FAIZ MUHAMMAD KHAN, J.-Municipal Committee, Bannu (hereinafter called the appellant) was owner of the vacant site (hereinafter called the disputed property), more particularly described in the heading of the plaint of Suit No. 221/1 of the year 1969, out of which this Regular Second Appeal rises. Mr. Munawar Khan, Advocate, who on his death during litigation has been succeeded by his legal heirs (hereinafter called the respondent), applied to the appellant for the grant of lease of the disputed property for a period of 33 years. The application of the respondent, as alleged in The plaint, was accepted by the appellant. According to the respondent, offer and acceptance' in respect of the lease of the disputed property was made and concluded between the parties and only the formal execution of a written lease deed remained to be completed, which the appellant, however, failed to execute. In reply to notice served by the respondent, as alleged in the plaint, the appellant replied that the lease in respect of the disputed property was cancelled by the Controlling Authority, who is defendant No. 2 in the suit. The respondent alleged that the Controlling Authority had no power to cancel the disputed lease, which had already come into existence in favour of the respondent. Having no other course open, the respondent brought a suit for specific performance of the contract against the appellant.
2. The suit was contested by the appellant and on the pleadings of the parties as many as seven issues were framed by the learned trial Court.
3. On the conclusion of the trial, the learned Senior Civil Judge decreed the claim of the respondent.
The appellant went in appeal to the Court of the District Judge against the said judgment and decree passed by the learned trial Judge. The appeal was heard by Mr. Jamal-ud-Din Khan, the then Addl. District Judge at Bannu, who agreeing with the findings of the learned trial Judge dismissed the appeal of the appellant. The appellant had, therefore, come to this Court in Regular Second Appeal against the judgment and decree of the learned Addl. District Judge, mainly on the grounds that the judgments and decree of the Courts below are contrary to law and had occasioned serious miscarriage of justice, are the result of misreading and misunderstanding of the evidence brought on the record and are otherwise not legally sustainable.
4. The learned counsel for the appellant, while arguing the appeal, has assailed the findings of the Courts below on Issues Nos. 3, 5 and 6, which are in the following terms :
(3) Whether the defendant No. 1's Order dated 28-12-61 amounted to contract, if so, its effect ?
(5) Whether the Controlling Authority was competent to cancel the lease proposal ?
(6) Whether the plaintiff is entitled to the specific performance of the alleged contract ?
The learned counsel for the appellant contended that the approval of the Deputy Commissioner, which was later on rescinded, by him, to the proposal made for the grant of disputed property on lease for a period of 33 years to the respondent, to which the respondent gave the name of a contract, was not a concluded transaction or a completed contract in the eyes of law and that, therefore it did not create any right in the respondent on the basis of which he could have claimed specific performance of the contract. He further argued that the learned trial Judge as well as the learned lower appellate Judge have totally ignored to apply the relevant law and the rules to the case before them and consequently, they fell into error in arriving at an erroneous conclusion resulting in grave injustice into the appellant. He submitted that section 26 of the Municipal Administration Ordinance, 1960, as was then in force, rules 3, 5 and 6 of the West Pakistan Municipal Committees (Contracts) Rules, 1960, rule 5 of the West Pakistan Municipal Committees (Business)
Rules, 1960 and rule 8 of the West Pakistan Municipal Committees (Property) Rules, 1962 governed the case, and since the procedure prescribed in the said law and rules for the completion of the contract was not followed, no valid or enforceable lease of the disputed property in favour of the respondent had come into being. He further argued that since no completed contract, in conformity with the provisions of the law, had come into existence, the question of its specific performance did not arise. He maintained that the learned two Courts below yy not reading the law fell into error in arriving at the decision which was utterly in disregard of the mandatory provisions of law. He, therefore, urged that this was a case in which the High Court should interfere in the findings of the two Courts below in the second appeal before it.
5. The learned counsel for the respondent, however, disputed the stand taken by the learned counsel for the appellant. According to him, rule 8 of the West Pakistan Municipal Committees (Property) Rules, 1962 alone, and no other rule quoted by the learned counsel for the appellant, was applicable to the case. He submitted that under the said rule the Chairman of the Municipal Committee, with the prior approval of the Controlling Authority, was competent to grant lease of the disputed property to the respondent and since he had done so after obtaining on 28-12-1968 the approval of the Controlling Authority, a completed and binding contract between the parties had come into being, which could not subsequently be rescinded by the controlling authority, on interference by the Commissioner, D. I. Khan Division. He, therefore, submitted that the two Courts below were right in coming to the conclusion arrived at by them. He also argued that the findings of the learned two Courts below are in conformity with and not in disregard of the provisions of the law and the rules.
