1. MUHAMMAD YAWAR ALI, J.---This judgment will dispose of Writ Petition No, 14964 of 2010, W.P. No, 15583 of 2010, W.P. No,15244 of 2010, W.P. No, 15837 of 2010 and W.P. No, 15304 of 2010 as common questions of law and fact are involved in all these matters. Brief facts of the case necessary for the disposal of Writ Petition No, 14964-2010 are that the petitioner claims to be a contractor registered as category "A" for the year 2010-11 under rule 15 of Punjab Local Government (Auctioning of Collection Rights) Rules 2003. That respondent No, 2 placed an advertisement in Daily Newspaper "Express" Lahore dated 19-4-2010 for auction of collection rights of Tax on transfer of immoveable property to be held on 7-5-2010 at 11:00 a.m. That the petitioner participated in the auction proceedings and being the highest bidder for an amount of Rs,2,87,10,000 was declared as a successful bidder and informed that contract for award of collection of tax on transfer of immovable property for the period on 1-7-2010 to 30-7-2011 has been awarded to him. That after completing all other formalities a work order was issued in favour of the petitioner on 30-6-2010.
2. That on 30-6-2010 respondent No,1 issued a letter to All Administrators, Tehsil/Town Municipal Administrations in the Punjab and All Tehsil/Town Municipal Officers, Tehsil/Town Municipal Administrations in the Punjab, the operative part of which is reproduced below:-- "In pursuance of the provisions of Rule 3 of the Punjab Local Government (Auctioning of Collection Rights) Rules 2003 that prohibits award of collection rights to a local government in respect of contract for collection of an income including water rate, building fee, commercialization charges, sanitation fee, licence fee and lighting rate or arrears of the income, demand for which can be raised against a specific person and its arrears can be carried forward communicated earlier vide letter No, S.O. Tax (LG)2-253/97, dated 6-11-2007, collection of Tax on transfer of Immovable Property shall henceforth be recovered exclusively through the departmental mode. Under no circumstances whatsoever can any local government resort to auctioning of collection rights in respect of the subject tax.
3. All the administrators of District Governments/TMAs shall ensure strict compliance with the above instructions which have been issued after approval by the Chief Minister. Necessary measures should be taken at the local council level to ensure that the collection of TTIP is effected in an efficient and transparent manner. Special measures should also be put into place to prevent embezzlement/misappropriation of the collected amount on the part of the collecting staff."
4. The petitioner is aggrieved by the aforesaid order in consequence of which his contract stands rescinded. The learned counsel for the petitioner assails the impugned order dated 30-6-2010 passed by respondent No,1 inter alia on the following grounds:-
(i) That a contract once having concluded could not be rescinded unilaterally.
(ii) That valuable rights which have accrued in favour of the petitioner have been taken away without providing any opportunity of hearing.
(iii) That the impugned order dated 30-6-2010 militates against section 24-A of the General Clauses Act.
(iv) That the impugned order dated 30-6-2010 passed by respondent No,1 is violative of Articles, 4, 8, and 10-A of the Constitution of Islamic Republic of Pakistan 1973.
(v) That the principle of locus ponetentiae is pressed into service stating that once certain decisive steps have been taken after award of contract all that was done could not be undone and the contract could not be rescinded.
(vi) That the impugned order dated 30-6-2010 passed by respondent No,1 is tainted with mala fide and has been passed in a colourable exercise of power so as to benefit certain nominees of a political party now in power in the Province of the Punjab.
5. The learned Law Officer as well as the learned Legal Advisor for respondents Nos.2 and 3 have vehemently opposed this petition on the grounds that it is not maintainable. The objections with regard to the maintainability of this petition are hereunder:--
(i) That no writ can be issued under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 for enforcement of a contract.
(ii) That the instant petition would not be competent since the petitioner was bound to get the dispute resolved by means of arbitration as provided in the contract.
(iii) That the petitioner has the right of filing an appeal before respondent No, 1 under section 190 of the Punjab Local Government Ordinance 2001. Since this petition has been filed without availing of an alternate remedy the same is liable to be dismissed forthwith. On merits it has been argued that no contract could have been awarded by respondent No, 2 on account of the bar contained in Rule 3 of the Punjab Local Government (Auctioning of Collection Rights) Rules 2003 by virtue of which the local Government was not vested with any jurisdiction to auction of collection rights of tax on transfer of immovable property.
