' MIAN SAQIB NISAR, J.---This judgment shall dispose of the following cases, as all involve the common questions of law and most of the factual aspects of the matter;
(i) W.P. No,16189/2008; (ii) W.P. No,16113/2008; (iii) W. P. No, 17375/2008; (iv) W. P. No .14858/2008; (v)
W . P . No,13495/2008; (vi) W. P . No,7414/2008; ' The petitioner in W.P. No,16189/2008 claims to be a Class- A Contractor registered with the City District Government, Lahore under Rule-15-A of the Punjab Local Government (Contract) Rules, 2003. It is his grievance that for the year 2008-2009, the Cattle Market, Kot Kamboh and Shahpur Kanjra, had to put to public auction for the purposes of collection of fee etc. And was so done by the Town Municipal Administration ("TMA"), Lahore vide advertisement dated 18-10-2008 appearing in daily `Jang', Lahore in which, the petitioner intended to participate; however, he could not do so on account of the impugned order dated 29-10-2008 passed by the Secretary, Local Government, through which respondent No,3, the previous contractor, has been granted an extension of one year at the increase of 10% of the previous years' consideration.
2. The learned counsel for the petitioner has made reference to the provisions of section 54(1) (h)
(nn) of the Punjab Local Government Ordinance, 2001 ("the Ordinance") to propound as to what are the functions of the TMA; besides, on the strength of section 191 of the Ordinance, the power of making the rules thereunder and referring to section 3, the non obstante. Clause, which has given overriding effect to the Ordinance on all other laws, and also by mentioning Second Schedule, Part- III, Serial No,2 of the Ordinance, it is contended that the ' collection of market fee shall be made by the TMA in the prescribed manner. Having set out the foundation about the Authority of the TMA for the purposes of the grant of contract for the collection of fee for the cattle market, the learned counsel has placed reliance upon Rules 3, 4 and 5 of the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 ("the 2003 Rules") and argued that as per Rule 3, the local Government shall collect any of its incomes mentioned in the schedule through a contractor by awarding collection rights to him for a period not exceeding one financial year. It is further submitted that rule 4 has placed a prohibition that no contract in terms of Rule 3 shall be granted except in the manner prescribed by the said rules, which as per rule 5 can only be made on the basis of the procedure provided therein and that is by a public auction alone. It is submitted that where a law requires an act to be done in a particular manner, it has to be done in that way and not otherwise; a special law in the nature of Ordinance, 2001 has come into force under which, the 2003 Rules were framed and it is these rules which on account of non obstante clause, section 3, have to be given absolute effect, in exclusion of any earlier rules on the subject, which otherwise stands expressly repealed in view of sections 168 and 182 of the Punjab Local Government Ordinance, 1979. In the instant case, the TMA itself had put the rights of collection for auction and the Secretary Local Government under no law had the Authority to usurp the powers of the TMA and to direct for the extension of the respondent No,3's contract through the impugned order dated 29-10-2008. The learned counsel has also made reference to Notification No,SO.IV (LG) 5-5/2002 dated 23-8-2002, clause (iii), wherein it is provided "The collection right of any cattle Mandi may not be leased out beyond one year as provided under the Lease Rules, 1990." It is stated that when this notification was issued, the 2003 Rules have not come into force and under rule 2 of the Rules of 1990, the leasehold rights could not be granted beyond the period of one year. The learned counsel for the petitioner has also made reference to the provisions of section 168(3) of the Punjab.
Local Government Ordinance, 1979 to argue that the rules under the Municipal Administration Ordinance, 1960 ("the Ordinance, 1960") would only be applicable if those were not inconsistent with the provisions of 1979 Ordinance; same is the connotation of section 182 thereof; in the Ordinance, 2001 on account of section 196, the rules framed under the previous law which could be followed, are the one, which are not inconsistent with the 2003 Rules. As in the aforementioned Rules, a complete procedure has been prescribed whereby it is only through the public auction that the fee collection contract could be awarded and that too not beyond one year, without no extension permissible, therefore, the impugned order is a clear ultra vires of the law.
3. Without prejudice to the above, it is argued that even according to clause (1) of the agreement between the TMA and respondent No,3, the extension could only be granted by the TMA subject' to its approval by the Local Government. In this case, the TMA has never granted any such extension as is visible from its own act because the rights of collection were put to auction through an advertisement, therefore, the Secretary Local. Government could not usurp the authority of the TMA, who undoubtedly had no power to grant the extension in the garb of either the supervisory jurisdiction or the so-called jurisdiction in appeal, which remedies are otherwise not available in the matter and was never even availed; it is only on an incompetent application that the extension has been granted. It is also submitted that as the collection rights were advertised to be put to auction, therefore, the petitioner had legitimate expectation to participate and acquire such rights if he was the highest bidder; however, this right of the petitioner has been circumvented through the impugned order. It is lastly submitted that in order to re-enforce the legal position that no extension could be granted, in the 2003 rules, an amendment has been made and by adding rule 27-A thereto, a complete embargo and prohibition have been placed blocking the extension of any such contract under any circumstances whatsoever. Mr. Aftab Gul, Advocate who is a co-counsel in the petition, submits that Rule 3 of the 2003 rules is conclusive and excludes the possibility of extension beyond the period of one year; Rule 27-A, which has been added to these Rules by virtue of an amendment, is further reinforcement in this direction; no procedure or mechanism has been provided for the extension and fit is so, as the law has not conceived and permitted the extension.
