MUHAMMAD RAFIQUE Versus MUHAMMAD AJMAL
ORDER
KHALIL‑UR‑REHMAN KHAN, J. ‑‑‑This order will dispose of this appeal as well as another appeal (I.CA. No. 413/91) as the questions of facts and law involved in both these appeals are one and the same. The first appeal arose out of a Constitutional petition wherein the dispute with regard to leasing out the rights to collect the export tax was raised while the second appeal arose out of a writ petition wherein the dispute pertains to leasing out of the right to collect tax on transfer of immovable property.
2. The facts and questions of law arising for determination have been given in detail by the learned Judge in Chamber in the impugned judgment dated 20‑7‑1991 and the same need not be repeated. Suffice it to say that in the auction held on 30‑4‑1991 pursuant to the public notice dated 26‑4 1991, the respondents/writ petitioners assertedly gave the highest bids which were, according to them, accepted by the Chairman Zilla Council but later on instead of honouring the agreement with them, the lease contract was awarded to the present appellants in the respective appeals. The respondents/writ petitioners, therefore, prayed that the auction proceedings dated 30‑4‑1991 regarding the two taxes as being shown pending are without lawful authority and any other action, decision, order transferring/allotting the rights to collect/receive export tax or immovable property tax, Zilla Council Jhang for the period w.e.f. 21‑7‑1991 to 20‑7‑1992 to the present appellants respectively is without lawful authority as the respondents/writ petitioners are lawful auction‑purchasers of the said rights for the aforesaid period.
3. The respondent/Zilla Council, in the written statement took up the position that the bid was rejected and that the documents being relied upon in support of the plea that the bid was accepted and agreement was executed, were forged documents and that as the bid was rejected by the Chairman Zilla Council, the lease rights to collect both these taxes were auctioned on s8‑5‑1991, the date which had already been notified in the public notice dated 26‑4‑1991 and the highest bid offered by the present appellants were accepted by the Chairman in pursuance of the powers delegated to him by the Zilla Council vide Resolution dated 20‑7‑1989. Later on 9‑6‑1991, Akhtar Abbas Bhatwana, Chairman District Council, Jhang and the learned Advocates of respondents Nos.1 and 2 got recorded statements to the effect that in order to resolve the dispute and to avoid any future complication, the Zilla Council Jhang is prepared to reauction the lease rights for the recovery of taxes for the period ‑21‑7‑1991 to 20‑7‑1992. This offer was accepted by the learned counsel for the petitioners. Thus, the petitioners as well as respondents Nos.1 and 2 agreed to the reauction of the lease rights to collect both the taxes for the period in question. This course of action was opposed by the present appellants who are respondent No.4 in both the writ. petitions, on the plea that by the agreed arrangement, the rights which have come to vest in them by the acceptance of the highest bid offered by them in the auction held on 8‑5‑1991 and these rights cannot be allowed to be frustrated. For the reasons given in the impugned judgments, the auction held on 8‑5‑1991 and the acceptance of the bid by the Chairman were held to be illegal and hence of no legal effect. Hence, these appeals.
4. Learned counsel for the appellants argued that the order that, 4t best, could be passed in the two writ petitions filed by the respondents/petitioners was to direct reconsideration by the Chairman Zilla Council of the bid offered by the writ petitioners in the auction held on 30‑4‑1991 but the rights of the petitioners in no case could be jeopardized by accepting the suggested cause of action, that in order to grant relief prayed for in the writ petitions and that too only on the grounds taken therein, the learned Judge in Chamber was not called upon to examine the legality of either the second auction held or of the acceptance of highest bids offered by the appellants; that under Article 199 of the Constitution, the Court has no power to suo moto examine the legality of the second auction held on account of the rejection of the bid offered in the auction held on 30‑4‑1991 as the second auction dated 8‑5‑1991 was not challenged in the writ petitions; and that the acceptance of the bid and the contract thereunder coming into existence could not be rescinded by the Zilla Council acting unilaterly by making the concession. It was argued that in case the Zilla Council was desirous of not acting upon the only valid contract m favour of the appellants for any reason, it could resort to arbitration as provided in rule 19 of the Rules. It was explained that the power to do complete justice, as is enshrined in Article 186 of the Constitution, is not available to the High Court.
5. A close scrutiny of these pleas will show that the main plea advanced is that the question of legality of the second auction held for leasing out the right to collect the two taxes held on 8‑5‑1991 could not be gone into by the High Court as the same was not the subject‑matter of the two writ petitions. Relying on the observations made in Tariq Transport Company, Lahore v, Sargodha‑Bhera Bus Service, Sargodha and others (PLD 1958 S.C. 437), it was argued that this Court cannot suo moto enquire into the legality of any auction and thereby granting relief considered appropriate in the circumstances. The rebel claimed in the petitions has been quoted above and a cursory glance of the same reveals that the decision to allot the rights to collect the taxes of Zilla Council for the period in question was challenged and even interim relief respecting thereto was also prayed for. Both the parties admittedly convassed before the learned Single Judge the legality or otherwise of the first auction held and the effect thereof on the legality or otherwise of the second auction and on the acceptance of the bids offered in the second auction. It is, therefore, not open to the appellants to argue that the question of the second auction and the bids offered by them were not the subject‑matter of the Constitution petitions filed by the respondents. These questions were thus not taken suo Motu by the learned Single Judge. This plea in the circumstances of the case is not available to the appellants.
6. As far as the legality of the first auction is concerned, the parties to the auction i.e. the Zilla Council and the petitioners; agreed not to pursue this matter and so the dispute was resolved by agreeing to the holding of fresh auction. As regards the rights claimed by the appellants on the basis of auction held on 8‑5‑1991, suffice it to say that this auction was held without giving a separate public notice as to the auctioning of the lease rights to collect the two taxes. Learned Judge in Chamber has given reasons for recording the conclusion that the second auction held was violative of the Rules on the subject. These reasons need not be gone into in detail by us as even under Punjab Zilla Council Export Tax Rules, 1990, which are being relied upon by the learned counsel for the appellants, the auction was held on 8‑5‑1991 illegally in violation of Rule 16 of these Rules as it provides that Zilla Council may lease out by public auction for the period not exceeding one year, collection of export tax on such terms and conditions as may be determined by the Zilla Council. The very term "public auction" connotes, public notice. The plea of the learned counsel that the public notice dated 26‑4‑1991 is to treated as the public notice for the purpose of auction held on 8‑5‑1991 is devoid of force. The notice dated 26‑4‑1991 states that the auction will be held for auctioning the lease rights of both the taxes on 30‑4‑1991 and in case these contracts, are not put to auction on the said date due to any reason, then the auction will be held on 6‑5‑1991 and 8‑5‑1991 at Jinnah Hall, Jhang. Admittedly, the auction did take place on the date fixed i.e. 30‑4‑1991 and as such. this notice had become redundant. Admittedly, no other notice was given for holding the auction on 8‑5‑1991 and as such even the Rule relied upon by the learned counsel for the appellants was not complied with. This reason is sufficient to hold that the auction so held and the bid offered in the said auction fail to give rise to any valid contract between the parties or has the effect to vesting any legal right in the appellants. In these circumstances, the order passed by the learned Single Judge i.e. of reauctioning the rights for the period in question, was the most appropriate order to be passed.
7. For the reasons given above, there is no merit in these appeals and the same are dismissed in limine.
AA/M‑3140/L Appeals dismissed.