1998 PLP 505 (CLC)

"It is a fact that the House of the Municipal Corporation had taken a certain decision in its Resolution No. 54 which was also placed before the Commissioner in a meeting and had his endorsement also. Clearly, any departure from the decision taken by the House should have been possible only with the prior approval of the House which was admittedly not obtained. Moreover, approval of the auction did not lie within the authority of the Mayor. According to rule 3, sub‑rule (b) of the Punjab Local Councils (Lease) Rules, 1990, it is in the meeting of the House that a local council may either accept a bid or reject the same. The auction in case of first three sites was conducted on the 20th October, 1991 and in case of the other three on the 16th February, 1993. The Anjuman Tajran submitted their application on 10th March, 1993. The first auction was impugned after considerable delay. Both the orders are clearly without jurisdiction and the limitation does not apply in filing an appeal against these orders. As regards the prayer of Anjuman Tajran to consider their case for grant of lease rights of the first floor sympathetically, it is clear from the record that they have no claim at all. At no stage were they given any indication that they would have any preferential rights in the allotment/leasing out of the shops on the first floor. Regarding the auction conducted by the Mayers on two occasions, as has been stated above, both the orders are without jurisdiction and non -maintainable and are set aside. The Corporation should proceed in the matter in accordance with Resolution No. 54 passed on the 24th May, 1988 or in case it feels that it is in its interest to make any modification, it should first get the approval of the House or the Authority which has these powers. In any case, the outcome of the open auction has to be placed before the House for a final decision to accept or reject the bids in accordance with the Punjab Local Councils (Lease) Rules, 1990. ". This is how these Constitution petitions have come to this Court

4. The learned counsel for petitioners, in support of this petition, inter alia, urged as follows:‑‑‑ Firstly; that at the relevant time, the Commissioner was Administrator of Municipal Corporation, Sargodha; that he was appointed so under Notification, dated 15‑10‑1983; that the decision passed by the Administrator, Municipal Corporation, so, could not be scrutinised by him as an appellate authority. Secondly; that the application had been filed by Mr. I1yas who was Vice Chairman of Anjuman Tajran; that he had participated in auction; that his offer was on the lower side and so was rejected. On the strength of the above circumstances, it was canvassed that Mr. Ilyas was so precluded from taking any exception to acceptance of offer of petitioners. Thirdly; that the agreement has been executed on 24‑10‑1991; that petitioners had deposited an amount of Rs.50,000, so, it was highly oppressive to give effect whimsical plea of Mr. Muhammad Ilyas. Fifthly; that the Punjab Local Councils (Lease) Rules, 1990 were not applicable to facts of the case in hand. Learned A.A.‑G. who entered appearance, on behalf of official respondents, did not support the order. According to him, the Commissioner had no jurisdiction to treat an application as an appeal and proceed to allow it. At this stage, Syed Jamshaid Ali, Senior Advocate was asked to help the Court as to whether the Commissioner, Sargodha Division, Sargodha, who was at the relevant time. Administrator, Municipal Corporation, could hear appeal against the order of Administrator. The learned counsel contended that he could not. According to him he was the Administrator of Municipal Corporation, so was custodian of its interest and could not function as an Appellate Authority. On the principle of bias, he placed reliance upon K.R. Bhaskaranada v. State of Karanataka (AIR 1990 Kant. 181) incorporated in Cases and Materials on Indian Administrative Law by M.P. Jain, 1994 Edition, Volume

1. The learned counsel for the contesting respondents, however, supported the impugned order. He, however, contended that the Commissioner should have referred the application of Anjuman Tajran to Provincial Government for its decision within the ambit of section 156 of Punjab Local Government Ordinance, 1979.