4. In W.P. No,17375/2008, the petitioner asserts the same locus standi and has challenged the same order in the noted W.P. No,16189/2008 and Mr. Muhammad Shahid Chaudhry, the learned counsel for the petitioner states that there are three fundamental questions involved in the matter:
(i) Whether the Municipal Committee (Cattle Market) Rules, 1969 are saved or otherwise.
(ii) Whether a contract of the like nature can be extended beyond one year and what is the purport of Rule 27-A of the Rules.
(iii) Whether such a contract can at all be extended by the Secretary Local Government while exercising any of his jurisdiction.
' Elaborating his submissions on the first question, the learned counsel submits that the Rules of 1969 were framed under section 129 read with Item No,35-F of the 4th Schedule of the Municipal Administration Ordinance, 1960; this Ordinance was repealed under section 233 of the Punjab Local Government Act, 1975, however, certain acts and the rules made under the previous Act were saved by virtue of section 235, but the Cattle Market Rules of 1969 do not fall within the saving clause; 1975 Act was repealed by the Punjab Local Government Ordinance, 1979 and the following provisions of this Ordinance relate to the cattle fair and the shows:-- ' Section 3(19), Sections 51, 39-A and 39-B, Section 62(1-A) Section 101, Section 105 and section 106.
' Under the above, however, all the Municipal Committees were not allowed to hold cattle fairs and shows rather only Bakar Mandi which was meant for slaughter and those Municipal Committees were allowed to hold cattle fair which were holding the cattle fair before 17-1-1980, that too according to the byelaws which were to be framed and not under any Rules, especially not under the Rules of 1969; the combined reading of the section reveals that cattle fairs and shows were to be arranged and controlled by the bye-laws and by the Municipal Committee; Punjab Local Government Ordinance, 1979 was subsequently repealed by the Ordinance and the following provisions are relevant for the proposition in hand: ' Section 196 pertains to repeal and is a saving clause. Section 195 confers general powers to the Government.
' Under section 191, the Government may by notification in the official Gazette make rules on the items falling in Part-I of the 5th Schedule, while under section 192 in Part-II of the 5th Schedule. The Cattle Market falls within this part, however, no byelaws have been framed so far in this special category, rather the General Rules of 2003 are taken to be applicable and it is on account of the above that the cattle market can only be auctioned for the purposes of collection of the fee.
' In W.P. No,16113/2008, Mr. Yaqoob Sindhu, the learned counsel for can the petitioner, has submitted that without conceding if the, extension can be granted by the TMA, but assuming it to be so the Secretary Local Government has no jurisdiction at all in this regard.
6. Messrs. Khawaja Saeed-uz-Zafar and Asjad Saeed, the learned counsel for respondent No,3 (the contractor in whose favour extension has been made through the impugned order) have argued that West Pakistan Municipal Committees (Cattle Market) Rules, 1969 ("the Rules of 1969") are saved and still applicable as these are not inconsistent with any subsequent legislation on the subject and specially not with the 2003 Rules, therefore, the extension in terms of the provisions of rule 6 (of the Rules of 1969) can be granted, when a new cattle market has been established. It is submitted that earlier there was one cattle market located at Kot Kamboh, but as the residents of the area had a grievance about it, which was agitated before the Court, resultantly on account of an order of. The Court, the market was partly moved to Shahpur Kanjra, where the respondent- contractor had spent considerable amount of money for providing the necessities and thus it is in the circumstances that the extension for the period of one year was permissible, because of it being a new cattle market; they have also submitted that the Rules of 1969 were promulgated under the Municipal Administration Ordinance, 1960 which was finally repealed by the Local Government Ordinance, 1975 substituted by the Act, 1975 and according to sections 229 and 217(3), the said Rules were duly saved.
' It is also argued that according to the consistent conduct of the Local Government Department and also the Local Governments constituted under different laws on the subject, the cattle market collection rights have throughout been granted .Under Ihe Rules of 1969 and, therefore, such consistent practice of the department shall be considered valid and enforceable in terms of the law laid down in the judgment reported as Nazir Ahmad v. Pakistan and 11 others (PLD 1970 SC 453)
(at page 459). It is also argued that as per the provisions of section 217(3), the expression "regulation" in fact is an interchangeable term of the rules and therefore, it is the rules which have been saved; for the proposition they have referred Lever Brothers Pakistan Ltd. And another v.
