1. Yahya Afridi, J.--Muhammad Nawaz Tahir, the TAO Nazim of Tehsil Municipal Administration, Takht Bhai has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution. He seeks a declaration to the effect that the order of Deputy Secretary Local Council Board, Government of N.W.F.P. Local Government Department dated 7.8.2009 passed under Section 59 of the N.W.F.P. Local Government Ordinance 2001 ("Ordinance"), wherein the petitioner has been held personally responsible for the losses caused to the Tehsil Municipal Administration of Takht Bhai ("TMA") and also directed to pay within seven days an amount totaling Rs.9.770 million, failing which, the same was to be recovered as arrears of land revenue.
2. The facts leading to the impugned order are that Malik Tilla Muhammad (Respondent No. 4) has been for the last few years awarded the contract by TMA for the collection of property tax. His contract for the year 2007-2008 was to expire on 30th June 2008.
2. TMA invited, through national dailies, bids for participating in the public auction for the collection of property tax for the year 2008-2009. In pursuance of the said advertisement the highest bidder was one namely M/s. Haji Akbar Khan, who filed a bid of Rs.20 million. The said bidder was unable to fulfill the requirements of his bid, accordingly, his bid money was forfeited by TMA.
3. On 10.6.2008 Tilla Muhammad (Respondent No. 4) invoked the jurisdiction of the Civil Court Mardan, seeking a declaration that he was the lawful holder of a contract to collect the property tax till 30th June, 2008. He further sought a permanent injunction securing his right of collection of property tax till 30th June, 2008. The trial Court granted a temporary injunction, which continued till 2nd July, 2008.
4. Interestingly, on 21.6.2008 a resolution in the Tehsil Council, Takht Bhai was, inter alia, moved to the effect that Respondent No. 4, who generates huge revenue for TMA, should be awarded the contract for the collection of the property tax for the year 2008-2009 with a 10% increase from his present contract for the year 2007-2008. This resolution was duly carried through without any resistance.
5. Accordingly, on the basis of the said resolution, a compromise deed was executed between the petitioner and Respondent No. 4, whereby the contract for recovery of property tax for the year 2008-2009 was awarded to the Respondent No. 4 for a consideration of Rs. 10.230 Million. Joint written statements, compromise deed and `Iqrar Nama' all dated 30.6.2008, were submitted to the trial Court. Thus the suit of Respondent No. 4 was dismissed on 11.7.2008.
3. What is important to note is that the said compromise deed, annexed with the petition, did not contain the consent or signature of Tehsil Municipal Officer, Takht Bhai and the place for his signature has been left blank. The said officer realizing the illegal actions being taken by the petitioner and other members of TMA, duly informed the Provincial Government vide his letter dated 2.7.2008 and requested for immediate action in order to save TMA from further losses.
6. The Provincial Government in turn vide its letter dated 4.7.2008 duly informed the present petitioner that his action of awarding contract to Tilla Muhammad (Respondent No. 4) without conducting the open auction was in violation of the law and also advised the present petitioner to immediately withdraw from the above contract and further to re-auction the same after complying with all the formalities required under the law.
5. Tilla Muhammad (Respondent No. 4) again filed another suit before a Civil Court, Mardan, how seeking a declaration to the effect that he was awarded a contract for the collection of property tax for the year 2008-2009 by the Tehsil Nazim and that the letter of Respondent No. 2 dated 4.7.2008 was illegal and without any lawful authority. He also sought permanent mandatory injunction against any re-auctioning of the contract for collection of property tax for the year 2008- 2009.
7. The trial Court vide its. order dated 30.7.2008, for reasons which need not be narrated in detail, confirmed the interim injunction granted to Tilla Muhammad for six months or till the disposal of the suit, which ever was earlier. The said suit, from the information provided by the petitioner, has on 22.7.2009 been dismissed for non-prosecution.
6. The Provincial Government through Respondent No. 2 appointed a member of the Provincial Local Government Commission, N.W.F.P. ("Commission") to conduct an inquiry into the matter relating to the award of contract of collection of property tax in Tehsil Municipal Administration, Takht Bhai. The petitioner was duly served a notice and he replied thereto vide his written reply dated 3.9.2008.
7. Finally, Respondent No. 2 vide notice dated 7.8.2009, which is impugned in the present petition, informed the present petitioner that he, under Section 59 of the Ordinance; was held personally responsible for the losses caused to TMA. The petitioner was provided seven days to make payment of the losses amounting to Rs.9.770 million to be deposited in the funds of TMA and failure on his part would lead to recovery of the same as arrears of land revenue.
