NOOR MUHAMMAD Versus DISTRICT COUNCIL

MUHAMMAD AFZAL ZULLAH, J .‑This writ petition arises out of an order dated 5‑7‑73 of the respondent for leasing out of a cattle "mela" (I have intentionally used the vernacular expression because there is some controversy between the parties on the question whether it is a "market" or a fair) for three years at Qaidabad, District Sargodba. The facts and circumstances mentioned in the writ petition are as follows

2 The petitioner claims that he is a contractor of the Cattle Market at Qaidabad which is "under the administrative control and supervision of" the respondent through its Administrator (Deputy Commissioner, Sargodha). The respondent decided to auction "the right to arrange Cattle Market and to collect registration fee through a public auction" on terms and conditions (Annexure `A'). In the auction held on 15‑7‑1970 the petitioner was the highest bidder (Rs. 775 per annum). The respondent, vide its Resolution No. 9 dated 28‑3‑1970, approved the auction in favour of the petitioner (Annexure `O'). In pursuance of Article 41 of the Basic Democracies Order, 1959 (P. O. No. 18 of 1959), a contract was executed on 28‑9‑1970 (Copy Annexure R‑1 to the written statement). As, according to the petitioner, it was a new venture ‑and he was to arrange the land and other facilities, there fore, he allegedly invested huge amount to make it a success. In May 1971, he requested the respondent for extension of the lease period beyond three years but he was informed by the Chief Officer, vide letter dated 15‑6‑1971 (Annexure `E') that his request was premature. Shortly before the expiry of the lease period, the petitioner again applied for the extension of the lease but received no reply. In the meanwhile, it is claimed by him that be received information that the Chief Officer, who had a personal grudge against him, out of ulterior motives, instead of extending the lease was going to curtail the "existing lease period". He again moved an application before the respondent trying to dissuade it from acting on "the mala fide advice of the Chief Officer", but without holding any enquiry against the petitioner or affording him an opportunity of hearing it was decided to auction the lease on 11‑7‑73 for a further period of three )ears. The petitioner claims that the impugned action is without lawful authority because he had a vested right to enjoy the lease up to 1‑10‑1973 because the auction having been confirmed on 28‑8‑70 the contract was executed on 28‑9‑70, there fore, according to him the period of lease was to continue up to 1‑10‑1973 as, according to him, he started functioning in pursuance of the aforementioned contract only with the start of October, 1970. Thus, according to him, the respondent bad no lawful authority to deprive him "from his vested right to hold the Cattle market at Qaidabad up to 1‑10‑1973". He bas also made a grievance in paragraph 10 of the petition that the respondent having promised to consider the request of the petitioner to grant the extension of time in the lease was bound to consider the application of the petitioner and could not refuse the extension without hearing him. The petitioner also asserted that vide Resolution No. 9 dated 28‑8‑70, the respondent approved the auction of four markets including the one in dispute at Qaidabad but by the impugned action only Qaidabad Market was (then going to be) re‑auctioned and there being no such action with regard to the other three markets it (the impugned action) is stated to be mala fide. The prayer made in the writ petition is that the order of the respondent dated 5‑7‑73 directing the auction for a period of three years with effect from 11‑7‑73 be declared to be without lawful authority and the respondent be directed "not to interfere in the enjoyment of the rights of the petitioner's period of lease, save in accordance with law and to consider and decide the application of the petitioner for the extension of the lease in accordance with law."

3. The petition came up before me for motion hearing on 10‑7‑73. One complaint of the petitioner was that copy of impugned order was not being supplied to him by the Chief Officer because, as it was then asserter, the latter wanted to confront the former with fair accompli. In these circumstances, there was "no alternative for this Court but to admit this petition." Auction had already taken place. "In view of the attitude adopted by the Chief Officer" it was directed that during the pendency of the petition the auction proceedings were not to be confirmed and, if confirmed, action thereon was suspended. Affidavits have been placed on this file in connection with the above facts and circumstances. Before closing this judgment, I will revert to this aspect of the matter.