6. The preliminary objections taken by the respondents with regard to the maintainability of this petition are to be addressed in the first instance. There can be no cavil with the proposition that routine contractual disputes between private parties are not to be scrutinized by this court while exercising its extraordinary constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973. However, an exception to this rule would be that this court would have the jurisdiction to examine a contract concluded by public functionaries which do not entail any factual inquiry and it would be open to judicial review, since such contracts have to be just, fair, transparent and reasonable. Similarly, bar of proceedings as envisaged under the Arbitration Act, 1940 would not take away this court's jurisdiction of judicial review in matters emanating from a contract concluded between private individuals and State functionaries as has been held by the august Supreme Court of Pakistan in Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268. Similarly the instant petition is not liable to be dismissed on the sole ground that the petitioners have not invoked the right of statutory appeal if this court comes to the conclusion that an appeal which has been provided in the statute is not an efficacious remedy in the circumstances of this case. An appeal against the impugned order passed by respondent No,1 according to the learned counsel for the respondents would lie before respondent No,l. The august Supreme Court of Pakistan in Nagina Silk Mill, Lyallpur v. (1) The Income Tax Officer, A-Ward Lyallpur, and (2) the Income Tax Appellate Tribunal Pakistan and Nagina Silk Mill, Lyallpur v. The Income Tax Officer, A-Ward Lyallpur PLD 1963 Supreme Court 322 has held that in cases of absence or excess of jurisdiction or where the impugned order is manifestly illegal, a writ would lie even though the petitioner has not availed of his right of filing a statutory appeal. In Lt.-Col Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Pakistan through the Secretary Ministry of Finance, Government of Pakistan PLD 1961 Supreme Court 119, the Apex Court stated in clear and unequivocal terms that this court could not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring the jurisdiction of the Court. The law as enunciated has been consistently followed by the august Supreme Court of Pakistan. In Syed Ali Abbas and others v. Vishan Singh and others PLD 1967 Supreme Court 294 and The Murree Brewery Co; Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 Supreme Court 279, it was held that where an alternative remedy provided in law would not be efficacious and illusionary a writ would lie against the impugned order even though the alternative remedy has not been availed. The august Supreme Court of Pakistan in Collector of Customs, Customs House, Lahore and 3 others v.
7. Messrs S.M. Ahmad and Company (Pvt) Limited Islamabad 1999 SCMR 138 held as under:-- "As regards the maintainability of writ petition in the presence of alternate remedy, it is a settled proposition of law that it is no bar if such remedy is only illusory in nature, as observed in Gulistan Textile Mills Ltd. v. Pakistan (1983 CLC 1474). No useful purpose would have been served if the respondent had been required to avail of the remedy of the appeal or revision because the highest body i,e, the C.B.R. Had already expressed its opinion against the respondent. A reference may be made to Messrs Usmania Glass Sheet Factory Limited, Chittagong v. Sales Tax Officer, Chittagong (PLD 1971 SC 205) wherein it was observed that where a dispute arises between the parties in respect of fiscal right based on a statutory instrument, it can be determined in writ jurisdiction.
8. After the decision given by the C.B.R. It would have been difficult for the Federal Government to take a contrary view about the assessm ent/evaluation of the wood imported by the respondent, and in these circumstances no exception could be taken to the respondents invoking constitutional jurisdiction of the High Court. Classification of goods is not always a pure question of fact and being a mixed question of fact and law, the High Court is possessed of jurisdiction to adjudicate upon such question in constitutional jurisdiction in the light of dictum of the Supreme Court in M.Y.
9. Khan v. M.M.Aslam and 2 others (1974 SCMR 196) and Messrs Delite House Ltd. v. Assistant Collector, Customs (1988 CLC 5).
10. Since the learned Law Officer has stated before this court that an appeal against the impugned order dated 30-6-2010 passed by respondent No,1 would lie before respondent No,1, it is held that it is not an efficacious remedy disentitling the petitioner from filing the instant petition. In order to give a finding on the dispute in hand it would be efficacious and in the fitness of things to refer to Article 140-A of the Constitution of Islamic Republic of Pakistan 1973 providing for an establishment of a Local Government System which reads as under:- "140-A. Each province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments."