5. I have heard the learned counsel for parties at length and attended to their rival contentions. The first point, to be examined, is whether the Commissioner, Sargodha Division, who was at the relevant time Administrator, Municipal Corporation Sargodha, was qualified to hear the application moved by Anjuman Tajran. This point is free from difficulty. In the first place, the learned counsel for petitioners, learned A.A.‑G. and even learned counsel for the contesting respondents argued that principle of bias was attracted to the facts and circumstances of the case and Commissioner had no authority to hear the application filed by Anjuman Tajran as appeal. This approach of learned counsel, I feel, was/is highly laudable and in consonance with the rule propounded in Mubarik Bhatti v. Fayyaz Ali Khan (PLD 1963 Lah. 8). In this case, Mr. Fayyaz Ali Khan was the Chairman of the Screening Committee who had recommended the removal of employee. His appeal was heard by Mr. Fayyaz Ali Khan as an Appellate Authority and was dismissed. This matter came before the Division Bench of Erstwhile West Pakistan High Court. It was held by his lordship Sardar Muhammad Iqbal, J. (as he then was) speaking for the Bench "the hearing of an appeal by an Authority who has himself participated in original proceeding, is contrary to law". In another precedent titled King v. Salford Assessment Committee Ex parte Odgen (1937) 2KB 1; it was held:‑‑‑ "An officer of rating authority, whose duty was to attend the meeting of the ratings committee for the purpose of taking minutes of their proceedings, and so would obtain knowledge of all the transactions of the rating authority was appointed by the assessment committee for that area acting clerk to that committee and would have to advise the assessment committee upon matters of procedure. The assessment committee would have to consider an objection by the rating authority to a proposal to amend the valuation list. An application was made to prohibit the assessment committee from acting clerk to the assessment committee and also from acting upon a resolution directing him to remain in attendance on the committee during the hearing of the objection to the appellant's proposal to amend the valuation list and the deliberations of the committee thereon on the ground that if the officer were present at the meeting of the Assessment Committee when this objection and proposal were being heard, and be impossible to hold that it was a case where justice appeared manifestly and undoubtedly to be done. " Similarly in case Rex v. Essex Justices its was observed:‑‑. "The question therefore, is not whether in this case deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. " In Muhammad Shafi v. Mauj Din S & R.C. etc. his lordship A.S Salam, J. (as he then was) said:‑‑‑ "Thus, it is quite clear that even where there can be a suspicion that justice was not being done, the proceedings are liable to be quashed. In the case of R.v. East Karrier Justice QBD 144 whereafter the Justices had retired to consider the guilt and had come to the conclusion of finding' the accused guilty, the clerk obtained an information from the police officer and informed the Justices in the retiring room for considering the question of sentence, on account of previous conviction, the final order was challenged by means of an application in the nature of certiorari. Lord Goddard, C.J. observed that:‑‑‑ It has been said over and over again that decision must be the decision of the justice and not the decision of the justice arid their clerk, still less the decision of the clerk, and if the clerk retires with the justices, people will inevitably form the conclusion that the justices' clerk may influence the justice or may; take some course which it is for the justice alone to take, Devlin, J, observed that ' I should like to state that I believe to be the principle on which the Court is acting. We are not dealing with a case of actual injustice. If we were, that would be the end of the matter, and clearly the conviction would be quashed. We are dealing with an infringement of the rule that justice must not only be done, but must also manifestly appear to be done and, accordingly, we are dealing with matters of important not only that justice should be done, but also that it should be seen to be done, and that a person who has been found guilty by the justices should know there has been no actual injustice'. "

6. Applying these rules to facts and circumstances of the case in hand, it is quite clear that the principle of bias was fully attracted to instant cases. Clearly, the Commissioner, Sargodha Division was, at the relevant time, Administrator, Municipal Corporation; that the term of elected Corporation had been curtailed and the Commissioner had been appointed as Administrator and he was running its affairs. The interest of Municipal Corporation was the interest of the Commissioner. He was, therefore, not qualified to function as appellate Authority against the decision/order of Administrator, Municipal Corporation. On this view of the matter, I have no option but to accept all these petitions. The impugned order, dated 19‑10‑1993 passed by Commissioner, Sargodha Division is declared to have been passed without any lawful authority and so is quashed. These petitions, so, are allowed with the grant of requested reliefs. In result the impugned order stands set aside. The application filed by Muhammad Ilyas, shall be deemed to be still pending adjudication. The Commissioner, Sargodha Division, Sargodha shall send the aforesaid application to the competent Authority under section 156 of the Punjab Local Government Ordinance. The competent Authority shall determine the application of Muhammad Ilyas, after affording opportunity of hearing to all the concerned parties and that too in consonance with the law. Since these petitions have succeeded on the doctrine of bias, there shall be no order as to costs. A.A./M‑539/L Order accordingly