4. In the written statement, preliminary objections were raised that the petitioner has no vested right nor any locus standi to file the petition and further that he came to the Court with unclean hands, therefore, this Court would not act in aid of injustice and would not grant him any relief. The averments made in the petition with regard to the lease were admitted but it was denied that tee petitioner made huge investments. Though the reply by the Chief Officer to the application of the petitioner for extension , in May‑June 1971, was admitted and reiterated (Annexure `fi';, it was denied that this amounted to a commitment for the extension of lease. It was also admitted that the petitioner made another application dated 16‑6‑73 but it has been asserted That on this application a report was made that the "Mandi was going to be re‑auctioned". This matter, it was further asserted, had been published in a newspaper as also in posters published and distributed amongst the contractors. This, it has been claimed, amounted to sufficient notice to the petitioner. The allegations of mala fides made against the Chief Officer have been denied. On the other hand, it has been asserted that the period of lease in favour of the petitioner was to expire on 15‑7‑73, therefore it was rightly decided to hold the auction on 11‑7‑73 for a further period of three years. According to the respondent, the petitioner was at liberty to take part and to bid in open auction and that "there was neither any ground for enquiry nor any justification to extend a bearing". In fact, it has been asserted, that the "petitioner was present at the time of actual auction." The petitioner's right of lease till 15‑7‑73 has not been denied but his claim that it extended up to 1‑10‑73 has been denied nor it has been asserted, the petitioner had any vested right in the extension of the lease. It is denied that the petitioner could not start the Mandi‑Mela till October, 1970. On the other hand, it has been asserted that he started it "as soon as" he was held to be a successful bidder and an intimation to this effect wag given to him. The date of confirmation was not relevant qua the right of the petitioner. Moreover, it was agreed upon by parties that the period was to expire on 15‑7‑1973. On the question of re‑auction of the three Mandis other than Qaidabad, the reply in the written statement was that they (the other three) could not achieve success and thus the respondent announced to hold auction only in connection with that of Qaidabad. In support of the correctness of this decision, the respondent further asserted that the impugned auction fetched the highest bid of Rs. 80,100 per annum as against Rs. 775 (the previously highest auction bid). In order to show that it was a genuine bid, it was asserted that Shahbaz Khan the bidder (who subsequently appeared as a respondent in this Court) had deposited an amount of Rs. 20,025 in advance being one‑fourth of the first year auction money. This circumstance was later on during the arguments pressed in service to show that the petitioner had not come 'to the Court with clean hands and that writ should not be issued in aid of injustice and further That the respondent had acted with bona fide intention.

5. Though at the time of admission it was intended that the writ petition would be disposed of within a short time, on account of various proceedings which are duly recorded in the order sheet the matter got delayed till November 1973. when arguments were partly beard. The parties then started negotiating for a settlement out of Court but the same did not materialise and the arguments were re‑heard on 7‑3‑74 and the judgment was reserved because both the parties wanted to produce some more material. From the petitioner's side, a judgment dated 13‑2‑74 by the Commissioner, Sargodha and from the respondent's side documents showing the history including authority for, and other particulars about, the cattle fair$/markets in Shahpur, District Sargodha, have been produced They have by now been placed on the record.

6. During the arguments, learned counsel for the petitioner contended‑

(i) that the agreement was signed on 28‑9‑70, therefore, it would commence on that day and thus the expiry date would not be 15‑7‑73 as stipulated therein;

(ii) that the application for extension was not properly disposed of, therefore, relying on Nazir Beg v. District Magistrate (P L D 1961 Lah. 142), it was contended that the respondent could not hold the auction;

(iii) that there was no law for auction of the lease and that the respondent was entitled only to charge fees and could not interfere with the business of the petitioner. Reliance in this behalf was placed on Muhammad Nawaz v. District Council, Sheikhupura (1973 S C M R 493).