11. Now the local government is to run their affairs in accordance with the Punjab Local Government Ordinance 2001. Section 4 reads as follows:- Section 4. Local Governments to work within Provincial framework.--(1) The Local governments established under this Ordinance shall function within the Provincial frame work and adhere to the Federal and Provincial laws.
(2) In performance of their functions, the Local Governments shall not impede or prejudice the exercise of the executive authority of the Government."
12. Similarly section 127 reads as follows:-- Section 127. Relations of Government with the District Government.--(1) The District Government shall carry out its decentralized functions in accordance with the provisions of this Ordinance and the rules made thereunder.
(2) The District Government shall collect such Provincial tax or taxes within its local area as the Government may direct and the District Government shall after the collection of such tax or taxes deposit the same in the relevant Government account.
(3) The Government may provide guidelines and render advice to the District Government through the concerned Zila Nazim for achieving the ends of Government policy and for promoting economic, social and environmental security of the Province."
13. A bare reading of the aforesaid provisions of the Punjab Local Government Ordinance, 2001 makes it crystal clear that all the local governments are to function within the provincial frame work and adhere to federal and provincial laws. Local Government, cannot impede or prejudice the executive exercise of the government. Similarly, Local/District Government are bound by all policy decisions taken by the Provincial Government.
14. They may collect provincial taxes within the local area as the government may direct and deposit the same in the relevant government account. In the instant case respondent No,1 has laid down certain guidelines in pursuance of Rule 3 of the Punjab Local Government (Auctioning of Collection Rights) Rules 2003. Rule 3 of the Punjab Local Government (Auctioning of Collection Rights) Rules 2003 reads as follows:--
(3) 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.
15. (Provided that contracts of collection rights of such taxes, fees, rates, cesses and other levies of a Local Government, deemed of which can be raised against a specific person and arrears of which can be carried forward in his account, shall not be awarded to a contractor in any case)."
16. A bare reading of proviso to rule 3 reproduced above would show that Local Government has been restrained from awarding any contract to a private contractor for collection of Tax on transfer of immoveable property. The learned counsel for the petitioner has relied upon an order of respondent No,1 dated 28-5-2010 empowering the Tehsil Municipal Authorities to lease out collection rights of tax on transfer of immoveable property. It is trite that any instructions issued by the public functionaries or past practice would not be a bar on law taking its own course. There can be no estoppel against statute as was held by the august Supreme Court of Pakistan in Ikram Bus Service and others v. Board of Revenue, West Pakistan/The Regional Transport Authority Peshawar Region and Ittehad Transport Service Company Ltd PLD 1963 Supreme Court 564. A Division Bench of this Court in Malik Muhammad Majeed v. Government of Pakistan PLD 2002 Lahore 290 has also held that no "Agency" or "Authority" can be held bound by a promise or representation not lawfully extended or given. This Court in Commissioner of Income Tax and Wealth Tax, Sargodah Zone, Sargodha v. Messrs Irshad Anwar and Company 2002 PTD 750 has held that "a practice, howsoever old and consistent, could not in any case operate as estoppel against the prevailing law. Parties can neither vest jurisdiction in a statutory authority nor by agreement can divest it when it is available to him under the law."
17. There is no cavil with the proposition that no one can be condemned unheard, however, this principle would be of no avail to the F petitioner in this case. A bare reading of proviso to Rule 3 of the Punjab Local Government (Auctioning of Collection Rights) Rules 2003 shows that it prohibits the auction of contract to a private contractor for collection of tax on transfer of immovable property. No contract for collection rights of any taxes, fees, rates, cesses and other levies of a Local Government which can be raised against a specific person can be G awarded to a contractor.
18. Collection of tax on transfer of immovable property is a tax which can be raised against a specific person and as such its collection rights cannot be awarded to any contractor under any circumstances. The order impugned in this petition is a valid order and no exception can be taken to it. For what has been stated above, this petition along with other petitions referred to in the opening paragraph being without any merit stand dismissed.