8. Only Respondent No. 2 has filed comments to the writ petition, wherein preliminary objections have been taken regarding the lack of cause of action, the maintainability of the petition as factual disputed questions were being agitated and finally that an alternative remedy provided under the Ordinance was not availed.
9. On the factual side Respondent No. 2 has reiterated the facts relating to the illegal awarding of contract, without following the formalities relating to public auction and that the same was duly agitated by the Tehsil Municipal Officer vide his letter dated 2.7.2008 and that corrective remedial measures were taken by the respondents. The said respondent has also stated that as the highest bid of Rs. 20 million had been offered and granting the said contract to Respondent No. 4 at Rs.
8. 10.23 million without the public auction was illegal and resulted in a financial loss to TMA amounting to Rs.9.770 million.
9. 10.The respondent has also challenged the authority of the Tehsil Council to pass a resolution, whereby the procedure for public auction has been done away with and a contract for collection of property tax has been awarded to a named individual through a resolution by the Tehsil Council.
10. 11.The record of the case has been considered and the value arguments of the learned counsel of the parties duly noted.
11. 12.We would first take the preliminary objection regarding the statutory alternative remedy provided under Section 190 of the Ordinance. The said section reads as follows:-- "190. Appeals.--Any person aggrieved by any order passed by a Local Government or its functionaries, in pursuance of this Ordinance or the rules or bye-laws made there under may appeal to such authority, in such manner and within such period as may be prescribed."
12. The above provision provides remedy to any person aggrieved by a decision passed by Local Government. The definition of "Local Government" as provided in. sub-section (16) of Section 2 of the Ordinance does not include N.W.F.P. Local Government Commission as established under Section 131 of the Ordinance. In view of the above, the remedy provided under Section 190 of the Ordinance, is not applicable to the present case of the petitioner. Accordingly, in the circumstance of the present case, the objection of the learned counsel for the respondent does not hold any legal ground.
13. 13.Reviewing the provision of the Ordinance, we note that Section 124 of the Ordinance expressly provides for public auction granting lease of immovable property, sale and transfer of the moveable property of the Local Government. However, there is no express provision provided in the Ordinance regarding the procedure for awarding contract for engaging services by the Tehsil Municipal Administration.
14. We are, therefore, to look for the relevant law under the repealed regime of the NWFP Local Government Ordinance, 1979 and the rules made there under. The said rules are duly protected and saved under the saving provisions provided for in Section 196 of the Ordinance.
15. 14.The N.W.F.P. Local Council (Contract Rules) 1980 ("Rules") defines an agreement in Section 2-A as:-- "(a) "agreement" meats any kind of undertaking express or implied made between a Local Council and any other person for a certain consideration, for the purchase or supply' of goods or materials, or for the acquisition, purchase or transfer by grant, gift sale mortgage, lease, exchange or otherwise any moveable or immovable property or for the execution of any work or for the performance of any service;"
16. The above definition of "agreement" includes a contract for performance of any service, which would include the contract for collecting property tax on behalf of TMA.
17. The procedure of inviting tenders for such agreements, as in the present case, is provided in Rule 7 of the Rules:-- "7. Tenders when to be invited.--
(1) Subject to the provisions of sub-rule (2) the Chairman shall at least seven days before entering into a contract give public notice and may accept any of the tenders so made which appears to him, upon a view of all the circumstances to be the most advantageous: Provided that-- (i)if he rejects the lowest tender of all the tenders made in pursuance of the public notice, the reasons for his so doing shall be recorded; (ii)if it is contract entered into with the approval of the Local Council or Government, the approval of the Local Council or Government, as the case may be, shall be obtained before rejecting the lowest tender; and .
18. (iii)the Chairman may in case of any calamity or any other emergency and with the previous sanction of Government dispense with the formality of inviting tenders, and enter into a contract with any person for the execution of any work or the provision of any supplies with due regard to the quality of work or supplies and speedy execution of the contract; Explanations.-- Government shall be the sole authority to determine Whether there has occurred any calamity or other emergency and its decision in this behalf shall be final.
(2) The Local Council may, in cases where the question of securing competitive prices or rates is not involved, authorize one Chairman to enter into a contract without inviting tenders."
19. The above procedure clearly provides for issuance of a public notice prior to entering into any contract by a Local Government.
20. The exceptions provided in the said rule are in cases, where there is calamity or where securing competitive prices or rates is not involved. In the present case, the situation is clearly otherwise.
