MUHAMMAD MUZAMMAL KHAN, J--- Instant constitutional petition challenged order dated 12.12.1998 passed by Secretary, Local Government (respondent No. 1), whereby revision petition filed by Administrator Zila Council, Sargodha, was accepted and appellate order dated 19.8.1996 passed by the Director, Local Government and Rural Development, was set aside.
2. Succinctly, relevant facts are that Cattle Markets at Nehang and Sial Sharif were leased out by Zila Council, Sargodha, for the year 1995-96 and the petitioner out bided the open auction dated 6.6.1995. Petitioner deposited an amount of Rs.
3,00,000/- as earnest money, earlier to his participation in the auction. Under the terms and conditions of auction, Cattle Market of Nehang was to be held on every Friday, whereas that of Sial Sharif was to be held on every Tuesday. The highest bid of the petitioner was approved by the Administrator, Zila Council and he was accordingly required to enter into an agreement. It so happened that on 28.6.1995 the Commissioner, Sargodha Division directed Zila Council to hold weekly Cattle Market at Nehang and Sial Sharif once on Friday instead of Tuesday. Petitioner in retaliation of the order to hold both Cattle Markets on one day did not respond to repeated notice by Zila Council for execution of lease agreement and instead on 4.7.1995 requested to the Administrator. Zila Council for return of his earnest money and expressed his unwillingness to continue with the lease in view of order by the Commissioner dated 28.6.1995.
3. Zila Council on the other hand, filed a civil suit against the order of the Commissioner dated 28.6.1995, wherein an injunction was also obtained suspending the order of the Commissioner. Zila Council thereafter issued a fresh notice to the petitioner conveying him the suspension by the Civil Court of the order dated 28.6.1995 and required him to execute the agreement deed. He was also warned that in case of failure, his earnest money of Rs. 3,00,000/-shall be forfeited. Petitioner did not respond to the notice by Zila Council, besides which injunction order by the Civil Court was vacated on 13.11.1995 and this order was affirmed in appeal on 11.12.1995.
4. Administrator, Zila Council refused to refund the earnest money of the petitioner, whereagainst he filed an appeal before the Director, Local Government and Rural Development, Sargodha Division, which was accepted and earnest money of Rs. 3,00,000/- was ordered to be refunded to the petitioner. Zila Council then filed a revision petition before respondent No. 1, who reversed the appellate order as noted above. Petitioner thereafter filed instant constitutional petition wherein respondent No. 2 appeared in response to notice by this Court and the respondents were represented through their counsel.
5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Undeniably, there was no specific provision in the Punjab Local Government Ordinance, 1979 conferring revisional jurisdiction on respondent No. 1, which he under the cover of provisions of Section 153 of the said Ordinance, assumed to strike down the appellate order by Director, Local Government and RurarDevelopment. The precise question, which hinges for determination is as to whether in absence of any specific revisional powers, respondent No. 1 could embark upon to undertake the complained exercise under the garb of provisions of Section 153 of the Ordinance (ibid). Section 153 of the said Ordinance reads as under:-
153. Supervision of local councils:-Government shall exercise general supervision and control over the local councils in order to ensure that their activities conform to the provisions of the Ordinance."
Language of the above reproduced provisions of law is unambiguous, where-under Government can exercise supervision/control over local councils in order to ensure compliance of provisions of this Ordinance but cannot exercise revisional powers which were not conferred on it by the legislature.
6. Makers of law with an intent to provide safeguard both to the local councils as well as to the public at large, equipped the Provincial Government with the powers to quash anything done or intended to be done by or on behalf of a local council or a committee if the same is not in conformity with law or is in any way against public interest through provisions of Section 156 of the Ordinance, 1979.
Powers under this Safeguard could only be exercised if an act done is not in conformity with law.
For applicability of those provisions one has to fall back of Section 39 of the Ordinance, where- under contracts by or on behalf of the local councils had to be in writing and were to be executed in a prescribed manner under the Rules framed i.e. The Punjab Local Councils (Contract) Rules, 1981. These Rules also defined lease agreements and other contracts, which were enforceable at law. Rule 5 of the said Rules prescribed the manner of making contracts which had to be done through a formal deed of agreement duly executed between the Local Council and the contractor laying down the terms and conditions thereof. Since parties did not enter into any lease agreement under the auction dated 6.6.1995 on account of an order by the Commissioner, Sargodha Division dated 28.6.1995, there remained no enforceable contract inter parties, where-under earnest money of the petitioner could have been confiscated. This narration would demonstrate that respondent No. 1 could not even took refuge for coming in rescue to the Zila Council under the provisions of Section 156 of the Ordinance of 1979.
7. Law makers with clear and unambiguous understanding of not equipping respondent No. 1 with revisional powers deliberately provided in Section 166 of the Ordinance (ibid) that the order in appeal shall be final, hence respondent No. 1 was handicapped to adjudge appellate order by Director, Local Government and Rural Development either under Section 153 or 156 of the Ordinance under discussion.
8. For the reasons noted above, impugned order dated 12.12.1998 passed by respondent No. 1 being illegal and without jurisdiction, is declared to be void and of no legal consequence and is accordingly struck down by issuing the writ as prayed, with no order as to costs.