TEHSIL MUNICIPAL ADMINSITRATION KASUR Versus Malik ABID HUSSAIN BAITO

ORDER

JAWAD HASSAN, J.--- Through the instant Intra Court Appeal the Appellants have called in question the legality of impugned order dated 12.03.2015 passed in Writ Petition No.22736/2012 by the learned Single Judge whereby he allowed the writ petition filed by the Respondent No.1 directing the Appellants to pay to the Respondent No.1 a sum of Rs.600,000/- representing the second installment of the project.

2. Brief facts revealing from this Appeal are that the Respondent No.1 filed W.P. No.22736/2012 seeking a direction to the Appellant No.1 to release the second installment and to pay the enhanced cost of the project of construction of soling, drains, culverts, earth filling, park, sewerage Mufatpura Tara Ghar UC No.14 Ghohar Hithar @ 30 to 40% as per existing schedule of rates of Punjab Local Government (the "PLG"), which was allowed by the learned Single Judge vide the impugned order. Hence, the instant Appeal.

3. Learned counsel for the Appellants submitted that the impugned order is against law and facts as the Respondent No.1 had not made party to TMA Kasur in the writ petition; that the payment to the Respondent No.1 was made for the work done but for the work which has not been done cannot be paid which fact has been ignored by the learned Single Judge; that the learned Single Judge has not taken into consideration the fact that the Respondent No.1 was seeking advance payment for the work which was to be done as yet; that the project was cancelled on 08.01.2015 and the same has not been challenged by anyone, as such the petition had become infructuous; that it was a matter of contractual obligation which cannot be resolved in writ jurisdiction. In support of his contentions learned counsel has placed reliance on the case titled Nagina Bakery v. Sui Southern Gas Limited and 3 others (2001 CLC 1559), Amir Nawaz Khan and 2 others v. Government of Pakistan through Secretary, Finance, Islamabad and 5 others (2001 CLC 185) and Lahore Cantonment Cooperative Housing Society Limited, Lahore Cantt., through Secretary v. Dr. Nusrat Ullah Chaudhry and others (PLD 2002 Supreme Court 1068).

4. We have heard the arguments of the learned counsel for the Appellants and examined the record available with this Appeal.

5. The main grievance of the Respondent No.1 in the writ petition was that a direction be issued to the Appellants to release second installment and to pay the enhanced cost of the project @ 30% to 40% as per existed scheduled rates of the PLG. The Appellants submitted report and parawise comments to contest the writ petition filed by the Respondent No.1. The thorough examination of the whole report and parawise comments reflects that nowhere in the same the payment of second installments has been denied by the Appellants rather it has been specifically mentioned in it that keeping in view the sensitively of the matter, Administrator Kasur has constituted a committee vide order No.78 ADM TMA KASUR dated 15.09.2012 for scrutiny/visit of old CCB's file/project who have applied for the next installment, to avoid any irregularity and erroneous payment (copy attached). The subject CCB matter shall also be reviewed by the committee and proceeded in the light of recommendation of the committee.

6. From the above, it is crystal clear that the Appellants have never denied the claim of the Respondent No.1 rather the same has been made conditional attaching with the recommendation of the committee constituted for scrutiny to avoid any irregularity and erroneous payment as allegedly multiple projects of the same nature were under pipeline in the jurisdiction of the Appellants. As such, the learned Single Judge has rightly held that the report was filed way back on 21.11.2012 but till date (12.03.2015) no decision was made on the payment of the bill for second installment amounting to Rs.600,000/- and the Appellants have failed to give any reasons for such a considerable delay in payment of the said installment despite the fact that the bill was submitted on 10.05.2011. Reliance in this regard can be placed on the case titled Messrs Usmani Associates v. Pakistan Housing Authority through Managing Director and 2 others (2005 MLD 233) wherein this Court held as under:

"Contents of the petition about non-payment of verified amount was not denied rather non-availability of funds was pleaded. On such admission in the pleadings or otherwise any party could apply for judgment or order to be made by the Court."

7. Furthermore, the grounds taken by the Appellants in reply to the writ petition were duly dealt with by the learned Single Judge but the rest of the grounds raised before this Division Bench through filing the instant Appeal were not taken by the Appellants before the learned Single Judge, as such cannot be allowed to be agitated before this Division Bench as the same were available to them before passing the impugned order. The learned counsel for the Appellants has failed to point out any illegality or perversity in the impugned order which has been passed in consonance with the spirit of law. The case law relied upon by the learned counsel for the Appellants are distinguishable from the case in hand as each and every case has its own facts and circumstances, therefore, cannot be relied upon.

8. We agree with the finding of the learned Single Judge and see no illegality or jurisdictional error in the impugned order which has been passed in line with the dictates of law and does not warrant any interference by this Division Bench.

9. Resultantly, the instant Appeal is devoid of any merit and is accordingly dismissed.

MH/T-17/L Appeal dismissed.