ABDUL QAYYUM KHAN Versus DISTRICT OFFICER, PASSENGER AND FREIGHT TRANSIT TERMINAL, LAHORE, GENERAL BUS, STAND

ORDER

1. The brief facts out of which the present writ petition arises are that the petitioner participated in the auction proceedings held in obedience of the advertisement of respondents for collection of Intercity Vagon Fee on the General Bus Stand, Lahore. The petitioner's bid was highest amounting Rs.2,65,00,000. The bid of the petitioner was accepted by the respondents on 16‑11‑2001. An agreement was also executed between the petitioner and respondents on 15‑11‑2001. The petitioner submitted an application to toe respondents regarding payment of rebate of Rs.15,00,000 on the ground that during the month of April, 2002 Transportation of Vagon had been reduced because of Referendum 2002. The respondents dismissed the application of the petitioner vide order dated 3‑5‑2002. The petitioner being aggrieved filed Writ Petition No 8,331 of 2002 which was disposed of by this Court vide order. dated 17‑5‑2002. The respondents decided the case afresh after remand after providing proper hearing to the petitioner vide order, dated 31‑5‑2002. The petitioner being aggrieved filed this writ petition.

2. The learned counsel of the petitioner, submits that the contract was to start from 15‑11‑2001 and the possession of the collection site had to be given to the petitioner on the midnight of 15‑11‑2001 but it was given on the midnight of 21‑11-2001 thus the collection was made departmentally for seven days. The petitioner cannot be made responsible to pay the proportionate amount of‑the bid for these seven days because respondents did not perform its part of the contract. The proportionate amount of the contract for these seven days comes to Rs.8,17,180. He further submits that petitioner had given the bid of the aforesaid amount for the period from 15‑11‑2001 to 30‑6‑2002 whereas the work order was issued to the petitioner on 22‑11‑2001, therefore, the petitioner is entitled to Rs.8,17,180 at the rate of Rs.1,16,740 per day which should be excluding from the aforesaid total auction bid of the petitioner. He further submits that petitioner has filed application before the Administrator of General Bus Stand, Lahore to allow him to collect the aforesaid fee at 12‑00 p.m. on 14-11‑2001 but the respondents did not issue the work order to the petitioner, therefore, petitioner is penalized by the inaction of the respondents. He further submits that petitioner is entitled to rebate of seven days in terms of the agreement executed between the petitioner and respondents. In support of his contention he relied upon an unreported judgment dated 20‑2‑2002 passed 'in Writ Petition No.2664 of 2002.

3. The learned counsel of the respondents submits that the petitioner participated in auction proceedings held by the respondents on 13‑11‑2001. The bid of the petitioner was accepted by the Competent Authority on 16‑11‑2001. The petitioner submitted an application before the Administrator, General Bus Stand on 14‑11‑2001 to allow him to collect the fee in question without fulfilling the terms and conditions of the auction. The petitioner did not deposit the bank guaranty in accordance with terms and conditions of the auction. The petitioner submitted an application before the respondents on 19‑11‑2001 that condition to furnish Bank Guaranty be deleted. . The petitioner had furnished the Bank Guaranty on 20‑11‑2001. The work‑charge was issued in favour of the petitioner by the respondents on 22‑11‑2001. He further submits that writ petition is not maintainable as the petitioner has alternative remedy to approach the District Nazim in view of clause 14 of the agreement. He further submits that petitioner is not entitled to any rebate for seven days in view of clause 24 of the agreement. He further urges that v. it petition is not maintainable as the petitioner wants enforcement of the contract through this Constitutional petition. He further submits that income of Rs.4,14,937 made through Departmental collection has already been adjusted in his instalments of December, 2001 in view of clause 24 of the terms and conditions of the contract. The petitioner did not raise any objection at the relevant time.

