND FIVE LACS) TOTAL COLLECTION OF DISTRICT TAX ON INDUSTRIAL FINISHED GOODS DURING LAST FIVE MONTHS AND TWELVE DAYS DEPARTMENTLY PLUS CONTRACT WAS RUPEES TWENTY SEVEN LACS EIGHTY NINE THOUSAND ONE HUNDRED FORTY FIVE(.) KEEPING IN VIEW THE SHORTAGE OF TIME THE OFER OF M/s. BALOCHISTAN TRADERS KARACHI FOR RUPEES ONE CRORE FIVE LACS IS RECOMMENDED FOR APPROVAL (.) M/S BALOCHISTAN TRADERS HAVE ALSO DEPOSITED RUPEES TWENTY LACS AS SECURITY DEPOSIT (.) Learned Advocate‑General made positive assertion that no written approval of the contract was at all accorded by Secretary, Local Government (Respondent No.2). Amazingly respondent No.1 vide Letter No.2443‑47/DL, dated 1st July, 1992 conveyed to respondent No.3 acceptance of contract, in his favour which is also reproduced herein under: ‑‑ "From The Chairman District Council Lasbella. To Messrs Balochistan Traders, Karachi. Memorandum No.2443‑47/DL, dated 1st July, 1992. Subject: TRANSFER OF RIGHTS FOR COLLECTION OF DISTRICT TAX FOR THE YEAR 1992‑

93. Your offer for Rs.1,05,00,000 has been approved verbally by the Secretary, Local Government, Balochistan, Quetta, therefore, the rights for collection of District Tax as per schedule given with the terms and conditions are hereby transferred to you with effect from 1 7‑1992. You are directed to please deposit Rs.10,05,000 on account of 10% of your bid, Rs.3,15,000 on account of 3% income tax and non‑judicial stamp papers for Rs.2,10,000 at the rate of 2% may also be provided. (Sd.) Chairman, District Council Lasbella." Petitioner feeling aggrieved has instituted instant Constitutional Petition on 7‑7‑1992 alongwith an application for interim injunction, challenging propriety of above action taken by respondent No.1. After hearing the parties through their counsel ad interim order was passed by this Court on 27‑7‑1992.

4. Respondent No.1 has filed counter‑affidavit asserting that contract was rightly granted to respondent No.

3. It has been mentioned that petitioner never made any offer/bid as alleged in the petition. Respondent No.3 also refuted assertions made by petitioner and raised several objections questioning maintainability of the petition. It is pertinent to mention here that at the very outset learned counsel for petitioner without prejudice to claim set forth in petition in unequivocal terms filed following undertaking: ‑‑ "IN THE HIGH COURT OF BALOCHISTAN, QUETTA. IN REF C.P.N0.293/92 Shabir Ahmad‑‑‑Petitioner Versus District Council, Lasbella etc.‑‑‑Respondents Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan. May it please Your Lordships. (1) That the above‑noted matter is pending in this Hon'ble Court and is fixed for hearing for today i.e. 20‑8‑1992. (2) That the applicant/petitioner had already offered (Rs.One Crore Ten Lacs) to have the rights of collection of Zilla Tax from the respondent No.1 for the year 1992‑

93. Now keeping in view the changed circumstances and national interest the applicant offers to have the rights of collection of Zilla Tax by paying Rs.1,50,00,

000. The applicant shall be liable to abide by the auction rules of the respondent No.l i.e. the deposit of security amount and 10% of the amount of the bid. (3) Needless to submit that the bid of one crore and fifty lacs is for the whole year. The applicant will pay the amount of instalment according to proportionate period. It is, therefore, humbly prayed that the petition may graciously be decided according to the offer given by the petitioner. Applicant/petitioner (Shabir Ahmad)" Dated 20‑8‑1992. Signed. Advocate

5. M/s. Ehsanul Haq, and Mohammad Iqbal Mehr, Advocates for petitioner strenuously urged that auction proceedings were postponed by respondent No.1 after 2 p.m. on 30‑6‑199.2 as clearly reflected from wireless message No.2427‑

28. Therefore, according to them respondent had absolutely no authority for private‑concealed negotiation with respondent No.3. It was canvassed that closed‑door transaction without announcing fresh auction was mala fide, patently unjust and violative of rules. Learned Advocate‑General candidly conceded that proceedings conducted by respondent No1 (Chairman, District Council Lasbella) were totally devoid of lawful authority: He pointed out that Secretary had not granted the approval, therefore, agreement in favour of respondent No.3 concerning right to collect District Tax had absolutely no legal sanction. He thus supported the petition. Mr. Farooq Rashid learned counsel for respondent No.1 objected to the maintainability of petition and submitted that respondent No.1 was fully competent to award the contract to respondent No.3. He thus opposed the petition. Mr. SA.M. Ouadri, Advocate submitted that, bona fide offer made by respondent No.3 above reserved price was duly accepted by respondent No.1 whereafter lawful contract was executed between them. According to learned counsel there existed disputed points which cannot be conveniently resolved through constitutional petition. It was argued that alternate remedy by way of appeal under section 149 of the Local Government Ordinance was available to the petitioner. Learned counsel further canvassed that amount of call‑deposits having been withdrawn grievance could not be lawfully agitated against respondent. Reliance has also been placed on judgments reported as (i) PLD 1991 SC 102 and (ii) NLR 1991 (CLJ) 770.

