MUHAMMAD MUZAMMAL KHAN, J. --- Instant Constitutional petition prayed order dated 12.5.2005 passed by the Secretary, Local Government (respondent No. 1), to be declared illegal, void and of no legal consequence, whereby petitioner's appeal against order of confiscation of his earnest money, was dismissed.
2. Precisely, relevant facts are that respondents No. 2 and 3 established a cattle market near Canal Bridge, Behera Road, Bhalwal, where fee on the sale/purchase of animals was levied. Respondents Nos. 2 and 3 leased out contract of collection of fee on sale of animals in the market area according to the Punjab Local Government (Auctioning and Collection Rights) Rules, 2003. Respondent No.3 published a public notice for auction of lease rights for collection of various taxes, fees, tolls etc. With effect from 1.7.2004 to 30.6.2005 and fixed the date for auction on 28.5.2004. Petitioner out bided the auction and hammer fell on his bid of Rs.
2,95,00,000/-. Petitioner's offer was accepted by respondents Nos. 3 and 4 vide letter dated 2.6.2004 and a notice was issued requiring him to deposit the due amount of Rs. 4.7 million (Rs.
5,90,000/- as 2% security, Rs. 29,50,000/- as 1/10th of the bid amount, Rs. 26,55,000/- as advance instalment for the month of July, 2004 and Rs. 5000/- as professional tax). Petitioner deposited Rs.
3.54 million, which included 2% security and 1/10th of the bid amount, besides submission of non- judicial stamp paper worth Rs. 1,000/- for execution of lease agreement.
3. Respondents Nos. 3 and 4 instead of completing agreement with the petitioner, re-advertised auction for 12.7.2004. Petitioner moved an application to Tehsil Nazim complaining that T.M.A.
Deliberately failed to execute the lease agreement, thus its re-auction was not justified , without refund of his earnest money and other deposits. Petitioner thereafter moved an application claiming refund of his money, which was ultimately declined T.M.A., Bhalwal. Petitioner being aggrieved of order of T.M.A., filed an appeal before the Secretary, Local Government, which was also dismissed on 12.5.2005. He, thereafter, filed instant Constitutional petition with the relief, noted above.
4. On Court's requisition, respondent No. 1 has filed his report/parawise comments, wherein he reemphasized that petitioner did not deposit the advance instalment for the month of July, 2004 and deliberately avoided to enter into an agreement with T.M.A'., thus this dues were rightly forfeited by respondent No. 3.
5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Respondent No. 1 in his impugned order dated 12.5.2005 has himself noted that petitioner's highest bid was not put to the General House of Tehsil Counsel, which was mandatory as per law applicable. It was also not denied that petitioner had deposited an amount of Rs. 3.54 million towards 2% security and 1/10th of the bid alongwith non-judicial stamp papers of the value of Rs. 1,000/- for execution of lease agreement, but the same was never executed/completed under the garb that petitioner did not deposit the instalment for the month of July, 2004. Respondent. No. 1 had not dilated upon the claim of the petitioner that he would have been liable to pay the advance instalment of July, 2004 only after approval of the House of the Tehsil Council, which was never obtained. Impugned order is also absolutely silent as to why earlier to the date on which instalment for the month of July, 2004 i.e. 5th of that month, the contract was advertised for re-auction and how petitioner was liable to deposit this instalment and on his so-called lapse, how his entire amount has been forfeited. Respondent No. 1 has not also opined that the amounts other than security were liable to confiscation or not. He has also not referred to repeated applications of the petitioner expressing his willingness to continue with the contract and to fate of those. No deliberation was made to fix liability of the defaulting party, as conducted of T.M.A. Was not at all taken into account by respondent No. 1. Terms of auction revealed that defaulting contractor was liable to pay all the expenses to T.M.A. Including the loss suffered by it, as per conditions at serial Nos. 29 and 31, but impugned order is absolutely silent about this aspect of the matter. No finding has been given on the touchstone of Auction of Collection Rights Rules, 2003 and instead petitioner's appeal was haphazardly dismissed, approving unilateral confiscation by the T.M.A.
Scan of record and impugned order revealed that rights of the parties have not been determined by the appellate authority in accordance with law, thus the impugned order is not sustainable being bad at law.
6. For the reasons noted above, instant petition is accepted and impugned order dated 12.5.2005 is declared to be void and of no legal consequence, with the result that petitioner's appeal shall be deemed to be pending before respondent No. 1 and will be decided afresh, in accordance with law.
Parties will appear before respondent No. .1 on. 21.6.2006. There will be no order as to costs. /case re-order.