HUSSAIN CORPORATION Versus DIVISIONAL COMMISSIONER,D. G. KHAN
Through this petition, M/s. Hussain Corporation, petitioner, seeks declaration to the effect that‑the order date 14‑6‑1990 passed by Divisional Commissioner, D.G. Khan Division, Dera Ghazi Khan, respondent No.1, directing the re‑auction of the lease of export tax Zila Council, D.G. Khan, for the year 1990‑91, in accordance with the latest Export Tax Rules, 1990, to be without lawful authority and of no legal effect.
2. The relevant facts leading to this Constitutional Petition, briefly, are that the auction for the right to collect export tax was held by Zila Council, D.G. Khan, on 7‑6‑1990. The petitioner was the highest bidder having bid of Rs.85,00,000 (Rupees eighty five lacy, which was subsequently approved by the. Full House of the Zila Council and work order was issued on 11‑6‑1990. It so happened that Ghulam Mustafa, respondent No.3, filed a complaint before the Divisional Commissioner, D.G. Khan, against the auction proceedings and the grant of contract for the collection of the export tax to the petitioner. The notice of this complaint was issued to the Chairman of Zila Council for 12‑6‑1990. On 12‑6‑1990, the Divisional Commissioner, respondent No.1, referred the complaint of Ghulam Mustafa to Director Local Government and Rural Development, D.G.Khan, for necessary action in accordance with law. The parties were directed to appear before the Director, on the same day. However, the Director sent back the case to the Divisional Commissioner for decision on the ground that under Rule 14 (1) (3) of the Punjab Zila Council Export Tax Rules, 1990, the Divisional Commissioner being the appellate authority could dispose of the complaint. On its receipt by the Divisional Commissioner, he passed the impugned order on 14‑6‑1990. . Hence, this petition.
3. The learned counsel for the petitioner relied on Muhammad Manawar Khan. v. Deputy Commissioner, Gujranwala and others (PLD 1983 Lahore 102) to contend that after the approval of the highest bid of the petitioner and execution of the agreement between the parties and issuance of work order, the petitioner had acquired a vested right, which could not have been taken away from him by the Divisional Commissioner without giving him the opportunity of being heard. Furthermore, the Commissioner has exercised his appellate jurisdiction under Rule 14 of the Zila Council Export Tax Rules, 1990, which were not in force on 14‑6‑1990 when the impugned order was passed by him.
4. The learned counsel for respondent No.3 has not opposed this petition. However, the learned Additional Advocate‑General has supported the impugned order on the ground that the petitioner has no vested right and, as such, the Divisional Commissioner was competent to pass the impugned order.
5. I have carefully attended to the arguments addressed by the learned counsel for the parties. I feel persuaded to agree with the learned counsel for the petitioner for the reason that the Divisional Commissioner had exercised the appellate jurisdiction on 14‑6‑1990 under Rule 14 of the Punjab Zila Councils Export Tax Rules, 1990, which were not in force on that date. "These Rules were framed by the Government of the Punjab, Local Government and Rural Development Department on 24‑4‑1990. But by virtue of Rule 2 the same came into force with effect from 1st day of July 1990. The relevant Rules may be reproduced advantageously:‑‑‑
(1) Short title and commencement. ‑‑(1) These rules may be called the Punjab Zila Councils (Export Tax) Rules, 1990.
(2) They shall come into force on the first day of July, 1990.
Rule 14. Appeals .‑‑(1) Notwithstanding anything contained in the Punjab Local Councils (Appeal) Rules, 1980, appeals against the assessments made and orders passed under these rules shall lie before
(i) ....................
(ii) ... ...........
(iii) the Commissioner, if the order is passed by the Chairman.‑
6. The bare reading of the Rules reproduced above will show that the same were not in force on 14‑6‑1990 when the impugned order was passed by the Divisional Commissioner under the same. Furthermore, the complaint/application of Ghulam Mustafa, respondent No.3, was directed against the agreement executed between the petitioner and the Zila Council and not against any order passed by the Chairman, Zila Council. No appeal is provided against any agreement or contract executed between the Zila Council and the private person.
7. For these reasons, I ant convinced that the impugned order passed by the Divisional Commissioner is without lawful authority and of no legal effect. Consequently, the agreement execute,1 between the parties holds the field. The parties shall bear their own costs.
AA./H‑3/L Petition accepted.