Learned counsel for the respondent has, with regard to the first two contentions, mainly relied on the conduct of the petitioner, the terms of the contract and other circumstances deducible from the facts mentioned in the writ petition and the written statement. With regard to the last contention, be tried to show; by making reference to various enactments and notifications, that the respondent had the right to auction the lease as also to recover the fees. He produced mass of material in this behalf, as noted earlier, after the arguments were heard and the judgment was reserved.

7. The contract between the parties is in writing (Annexure R‑1). It i clearly mentioned therein that the District Council, Sargodha, vide its Resolution No. 106, dated 22‑1‑1970, decided to auction the cattle "mela" at Quaidabad for a period of three years from 1970 to 1973, in pursuance whereof the auction was held in which the petitioner had participated and succeeded. In the very first covenant, the lease period is specified as 15‑7‑1970 to 15‑7‑1973. In fourth clause, it is specified that the petitioner was to procure land, make construction and establish other facilities at his own expense. The incidence and mode of recovery of fee is mentioned in' some detail in clauses (6) and (7). Other matters have also been specified wherefrom it can clearly be understood that the petitioner, who is literate, accepted the position, amongst others, that the respondent had the right to recover fees, etc. to grant the lease through an auction; and further that the period of lease was 15‑7‑70 to 15‑7‑73. It was held in West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi P L D 1973 S C 222 that stipu lation not expressed in a written contract should not be implied merely because the Court thinks that it would be reasonable thing to imply it. Such an implication can be made only if, on a consideration of the terms of the contract in a reasonable and business manner, the Court is satisfied that it should necessarily have been intended by the parties when the contract was made. After having considered all the facts and circumstances of the case and the arguments addressed by the learned counsel I am of the A view that it would not be reasonable to presume that the parties in any way intended an extension of the lease not through auction but on an application of the petitioner or; for that matter, even an intention to afford him an opportunity of showing cause against such an auction at the time it would become due; nor can it be necessarily spelled out from the contract that the parties in any way intended that due to any reason the operation of the contract could be postponed beyond 15‑7‑70 and its conclusion beyond 15‑7‑73. Moreover, the respondent has asserted in the written statement that the petitioner had "started holding the Mandi as soon as he was held to be a successful bidder". Keeping in view the terms of agreement and the above assertion, it would not be possible for this Court to hold in writ jurisdiction that the intention of the parties was to postpone the operation of the contract despite clear stipulation therein in this behalf, beyond 15-7‑73 for any reason whatsoever. I, therefore, find no force in the first contention of the learned counsel for the petitioner and hold that by the impugned action the respondent did not curtail the period of lease and the petitioner thus, in this behalf, has no legal grievance.

8. The petitioner did make applications for extension. If he was bound by the contract, and there is no reason to hold that he was not bound, then there being no provision in the contract for extension on an application by the petitioner/lease‑holder, he had no right to force the respondent to consider the question of extension without auction. Moreover, it cannot be ignored that he himself had entered into the contract as a result of the auction held by the respondent. Not only this but it is also mentioned in the preamable of the contract that the respondent had, through a proper resolution, decided upon auctioning the lease. In these circumstances the petitioner cannot now be allowed to turn round and assert that be had a vested right in his application being considered for any other mode of disposal by the respondent of the question of lease of Quaidabad Meld. Even if it were to be assumed that the respondent had discretion either to auction the lease or otherwise to effect by negotiations, the petitioner on account of his own conduct would not be entitled to relief in writ jurisdiction of this Court. It has been asserted in the written statement that the second application of the petitioner filed in June 1973, was considered and a report was made thereon that "Mandi was going to be re‑auctioned". The advertisement to this effect had appeared in daily "Mashriq" dated 8‑7‑73. Moreover, it is not denied that posters were published and distributed amongst the contrac tors. The petitioner, therefore, in my view, had sufficient notice of the intention of the respondent to auction the lease. Under the contract, he was not entitled to any notice before the respondent could take any such decision. Even if it was necessary under general principles, I hold that he had sufficient knowledge about the impugned auction in or before the first week of July 1973. It cannot, therefore, be held that the impugned action has been taken without notice to or knowledge of the petitioner. The facts and legal implications in the ruling of this Court in the case of Nazir Beg P L D 1961 Lah. 142 cited by tee learned counsel for the petitioner are distinguishable. The same. therefore, is of no help to the petitioner. Thus the second contention of the learned counsel also has no force.

