TARIQ JAVED, J. - This order shall dispose of the instant writ petition as well as Writ Petition No. 6631/2009 (Raja Tahir-ur-Rehman Khalid v. Town Municipal Administration, through Town Nazim, Shah Rukn-e-Alam Town, Multan) as both of the petitions involved the identical questions of law and facts.
2. Learned counsel for the petitioner has contended that the petitioner was awarded contract for the collection of tax on transfer of immovable property for the year 2009-2010. According to the learned counsel for the petitioner the auction was held on 12.9.2009 for the period of ten months.
His bid was approved by the house on 18.9.2009 and acceptance was issued to him on 19.9!2009 and formal charge was handed over to the petitioner on 28.9.2009. Thereafter a demand of collection of tax for the month of September was raised against the petitioner, which has seriously been assailed.
3. Learned counsel for the petitioner submits that under the law he is entitled to pay the tax so recovered in terms of the contract from the date of handing over the charge to him and as such demand for the payment of collection for the month of September is illegal on the face of it.
4. On the other hand, it has been maintained that the petitioner was practically handed over the charge at the time of auction when he was declared as the highest bidder and since that very date he is collecting the tax. It is submitted that the auction took place on 12.8.2009, the petitioner being highest bidder was handed over the collection rights there and then through the formal approval was made by the house on 18.9.2009 and the same was conveyed to him on 19.9.2009. The charge was formally handed over to him on 28.9.2009, however, practically he employed his staff on 12.9.2009 and started collecting tax on transfer of immovable property from 12..2009, hence the respondents are entitled to the recovery of the same from the petitioner, It is also maintained that under Rule 24 of the Punjab Local Government (Auctioning of Collecting Right) Rules, 2003 in case of dispute arisen between the contractor and Local Government regarding the contract or any other matter arising out of the contract the contractor or the Local Government shall have a right to resolve dispute through arbitration under Arbitration Act, 1940. It is further maintained that the present controversy between the parties involves resolution of a factual controversy, which cannot be gone into without taking evidence and hence the present writ petition is not maintainable.
5. Learned counsel for the petitioner has relied on AIR 1988 Calcutta 143, 1986 SCM R 1096 aid PLD 1966 Supreme Court 639 and has submitted that the Constitutional petition is the only available remedy to the petitioner as any other remedy is not efficacious, In AIR 1988 Calcuta 143 Susanta Chatterjee, J. Held as follows:- "Pursuant to the contract, the person engaged as a storing agent invests huge funds of money, engages a number of workmen and starts an infrastructure of business, however, it may be, in a maxi form or in mini form. Financially, and in many other ways. He > changes the pattern of his life.
He plans his dreams and desires. He changes his position in economic and social life. All of a sudden, without any reasonable cause and by a stroke of pen, if the business is stopped the contract is rescinded by not giving an opportunity to know the reasons and/or to show cause against any reasons arrived at subjectively, there will be a mockery of Constitutional protection."
6. No doubt the petitioner must have made investment, employed people to recover the tax and had made the investment. However, it is not shown that his contract was terminated and there was mockery of Constitutional protection, In the present case the controversy revolves around the only fact whether the petitioner is liable to pay from the date of actual handing over of the contract or from the date of formal handing over of the contract. According to the learned counsel for the petitioner the formal handing over took place on 28.9.2009, hence the petitioner is liable to pay to the respondents from the date of formal handing over whereas the respondents have maintained that although the formal handing over was on 28.9.2009 but the actual handing over took place on 12.9.2009 when the bid of the petitioner was declared to be the highest and hence he is liable to pay to the respondents from the date of actual handing over. This being so, involves factual controversy, which cannot be gone into by this Court in writ jurisdiction. Similarly, in 1986 SCM R 1096 it was observed in Para No. 5 as under:- "Following from the leave granting order, Mr. Akhtar Mahmud appearing for the appellant, urged that as the dispute between the parties arose out of a contract, the High Court could not bring into the same in its Constitutional jurisdiction. However, we find that no such point had been raised before or examined by the High Court in any of the writ petitions. Same is the position as regards the effect of the arbitration clause on the jurisdiction of the High Court. Moreover, the question of jurisdiction and competency of the functionaries of the Co-operative Development Fund is also involved. The jurisdiction of the High Court to deal with such matters, therefore, cannot altogether be ruled out."
7. Here again in, this case there was no factual controversy involved and hence the Hon'ble Supreme Court held that the Constitutional jurisdiction was not barred, In PLD 1966 Supreme Court 639 again it was held by the Hon'ble Supreme Court that where the question to be determined by the High Court did not involve factual controversy the writ petition was maintainable, In this case, the State land was recommended to be handed over to Anjuman-e-Ahmadiya for construction of Ahmadiya mosque in Sargodha, however due to inadvertence the khasra numbers given in the recommendations made by the Commissioner were erroneously given, which might have been a typing error and the same went un-noticed. The land was handed over to Anjuman-e-Ahmadiya and construction of their mosque on delineated area according to the plan had started. The platform and "Mehrab" were made and all of a sudden the Commissioner proceeded to cancel the allotment and hence the Anjuman-e-Ahmadiya was asked to vacate the land. The said order of the Commissioner was assailed by filing writ petition, which culminated into Civil Appeal No. 31/1965 and was decided by the above-said judgment. The leave was granted to consider whether the remedy by way of a suit was an adequate alternate remedy, as the order complained of appeared to be one purporting to have been made in exercise of public power, and prima facie was amenable to writ jurisdiction in the prerogative jurisdiction, In the above-said case the Hon'ble Supreme Court came to the conclusion that as there was no factual controversy involved the writ petition was maintainable and the order passed by the Commissioner could not be sent for proceedings under the arbitration clause. However, at page 649 it was observed as under:- "The Schedule also indicates that the right of re-entry or assumption can only be exercised where a breach of any of the conditions of the sale has taken place and that too after the dispute, if any, has been referred, following the procedure therein prescribed, to arbitration, if the same has not been excluded by the terms and conditions of the deed, In the present case, however, the deed itself provides in paragraph 11-A (earlier quoted) that whenever there is a dispute or difference there shall be arbitration.
It was idle on the part of the authorities, therefore, to suggest that since arbitration has been provided for in the conditions set out in the deed of conveyance the appellant should be denied the remedy under Article 98. It seems to us that it can with greater force be urged that in view of this arbitration clause it was the clear duty of the authorities to have the question, as to whether there had or had hot been a valid grant in respect of the plot in dispute, decided by arbitration before purporting to cancel the same."
8. In the present case only a notice to pay the arrears has been served. The respondents submitted that if according to the petitioner, the same is not payable, it can be referred to arbitration, It is admitted fact that the contract still holds the field and has not been rescinded. The controversy involved in the present case appears to be one of factual inquiry, the above-referred judgments cited by the learned counsel for the petitioner also support the view that in case of factual controversy the writ petition is not maintainable. Therefore, respectfully following the dictum laid down by the Hon'ble Supreme Court these petitions are dismissed. The parties may invoke the arbitration clause as envisaged in Rule 24 of the Punjab Local Government (Auctioning of Collecting Right) Rules, 2003. The petitions are dismissed in limine.