6. The law is now well settled that where the concurrent findings of the two Courts below on any question are in utter disregard of the mandatory provisions of the law or Rules, the High Court would not only have the powers but would be duty bound to disturb those findings when the matter is brought before it for adjudication in second appeal.
7. The learned counsel for the parties are not at variance as to the basic law which was applicable at the relevant time. This was the Municipal Administration Ordinance, 1960 (hereinafter called the Ordinance). They are however, not in agreement on the set of the rules which governed the case.
The points of difference between them have already been pointed out in the earlier paragraphs of this judgment.
8. It may here be pointed out that there cannot be any dispute about the principle that where the main law and the rules framed thereunder are in conflict, then the main law prevails and the rules yield. This principle has to be kept in view while dealing with, or determining, the effect of the relevant law or rules on the claims that would arise for determination.
9. Section 26 of the Ordinance, to which reference has been made by the learned counsel for the appellant in his arguments was in the following terms: "26. Contracts.-(1) All contracts made by or on behalf of a Municipal Committee shall be-
(a) in writing and expressed to be made in the name of the Municipal Committee ;
(b) executed in such manner as may be prescribed ; and
(c) reported to the Municipal Committee by the Chairman at the meeting next following the execution of the contract.
(2) A Municipal Committee may, by resolution, lay down the procedure that shall regulate the making of various contracts, and in the execution of contracts, the Chairman shall act in accordance with such resolu--tion.
(3) No contract executed otherwise than in conformity with the provisions of this section shall be binding on the Municipal Committee."
These provisions of law clearly show that all contracts made by or on behalf of a Municipal Committee at the time when the Ordinance was in force were required to be in writing, were to be made in the name of the Municipal Committee, were to be executed in the manner as was prescribed in the rules, and were required to be reported to the Municipal Committee by the Chairman at the meeting next following the execution of the contract. Subsection (3) of section 26 in unambiguous words provided that a contract which was executed otherwise than in confromity with the provisions of that section was not binding on the Municipal Committee. The effect of these provisions of law, therefore, was that in order to be binding a contract by or on behalf of a Municipal Committee was required to be executed in the manner prescribed in the law and the rules, and where a contract was concluding not in conformity with such provisions, or if such provisions were not duly complied with in arriving at a contract, then such contract was not binding on the Municipal Committee concerned, and consequently, being void, could not be enforced against it.
10. Rule 3 of the West Pakistan Municipal Committees (Contracts) Rules, 1960 also provided that no contract shall be binding on a Municipal Committee unless it was made in conformity with the provisions of the said rules. Rule 4 of the said Rules specified the authority who was competent to make the contract on behalf of a Municipal Committee. Rule 5 of the said Rules prescribed the manner of making the contracts and in its sub-rule (1) laid down that a formal deed of agreement shall be executed between the Municipal Committee and the contract, for every contract for the acquisition, purchase, lease, sale or transfer of any immovable property. Sub-rule (2) of this rule provided that all agreements by or on behalf of a Municipal Committee shall be signed by its Chairman and attested by two witnesses and shall also bear the seal of the Municipal Committee.
Sub-rule (3) of this rule further provided that all agreements shall be written on a stamped paper of the appropriate value and shall, where necessary, be registered if the relevant law applicable at the time so required.
11. Rule 8 of the West Pakistan Municipal Committees (Property) Rules, 1962, to which reference by both the learned counsel for the parties has been made, related to the alienation of property of a Municipal Committee. Sub-rule (2) thereof provided that notwithstanding anything to the contrary contained in the West Pakistan Municipal Committees (Contracts) Rules, 1960, any immovable property of a Municipal Committee could be leased, disposed of by sale or otherwise alienated by the Chairman with the previous sanction of the Controlling Authority, if the period of the lease had exceeded three years.
12. The learned counsel for the respondent, relying on the words "Not--withstanding anything to the contrary contained in the West Pakistan Municipal Committees (Contracts) Rules, 1960", appearing in sub-rule (2) of rule 8 aforesaid, submitted that the lease of the-disputed property in favour of the respondent could be finalised by the Chairman of the Municipal Committee with the previous sanction of the Controlling Authority, and since in this case it was so done, a completed contract of lease had come into being on 28-12-1968, the date on which the Controlling Authority had first approved the lease. He further submitted that no other procedural formality was necessary to complete the transaction. This contention of the learned counsel for the respondent has no force.