Government of Punjab through Secretary, Health Department, Civil Secretariat, Lahore and 3 others (PLD 2000 Lahore 1); the practice and procedure, which is being followed by the Government in entering into contract with the private party is not changed, despite the change in law, such a practice and procedure shall be considered valued to be followed in awarding the contract on the basis of the Rules of 1969 despite the fact that there has been subsequent legislation conforming with the Municipal Administration Ordinance, 1960 and the rules framed thereunder, but at no point of time, any classification was made on account of the change brought about; Mrs. Amatul Jalil Khawaja v. Federation of Pakistan through Secretary Ministry of Interior Islamabad and others (PLD 2003 Lahore 310) has been relied upon in this context; it is also submitted that the present writ petition has been filed by those who have not participated in the auction proceedings; advertisement in this behalf appeared in the daily "Nawa-I-Waqt" on 7-10-2007, previous contract was to expire on 31-10-2001, yet the petitioners did not come forward to take part in the auction and the necessary steps in that regard, thus they lack the locus standi, reliance has been placed upon Manzoorur-Rehman v. Government of Sindh and others (2008 SCMR 1375). It has been submitted that the Secretary Local Government had ample power to grant the extension in exercise of its appellate jurisdiction; reference in this regard has been made to Rules of Appeal Schedule-I, Serial No,3 under the head of Authority making the Rules; without prejudice to the above, it is argued that even if the appeal was incompetent, yet the Secretary had the supervisory jurisdiction in the matter; reliance has been placed upon Tehsil Municipal Administration, Hafizabad v. Government of Punjab through Secretary, Local Government and Rural Department, Lahore and others (2006 SCMR 1089) (at page 1091) to argue that where there are no guidelines provided, the prohibition cannot be assumed; by further drawing support from Zia Shahid v. Sh. Rafiq Ahmad (1999 CLC 1491), it is submitted that the rule of implied report cannot be imported into the matter reliance has also been placed upon Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others (PLD 2001 SC 169) (at page 173); the principle of Casus Omissus has also been pressed in the matter and reliance is placed upon Patricia Anne Patel v. Gerald Cowling Patel (PLD 1912 Karachi 444) and Amanullah Khan v. Chief Secretary, Government of N.-W.F.P. And 2 others (1995 SCMR 1856). It is further submitted that the provisions of Rule 27-A read with rule 3 of the Rules are permissive in nature, and it is misconceived if it places any prohibition on the extension; by also relying upon section 221(3) of the Act of 1975 and section 4 of the said Act, it is contended that the Rules of 1969 were duly saved under the law.
7. Mr. Khadim Hussain Bhatti, the learned counsel appearing for the TMA, has supported the case of the respondent/contractor and has further argued that the Mandi at Kot Kamboh was new in nature and, therefore, according to proviso to rule 6 of the Rules of 1969, the extension to the extent of three years could validly be granted. It is submitted that for the purposes of establishing a new Mandi, the requirements are, to provide facilities such as drinking water both the human being and the animals, sheds etc., the mangers for the fodder of the animals, the machines for cutting the fodder; the Mandi earlier was being conducted till October, 2007 at Kot Kamboh, but in the circumstances explained above, from 1st of November, 2007 it was shifted to Shahpur Kanjra, where respondent No,3 has made the constructions, provided the said facilities by incurring substantial amount of money.
8. The learned Additional Advocate-General appearing for the Government has also supported respondent No,3 on the proposition about the application of Cattle Market Rules, 1969 and submitted that under section 220 of the Act, 1975, the power was available to make the rules, but no rules were framed, however, section 221 empowers the framing of the bye-laws which has to be done by the Municipal Committees, but again there is the lapse in this behalf; repealed section 233 of the Act, 1975 and section 235 validated certain orders and the proceedings which thus saved the Rules of 1969; Punjab Local Government Ordinance, 1979 was enforced and according to section 167 of the Ordinance, Government was empowered to make the Rules; the Punjab Local Council Lease Rules, 1990 were enforced and repealing clause in this behalf is (14) and by virtue of rule 225, West Pakistan Municipal Committees (Octroi) Rules, 1964 were repealed .Which means .That those rules till the Rules of 1990 were still applicable, because otherwise there was no question of repealing them, reference in the same context has been made to Rule 12-A of 1990 Rules; making mention to Punjab Local Government Ordinance, 2001 it is submitted that the power to make the rules was given to the Government under section 191 and to make the bye-laws under section 192; section 196 is the repealing and saving clause; the 2003 Rules have not repealed the Rules of 1969; in this behalf reliance is placed upon Taj Din and 4 others v. Zilla Council, Kasur and 3 others (PLD 1990 Lahore 269) and Messrs Khayal Muhammad and Sons v. Chairman Municipal Committee, Jhelum and 3 others (PLD 1985 Lahore 545); it is also submitted that in fact section 182 of the Local Government Ordinance, 1979 had re-insurrected the Cattle Market Rules, 1969.
9. The other set of writ petitions pertains to the contract of Cattle Market Kot Ranjeet Singh District Sheikhupura and its contract period has been extended vide order. Dated 13-8-2008 passed by the Secretary Local Government. The brief narration of the facts of the case is as under.
10. The petitioner is registered with the TMA as a contractor and otherwise is qualified for the procurement of contracts for collection of various fees (especially the cattle market fee); it is his grievance that though the cattle market Kot Ranjeet Singh, Sheikhupura had to be auctioned for the year 2008-2009 on account of the expiry of the contract of the previous contractor/respondent No,6, but through the impugned order dated 13-8-2008, the contract (of the former contractor) has been illegally and unlawfully extended by increasing the contract amount to Rs,3,15,00,000 (i,e, double amount of the previous contract).