9. The last contention of the learned counsel for the petitioner is not based on any assertion made in the petition. On the other hand, it has throughout been assumed that the respondent could charge the fees and the "Cattle Market", as admitted in paragraph 1 of the petition, "is under the administrative control and supervision of Administrator, District Council, Sargodha". Even in the body of the petition or in prayer paragraph this aspect was not denied. The respondent therefore, was not in a position to make any specific reply in this behalf in the written statement. This appeared to be a question of law and I permitted both the learned counsel to argue the same. However, during the arguments, it transpired that it was a mixed question of law and fact. The history of cattle markets and fairs in District Sargodha/Shahpur extended over about half a century. There have not only been changes in law, many directions, instructions and regulations were also issued/modified from time to time. During the last phase of argument, difficulty arose with regard to the proof of assertions made from both the sides in this behalf. As the disposal of the writ petition bad already been unnecessarily delayed by the conduct of the parties, I closed the arguments and permitted the parties, to place on record the material they wanted to produce in this connection. As already noted, mass of material has been placed on record by the respondent with a brief note giving the history of cattle market fairs. The petitioner has also placed on record an order of the Commissioner, Sargodha, dated 13‑2‑1974 wherein a dispute between the "contractors, Cattle Market, Municipal Committee, Sargodha and contractors. Cattle Market, District Council, Sargodha was resolved." It is mentioned in this order that it has earlier been directed by the Commissioner that the District Council should frame bye‑laws with appropriate sanction for holding of Cattle Market and that it should not henceforth lease out any of its Cattle Markets without getting the prior approval of "the principle, from the Controlling Authority." The decision of the Commissioner does not show that the District Council, Sargodha cannot charge fees in connection with, or cannot bold, a cattle market fair. The said decision, therefore, is of no help to the petitioner. On the other band, it cannot be ignored that he had no opportunity of rebutting the material placed by the respondent on this file. In these circumstances, I am of the view that this point involving mixed C question of law and fact not having been raised in the writ petition, in the peculiar circumstances when the petitioner himself was acting on the basis of a contract (through auction) the validity of which he ‑has not denied, does not require final adjudication in this case, in writ jurisdiction. Some enquiry in the form of a trial involving evidence including production of documents would be necessary. The same, therefore, subject to the observations made about the conduct of the petitioner, has been left open. The judgment shall not be a bar to any other affected party bringing the same question before a proper forum in proper proceedings in accordance with law. Before passing on to the next point it needs to be noticed that their Lordships of the Supreme Court in the case of Muhammad Nawaz v. District Council 1973 S C M R 493 cited by the learned counsel for the petitioner, bad not adjudicated upon the question now raised by the learned counsel. Instead, their Lordships passed an order on the agreement of the parties in connection with the question of ad interim injunction arising out of a suit relating to the holding of a cattle fair in the District of Sheikhupura, wherefor an independent Notification No. 2145 dated 12‑4‑62 containing the Sheikhppura District Council Cattle Fairs (Control and Management) Regulation, 1961, framed under Article 91 of the Basic Democracies Orders, was presumed to be valid and duly issued. The said case, therefore, is of no help to the petitioner.