In my view, the words "Notwithstanding anything to the contrary contained in the West Pakistan Municipal Committees (Contracts) Rules, 1960", appearing in sub-rule (2) of rule 8 of the West Pakistan Municipal Committees (Property) Rules, 1962, could only have the effect of overriding rule 4 of the West Pakistan Municipal Committees (Contracts) Rules, 1960, and not rule 3 or rule 5 of the said rules, nor could such a provision override the basic provisions contained in section 26 of the Ordinance.
13. As already seen, the provisions contained in section 26 of the Ordinance and the aforesaid Rules were mandatory in nature and applied to the case. Any Order made or action taken by any Authority in contravention of the said provisions could not, therefore, have the effect of creating any enforceable right or title in any person. Such an Order or action, being not enforecable in law, was to be deemed as void. I am, therefore, of the view that the proposal for the lease of the disputed property in favour of the respondent, made by the Chairman, Municipal Committee, Bannu to the Controlling Authority, who in the light of the evidence brought on the record was the Deputy Commissioner, and his approval thereto had not brought into existence any binding and completed contract between the parties. The p other steps and conditions prescribed in the relevant law and the rules, referred to above, such as the execution of a written lease deed in the manner prescribed in rule 5 of the West Pakistan Municipal Committees (Contracts Rules, 1960 and its subsequent reporting to the Municipal Committee, in order to make it binding, were not mere formalities but were the statutory require--ments, which were to be complied with. Since these mandatory provisions of the Ordinance and the rules were not followed, the order, dated 28-12- 1.968, made by the Controlling Authority had, by itself, neither created any right, nor brought into existence any completed and enforceable contract between the parties. In this view, I am supported by the authority reported as PLD 1956 Lah. 916 and PLD 1968 Lah. 1419.
14. The learned counsel for the appellant further argued that the approval granted by the Controlling Authority, on 28-12-1968, to the proposal for lease of the disputed property in favour of the respondent was not officially conveyed to the respondent. In this regard he referred to the statement given by Amanullah Khan (P. W. 2) at the trial, wherein he, in cross-examination, categorically stated that no written information of the approval granted by the Controlling Authority was conveyed to the respondent. The learned counsel, therefore, contended that the Order, dated 28-12-1968, made by the Controlling Authority, having remained on files only could have been reviewed by the said Authority. He further argued that the resolution passed by the Municipal Committee (copy Exh. P. 5) and the approval accorded by the Controlling Authority thereto would show that the Municipal Committee was not happy on the disputed lease and had resolved against it, and the Con--trolling Authority in deference to the said resolution had rescinded its previous Order, dated 28-12-1968, which had by then not been acted upon. He argued that subsequent to the completion of this exercise the respondent was informed by the appellant that the Controlling Authority had cancelled the approval of the lease proposal made in his favour.
He went on to say that the material brought on the record proves that subsequent to the order, dated 28-12-1968, passed by the Controlling Authority no further step was taken by either party towards the completion of the lease contract. He submitted that neither a written deed evidencing the lease was executed, in conformity with the pro--visions of the law and the rules stated above, nor was the lease money deposited by the respondent or accepted by the appellant, nor was the possession of the disputed property delivered to the respondent, by the date when the order dated 28-12-1968 was subsequently cancelled by the Controlling Authority. In such circumstances, the Controlling Authority was legally competent to cancel its previous order, and since it was so done, no binding contract of lease was in existence which could have been specifically enforced through the process of law. In support of his arguments, the learned counsel produced an authority of the Supreme Court, reported as PLD 1965 SC 407.
15. The learned counsel for the respondent, however, argued that the Order, dated 28-12-1968, of the Controlling Authority, whereby approval for the grant of lease of the disputed property to the respondent was accorded, was conveyed to the respondent by the Chairman through a written chit, as stated at the trial by the respondent, (plaintiff). He submitted that the moment the approval by the Controlling Authority was conveyed to the respondent, a valuable right came to be' possessed by him, of which he could not be divested by subsequent unilateral act of the Controlling Authority. He further submitted that on the question that a `chit' was written by the Chairman and sent to the respondent, there is a concurrent finding of the two Courts below, which, relating as it does to a question of fact, cannot be disturbed in Second Appeal by this Court. The learned counsel for the appellant however, submitted that neither the two Courts below have given any concurrent finding on this question nor is available any cogent, evidence on the record to support this contention. For this purpose he took me through the judgments of the two Courts below and theentire evidence brought on the record. In my view, the contentions of the learned counsel for the appellant have force. There is no convincing evidence on the record to show that the Chairman of the Municipal Committee had ever sent any chit to the respondent for the purpose. The respondent's own witness Amanullah Khan (P. W. 2) has admitted that no written information regarding this fact was conveyed to the respondent. The so-called `chit' has not been brought on the record, nor its scribe or author produced in evidence, nor any averment to that effect made in the plaint. The respondent then being a member of the Provincial Assembly was an influential person and it was, therefore, not difficult for him to have obtained knowledge of the contents of the official record, without such information having been officially conveyed to him. The obtaining of such information in this manner could not create any right in him. Moreover, the judgment of the learned trial Court is completely silent on this point and in my view the learned lower appellate Court mis-informed itself about this fact by misreading the evidence brought on the record. The argument of the learned counsel for the res--pondent is, therefore, without any substance.
