This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby Khalid Mahmood Khan petitioner requests this Court to declare that the action taken by the Municipal Committee, Khanewal. Respondent No. 1 on 16th August, 1981, by passing resolution No. 4 has been taken without lawful authority.
It is further requested that the respondent No. I be directed to act in accordance with law by treating the disputed auction of the octroi posts in favour of the petitioner for Rs. 33,00,000 having been confirmed by it on 28th June, 1981, as still holding field and for direction to respondent No. 1 to hand over the charge of octroi posts to the petitioner and not to re-auction the collection of the octroi , for the year
2. The facts leading up to this petition according to Petitioner are that in public auction for the collection of the octroi of the Municipals Committee, Khanewal, for year 1981-82 which was held on 22nd June, 110 1981, Khalid (Mahmood petitioner was the highest bidder for Rs. 33,03,900. He in compliance with the conditions of auction deposited Rs. 70,000 as advance payment. Respondent No. I in its meeting on 28th June, 1981, confirmed the auction in favour of the petitioner and asked him to comply with other conditions pertaining to the security of Rs. 3,30,0;30 (advance money) i.e. 10 per cent of the auction price and first instalment for July, i.e. Rs. 2,70,000. The petitioner was also required to furnish a bank guarantee valuing Rs. 3,30,000. The petitioner protested against this additional demand but reluctantly offered personal guarantee. Thereupon, respondent No. I through amended resolution asked the petitioner to furnish personal guarantee of two persons to the satisfaction of the Chairman, Municipal Committee. It was further resolved that in case of failure to make payment of Rs. 6,33.000 on July, 1981 the auction would stand cancelled. On 12th July, 1981, 1981, a sum of Rs. 1,63,620 was due from respondent No. 1 and the petitioner deposi--ted Rs. 4,69,380 in cash and in this way an amount of Rs. 6,33.000 was paid by the petitioner. Inspite of that the respondent failed to fulfil the assurance that the charge of the octroi posts would be handed over to the petitioner.
The petitioner also produced guarantor but the Chairman refused to accept that. On 21st July, 1981, the petitioner moved an application for handing over the charge to him. On this application, the legal advisor of respondent No. I opined that the petitioner has failed to comply with the conditions of the auction by not producing the guarantor. The application was placed before the House where it was once again resolved that a bond be got registered with the Sub-Registrar that the petitioner would abide by the conditions of the auction. It was also resolved that the guarantor produced by the petitioner be accepted and charge of the octroi posts .Be delivered to the petitioner. The petitioner was asked to execute the document by 31st July, 1981. On 28th July, 1961, the petitioner got the agreement registered and produced complete documents before the Chairman but was directed to see the legal advisor. The petitioner then sent application to the Deputy Commissioner, Multan, respondent No. 2, on 29th July, 1981 which was sent to the A. C., Khanewal for necessary action. Since the A. C. Had u; already been transferred, the petitioner despatched the documents to respondent No. 1 through registered post on 30th July, 1981. Since the office of respondent No. 1 was closed for four days because of Eid Holidays, the documents were delivered on 4th August, 1981. The legal advisor opined that the petitioner has failed to perform his part of the agreement, therefore.
The security be forfeited and amount already received from the petitioner should not be refunded until re-auction.
On 16th August 1981, a meeting was convened wherein Resolution No. 16, the impugned Resolution, was passed cancelling the auction dated 4 29th June, 1981 in favour of the petitioner and directing fresh auction for the year 1981-82. Hence this petition,
3. Learned counsel for the petitioner contends : (1) that on 12th July, 1981 respondent No. 1 had asked him to deposit Rs. 6,33,000 and he deposited the same on that day, as such, there was no legal justifi--cation for not handing over the charge of the octroi posts to him ; (2) that the petitioner had complied with the resolution dated 25th July, 1981 by executing documents according to the terms of the same ; (3) that the Chairman being poisoned against the petitioner, he reopened the matter, which stood finally, disposed of at least on 25th July, 1981 and set at naught the resolutions dated 28th June, 1981, 12th July 1981 and 25th July, 1981 without legal or moral justification ; and (4) that the respondent has acted illegally while passing resolution dated 16th August, 1981 in clear disregard of facts and law and that once a resolution is passed the same cannot be review--within three months of its passing.
4. Respondent No. 1 in his parawise comments has raised various preliminary objections and has denied the allegations levelled in the petition. While raising preliminary objections it has been stated that under the terms and conditions of the auction the petitioner should have referred the matter to the Deputy Commissioner for arbitration. The petitioner having not availed of that remedy the writ is not maintainable. It was further objected that the impugned resolution being appealable under section 166 of the Punjab Local Government Ordinance, as such, a straightway writ was not proper. On merits it has been stated that the petitioner was defaulter in the payment and also failed to perform his obligation with regard to the payment and staff salaries for the month of July, and instalment for the month of August, on due dates. It was denied that the petitioner had deposited Rs. 6,33,000 on 12th July, 1981; either completed the documents or he produced suitable guarantors within specified time. In parawise comments it has been stated that the respondent had very rightly resolved on 16th August, 1981, to cancel the auction, to forfeit the security and recover the loss after re-auction from the amount of lease in accordance with the terms and conditions of the auction.
5. The above statement of facts makes it very much clear that this petition involves a very complicated matter. The facts asserted by the petitioner have been refuted by the respondent.
Petitioner's case is that he had complied with the terms and conditions of the auction whereas respondent's plea is that the petitioner was a defaulter and had failed to comply with the conditions. The petitioner states that he had paid Rs. 6,33,000 on 12th July, 1981, whereas the respondent says that he had paid Rs. 4,69,380 on that date. To my mind, this controversy, which requires deep investigation, cannot be resolved by this Court while sitting in its constitutional jurisdiction. I further find that the petitioner has not approached the Deputy Commissioner for the arbitration and the resolution No. 4 was also not challenged in any appeal. As for Contention No. 4, I find that respondent No. 1 was competent to place the auction matter for consideration of the House in view of new development and resolution No. 4 does not amount to a review of the previous one.
6. Before parting with the judgment, I would like to observe that it has been admitted in para. No. 4 of the reply on facts that the petitioner made payment of Rs. 4,69,380 on 12th July, 1981, and it has also been admitted that the petitioner had deposited Rs. 70,000 as advance payment on 22nd June, 1981. It is an admitted fact that although he had paid this amount yet he was never handed over the charge of octroi posts. In these circumstances, it is expected from respondent No. I that he would return the amount to the petitioner immediately failing which the petitioner may sue the respondent for the recovery of the said amount, if so advised.
7. For what has been stated above, there is no merit in the petition and the same is hereby dismissed. No orders as to costs.