2. He further submits that payable amount is calculated by .respondents against the petitioner is as follows:‑‑

3. "Liable instalments of ??????????????????????????????????????????????????????????????? = Rs.34,07,143

4. May, 2000 Liable Fine @

5. Rs.5,000 per day for 13 days

6. (Chargeable due to late payment of instalments during ??????????????????????????? . the months of December, 2001,

7. January, 2002 March, 2002 and

8. April, 2002. ????????????????????????????????????????????????????????????????????????????? Rs.65,000

9. ??????????????????????? Total ??????????????????????????????????????????????????? Rs.34,72,143

10. Amount already paid by the petitioner. ???????????????????????????????????????????????????????????????????????????????? = Rs.26,00,000

11. Amount yet to be paid by the petitioner. ???????????????????????????????????????????????????????????????????????????????? = Rs.8,72,143"

12. He further submits that petitioner is not entitled to any rebate and approached this Court with unclean hands. The judgment cited by the learned counsel of the petitioner is not applicable in the present case and is distinguished on law and facts. The learned counsel of the petitioner, in rebuttal submits that petitioner had to pay according to the bid amounting to Rs.1,16,228 to the respondents whereas the respondents had collected 85.59,277 per day for the interregnum period in which the work order was not issued in favour of the petitioner.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and .perused the record myself.

5. It is better and appropriate to reproduce the material facts in chronological order to resolve the controversy between the parties:‑‑

(i) ???????? The advertisement was issued by the respondents in the daily newspaper with the following relevant conditions:‑‑

(ii) ??????? The auction was held on 13‑11‑2001.

(iii) ?????? The petitioner's bid was highest amounting to Rs.2,65,00,000.

(iv) ?????? The Competent Authority accepted the bid on 16‑11‑2001 which was intimated to the petitioner's Manager Talib Hussain who had igned on the acceptance letter.

(v) ??????? The agreement also contained clause to deposit in advance Bank Guaranty.

(vi) ?????? The terms and conditions of the auction as well as the agreement contained the clause that in case of any dispute arises between the lessee and the lessor the same will be decided by the District, Nazim, Lahore who will be sole authority under the Arbitration Act.

(vii) ????? That petitioner submitted an application before the Administrator, General Bus Stand, Lahore on 14‑11‑2001 to allow him to collect the fee without depositing the Bank Guaranty. The petitioner submitted an application before respondent to waive of the condition of the Bank Guaranty on 19‑11‑2001.

13. The petitioner submitted Bank Guaranty on 22‑11‑2001.

(viii) ????? The work order was also issued by the respondents in favour of the petitioner on 22‑11‑2001.

14. In case the aforesaid facts are put in a juxtaposition then the respondent did not issue the work charge to the petitioner till 22‑11‑2001 on account of the inaction of the petitioner as the petitioner did not furnish the Bank Guaranty in terms and conditions of the agreement arrived at between the petitioner and the respondents as well as in terms and conditions of auction. The agreement also contain arbitration clause. The petitioner executed the contract of his own free will. The petitioner wants enforcement of a contract through this Constitutional petition which is not permissible in the eyes of law as per principle laid down by the Honourable Supreme Court in the case of Momin Motor Company v. R.T.A. (PLD 1962 SC 108). As mentioned above the contract also contains arbitration clause, therefore, writ petition is not maintainable in view of the law laid down by the Honourable Supreme Court in the following judgments:

15. Project Director, Balochistan Mines Irrigation v. M/s. Murad Ali & Company (1999 SCMR 121) and Mumtaz Ahmad v. District Council, Sahiwal (1999 SCMR 117).

16. The unreported judgment relied upon by the learned counsel of the petitioner did not support the cause of the petitioner. As the question of maintainability was not raised and decided.

17. In view of what has been discussed above, the writ petition is not maintainable. It is also settled principle of law that public functionaries deriving authority from or under law, are obliged to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. It is admitted that bid was accepted by, the respondents on 16‑11‑2001, the respondents failed to bring on record any sufficient material to show when the bid was accepted by the respondents on 16‑11‑2001. In this view of the matter, the respondents are directed to adjust Rs.59,000 for one day to the petitioner in terms of clause 24 of the terms and conditions of the auction.

18. The writ petition is disposed of with the above observations.

19. H.B.T./A‑584/L ?????????????????????????????????????????????????????????????????????????????????? Order accordingly.