SHAUKAT ALI Versus ZILA COUNCIL, MIANWALI M

ORDER

1. Brief facts out of which the present writ petition arises are that petitioner participated in the action proceedings. In obedience of the public notice by the respondents for the lease for recovery of Goods Exit Tax for the year 1990‑91 Petitioner's bid was highest Rs.1,50,000. An agreement was executed between the petitioner and respondents. According to the lease agreement, recovery was to be made by the contractor through the employees of the Zila Council and the salaries of these employees were also to be paid by the contractor. Petitioner had to pay the salaries and allowances of the following employees of the respondents who were employees of the respondents at the time of grant of lease:

(i) Inspector 3 (ii) Tax Clerk 30 (iii) Naib‑Qasid 30.

2. The respondents in violation of the undertaking and also in violation of the Schedule of Establishment Rules, 1981 recruited staff of the export tax collection branch exceeding 100 officials under the directions of the politicians. The audit department raised the audit objection but the respondents failed to reduce the number of employees illegally recruited by the respondents. The Commissioner also directed the respondents to dispense with the services of the staff/officials in export tax branch illegally appointed by the respondents. The petitioner refused to pay the salaries of the staff of the respondents illegally appointed by the respondents after the lease agreement. Even after demand made by the respondents Rs.19,11,349 from the petitioner but the petitioner refused to accept the request of the respondents. The Zila Council referred the matter to the District Collector, Mianwali vide letter, dated 9‑5‑1993 whereby he was asked to recover this amount from the petitioner as arrears of land revenue. The District Collector. Mianwali in turn issued certifed to the District Collector, Layya for' effecting recovery of the said amount as arrears of land revenue as the contractor was resident of Chak No.29.6 T.D.A. District Layya. Petitioner being aggrieved filed Writ Petition No. 13361 of 1994 before this Court which,‑ was accepted vide order, dated 13‑11‑1996. Petitioner offered his highest bid keeping in view the Model Tax Schedule of Export Tax as notified by the Government vide memo. dated 24‑4‑1990 which was‑ suppressed by the Government vide memo. dated 13‑8‑1990 and directed the Zilla Council to levy their own tax schedule in accordance with the Model Tax Schedule as notified on 13‑8‑1990. Petitioner preferred an application before respondent No.1 for reduction in the lease amount as per clauses 19 and 7 of the lease agreement which was accepted by the respondent No.1 in its General Meeting held on 8‑6‑1991 and House unanimously accepted the application of the petitioner and decided to reduce the lease amount by granting a relief to the extent of Rs.49,60,000. Respondent No. l forwarded the same to the Government for approval. The Government had also approved the same vide memo. dated 6‑2‑1992. Respondent No.1 failed to return the aforesaid amount to the petitioner and the petitioner is constrained by the aforesaid circumstances to file this writ petition.

2. Learned counsel for the petitioner submits that respondents leased out the lease for recovery of Goods Exit Tax as per Model Tax Schedule notified by the Government vide memo. dated 24‑4‑1990 without adopting the proper procedure as provided under the Punjab Local Council (Tax Rules, 1980. He further submits that Government has superseded the aforesaid memo. dated 24‑4‑1990 vide memo. dated 13‑8‑1990. The action taken by the respondent No.1 on the basis of the previous memo. dated 24‑4‑1990 has become redundant. He further submits that respondent No. l failed to notify its own Schedule of Export Tax as is envisaged under sections 137/138 of the Punjab Local Government Ordinance, 1979 read with Punjab Local Council Taxation Rules, 1980. He further submits that petitioner is not duty bound to pay the salary of the surplus staff illegally appointed by the respondents in violation of the Punjab Zila Council Schedule of Establishment Rules, 1981. He further submits that action of the respondent is in violation of the mandatory provisions of the' Rules of the Punjab Local Council Rules, 1990 as well as the provisions of the Punjab Zila Council.Goods Exit Tax Rules, 1990. He further submits that action of the respondents is without lawful authority in view of the law laid down by the superior Courts in the following judgments:‑

3. Municipal Committee Multan's case PLD 1976 Lah. 726; Raja Muhammad Ramzan's case PLD 1992 Lah. 324; Dr. A.A. Aziz's case PLD 1966 SC 188; Messrs Karimi & Company's case PLD 1968 Kar. 79;'Lahore Municipal Corporation's case PLD 1986 Lah. 386; Messrs METCO Ship Braker's case 1996 MLD 144; Muhammad Adrees's case PLI 1979 Lah. 354; Messrs Hatta Construction Company's case 1995 CLC 187; Multan Chemicals Ltd.'s case 1991 MLD 910; Sher Bahadur's case 1997 CLC 718; Karachi Metropolitan Corporation's case 1997 SCMR 1228 and Muhammad Sarwar Bhatti's case 1996 CLC 1970.

3. Learned counsel for the respondents raised a preliminary objection that petitioner filed Writ Petition No.13361 of 1994 qua the same subject matter which was decided by this Court on 4‑12‑1994; and the second writ petition qua the same subject‑matter and relief is not maintainable by virtue of section 11 and Order 2, Rule 2, C.P.C. He further submits that respondents have filed suit after the order of this Court, dated 4‑12‑1994 in Writ Petition No.3361 before the Civil Judge, Mianwali but the petitioner failed to appear till date and the next date of hearing is 20‑1‑2001 before the Senior Civil Judge, Mianwali in which the order was passed by the learned Senior Civil Judge for substituting service of the petitioner. He further submits that petitioner has alternative remedy under the provisions of the Punjab Local Government Ordinance, 1979 and Rules framed thereunder. He further submits that agreement contained arbitration clause vide item No.18. Therefore, writ petition is not maintainable. He further submits that rebate Rs.49,60,000 in lease money was not admissible in the light of para.12 of Government Notification No.S.O.‑VII‑1‑58/81 P.III, dated 11‑4‑1990 and the decision contained in Letter No.S.O.VII(LG)3‑5/90, dated 8‑1‑1990. The Zila Council in its meeting held on 16‑3‑1992 to resolve the request, the Government not to allow rebate in contravention of the Government instructions as is evident from reply of para.15 of respondent No.1. He further submits that the Zila Council has not sent any request for rebate to the Government that the Government did not grant any rebate to the petitioner and no approval was granted by the Government in favour of the petitioner.

4. In rebuttal, the petitioner's counsel submits that in presence of civil suit, the writ petition is maintainable; that both the writ petitions have different causes of action, therefore, second writ petition is maintainable.

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:‑‑

4. Relevant paras. of writ petition

5. 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' .

6. 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 .

7. Parawise comments of respondent No.1.

8. 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.

9. Parawise comments on merits

10. 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.

11. Preliminary Objection No.6 of respondents

12. 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."

13. 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:‑‑

14. 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:‑‑

15. Raja Muhammad Ramzan's case 1994 SCMR 1484 and Project Director Balochistan Irrigation's case 1999 SCMR 121.

16. 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:‑‑

17. 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:

18. 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. "

19. Ground ' D'

20. 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').

21. Ground ' E'

22. 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' .

23. 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.

24. 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. "

25. 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:‑

26. 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.

27. The judgments cited by petitioner's counsel are distinguished on facts and law and same are not applicable in present case.

28. In view of what has been discussed above, this writ petition is dismissed with no order as to costs.

29. Q.M.H./M.A.K./S‑144/L Petition dismissed.