' The facts giving rise to this writ petition are that on 26th June, 1980 respondent No, 2, Municipal Committee, Pakpattan, District Sahiwal, auctioned its right to collect octroi income for the year 1980-81. The highest bid was of the petitioner, Ch. Khushi Muhammad, amounting to Rs, 22,00,000.
This auction was subject to confirmation by respondent No. 1, namely, Government of the Punjab.
On 5th July, 1980, the auction was confirmed by the said Government acting through Secretary in the Local Government Department and was conveyed to the Municipal Committee. Before the confirmation could, however, be communicated to the petitioner, it was cancelled/withdrawn by the aforesaid Secretary on 12th July, 1980. Feeling aggrieved by the order relating to the withdrawal of the confirmation, the petitioner has prayed for a declaration to the effect that the said order was without lawful authority and consequently of no legal effect.
2. Learned counsel for the petitioner contended that the Secretary could withhold confirmation under sub-rule (4) of rule 225 of the West Pakistan Municipal Committees Octroi Rules, 1964, but after having accorded the confirmation he had no authority to withdraw the same. He maintained that with the according of confirmation by the Secretary, the contract between the Municipal Committee and the petitioner had been completed with the result that certain rights had been created in favour of the petitioner and, therefore, locus poenitentiae, i,e, power to receding till a decisive cite') is taken, was not available to the Secretary for withdrawing the confirmation. It was also urged by him that the communication of the confirmation to the petitioner was not necessary because the communication thereof to the Municipal Committee was enough to finalise the contract. He cited Pakistan through the Secretary, Ministry of Finance v. Muhammad Hirnayatullah Farukhi (1), Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong (2). Chitibobu Ade,--;,z and others v. Garimalla Jaggarrayadu (3) and The Rajanagaram Village Cooperative Society by its Secretary, Parthasarath Filial v. P. Veerasami Mudaly (4) to support this contention.
3. Another argument advanced by the learned counsel was that even {{FOOT NOTE}}
(1) PLD 1969 SC 407 (2) PLD 1970 SC 439
(3) AIR 1916 Mad. 75 (4) AIR 1951 Mad. 322 {{FOOT NOTE}} ' if the Secretary had the authority to withdraw the confirmation, he could not do so without affording a hearing to the petitioner. For this proposition, he relied on Rahim Shah v. The. Chief Election Commissioner of Pakistan and another (1).
4. In reply, learned counsel for the Municipal Committee submitted / that since the confirmation accorded by the Secretary in the first instance had not been conveyed to the petitioner, it could be withdrawn by the Secretary at the stage when it was withdrawn. He was of the view that the according of confirmation and its withdrawal before the actual communication of the confirmation to the petitioner was a part of indoor Management of the Government and the Municipal Committee and, therefore, there was no bar to the withdrawal of the confirmation by the Government. According to him, since the confirmation had not been communicated to the petitioner nor he had started collection of octroi income in pursuance thereof by the time of withdrawal of confirmation, the Secretary could withdraw the confirmation on the basis of the provisions of section 20 of the West Pakistan General Clauses Act, 1956. In this connection, he invited my attention to Qadir Khan v. Board of Revenue, West Pakistan, Lahore and 13 others (2), Rehmat ,41i and 2 others v. The Revenue Board, West Pakistan, Lahore and another (3) and Dr. Azeem Shad v. Municipal Committee, Multan (4).
5. Relevant portion of Rule 225 of the West Pakistan Municipal Committees Octroi Rules, 1964, which contains provisions relating to confirmation of auction of the right to collect octroi income reads as follows :- "225.-(1) Notwithstanding anything contained in these rules, Municipal Committee may, with the prior approval of Government, lease out by public auction for a period not exceeding one year, the collection of Octroi on such terms and conditions, not inconsistent with the provisions of this Chapter, as may be specified by Government.
(2) The acceptance of any bid at an auction conducted under the provisions of sub-rule (1) shall be subject to confirmation by the Controlling Authority.
(3) The Municipal Committee shall, within seven days of the date of auction, submit the bid accepted at the auction to the Controlling Authority for its confirmation.
(4) The Controlling Authority shall, within thirty days after the bid has been submitted to it by the Municipal Committee for confirmation, either confirm the bid or declare that it withholds its confirmation to the bid, provided that if within the aforesaid period of thirty days the Controlling Authority fails to do either of these things, it shall be deemed to have confirmed the bid.