6. We have carefully considered the arguments advanced by learned counsel for parties and case‑law referred by them.

7. Pivotal point requiring consideration in this case would be whether respondent No.l having himself postponed holding of auction at the close of day on 30‑6‑1992 was competent to conduct any secret or concealed negotiation with third respondent without adverting to fresh auction or observing normal procedure. Mr. Farooq Rashid, learned counsel for respondent No.1, on enquiry could not quote any provision of law or rules enabling respondent No.1 to assume authority to hold private negotiation for granting contract to respondent No.3. No one amongst the learned Advocates could justify clandestine bargaining by public representative, in respect of Exchequer, which is trust of general public; while regulating official business. It is pertinent to mention that the postponement of auction was communicated after close of working hours on 30‑6‑1992. Therefore by any stretch or methodology reauctioning or grant of said contract could, not lawfully take place prior to 8 a.m. on 1‑7‑1992. Thus, all moral and legal requirements were flagrantly disregarded by respondent No.1 while assuming authority not vested upon him under the law.

8. It may be true that appeal is prescribed but its adequacy, expediency, speediness for challenging the same has to be judged in the peculiar circumstances of each case. When impugned action is patently arbitrary showing glaring disregard to law, and strikingly contravenes rules and procedure, an aggrieved person cannot be forced to place himself at the 8 mercy of the same hierarchy. We on thorough probe into the matter are satisfied that. action reflects inherent defect, prickingly unjust conduct misexercise of authority and mala fides, therefore, petition is certainly competent. In this view we are supported by (i) Syed Ali Abbas and others v. Vishan Singh and others (PLD 1967 Supreme Court 294) and (ii) Murree Brewery Co. Limited .v. Pakistan through the Secretary to Government of Pakistan Works Division and others (PLD 1972 SC 279). Learned Advocate‑General in the peculiar circumstances has rightly conceded about illegality of action taken by respondent No.1 by supporting the petition.

9. We are persuaded to observe that people have reposed highest degree of confidence in public representatives. They are expected to exert strict vigilance over public exchequer. To avoid unnecessary loss and complications C as well as financial indiscipline in chosen institutions, it would be encouraging if maximum precaution are taken while dealing with official business specially in money transaction.

10. It may further be observed that controversy evolves to admitted facts which absolutely need no enquiry. Thus, maintainability of petition on this) score in our view conveniently cannot be questioned. Beside call‑deposits got prepared by petitioner relates to a particular event wherein petitioner intended to participate in auction and due to failure of respondent to hold fresh auction, reasonable justification existed for encashing said call deposits. Therefore, this objection too will have no bearing on the maintainability of the petition.

11. For the foregoing reasons we are inclined to accept the petition declaring action of respondent No.1 awarding right to collect District Tax E Lasbella to respondent No.3 for financial year 1992‑1993 as devoid of lawful authority and ultimately of no legal effect.

12. However, while parting we may observe, that petitioner has made offer to pay Rs.15 million in consideration of right for collecting District Tax of Lasbella extending for one year commencing from 1‑7‑1992 to 30‑6‑1993 with period wise proportionate adjustment. As it is conceded before us, that normal procedure for awarding contract is regulated by open‑auction‑bids, therefore, respondent No.1 shall hold fresh auction for collecting District Tax for remaining period of current financial year as indicated in the wireless message No.2527‑28 dated 30‑6‑1992.

13. In order to ensure bona fides of petitioner, he should deposit sum ofRs.20 lass with respondent No.1 within 5 days. Respondent No.1 after due publication should hold fresh auction by or before 1‑9‑1992. Petitioner shall be deemed one of the participants subject to his depositing above‑said amount and conditions prescribed under rules. Highest bidder shall obviously be entitled to the grant of contract. To avoid complication it is further observed that respondent No.3 may continue collection of District Tax till 31‑8‑1992 subject to interim order passed by this Court. However, after clearing instalments for the months of July and August, 1992, he shall be entitled to Withdraw balance amount, if any. Petition is disposed of in the above terms. Parties are left to bear their own costs. . AA./420/0 Order accordingly.