2001 PLP 694 (CLC)

5. I have given my anxious consideration to the contentions of learned counsel .for the parties and perused the record. The petitioner alleged that Zila Council granted rebate in favour of petitioner in the general meeting held by Zila Council on 8‑6‑1991. The Zila Council sent the same to Government for approval, the Government granted the approval in favour of the petitioner vide letter, dated 6‑2‑1992; whereas this fact was denied by the respondent. It is better and appropriate to reproduce paras. 15 and 16 of writ petition and reply of same from report and parawise comments paras. 15 and 16 and preliminary Objection No.6 coupled with paras.15 and 16 of respondent No.1 which is to the following effect:‑‑ Relevant paras. of writ petition Para.

15. That the matter was placed before the general meeting of respondent No.1 held on 8‑6‑1991. After thread bare discussion of the matter and keeping in view the various contrary, inconsistent arbitrary orders of the Government the House unanimously decided to reduce the lease amount by granting relief to the extent of Rs.49,60,

000. The above decision of respondent No.1 was subject to approval of the Government, therefore, the Chairman, Zila Council, Mianwali sent letter for approval in the reduction of lease amount vide memo. No.148, dated 23‑1‑1992. Copy of the said letter is attached herewith as Annexure ' G' . Para.16. That in pursuance of the terms of lease agreement, the Government also vide Memo. No.SOV‑1‑58/81, dated 6‑2‑1992 approved the reduction in the lease amount to the extent of Rs.49,60,

000. A copy of the Government sanction is attached. herewith as Annexure H . Parawise comments of respondent No.1. Reply para.

15. The rebate of Rs.49,60,000 in lease money was not admissible in light of para. 12 of Government Notification No.SOVI‑1‑58/81 P.III, dated 11‑4‑1990 and the decision contained in Letter No.SOVI(LG)3‑5/90, dated 8‑1‑1990. Moreover, Zila Council, Mianwali, in its meeting held on 16‑3‑1992, resolved to request the Government not to allow the rebate sanctioned in contravention of the Government instructions. Para.

16. Denied on facts as well as legal grounds. Para.

15. Admitted to the extent that the Zila Council House in its meeting held on 8‑6‑1991 agreed to grant rebate of Rs.49,60,000 to the petitioner but the Zila Council resolution was not sent to Government in time. The petitioner's claim that former Chairman Zila Council, Mianwali sent Letter No.148, dated 23‑1‑1992 to the Government for grant of rebate appears to be bogus as no such letter finds mention in the despatch register being maintained in the Zila Council.

16. The petitioner's claim that the Punjab Government vide Memo. No.SOV‑1‑58/81, dated 6‑2‑1992 approved rebate of Rs.49,60,000 in his favour is also not supported by available record. The Zila Council record shows that this letter was not received in the Zila Council. Moreover, the LG&RDD has also not owned issuing the said letter and the authenticity of this document is, therefore, doubtful. A copy of Letter No.SOV(LF)1‑58/81, dated 30‑5‑1998 from LG&D is enclosed. That the so‑called letter regarding grant of rebate in favour of the writ petitioner was verified from the Government and it was clarified by the Local Government and Rural Development Department through its Letter No.SOV‑1‑58/81, dated 3‑5‑1998 that the copy of letter, dated 6‑2‑1992 is not available in our file as its authenticity is doubtful. It is further submitted that the respondent Zila Council had not sent any such request to the Secretary, Local Government. Copy of such correspondence is appended as Annexure R/3 . Therefore, the conduct of the petitioner disentitles him from obtaining any discretionary relief by this Honourable Court." In case the aforesaid paras are put in juxtaposition then it brings the case in the area of disputed question of fact. This Court has no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction as per principle laid down in Muhammad Younas Khan's case 1993 SCMR

618. It is also admitted fact that agreement contained arbitration clause which is to the following effect:‑‑ In view of the abovesaid arbitration clause of the agreement, the writ petitions is not maintainable as the principle laid down in the following judgments:‑‑ Raja Muhammad Ramzan's case 1994 SCMR 1484 and Project Director Balochistan Irrigation's case 1999 SCMR

121. It is also settled principle of law that petitioner had earlier filed Writ Petition No. 13361 of 1994 which was finally decided vide order, dated 13‑11‑1996. It is better and appropriate to reproduce prayer of aforesaid writ petition alongwith grounds "D and E" and prayer of present writ petition which is to the following effect:‑‑ Writ Petition No. 13361 of 1994 "that the impugned orders of respondents dated 30‑4‑1992 Annexure ' F' dated 9‑5‑1993 Annexure ' H' and dated 29‑6‑1993 Annexure 'J' may graciously be declared illegal, void, mala fide, without any lawful authority and of no legal effect: It is further prayed that till disposal of titled writ petition the operation of said impugned orders be suspended and a direction be issued to respondent No.2 to pay/refund Rs.49,00,000 as per its decision and approval of Government. " Ground ' D' That after grant of rebate of Rs.49,00,000 as per clause 19 of the Lease Agreement Annexure ' B' and after sanction by Government a vested right has been created for refund/payment of said amount to the petitioner. The respondent No.2 or 7 are not competent to review/revoke recall the earlier orders Annexures ' D' and ' E'). Ground ' E' That respondent No.2 is bound to pay/refund of Rs.49,00,000 in pursuance of the approval/direction of respondent No.1. The respondent No.2 has no authority or competent to challenge the order of respondent No.

1. Annexure ' E' . Prayer of present Writ Petition No.26800 of 1994 "that action of respondents to withhold the refund of the excess lease amount of Rs.49,60,000 may graciously be declared illegal, void, arbitrary, mala fide, without lawful authority and of no legal effect. It is further prayed that respondent No.1 may graciously be directed to refund the abovestated amount as it was duly allowed by the Government. " In case the aforesaid prayers of both writ petitions are put in juxta position, then it is crystal clear that both the. writ petitions are qua the same subject matter and relief. It is settled proposition of law that principle of C.P.C. are applicable in the Constitutional proceedings as is held in Hussain Bakhsh's case PLD 1970 SC

1. In this view of the matter, section 11, C.P.C. and principle laid down in this section are also attracted in the Constitutional proceedings. In view of section 11 of C.P.C., the second writ petition qua the same subject‑matter is not maintainable on the well‑known principle of constructive res judicata. In arriving to this conclusion I am fortified by the following judgments:‑ Saif‑ur‑Rehman and others' case PLD 1967 SC 344; Government of Pakistan's case PLD 1969 Dacca 930; Muhammad Anwar's case PLD 1995 Kar. 214; Dr. Asghar Alam etc.'s case 1982 CLC 68; Muhammad Khan's case 1994 CLC 500; Managing Committee of Masjid Mahajran's case 1974 SCMR 230 and Sahera Bibi and others' case PLD 1967 Dacca

384. The judgments cited by petitioner's counsel are distinguished on facts and law and same are not applicable in present case. In view of what has been discussed above, this writ petition is dismissed with no order as to costs. Q.M.H./M.A.K./S‑144/L Petition dismissed.