(5).Where the Controlling Authority within the period specified in sub-rule (4), declares that it withholds its confirmation to the bid, the lease of the collection of Octroi shall subject to any direction that may be given by the Government in this behalf under sub-rule (1) be again put to auction and the provisions of sub-rules (2), (3) and (4) shall apply to such reaction. {{FOOT NOTE}}
(1) 1973 SCMR 342 (2) PLD 1968 Lah. 1419 {{FOOT NOTE}}
6. A bare reading of rule 225 would show that it does not contain any express provision authorising the Secretary to withdraw confirmation after having accorded the same. It is, therefore, to be seen if on the score of the provisions of section 20 of the West Pakistan General Clauses Act, /which have been relied upon by the learned counsel for the Municipal /Committee, the Secretary could withdraw the confirmation or locus poenitentiae was otherwise available to him for so doing.
7. Section 20 of the West Pakistan General Clauses Act, which deals with the Provincial Laws, reads as under :- "20. Power to make to include power to add to amend, vary or rescind orders, rules or bye-laws.- Where, by any West Pakistan Act, a power to issue notification, orders, rules, scheme, form or bye- laws is conferred then that power includes a power, exerciseable in the like manner and subject to the like sanction and conditions (if any), to add, to amend, vary or rescind, any notifications, orders, rules, scheme, form, bye-laws so issued."
' R. Similar provisions are contained in section 21 of the General Clauses Act, 1897, which are applicable to the Federal law. The case of Pakistan through the Secretary, Ministry of Finance, cited by the learned counsel for the petitioner relates to section 21 of the General Clauses Act.
9. There can hardly be any dispute on the proposition that if an order has the effect of creating certain rights, the same cannot be rescinded by the functionary making the order. This is exactly what has been ruled in the cases of Pakistan through the Secretary, Ministry of Finance and Collector of Central Excise and Land Customs and 3 others cited by the learned counsel for the petitioner. But before the petitioner can be allowed to take the benefit of the said authorities it would have to be determined whether the according of confirmation by the Secretary without its communication to the petitioner created any right in his (petitioner's) favour.
10. As indicated earlier, the plea raised by the learned counsel for the petitioner was that the communication of the confirmation to the petitioner was not necessary for the creation of rights in his favour. As against this, it was urged by, the learned counsel for the respondent that no right was created in favour of the petitioner in consequence of the confirmation accorded by the Secretary because the same had not been conveyed to the petitioner. The only authority cited by the learned counsel for the petitioner to support his proposition is the case of The Rajanagaram Village Co- operative Society, in which the following view was expressed :- "Where the acceptance of bid in an auction sale is a conditional acceptance, and it is communicated to the bidder, there is no need for a further communication of the fulfilment of the condition. The communication of acceptance twice, that is, once when the conditional acceptance is made and again when the condition is fulfilled is not necessary."
' On the other hand, it was held in the case of Dr. Azeem Shad relied upon by the learned counsel for the respondent that where a bid made at an auction is accepted by a Municipal Committee but its acceptance is not communicated to the bidder, through the negligence of the employees of the Municipal Committee, the bidder could not claim damages for the subsequent cancellation of the auction.
11. The case of The Rajanagaram Village Co-operative Society, relied upon by the learned counsel for the petitioner, was a civil suit for enforcing a contractual obligation while the present case is a constitutional petition challenging the validity of an order made by a public functionary. If this petition is treated as a writ petition for enforcing a contractual liability, the petition would not be competent. If any authorities were needed for this proposition, I would refer to M. Muzaffar-ud-Din Industries Ltd. v. The Chief Settlement and Rehabilitation Commissioner, Lahore and another (1), Shamshad All Khan v. Commissioner, Lahore etc. (2) and Mir Rasool Bux Khan Sundrani & Co. v.
People's Municipality, Sukkur and 2 others (3). Similarly, the case of Dr. Azeem Shad cited by the learned counsel for the contesting respondent, related to a civil suit and not a writ petition. The said two cases cited at the bar are, therefore, not helpful in determining the effect of non- communication of the confirmation in question to the petitioner in the case in hand.
12. There are, however, certain observations in the case of Pakistan, through the Secretary, Ministry of Finance, relied upon by the learned counsel ' for the petitioner, which give an indication to the effect that if an order is not communicated to the person for whose benefit it is made, it can be rescinded by the authority making the order. The observations in point read thus: "Mr. Shah Jamil Alam, the learned counsel for the appellant, has urged before us that the order of the President dated the 1st of October, ; 1959, had not become effective as it was not duly communicated to Mr. Himayatullah Farukhi. It was also argued that the President's order fixing the respondent's salary at Rs, 1,000 per mensem suffered from a flaw as it had not been passed in previous consultation with the Ministry of Finance, in terms of rule 10 of the Rules of Business of the Government of Pakistan (1950), although the action directly affected the finances of the Federation.
