The petitioners are dealing with the business of advertising having displayed their billboards at different places within the territorial limits of Tehsil and District Khushab. The respondents No.2 & 3 have issued a publication in daily newspaper inviting public to participate in the proceedings for the auction of various sites for billboards. The petitioners being aggrieved of the publication have thrown a challenge to the same by way of instant petition.
2. Learned counsel for the petitioners submitted that auction of the sites in question can only be done after framing of rules and bye-laws as per mandate of Sections 94, 118, 141 to 147 & 192 of The Punjab Local Government Ordinance, 2001. He added that no rules have been framed by the respondents thus they have no lawful authority to hold the auction in question. Learned counsel contended that most of the sites mentioned in the publication are not owned by the Tehsil Municipal Administration, so holding of auction is unwarranted.
3. On the other hand, learned counsel representing respondents No.2 & 3 vehemently resisted the instant petition. He submitted that the petitioners have already filed a suit with regard to the same cause of action which is pending before the court of competent jurisdiction. Learned counsel maintained that in presence of alternate remedy in the form of appeal, the instant petition is not competent. It is further contended by the learned counsel that auction has already taken place and the petitioners even did not participate in the said proceedings, so they have no locus standi to file the instant petition. In support of his contentions, learned counsel relied upon "MUHAMMAD ARSHAD versus SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT, LAHORE and 4 others" (2005 CLC 939) and "PERVAIZ IQBAL versus TEHSIL NAZIM and others" (2007 CLC 583).
4. I have heard learned counsel for the petitioners as well as learned counsel for the respondents and also perused the record.
5. After hearing the respective contentions of both the sides, I am of the considered view that there can be no second opinion that the Constitutional jurisdiction is discretionary relief which can only be exercised in extraordinary and exceptional circumstances in aid of a litigant who approaches the court with clean hands. The petitioners have already approached the Civil Court by way of a suit agitating the same cause and the learned Civil Judge, seized with the matter, has already refused to grant the temporary injunction by way of order dated 02nd of March, 2016, which order was assailed by the petitioners through an appeal but the appeal was also dismissed. The petitioners cannot pick the forum of their own choice in order to get a relief in their favour, thus circumventing the ordinary jurisdiction of the Court at the whims of a party would mean to obstruct the normal process of law and to show a distrust on the working of Sub-ordinate Courts, which is never the object of law. Before commenting upon other merits of the instant petition, it can be held without any hesitation that the petitioners were obliged to disclose the pendency of litigation, while filing the instant petition. It appears that the disclosure about the pendency of suit was purposely withheld which sole circumstance is sufficient to disentitle them from claiming the discretionary relief in terms of Article 199 of The Constitution of The Islamic Republic of Pakistan, 1973. This Court in the case of "MUHAMMAD AMIR versus UMER HAYAT and 5 others" (2010 CLC 1798), while dealing with the issue in hand held as under :- "3. Without dilating upon the merits and demerits of the case it is pointed out that prior to filing of this writ petition for setting aside the orders dated 21-10-2009, 12 5-2008, 29-12-2006 and 26-2- 2003 respectively the petitioner Muhammad Ameer filed a civil suit on 18-11 2009 in the court of learned Senior Civil Judge, Sahiwal assailing the same orders which are assailed in this writ petition. Muhammad Ameer petitioner did not disclose in this writ petition the filing of the same which is serious concealment of facts. Relief under Article 199 of Constitution of Islamic Republic of Pakistan 1973 is always a discretionary relief. The petitioner should approach this court with clean hands. This material concealment of facts not disclosing the filing of civil suit before the learned Senior Civil Judge, Sahiwal by the petitioner is sufficient ground for refusing the relief sought for in this writ petition. The petitioner cannot avail two remedies simultaneously. He is bound to choose either to avail the remedy of filing civil suit or filing this writ petition. At a time petitioner has availed both the remedies.
4. In "Muhammad Anwar and another v. Government of Sindh through Secretary, Home Department and 2 others" 1986 MLD 1440 (D.B) Karachi, it is held that:-- "Proper course---Title of car in dispute being subject-matter of civil suit pending adjudication in civil court proper course for custody of such car, held, would be to move application in that respect to concerned civil court".
5. In another case "Muhammad Anwar v. Municipal Corporation, Faisalabad and others" 1993 CLC 1851 Lahore, it is held that:-- "Since the petitioner has already taken recourse to the remedy of civil suits which in the facts and circumstances of the case could be said to be not adequate or efficacious, he is not entitled to agitate the same dispute in constitutional jurisdiction. The petition was dismissed but with no order as to costs":
6. In "Haji Dossas Limited and others v. The Federal Government of Pakistan through the Secretary to the Government of Pakistan, Ministry of Food and (Agrarian Management), Islamabad and another" 1986 CLC 1193 D.B it is held that:-- "(N) Civil Suit pending in respect of matter referred to in constitutional petition, effect---where suit in respect of same cause of action as referred to in constitutional petition, was pending, High Court held would not take up such matter in constitutional jurisdiction".
7. In "Saleem Akhtar v. Province of Punjab" 1994 CLC Lah. 2290, it is held that: "Dispute between parties relating to title to immovable property--- Constitutional petition--- Maintainability--- Suit relating to disputes about title was pending adjudication in Civil Court---Suit being appropriate remedy for settlement of title disputes relating to immovable property between parties, remedy under Constitutional jurisdiction was not available in such cases except when violation of some statutory duty on the part of statutory functionary was alleged---High Court could not allow its Constitutional jurisdiction to be used for deciding title disputes relating to immovable .property for which remedies under general law were available-- Constitutional jurisdiction was not intended to substitute ordinary remedies by way of suit available to party---Constitutional jurisdiction being special and extraordinary should not be exercised in ordinary cases-Constitutional jurisdiction was not maintainable in circumstances".