16. The learned counsel for the respondent also argued that the power of review not having been specifically provided for in the Ordinance, the Controlling Authority was not competent to review its own Order passed on 28-12-1968. In this respect he brought to my notice the authority of the Supreme Court, reported as PLD 1970 SC 1. In my view, the authority referred to by the learned counsel for the respondent is distinguishable on facts. In the reported case a petition was made to the Court for the review of its Order, but in the case in hand, none had applied to the Controlling Authority for the review of the previous Order. The Controlling Authority, subsequent to the resolution passed by the Municipal Committee, had in this case suo motu reviewed its previous Order, which had till then neither taken P any legal shape nor been acted upon. In my opinion, section 20 of the West Pakistan General Clauses Act, 1956 and the law laid down in the authority reported as PLD 1969 SC 407 are complete answer to the arguments raised by the learned counsel for the respondent.
17. The learned counsel for the respondent also contended that before rescinding the Order, dated 28-12-1968, it was incumbent upon the Controlling Authority to have issued a show-cause notice to the respondent, as he could not be condemned unheard. Since in this case no show-cause notice was issued to the respondent, the cancellation of the previous Order, dated 28-12-1968, by the Controlling Authority, as urged by the learned counsel, being in violation of the principle of natural justice was of no legal effect. This argument of the learned counsel would have had some force, had the Order, dated 28-12-1968, created some legal right in the respondent. I have already hold that the said Order had neither created any legal right in the respondent, nor concluded any binding or completed contract between the parties. It could, at the most, have been regarded as a proposal for the lease. No further step was taken by the appellant in furtherance of this Order in conformity with the provisions of section 26 of the Ordinance and the relevant rules referred to earlier, nor was such sanction officially conveyed to the respondent. The sanction, therefore, remained on papers only and in the circumstances of the case, its cancellation, in my opinion, did not require any previous intimation or notice to the respondent.
18. The last argument of the learned counsel for the respondent that the cancellation Order passed by the Controlling Authority was the result of interference by the Commissioner of the Division concerned, does not find support from the evidence on the record. Even the learned trial Judge has expressed the view, while deciding issue No. 4, that the Commissioner had only stayed further action in the matter and had not cancelled the lease. The authority, reported as PLD 1976 Pesh. 1, produced by the learned counsel for the respondent, is inapplicable being distinguishable on facts.
19. It has also come on the record that the Municipal Committee, Bannu have constructed 49 shops at the site in question, which are rented out to tenants for business purposes. No doubt, the construction of the shops was started and completed during the pendency of the suit, but the record shows that on the date of the decision of the suit by the learned trial Judge the shops were in existence, and were in possession of the tenants. The construction, was allowed by the Court ; as per its Order dated 10-9-1969, appearing in the Order sheet, on the conditions set out in the agreement of the parties, also recorded in the Order sheet. According to this agreement, in case of success, the respondent was to pay the cost of construction of the shops to the appellant. No evidence has, however, been brought on the record to show as to what amount would be payable by the respondent to the appellant in this regard. The Courts below have totally ignored this aspect of the case and have failed to determine such amount. That being the case, the decree passed by the two Courts below can only be given effect to by dismantling the shops. The dismantling of the shops at this stage would not only put the local council to a huge monetary loss, but would also render so many tenants as out of business, either of which is not in the public interest. In such circumstances, the discretionary relief under the Specific Relief Act should not have been granted to the respondent by the Courts below. Even on this ground the judgments and decrees passed by the Courts below are not/ maintainable.
20. To sum up my conclusions, I hold that since no completed contract respecting lease of the disputed property in favour of the respondent had come into being between the parties, the question of its specific performance, therefore, did not arise, nor is such action in the changed circumstances now desirable.
21. In the result, the appeal must succeed. Accepting this appeal, therefore, I hereby set aside the judgments and decrees passed by the learned two Courts below and dismiss the plaintiff's suit with costs throughout.