11. The learned counsel for the petitioner has argued that the order impugned is coram non judice; violative of the provisions of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003; the Local Government has no authority in law to grant such an extension; there was no order passed by the TMA, Sheikhupura which could be challenged by the contractor in so-called appeal upon which, the impugned order could be passed; even otherwise, the applications (Annex-D & Annex-D/1) on the basis of which, the impugned order has been passed, cannot be treated to be the appeals.
12. Explaining the backdrop of the case, it is pointed out by the learned counsel for the petitioner that respondent No,6 (the contractor) had procured the contract of the noted cattle market for the year 2007-2008, which was to expire on 1-7-2008, but almost 7/10 days before the expiry thereof, he filed a Writ Petition No,7414/2008 in this Court seeking the relief that because the site for holding the cattle market for the contract period was not provided to him (the contractor) and was delayed for four months resultantly, "respondents may very kindly be directed to provide a period of four months to the petitioner for holding cattle market as compensation for the period, during which no suitable place was provided to the petition (sic) by the respondents for holding the cattle market and the petitioner has already bonafidely paid the instalments of that period without holding cattle market." It is further prayed in the petition that the respondents may kindly be directed to extend the contract of the petitioner for a further period of one year with an increase of 10% in the auction price of Rs,1,51,00,000.
13. Vide order dated 23-6-2008, the report and parawise comments to W.P. No,7414/2008 were required from respondents Nos.1 to 3, which were submitted by the respondent-TMA and the claim of the petitioner in the writ petition (respondent No,6 in the noted petition) was opposed. On 4-7- 2008, C.M.A. No,3/2008 moved by respondent No,6 was fixed before the Court in which, a request was made that he be permitted to deposit the instalments for the current month till the time the bid process is finalized by the respondents. The permission though was granted by the Court, but it is clearly mentioned in the order that "it will in no manner prejudice legal rights of the respondents in any manner whatsoever and also that the same is purely interim arrangement and will hold field till the day the new auction proceedings are finalized." On 30-7-2008, the counsel for respondent No,6 requested the Court that the arrangement made vide order dated 4-7-2008 may be permitted to be continued, as the auction proceedings have not so far been finalized. The counsel for respondents Nos.1 to 3 in that petition agreed to the above, however, the Court again directed as under:-- "----till finalization, arrangement may continue subject to deposit of agreed monthly instalment.
However, the same shall be accounted for and adjusted, when the auction is finalized; this arrangement is without prejudice to the legal rights of the parties in law. ."
' When the said writ petition came up for hearing on 19-9-2008, the counsel for the petitioner wanted to withdraw the same on the ground that his grievance stands redressed on account of the order dated 13-8-2008, (the impugned order passed by the Secretary Local Government). It may be pertinent to mention here that in the meantime, the present petitioner had moved an application (C.M.A. No,2442/2008) in the said writ petition seeking impleadment as a party to the matter; however, he has not yet been arrayed as a party thereto, when the noted writ petition has been instituted in which the order dated 13-8-2008 has been challenged on the grounds which are briefly mentioned above, and further submissions of attack shall be reflected in the course of this judgment.
14. Dr. M. Mohy-ud-Din Qazi, the learned counsel for the petitioner, has argued that the impugned order (in this case) is violative of the various orders passed by this Court in W.P. No,7414/2008 as on the one hand, the respondent has been seeking the time in the garb of extension of four months which he allegedly lost on account of non-handing over of the possession of the site and avowed that this shall be till the process of auction is finalized, but on the other hand, secretly and surreptitiously applied to the Secretary Local Government for obtaining extension in the contract period for another year. It is also argued that neither under the terms of the contract between the respondent/contractor nor under any law, an extension could be granted to the said respondent; in this behalf reference has been made to clauses 2 and 25 of the contract, which postulates that the agreement shall be for a period of one year and upon expiry thereof, the respondent shall be obliged to handover the possession to the TMA; he in unequivocal terms has referred to rules 3, 4 and 5 of the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 to argue that as per these rules, the right of collection of the fee can only be awarded for the period not exceeding one financial year and also not otherwise than according to the prescribed manner; the procedure for the award of contract is prescribed by rule 5 which is only through public notice published in the newspapers for conducting an auction as provided, with some further conditions attached thereto. He has vehemently submitted that viewing the case from any angle, the Secretary Local Government had no jurisdiction to extend the period when the extension could not even be allowed by the TMA and was never ever recommended by it (the TMA). Besides raising the plea of jurisdiction, the learned counsel has also made reference to section 190 of the Ordinance read with the Punjab Local Government (Appeal) Rules 2003, Rules 1 and 3 and Schedule thereto to argue that there has never been any order passed by the TMA which could be challenging before the Secretary. Moreover, Annex-D and Annex-D/1, on which the impugned order has been passed, are not even the appeals which could be said to have challenged any order of the TMA, rather those are in the nature of some representations, which are not competent or maintainable under any law empowering the Secretary to grant the extension as has been done in the instant case; without conceding that the extension could be granted, he submits that even if it could be so allowed, in that eventuality, only for the period for which, the possession of the site was not delivered to the contractor. He has also submitted that there has never been any attempt for auction which could be said to have failed; first auction was fixed for 4-6-2008, but it was postponed by the District Nazim; for the second date i,e, 2-7-2008 the public notice was issued, but the auction was postponed because the representative of DCO was not present; the third auction dated 14-7-2008 was stayed by the Secretary and it is only on 29-7-2008 that the auction was conducted, but on the face of it, a bogus offer was made with an object to frustrate the auction proceedings, as one Mr. Zeeshan made an offer of Rs,6,30,00,000 which was dishonestly enhanced for Rs,12,50,00,000 by another bidder namely Mr. Tahir Mehmood, who subsequently backed out; even from the order of the Secretary it is clear that such an offer was to frustrate the proceedings and nothing more. This all was mala fide, fraudulent and a manipulation to provide the illegal extension to the contractor.
