MUHAMMAD MOSAWWAR KHAN vs DEPUTY COMMISSIONER, GUJRANWALA

' This writ petition calls in question the order dated 27-6.1982 of the Deputy Commissioner, Gujranwala, whereby the auction of octopi collection for the year 1982-83 in favour of the petitioner was set aside. The learned counsel for the petitioner has challenged the vires of the impugned order on a number of grounds, including the jurisdiction of the Deputy Commissioner to pass this order.

2. Be that as it may, it is not necessary to examine all the points raised in the writ petition as the same can be disposed of on two short legal grounds, that the impugned order is based on erroneous assumption of fact as is apparent on the face of record, by a bare perusal to the opening paragraph of the impugned order that the collection of Octroi of the Town Committee, Qila Didar Singh, for the current financial year had been auctioned for the lesser amounts as compared to the last year's income under the relevant heads. This finding of fact is clearly based on misreading, in that, the collection of octroi was auctioned for the year 1981-82 in the sum of Rs, 5,34,000, whereas for the year 1982-83 it was auctioned in the sum of Rs, 5,89,000. The learned Deputy Commissioner has given a number of other reasons for setting aside the auction out of which at least one reason is ex facie bad in law. It cannot be determined in the exercis of constitutional jurisdiction to what extent the bad reason referred to above operated on the mind of the Deputy Commissioner or whether the impugned order would have been made at all even if the collection for the octroi A for the current financial year was higher than the amount compared to the last year's income. It is well settled that in the exercise of constitutional jurisdiction, this Court cannot substitute its own independent opinion for that of the competent authority. The doctrine of severability cannot be exercised in this case by separating bad reasons from good reasons.

Therefore, the whole order is liable to be struck down. My view finds support from the dictum of the Supreme Court in Government of West Pakistan v. Haider Bakhsh Jatoi and another (I). The impugned order is partly based on misreading of documentary evidence on record and clearly indicates that the learned Deputy Commissioner, Gujranwala, has not properly applied B his mind and on this score alone the order is liable to be set aside. Furthermore, notwithstanding the fact that the collection of octroi was auctioned in favour of the petitioner and an agreement was also executed between the petitioner and the Town Committee, Qila Didar Singh, the learned Deput Commissioner passed the order without notice to the petitioner and in violation of the principies of natural justice. This ground by itself vitiates the impugned order and the same is liable to be struck down.

3. In view of the above discussion and without prejudice to the respective contentions of the parties on merits of the case as well as on the question of jurisdiction of the Deputy Commissioner to pass the impugned order, the order dated 27-6-1982 is declared as without lawful authority. The result is that the case is remanded to the Deputy Commissioner for decision afresh in accordance with law after providing an opportunity to the parties to raise their respective contentions including the question of his own jurisdiction. The parties are directed to appear before the Deputy Commissioner, Gujranwala, on 23-11-1982 for further proceedings. In the circumstances of the case, there shall be no order as to costs. {{FOOT NOTE}}

(1) PLD 1969 SC 210 {{FOOT NOTE}}