MUHAMMAD JEHANGIR ARSHAD, J.---Today, though C.M. No.1344 of 2006 seeking interim relief was fixed but respondents appeared of their own along with their learned counsel and prayed for decision of the main writ petition. Hence, with the consent of learned counsel for the parties, this case is being heard and decided as notice case. Office to list out the same accordingly.
C.M. No. 1411 of 2006
2. Need no order as the applicant already stands impleaded as respondent No.4 in array of respondents in the writ petition. Disposed of as such.
Main case
3. The facts in brief are that Tehsil Municipal Administration respondent No.1 through advertisement appearing in daily "Nawa-i-Waqt" of its issue dated 5-5-2006 announced auction for the collection of tax on transfer of immovable property for 15-5-2006 at 11-00 a.m. In its office at Lodhran.
However, for some reason the said auction could not be held on 15-5-2006, therefore, fresh advertisement appeared in daily "Nawa-i-Waqt" in issue dated 22-5-2006 for the holding of said auction on 31-5-2006. According to contents of this petition, though the petitioner was the highest bidder in the said auction and the hammer also fell in his favour yet the said auction was not confirmed by the T.M.A., .With the result that according to the petitioner allegedly a third attempt was made by T.M.A., Lodhran by publishing advertisement on 23-6-2006 in daily "Nawa-i-Waqt", Multan for holding said auction on 30-6-2006. It is argued by learned counsel for the petitioner that the petitioner in fact remained present in the office of T.M.A., Lodhran on 30-6-2006 but no such auction was held and thereafter, the petitioner came to know that the said auction was held by the T.M.A. In a clandestine manner in order to extend wrongful benefit to respondent No.4 whose bid later on was approved by T.M.A. Lodhran and he was given contract. It is further argued that neither the auction allegedly held on 30-6-2006 was held in open, just and transparent manner in order to-safeguard the public interest and exchequer, the same was also in violation of Rules (9) and 16 of the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003. In support of his contention the learned counsel has placed reliance on the case Muhammad Afzal v. Shahzad Asghar Dar and others '2003 SCM R 280, an unreported judgment of the Honourable Supreme Court of Pakistan in the case Malik Ata Muhammad v. Government of Punjab and others C.P. Nos.2404, 2405 and 2406 of 2004 and also unreported judgment by this Court in Muhammad Aslam v. T.M.A.
Khairpur Tamiwali Writ Petition No.1412 of 2006-BWP.
4. On the other hand, though the learned counsel for respondents Nos. 1 to 3 has tried to defend the action 'of respondents and oppose the writ petition by merely pleading that the disputed auction was held fairly, honestly and in accordance with law yet Mr. Uzair Chughtai, Advocate representing private respondent No.4 at the very outset frankly admits that advertisement published for holding of auction does not contain the particulars or Rule 5(v) read with Rules 9 and 10 of the above Rules however, according to Mr. Chughtai as the petitioner did not participate in auction and that a concluded contract has come into existence between respondents, therefore, the petitioner is estopped from challenging the disputed auction and also this Court while sitting in constitutional jurisdiction is precluded from going into vires of disputed auction on the ground of violation of above mentioned rules. The learned counsel for respondent No.4 further contends that although there is no force in the contention of learned counsel for the petitioner that no auction was in fact held on 30-6-2006 and that the entire exercise was made in a clandestine manner yet the same being a disputed question of fact cannot be gone into by this Court in writ jurisdiction. Lastly, it is contended that as the act of respondent No.1 approving auction in favour of respondent No.4 is appealable in terms of section 190 of the Punjab Local Government Ordinance, therefore, in the presence of alternate remedy this petition is not maintainable.
5. I have considered the above mentioned arguments of learned counsel for the parties and have also gone through the case-law.
6. There is no cavil to the proposition that this Court while sitting in constitutional jurisdiction cannot go into disputed questions of facts nor this-Court is going to determine any such questions in this petition. Similarly, there is no dispute to the proposition that when an alternate remedy is provided, writ petition normally is not maintainable without first exhausting the said remedy, but it is equally true that presence or alternate remedy is neither a principle of law nor the rule of thumb but one of practice and when the impugned action is patently illegal or illegality is floating on the surface, to refuse interference under constitutional jurisdiction would in fact amount to acting in aid of injustice and the plea of availability of alternate remedy loses its legal significance and this Court can exercise constitutional jurisdiction by ignoring such plea, as held by the Honourable Supreme Court of Pakistan in 1999 SCM R 1981 and PLD 1997 SC 304. Therefore, this objection of the learned counsel is overruled.