15. Kh. Saeed-uz-Zaman, the learned counsel for the petitioner in W.P. No,13495/2008 almost made the same submissions. However, it may be mentioned that such arguments seems to be destructive of his pleas made in the other set of the case, where he is representing the contractor to whom the extension has been granted. Mr. Munib Iqbal, the learned counsel for the contractor, to whom the extension has been granted, states that the petitioner has not approached this Court with clean hands; there is a delay in filing of the petition, thus it suffers from laches and also is hit by the rule that the delay defeats equity; the petitioners in all the cases should have availed the remedy of review and on this account, the petitions are liable to be dismissed; the petitioners have not participated in the auction proceedings with the result that they lack the locus standi to challenge the order; it has been the practice that the contracts of collecting the fee for the cattle market were granted under the Cattle Market Rules, 1969, therefore, such long standing practice validates the extension as per proviso to rule 6 thereof; the respondent/contractor had applied for the extension by requesting 10% increase, but the Secretary. Local Government while extending the contract has made the increase at 10% of the consideration of the previous year.
16. Mr. Asad Ullah Siddiqui, the learned counsel for the TMA has argued that the contract is only for one year and each day is important, therefore, lapse on the part of the petitioner to promptly challenge the impugned order is hit by the rule of laches and also has reflection upon the petitioner's conduct; Muhammad Ashraf, the petitioner in W.P. No,14858/2008 has not participated in the proceedings and has challenged the order in pro bono publico lis, which is untenable in such cases; Ahmad Khan Niazi though had participated in the bid proceedings, but has not made any offer; he took back his security deposit even before his request could be considered; there is no explanation for such act/omission which thus debars the petitioner (Ahmad Khan Niazi) to institute the petition; reliance in this behalf has been placed upon Manzoor-ur-Rehman v. Government of Sindh and others (2008 SCMR 1375); TMA had no land of its own to hold the cattle market which was required under the law and the contract, thus the land was arranged by' the contractor himself, therefore, entitling him the extension; none, who could make an offer more than the contract amount awarded to the present respondent, has come forward to seek the contract; TMA House after the passing of the impugned order has approved the same, which implied that the extension in the period on the increased consideration has been made by the TMA itself.
' Mr. Asad Ullah Siddiqui and Mr. Munib Iqbal, the learned counsel for the respondents, also state that in another W.P. No,18740/2008 the impugned order dated 13-8-2008 was challenged by one Muhammad Ashraf, which was dismissed by this Court vide order dated 30-12-2008, CPLA before the Apex Court met the same fate on 15-1-2009 entailing the legal consequences that the impugned order has been approved by the Court and, therefore, on account of the above, it cannot be interfered in these proceedings.
17. Heard. In the light of the facts of both the sets of the cases elaborately mentioned above and in view of the submissions made by the learned counsel for the parties, the following are the key questions, which need to be resolved :--
(i) Whether the Cattle Market Rules, 1969 are still in force and if so, what is the effect of the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003?
(ii) Whether the extension of time in the contract pertaining to the cattle market is permissible beyond the period of one year as per Rule 27-A of the Rules of 2003?
(iii) Whether the Secretary Local Government has any jurisdiction to grant the extension as has been done through the impugned orders in both the cases, if so, what is the nature of such jurisdiction, whether that of appeal or revision?
18. Taking up the first question, I find it expedient to mention that as agreed by the all, West Pakistan Municipal Committees (Cattle Market) Rules, 1969 were framed under section 121 read with Item No,35(f) of the Fourth Schedule of the Municipal Administration Ordinance, 1960. The other provisions thereof relating to the market/cattle fairs and shows, which may passingly be referred, are 63, 64, 69, 72 and 105. The noted Ordinance was firstly repealed under the provisions of section 229 of the Punjab Local Government Ordinance, 1975 (Ordinance VI of 1975) and finally by virtue of section 233 of the Punjab Local Government Act, 1975 (XXXIV of 1975) ("The Act, 1975"), which on account of section 237, again repealed the Ordinance VI of 1975 along with some other enactments mentioned therein. Section 235 of the Act, is the validation clause, that provides:-- "Validation of certain orders, proceedings and Acts, and continuance of functions of certain authorities and officers.---(1) All orders made, proceedings taken and acts done by any authority or by any person which were made, taken or done, or purported to have been made, taken or done, in exercise of the powers derived under any law or the repealed enactments, notifications, rules, orders or bye-laws made thereunder shall be deemed to have been validly made, taken or done."
