' This revision application arises from a suit filed by the present petitioners against the respondents wherein the former sought declaration that reauction proceedings for the cattle piri fee contract 1989-90 by Union Council Ali Wahan are illegal, in excess of jurisdiction and void together with a permanent injunction restraining such reauction etc.
2. The facts, giving rise to this revision application, are that, on 6-4-1989, a notice for auction of cattle piri fee contract 1989-90 Union Council Ali Wahan, Taluka Rohri, District Khairpur, was published in the daily "Nawa-e-Inqlab" Sukkur, wherein the date of such auction was indicated as 17-4-1989 and for the effective period 1-7-1989 to 30-6-1989 reserve price was stipulated as Rs,4,62,300. Alternative dates, in the event of the auction not concluding on 17-4-1989 were fixed as 24-4-1989 and 26-4-1989. It is the case of the petitioners/plaintiffs that on 24-4-1989 such auction was held under the supervision of the Chairman, Union Council, Ali Wahan and the Director, Local Government, Sukkur Division, Sukkur, and, in pursuance, petitioners' bid of Rs,4,85,000 was accepted whereafter the petitioners deposited a sum of Rs,29,450 towards making up of 11% of the bid money namely a total of Rs,54,450. Subsequently, the Union Council Ali Wahan, allegedly, unanimously approved the auction in favour of the petitioneRs, On 9-5-1989, the Assistant Director, Local Government, Sukkur, being the competent authority is said to have confirmed the auction proceedings. On 23-5-1989, the Chairman, Union Council, All Wahan is pleaded to have issued work order in favour of the petitioners,
3. Record of the case shows that, on 3-6-1989, one Mushtaque Ahmed Soomro submitted a complaint to the Additional Chief Secretary, Local Government, Sindh, which for the sake of convenience is reproduced hereunder:- "The facts are that the Mal Piri contract in the name of Haji Khan Jagirani and others is being auctioned secretly in the name of Haji Khan and others since last year and as per advertisement of Daily Nawa-eInqlab dated 16-4-1989 the auction of said Mal Piri was fixed on 17-4-1989 and the intending bidders gathered but due to influence of exMPA Khadim Ali Shah who is receiving Rs,2 lacs the auction was postponed. We sent telegrams and application but no action has been taken.
The auction was postponed without any reason. Actually Chairman Union Council Ali Wahan wants to give contract to the same man at the same rate by showing no bid offered by anybody. It is all being done at the instigation of ex-MPA and Director, Local Bodies, Sukkur. I am prepared to give Rs, 8 lacs for the ensuing year 1989-90 and I am also prepared to deposit Rs, 80 thousands else auction may be ordered through impartial officer as Chairman is already a party. It is also requested that enquiry may be held against the Chairman, Director Local Bodies, and ex-MPA for giving loss to Government finance for the last years through F.I.A. Police."
4. On 4-6-1989, the Additional Secretary, Local Gtviernment, addressed the Director, Local Government, Sukkur and Chairman, Union Council, Ali Wahan, as under:- "Subject: Mal Piri Contract of Union Council' Ali Wahan for the year 1989-90 offer given by Mr. Mushtaq Ahmad Soomro for Rs,8,00,000.
' I am directed to state that one Mushtaq Ahmad Soomro has given an offer of Rs,8,00,000 for the Cattle Piri Contract for Union Council Ali Wahan for 1989-90.
(2) The Additional Chief Secretary (Local Government) has directed to consider the offer of Mr. Mushtaq Ahmad Soomro according to Rules. In the alternative the contract may be reauctioned with upset (sic) price of Rs,8,00,000."
5. It would appear that, pursuant to the above, the said Mushtaque Ahmad Soomro, per letter dated 6-6-1989, was asked by the Director, Local Government, Sukkur Division, to deposit a sum of Rs,80,000 apparently equivalent of 10% of his offer of Rs,80,00,000 towards call deposit. Such deposit was made vide a cheque dated 8-6-1989. Later there being alleged irregularities in the auction and serious disparity in the auction price and the offer as in complaint, reauction of the contract was fixed for 28-6-1989 with a reserve price of Rs,8,00,000. Manifestly, if things were allowed their normal course the matter would have been concluded before 1-7-1989, the commencing date of the contract.