5. Now adverting to merits of this petition, it would be relevant to reproduce the relevant provisions i.e. Rule 5(v), Rule 9 and Rule 16 of the Punjab Local Government (Auctioning of Collection Rights)
Rules, 2003:-- "5. Auction procedure.
(i)
(ii)
(i.e)
(iv)
(v) The public notice shall contain the minimum reserve price for auction and period of contract with rates and details."
9. Reserve price.--- The reserve price for an income shall be the average of last preceding three years' income of the receptive Local Government: Provided that' in case of income introduced by a Local Government for the first time, the assessed and expected income as provided in the budget from that source shall be the reserve price for that income.
"16. Earnest Money.--- (1) Every contractor shall deposit two per cent of reserve price of respective income as earnest money in the funds of Local Government for taking part in auction as contractor.
(2) The earnest money of successful bidders shall be retained by the Local Administration as a security for successful completion of contract along with other dues prescribed in the agreement.
(3) The earnest money of unsuccessful bidders shall be returned immediately after completion of auction.
(4) The earnest money retained, as security shall be refunded to the contractor after successful completion of contract and production of a certificate from the head of Revenue Department of respective Local Government that nothing is due from the contractor and contract has been completed successfully."
As mentioned above the public notice as issued in daily "Nawa-i-Waqt" in its issue dated 23-6- 2006 for holding of auction on 30-6-2006 admittedly does not contain the minimum reserve price for auction as required by Rule 5(v) reproduced above. Similarly, there is no evidence on record that in terms of above Rule 16 of the said Rules any earnest money was got deposited by respondent No.4 and all the other bidders which was not only mandatory requirement but also necessary to safeguard and ensure the transparency of the same. It has been held by this Court in Muhammad Aslam v. T.M.A. Khairpur Tamiwali Writ Petition No.1412 of 2006-BWP that fulfilment of requirement of Rules 5(v) and 16 of the above mentioned Rules is essential requirement and any auction held without following the said requirement could neither be considered as transparent nor one held to safeguard the public interest and exchequer.
6. So far as the contention of learned counsel for respondents that in the presence of concluded contract this Court has got no jurisdiction to interfere in the matter is concerned, the law declared by Honourable Supreme Court of Pakistan in the case Muhammad Afzal v. Shahzad Asghar Dar and others 2003 SCM R 280 and Messrs Airport Support Services' v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCM R 2268 are the answers, which lay down that no sanctity is attached to a concluded contract which is neither transparent nor has been made keeping in view the overall interest of the leasing body and that the contract entered into by the public exchequer is always open to judicial review on the touchstone of reasonableness, fair play, natural justice, equality and non-discrimination. Since the very auction was held in violation of the rules mentioned above, therefore, mere fact that as a result of the said auction a concluded contract has come into existence, would neither mean that this Court is deprived of its constitutional jurisdiction, of judicial review to look into the very object of such contract but this Court while silting in constitutional jurisdiction is always to see that public functionaries act fairly, honestly and in a transparent manner, as held by the Honourable Supreme Court of Pakistan in unreported judgment passed in C.Ps. Nos.2404, 2405 and 2406 of 2004 Atta Muhammad v.
Government of Punjab and others reiterating its earlier view in Muhammad Afzal v. Shahzad Asghar Dar and others 2003 SCM R 280.
7. For what has been discussed above, this writ petition is allowed, all the proceedings from publication of' advertisement till the date of auction of disputed contract, are declared as without lawful authority. Resultantly, the T.M.A., Lodhran would initiate fresh proceedings for holding fresh auction by giving publication in newspaper, mentioning the reserve price, calling for deposit of 2% earnest money and also by strictly following the other requirements of the relevant Rules, within two weeks from today. Till the completion of fresh auction the respondent No.4 may, if so advised, continue collecting the said tax subject to furnishing daily accounts to the T.M.A. And settlement of final accounts, as a result of fresh auction. However, in case respondent No.4 is not agreeable to this arrangement the respondent No.1 T.M.A., Lodhran shall collect the said tax through its own agency and fresh auction would be held only for the remaining period of tax year.