8. I fully concur with the dictum laid down in the above referred cases when suit is pending on the subject of lis the same cannot be assailed in the writ jurisdiction. In the instant case orders passed by District Officer (Revenue) and Member, Board of Revenue were assailed earlier in civil suit pending before the competent civil court subsequently during the pendency of civil suit writ petition is filed which in the light of dictum laid down in cases supra cannot proceed."
The above principles were reiterated by this Court in the cases of "NOOR AVENUE COOPERATIVE HOUSING SOCIETY, HANJARWAL, LAHORE through President versus LAHORE DEVELOPMENT AUTHORITY through Director-General, L.D.A., Lahore and 3 others" (2008 CLC 200) and "NADIR ALI versus SECRETARY, REGIONAL TRANSPORT AUTHORITY, FAISALABAD and another" (PLD 2006 Lahore 298).
Reference in this respect can also be made to "Mian MUHAMMAD YOUSAF and another versus LAHORE DEVELOPMENT AUTHORITY through Director-General, L.D.A. Plaza, Lahore and 5 others" (PLD 2001 Supreme Court 393).
6. Now while adverting to the merits of the case, it is observed that the petitioners have challenged the auction proceedings mainly on the ground that the respondents since have not framed any rules to this effect in pursuance to the powers vested under The Punjab Local Government Ordinance, 2001, so they are not vested with the authority to conduct auction proceedings. In this regard suffice to observe that when such powers are available in the statute itself, mere non- framing of rules or bye-laws to this effect is not sufficient to invalidate the auction proceedings.
Section 116 empowers a Council to levy taxes, cesses, fees rates, rents, tolls, charges, surcharge and levies specified in the Second Schedule and as per Second Schedule Part-III, every Tehsil Council is vested with the authority to levy fee on advertisement. Furthermore Section 191 of the Ordinance ibid authorizes the Government to make rules for carrying out the purposes of the Ordinance by way of notification in the official Gazette whereas Section 192 ordains that a Zila Council, Tehsil Council, Town Council and Union Council in their ambit of responsibilities, can make bye-laws to carry out the purposes of the Ordinance. It is thus evident that power to levy the fee on advertisement as well as to regulate such activity is available in the basic statute. The failure or omission on the part of Government or Authority concerned to frame necessary rules or bye-laws to that effect cannot be construed as having the effect of rendering the statute nugatory or unworkable. The relevant provisions would remain in field with full force and rigours. Guidance in this regard can be sought from "M.U.A. KHAN versus Rana M. SULTAN AND ANOTHER" (PLD 1974 Supreme Court 228) wherein Hon'ble Supreme Court of Pakistan held as under :- "It is universally recognized that as regulatory statutes have to deal with a variety of situations and subjects, it is not possible for the Legislature itself to make detailed regulations concerning them, and, therefore, the Legislature delegates its power to specified or designated authorities to make such detailed regulations, consistent with the statute, for carrying out the purposes of the parent legislation. The power so conferred is generally in the nature of an enabling provision, intended to further the object of the statute, and not to obstruct and stultify the same. As a consequence, the failure or omission of the designated authority to frame the necessary rules and regulations, in exercise of the power conferred on it by the Legislature, cannot be construed as having the effect of rendering the statute nugatory and unworkable. Such an eventuality could arise only if the Legislature indicates an intention to this effect in clear and unmistakable terms."
The same view was further reiterated by Hon'ble Apex Court in the case of "JAHANGIR MIRZA, SENIOR SUPERINTENDENT OF POLICE, LAHORE and another versus GOVERNMENT OF PAKISTAN, through Secretary, Establishment Division and others" (PLD 1990 Supreme Court 1013). Even learned Sindh High Court in the case of "KOHINNO R CHEMICAL Co. LTD., KARACHI AND 2 OTHERS versus KARACHI MUNICIPAL CORPORATION" (PLD 1978 Karachi 233) has also adopted the same principles.
7. Leaving aside above aspect, it is an admitted position that the Government of Punjab, Local Government and Community Development Department have framed a uniformed policy termed as The Punjab Outdoor Advertisements and Sign Boards Policy, 2013 in order to regulate the affairs of advertisement which is applicable throughout the province. In view of above discussion, the contentions of learned counsel for the petitioners to this extent are ill-founded and mis-directed.
8. Though it was an open auction but the petitioners even being in the business of advertisement have not taken part in the proceedings. It appears that the instant petition has been used as a device to frustrate the auction proceedings which are to be conducted under the prevailing law.
Such proceedings cannot be set at naught at the whims of the party who has failed to take part in the same and rather opted to stifle such proceedings by misusing the process of law. Reference in this respect can be made to "MUHAMMAD ARSHAD versus SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT, LAHORE and 4 others" (2005 CLC 939) and "MUHAMMAD ASGHAR DAR versus TOWN MUNICIPAL ADMINISTRATION KHIALI SHAHPUR DISTRICT GUJRANWALA through Town Nazim and 3 others" (2007 CLC 1398).
9. For the foregoing reasons, I am of the considered view that the instant petition is devoid of any merits, consequently the same is dismissed in limine.