' Section 4 of the Act, 1975 is the saving clause and enshrines:- "Whether an enactment, stands repealed under section 233, any appointment, rules, regulations or bye-laws made or saved, notification, order or notice issued, tax imposed or assessed, scheme prepared or executed, contract entered into, suit instituted, rights required, claims made, legal or administrative proceedings or action taken under such enactments, shall so far as it is not inconsistent with the provisions of this Act, be deemed to have been respectively made, saved, issued, imposed or assessed, prepared or executed, entered into, instituted, acquired, made or taken under this Act."
' It is under the above provision that protection, validation has been given to the orders, proceedings, actions taken or done under the repealed enactments, the rules, bye-laws etc., framed thereunder. Anyhow, for the purpose of the proposition involved in the cases, this section may be read as follows:-- "Where an enactment stands repealed under section 233, any rule made or saved under such enactment, shall so far it is not inconsistent with the provision of this Act, be deemed to have been respectively made and saved under this Act."
It is not shown from any provision of the Act, 1975 that the Rules of 1969 were inconsistent thereto, thus stood repealed and were not accordingly saved; or any rules contrary to those were framed under this law, I am not impressed with the argument of the petitioners' side that as the Municipal Committees (constituted under the Act, 1975) were entitled to hold the cattle shows and fairs through the bye-laws to be framed by the Committees, thus the Rules of 1969 should be considered to have been repealed. In this behalf, it may be mentioned that the said rules only lays down the broader parameters of granting the rights of collection of cattle market fee and the bye- laws if any (though no such bye-laws have been brought on the record) would only be relevant for the purpose of prescribing the procedure. But in any case, the petitioners have not been able to substantiate from any so-called bye-laws that on account of these, any inconsistency as mentioned above could be spelt out. Thus, on the enforcement of the Act, 1975 and thereafter, the Rules of 1969 remained in force and the collection of the fee of the cattle markets when awarded on the basis of the contract was always governed by these Rules and this -has been also the consistent perception and practice of the Local Government Department and also the Municipal Committees entitled to hold/award on contract the cattle markets, which continued to remain in force.
19. The Punjab Local Government ,Ordinance, 1979 ("the Ordinance, 1979") repealed the Act, 1975 and section 182 thereof reads as under:-.- "Repeal of the Punjab Local Government Act, 1975.--(1) The Punjab Local Government Act, 1975 (XXXIV of 1975) is hereby repealed.
(2) Notwithstanding the repeat of the Punjab Local Government Act, 1975, any appointments, rules, regulations or bye-laws made or saved, notification, order or notice issued, tax imposed or assessed, scheme prepared or executed, contract entered into, suit instituted, rights acquired, claims made, legal or administrative proceedings or action taken under the said Act, or under such enactments as were repealed by the said Act, shall so far as it or they are not inconsistent with the provisions of the Ordinance, be deemed to have been respectively made. Saved, issued, imposed or assessed, prepared or executed, entered into, instituted, acquired, made or taken under the Ordinance."
' For the purpose of considering the issue, it seems expedient to simplify the section to be read as:- - "Notwithstanding the repeal of Punjab Local Government Act, 1975, any rules made or saved under such enactments as were repealed by the said Act, shall so far as it is not inconsistent with the provision of the Ordinance, be deemed to have been respectively made or saved under the Ordinance."
From the above, the consequence of the legal position thus, shall B remain as in the case of the Act, 1975.
20. The Ordinance, 1979 has been repealed by the Punjab Local Government Ordinance, 2001 ("the Ordinance, 2001") and the repealing section 196 thereof reads as follows:-- "Repeal and savings.---(1) On commencement of this Ordinance,-
(i) the Punjab Local Government Ordinance, 1979 (VI of 1979), shall be repealed;
(ii) the Punjab Local Government Elections Ordinance, 2000 (V of 2000) shall be repealed; and
(iii) all Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees and Union Councils created under the Punjab Local Government Ordinance, 1979 (VI of 1979) shall stand dissolved."
"(2) Save as otherwise specifically provided, nothing in this Ordinance, or any repeal effected thereby, shall affect or be deemed to affect anything done, action taken investigation or proceedings commenced, order, rule, regulation, appointment, conveyance, mortgage deed, document or agreement made, fee levied, resolution passed, direction given, proceedings taken or instrument executed or issued under or in pursuance of any law repealed or amended by this Ordinance and any such thing, action, investigation, proceedings, order, rule, regulation, appointment, conveyance, mortgage deed, document, agreement, fee, resolution, direction, proceedings or instrument shall, if in force at the commencement of this Ordinance and not inconsistent with any of the provisions of this Ordinance, continue to be in force, and have-effect as if it were respectively done, taken commenced, made directed, passed, given, executed or issued under this Ordinance."
' This is final legislation on the subject. Section 3 has given an overriding effect thereto on all other laws. And the rule making power is available to the Government under section 191 thereof. The subsection (2) of section 196 is however, differently worded than the relevant provision of the two earlier enactments and envisages two modes of saving or repealed; to understand the intention of the legislation in this behalf, this provision can be rephrased as:-- "Save as otherwise specifically provided, nothing in this Ordinance, or any repeal effected thereby, shall affect or be deemed to affect rule made under or in pursuance of any law repealed or amended by this Ordinance and the rule if in force at the commencement of this Ordinance and not inconsistent with any of the provisions of this Ordinance, continue to be in force and have effect as if it was made under the Ordinance."