21. There is no question of any calamity and there is every reason for securing competitive prices or rates. Hence, the present petitioner cannot even seek refuge behind the said exceptions provided in the said rule.
22. 15.On reviewing the functions and powers of the Tehsil Council, as provided in Section 67 of the Ordinance, we note that the said provision does not provide any authority to the Tehsil Council to award a contract to an individual for rendering services in violation of any rules.
23. 16.The functions of the Provincial Local Government Commission have been duly enumerated in Section 132 of the Ordinance. The relevant provisions thereof are as follows:-- "132. Functions of the Provincial Local Government Commission.--
(b) Conduct, on its own initiative or, whenever, so directed by the Chief Executive of the Province, an inquiry by itself or through District Government into any matter concerning a local Government;
(g) take cognizance of violations of laws and rules by a local government in performance of its functions; Reviewing the functions and powers of the Commission it is clear that Respondent No. 2 had the authority and lawful jurisdiction to initiate the inquiry that it did on a valid complaint filed by the Tehsil Municipal Administrator.
24. 17.The Tehsil Nazim has been vested with immense authority and declared under Section 53 of the Ordinance, as "the head the Tehsil Municipal Administration". With such vast powers and authority also comes strict obligations and huge responsibilities. The law makers have, thus in their wisdom, considered the Tehsil Nazim to be responsible for any action taken by the Tehsil Municipal Administration. This has been duly incorporated and provided in Section 59 of the Ordinance which states as under:-- "59. Personal responsibility of Tehsil Nazim.--The Tehsil Nazim shall be personally responsible for any loss, financial or otherwise, flowing from the decisions made by him personally or under his directions in violation of any provisions of this Ordinance or any other law for the time being in force and for any expenditure incurred without lawful authority."
25. In the present case, it will be very hard for us to shut our eyes to the active role of the present petitioner in the measured steps, very intelligently manoeuvered to ensure benefit to an individual for awarding the contract. The present petitioner is the signatory to the Agreement with Respondent No. 4. To rebuke the responsibility for such actions cannot be decided on the available record of the present case. The petitioner would have to record evidence, which we do not feel inclined to allow in our Constitutional jurisdiction.
26. 18.As to the amount of losses, which 'have been determined by the Commission, we in our Constitutional jurisdiction cannot go into such fact finding inquiry.
27. 19.What is important is that a notice was served upon the present petitioner and in pursuance of the said notice, a written reply has been submitted by the petitioner to the Commission and thereafter the impugned order has been passed by Respondent No. 2. Thus the principle of natural justice has been substantially complied with.
28. 20.The petitioner is seeking our Constitutional jurisdiction to issue a writ of "Certiorari". We in our Constitutional jurisdiction can only exercise this discretionary jurisdiction in cases where the petitioner's hand are not soiled. There have been cases where illegal orders sought to be judicially reviewed have not been interfered with by the Constitutional Courts when the petitioner has not approached the Court with clean hands or any interference would result in unjust and unlawful enrichment of the petitioner. The most celebrated judgment in this regard is Nawab Syed Raunaq Ali etc. Vs. Chief Settlement Commissioner and others (PLD 1973 S.C. 236).
29. "...An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked..."
30. The present case relates to an elected member of the Local Government. Much is expected of. him.
31. The standard of such elected representatives has been discussed in Rana Muhammad Arshad Vs. Additional Commissioner (Revenue) Multan (1998 SCM R 1462): "....4. There can be no cavil with the proposition that the declarations, prohibitions, directions or requisitions in contemplation of Article 199(1) of the Constitution are essentially discretionary in nature. Discretion of the Court, however, is always exercised alongwith sound judicial lines.
32. Constitutional jurisdiction is designed to advance justice and cater to the various fundamentals enshrined in the Constitution on the one hand and dictates of law on the other. Where law, in the abstract, is banked upon in order that the Constitutional remedy be extended, the underlying principles and salient features or prominent characteristic of the Constitution, one of which is an undiluted and unpolluted democratic form of the polity, .cannot be ignored or even side-tracked.
33. Much as the rule of natural justice viz. audi alteram partem, such features and characteristic, wherever called for and feasible, are therefore, to be fostered and strengthened and that can never be achieved unless elected offices are kept free or undesirable and doubtful characters.
34. Beyond this, at the level of the High Court, the relief being discretionary, power did vest in the learned Judge to decline the relief sought. As it is salus populi est supremea lex (Regard for public welfare is the supreme law)..."
35. For the reasons recorded hereinabove the present petition fails and thus is dismissed in limine. No orders as to costs.