The first contention has to be rejected outright in view of the facts already mentioned. The order of the President as conveyed by his Secretary was forwarded by the Establishment Secretariat to the Ministry of Communications and Railways which, in due course, was received by the respondent as per his signatures on that order. We cannot accept the suggestion of the learned counsel for the appellant that the respondent somehow surreptitiously managed to sign this communication which was received in the Ministry of Communications in token of its receipt by him. The argument of Mr. Shah Jamil Alam, that since the order of the President was not communicated to the respondent "locus poenitentiae", i,e, the power of receding was available to the President to revoke the order, was based on two decisions of this Court from which he sought to derive support. The first is the case of Shahbaz v. The State PLD 1956 FC 46 in which the Government had ordered the remission of the prison sentence of Shahbaz with effect from the 14th of August, 1954, but before the order was acted upon, it was rescinded on the 13th of August, 1954. It was held that the order cancelling the remission was not open to any objection. In the case of Lt.-Col. G. L. Bhattacharya v.
The State and 2 others PLD 1964 SC 503, which was also a case of remission , of sentence under section 401 of the Criminal Procedure Code, it {{FOOT NOTE}}
(1) 1968 SCMR 1136 (2) 1969 SCMR 122
(3) PLD 1975 Kar. 878 {{FOOT NOTE}} ' PUNJAB. There can hardly be any dispute with the rule as laid down in these communicated to the Superintendent of Jail, who is duty bound to give effect to it in accordance with the Prisoners' Act was held that the remission of sentence becomes effective when duly cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i,e, the power of receding till a decisive step is taken, is mail able to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."
13. In the present case, the confirmation accorded by the Secretary in the first instance was in the process of communication to the petitioner but before it could be actually communicated to him it was withdrawn by the Secretary. In other words, the entire matter was still in the hands of the Secretary and his subordinate, namely, the Municipal Committee, when he had withdrawn the confirmation. It is a matter of common knowledge that, more often than not, orders made by the public functionaries are passed on to their subordinates for being communicated to those for whom they are meant but on second thought they are recalled by the functionaries making such orders. Until such orders are communicated to the parties for whose benefit they are made they are within the administrative sphere of the authority making the order and can be revised by that authority as permitted by section 20 of the West Pakistan General Clauses Act and on the basis of general principles relating to locus poenitentiae A I, therefore, find myself in agreement with the learned counsel for the respondent that the order by which the Secretary had accorded the confirmation had not taken legal effect and no rights has been created in favour of the petitioner by the time the said order was rescinded by the Secretary by withdrawing the confirmation by means of the impugned order.
14. This brings me to the contention of the learned counsel for the petitioner that even if the confirmation was to be withdrawn, the petitioner was entitled to a hearing by the Secretary. It is not disputed that the petitioner could not claim any right in pursuance of his bid unless the same was confirmed by the Secretary. It was for the Secretary to accord or refuse confirmation, in his own discretion. Rule 225, which contains provisions relating to confirmation, do not require the Secretary to afford a hearing to the bidder before refusing to confirm his bid. The executive authorities are frequently required to make orders in their own wisdom and if they are obliged to hear every person who is likely to be benefited or adversely hit by the order to be made by them, it would be extremely difficult, if not impossible, for them to perform their functions. For instance, if a person applies for a job and is not selected for that job by a public functionary, can he be allowed to challenge the order refusing employment to him on the ground that he was not heard before the order was made. The answer is obviously in the negative. The case of a person who, as a result of an executive order, is deprived of certain rights or status enjoyed by him, however, stands on a different footing and he is indeed entitled to be heard before an order is passed against him. The case of &chin: Shah, cited by the learned counsel for the petitioner, also deals with a person of the last ' mentioned category. As for the petitioner, by the order impugned herein, he was not deprived of any right vesting in him before the making of that, order. Therefore, he had no right of hearing before the passing of order under review. In this view of the matter, the case of Rahim Shah is of no avail to the petitioner.
15. The upshot of the foregoing discussion is that since the order, dated the 5th July, 1980, passed by the Secretary confirming the auction in dispute had not been communicated to the petitioner before the confirmation was withdrawn by him by means of the impugned order made on 12th July, 1980, the Secretary had the authority to make the order assailed herein on the basis of the provisions of section 20 of the West Pakistan General Clauses Act and the general principles governing locus poenitentiae because by the time of the making of the second order the first order had not taken effect and no rights had been created in favour of the petitioner due to non- communication of the confirmation to him. Since no rights had been acquired by the petitioner till the passing of the order under challenge, the Secretary was not obliged to hear the petitioner before making the impugned order. There is, therefore, no merit in this petition. It is, accordingly, dismissed with no order as to costs.
Petition dismissed.