The first method is when by virtue of some specific provision any of the earlier rules can be done away; however, the second obviously on the basis of inconsistency. The learned counsel for the petitioners have not been able to show if by any specific rule, the 1969 Rules have been annulled.
Therefore, it is to be examined if the legislation, the second mode, can be applied.
21. Pursuant to the Ordinance, 2001, the Punjab Local Government (Auctioning of Collection Rights)
Rules, 2003 were enforced by the Governor on 3-5-2003. It may be pertinent to mention here that till the enforcement of these Rules, the collection rights for the purpose of the cattle markets by the local council were consistently awarded according to the West Pakistan Municipal Committees (Cattle Market) Rules, 1969 and those were also conspicuously referred to in the relevant contracts.
And these rules in the light of the above discussion, in my considered view, till then were validly in force.
22. Having stated the legislative history on the subject and its legal effect, it is thus, to be adjudged and determined if upon the enforcement of the 2003 Rules, 1969 Rules have survived or not. In this behalf, it may be held that the rules framed under any statute are its progeny and upon the repeal of the parent law shall automatically extinguish (repealed), until and unless are adopted and/or saved by another law. All the three enactments mentioned above in my view kept 1969 Rules intact, but primarily on the touchstone of consistency, in other words that those were not inconsistent. It may be pertinent to mention here that such rule of consistency shall not be restricted to the provision of the statute itself, rather even to the rules framed thereunder (e.g. The 2003 Rules), because the rules framed under the specific law have to take precedence over the rules of some previous law. Therefore, on account of the above, it should now be evaluated whether the two sets of the rules are inconsistent or otherwise.
23. The Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 are comprehensive, conclusive, vast encompassing and omnibus in nature, which covers the entire field of the collection of the TMA income regarding the items mentioned in the second schedule to the Ordinance and admittedly cattle market is (item No,2) of Part III thereof. A complete mechanism has been provided for the award of the contracts for such purpose. Rule 3 provides:-- "Auction of collection rights.---A Local Government may prefer to collect any of its income as specified in the Second Schedule of the Ordinance and duly approved and notified in the official Gazette, through contractor by awarding collection rights to him for period not exceeding one financial year."
Rule 4 prescribes "Prohibition.---No contract of collection rights of an income of Local Government shall be awarded to contractor except in the manner hereinafter prescribed." The procedure has been comprehensively given in Rule 5, which is only through a public auction by giving a public notice published in at least two daily newspapers 7 days before the date of auction, the terms and conditions of the auction, the reserve price and the period of contract with the rates and details shall be mentioned in the notice. It is specifically stated in sub-rule (iv) "for each time the publication of auction notice shall be compulsory." It is also envisaged by rule 7 that "The auction shall be started after announcing and delivering the copy of terms and conditions of the contract."
Rule 8 provides that "The contract of collection rights of an income of a Local Government shall be awarded to a highest bidder through an open bid by adopting the procedure of auction as laid down in Chapter-II." (i,e, mainly Rule 5). The only concept and legal permission thus available in the 2003 Rules about the collection of the income of a Local Government on the item mentioned in the second schedule is through a public auction; after a public notice in the prescribed manner; the award of the contract only to a highest bidder; the contract should not exceed the period of one financial year. This all is not prescribed by the 1969 Rules rather alien thereto, therefore, such rules are vitally, fundamentally and manifestly inconsistent to the 2003 Rules, thus are repealed on account of the enforcement of these Rules by the express mandate of the law. To attribute this kind of the repeal governed by the concept/doctrine of implied repeal shall be a misnomer, rather shall fall within the domain of the rule of "express repeal", obviously on the criteria of inconsistency; where the inconsistency is vivid and imminent, the repeal- shall be deemed to be express by all means. Thus, irrespective whether the new markets have been established or otherwise in these cases, as the present Rules do not permit for the collection of the income of the Local Government in the manner of awarding the contract for the collection of the cattle market fee other than the Rules, 2003 and undoubtedly not under proviso to rule 6 of 1969 Rules, therefore, no extension in that situation too shall be available.