10. While dealing with the contentions of the learned counsel for the petitioner, I have not lost sight of the fact that the petitioner did make allegation of male fides against the Chief Officer of the respondent. Some facts in this behalf have been asserted in the writ petition and denied is the written statement. This Court was also moved for taking proceedings against him under Article 204 of the Constitution for contempt of this Court. In so far as the merits of the writ petition are concerned, in view of the fact that the impugned action fetched the highest bid of more than Rs. 80,000 against the petitioner's previous b d of over Rs. 700 and also on account of the fact that the new auction bidder deposited over Rs. 20,000 in advance, it is. not possible to hold that the respondent in any way acted with male fide intentions against the petitioner. But the‑‑question as to how the Chief Officer of the respondent acted in the matter while dealing with the petitioner or, in response to the directions issued or observations made, by this Court, it cannot be held that his conduct was free from malice and, in any case, above‑board. While disposing of the application of the petitioner for contempt of this Court, I had observed as follows:

"No justification has been shown for taking any action against any of the respondents for contempt of‑ this Court qua my orders dated 12/13‑7‑73 as 1 never directed in any of these orders that the petitioner shall continue holding the market in the same manner and in ' the same circumstances as he did before the expiry of the lease. If the petitioner wanted to continue after the expiry he should have either made an application to this Court for seeking a clarification in that behalf or should have approached the authorities concerned again. Therefore, in so far as this 'complaint made in this petition; (C. M. No. 3‑'/3) is concerned, no justification has been made out for taking any action. But the question whether otherwise, in tile circumstances of this case, some officers had not committed the contempt of Court, would be considered in due course."

When making the last quoted observation, I had in view the conduct, particularly, of the Chief Officer as is shown in the order passed by this Court on 12‑7‑1973, the relevant part of which reads as follows:

"This case came up before me on 10‑7‑73. As the copy of the impugned order, a mention of which is made in a note of the Chief Officer, was not available, the hearing of the petition could not proceed. The case was adjourned to 11‑7‑73 with a direction to the petitioner to produce the copy of the order. Yesterday, the learned counsel appeared and stated that his client had not by then returned. I adjourned the case for today.

(2) The petitioner is present. He states on oath that he went to Sargodha on 10th July but it had become late and the offices had been closed. Yesterday, he further states, he went to the Chief Officer and presented before him application (original now marked `A'; a copy of which is marked A‑1). The application and its copy, he states, were got prepared here at Lahore from the Clerk of the learned counsel, who is present and has confirmed the statement of the petitioner. According to the petitioner the Chief Officer told him that he would not grant the copy until after the auction and on the insistence of the petitioner be further told him that if he grants the copy, the same would be placed before the High Court and there would be a stay order and the auction would then be stopped, therefore he would not grant the copy. The petitioner is directed to put in an affidavit.

(3) At this stage, there is no reason to disbelieve the statement made by the petitioner. As the Chief Officer has refused to supply the copy of the impugned order, there is no alternative for this Court but to admit this petition. Notice."

With regard to the stay order initially issued by this Court, it has to be noticed that it was due to the failure of the respondent to appear on 13‑7‑73 that the interim relief granted by order dated 12‑7‑1973 was ordered to continue in the meanwhile. The proceedings on this writ petition in the form of orders; the confrontation of the Chief Officer by the petitioner during the hearings when parties were making efforts to adjust the matter; and the decision in this writ petition as contained in this judgment would show that on account of a certain attitude adopted by the Chief Officer (which, without recording further evidence, cannot be held to he prima facie reasonable), the District Council also might have suffered some loss. I, therefore, instead of proceeding against the Chief Officer for contempt of this Court, direct that a copy of this judgment shall be sent to the Commissioner,, Sargodha Division, for an enquiry into the question whether the Chief Officer was not acting male fide in connection with the lease and/or in connection with the proceedings on this writ petition, particularly the question with regard to the supply of copy of the order for auction dated 5‑7‑73. If the Chief Officer is found guilty of any dereliction of duty or any monetary loss to the respondent, this judgment and order shall not be a bar to proper proceedings/action being taken by competent authority against him.

11. In the light of the above discussion; this petition fails and the same is accordingly dismissed but there shall be no order as to costs.

S. A. H. Petition dismissed.