24. As regards the arguments of the learned counsel for the respondents that under Rule 27-A of the 2003 Rules, which reads "Extension of Contract.---No extension in a contract shall be granted beyond one year on any ground whatsoever" the extension is permissible and it is in exercise of such power that the Secretary Local Government has passed the impugned orders, suffice it to say that this new rule has been subsequently added on 20-10-2003 and forms part of Chapter-IV of the 2003 Rules, which chapter primarily deals with the terms and conditions of the contract, the eligibility of the contractor, the enlistment of the contractors, the aspects about the earnest money, the dues and deposits and other deposits, the liability of the contractor to abide by the procedure and the bye-laws, the restraint about the overcharging etc, the rights and responsibilities of the contractor, the disputes arising between the contractor and the Local Government, the sureties and guarantees, the cancellation of the contract, and the prohibition about Rebates; Rule 27-A constructed in the context of its placement at the end of this Chapter, when unlike proviso to Rule 6 of 1969 Rules has not been added as proviso to Rule 3 of the 2003 Rules, would mean that it shall not be considered or operate as an exception to the period prescribed by this rule, rather by adding it just after Rule 27, disallowing the contractor the Rebates, it is reiteration that the contract cannot go beyond one year even by virtue of an extension. It may be pointed out that if the extension was intended by the legislature, the rule should have been a proviso, like the one under rule 6 of the 1969 Rules. The above is the correct and logical interpretation of rule 27-A, which can be validly considered to be based upon the principles of ejusdem generis to rule 3 (the 2003 Rules)
Otherwise, if the extension is taken to be permissible, then rules 3 to 5. Shall all be rendered redundant, which can never be the intention and the spirit of the law. In fact; rule 27-A has been introduced subsequently with an object to remove any ambiguity, about the extension and it is not a permissive, rather a restrictive provision, placing a complete circumvention upon the grant of any extension, in the period of the contract beyond one year on whatever grounds it may be sought. Therefore, the Local Government under no circumstances shall have any power to grant the extension. I am not convinced by the argument of the learned counsel for the contractors particularly Kh. Saeed-uz-Zafar, Advocate that because the department itself has been following the practice of relying upon the Rules of 1969, therefore, on account of the above, the said rules shall be attracted to the proposition in hand. In ,my view, the practice of the department cannot override the law, and the judgments cited by the learned counsel are distinguishable on their own facts as there is no permission about the extension of period under the 2003 Rules, therefore, I am not convinced if on account of the establishment of a new market, the extension can be granted either as per the Rules of 1969 or on the basis of Rule 27-A of 2003 Rules.
25. Now coming to the question, if the Secretary Local Government had the jurisdiction to extend the time. I have repeatedly asked the learned counsel for the contractors and the TMAs to apprise the Court about the law under which such power could be exercised. One set of the counsel for the contractors i,e, Kh. Saeed-uz-Zafar and Mr. Asjad Saeed, Advocates have stated that it was the appellate jurisdiction, but when queried about the particular provisions of the Ordinance in this behalf, reference has been made to Schedule I Serial No,3 of the Punjab Local Government (Appeal) Rules, 2002. I am afraid that the submission is not well founded because in both the cases, there has been no order at all of the TMA, which could be assailed before the Secretary. It is settled law that the right of appeal is the creation of the statute and can only be exercised if and as provided by the law; besides, the documents which are relied upon by the petitioners to show those as the memo. Of appeals are not against any order and does not conform to the appeal rules. Mr. Asad Ullah Siddiqui, the learned counsel for the TMA in the cases of Sheikhupura has stated that the impugned order was passed in the revisional jurisdiction. Again the power of supervisory jurisdiction has not been established to be available under the law. In the instant cases, as mentioned earlier, there was no order passed by the TMA against which, any remedy of appeal or revision was available to the contractors. Certain miscellaneous applications brought on the record, which have been made basis of passing of the impugned orders, can neither be treated the appeals nor the revision petitions, rather seem to be the simple representations upon which, the Secretary Local Government under the Law having no authority passed the orders granting the extensions. It may be added here, when the Local Government itself had no authority under the Rules to extend the contract beyond the period of one year, how could and under what rules, the Secretary Local Government had the power to do the same. This absolutely is incomprehensible. I am also not convinced if the cases are hit by the rule of "lack of locus standi" or suffers from the laches. Most of the petitioners of the matters are the eligible contractors who either had participated in the bid or intended to participate in the bid, but because of the extension granted through the impugned orders, they have been precluded to do so, therefore, they, have the genuine grievance against the extension of time
26. As far as the laches is concerned, I do not find that on account of any bit of a delay, which otherwise, is not there, any prejudice has been caused to the contractors or the TMA, particularly in the cases of Sheikhupura. The argument of Mr. Asad Ullah Siddiqui, the learned counsel for the TMA that the price of the contract has been enhanced to 100% and this has also been approved by the House suffice it to say that irrespective of what the increase in the amount is, when the Secretary. Local Government had no jurisdiction to grant the extension, the approval given by the House would be nothing because the House cannot also override and rectify the order which is patently illegal and unauthorized. For the submission regarding some writ petition dismissed by this Court and the Apex Court having not interfered, it may be mentioned that those proceedings seem to be manipulation with a view to circumvent these cases, and in any case no point of law has been decided in that matter, which could be held to be binding upon this Court. Before parting with the matter, I would like to point out that Writ Petition No,7414/2008 has been filed by the petitioner with unclean hands, because on the one hand he is asking for the extension of time of four months for certain peculiar facts and on the other hand, has manoeuvred to obtain the extension through the impugned order, therefore, the said writ petition is liable to be dismissed on account of his dishonesty of purpose and also for the reason that no extension could be granted, thus, he is not permitted to withdraw this petition, also in the light of the legal position that the impugned order is being set aside in the other writ petitions.
' For whatever has been discussed above, the Writ Petition No,7414/2008 is dismissed, while by allowing the other writ petitions, the impugned orders are hereby set aside.