6. However, in the meantime and before the re-auction could materialise, the petitioners, on 24-6- 1989, filed their suit bearing F.0 Suit No,33 of 1989 in the Court of IInd Senior Civil Judge, Sukkur, who immediately on filing of the suit and, allegedly, without notice, issued ad-interim orders of status quo, which on hearing were confirmed on 29-6-1989, though the relevant order speaks not of confirmation but of grant. An appeal bearing C.M.A. No, 32 of 1989 was taken to the District Judge, Sukkur, which was allowed by him, per order dated 29-8-1989, thereby vacating the interim orders granted by the trial Court. This revision application arises from such orders,
7. The case of the respondents other than respondent No,3 is that the petitioners had been managing to secure the contract in question for the last several years through means, which can only be termed to be questionable and towards that end they have succeeded largely due to collusion with the Chairman of the Union Council and an Ex-M.PA. On previous occasions, as well, allegedly managed auction were protected and perpetuated through Court proceedings which, on one occasion are said to have gone even upto the Supreme Court of Pakistan. It is the case of the respondents that serious loss and detriment to public revenue has been caused by; frittering away valuable contractual rights for paltry amounts and personal gains, in the process shutting out genuine contestants in open public auctions in total disregard of rules and law. In the instant case, too, as is urged that a sham and tailored so-called auction was held, without allowing due publicity and without even placing the auction notice on the notice board thereby foreclosing the issue before it went to the public. It would thus appear that, according to the respondents, interference had to be made at the level of the Government, but even so, the purpose stands substantially frustrated by unduly taking recourse to Court proceedings, which did not lawfully arise and were totally misconcieved.
8. On the other side challenging the Orders of District Judge, Sukkur and in support of this revision application, learned counsel for the petitioners, Mr. Muhammad Hanif Mangi, who was, if I may say so, zealously supported by Mr. Abdul Ghani Shaikh, appearing for the respondent No,3. Union Council, Ali Wahan, contends that all proceedings, culminating in the auction and confirmation of the contract were beyond flaw and absolutely in due course of law. On reference to Rule 225 of the Municipal Committee Octroi Rules, 1964, it is contended that the auction having attained finality under that Rule no interference could be made by the Government at the time and stage such interference occurred correspondingly, M/s. Abdul Fateh Malik, Mr. Zawar Hussain, AA.-G, for the other respondents have invited my attention to section 45 of the Sind Local Government Ordinance, 1979 and the Sind Local Council (Contract) Rules, 1980 to contend it is such provisions which apply to the case and, as observed by the learned District Judge, Octroi Rules aforesaid are not attracted.
9. In the first place, as to the applicability of the Municipal Committees Octroi Rules, 1964, about which there is divergence of opinion in the two Courts, it is to be observed that "Octroi", by its definition as per Rules 2(m) of such Rules "means a tax on the import of goods for consumption, use, or sale within the Octroi limits", and, unless otherwise prescribed, Octroi limits shall be the limits of the Municipality. Octroi is the same thing which in the vernacular, is known as "chungi" and the term literally means "handful" signifying a token tax payable on entry within defined limits. No foundation on facts has been laid, so far, to conclude the question whether the collection rights of Cattle Piri Fee do or do not constitute rights to collect Octroi. On evidence alone such question can best be determined. Even on this view of the matter Rules 225 of the Octroi Rules has been uncorrectly interpreted by the Court of first resort. It is correct that under that Rule, due formalities having been complied with, the. Government should refuse confirmation of auction within 30 days of submission to it, failing which the bid shall be deemed to have been confirmed. But that is not the end of the matter. The Municipal Committees Octroi Rules, 1964, even where they apply, do not apply exclusively. Section 45 of the Sind Local Government Ordinance, 1979, pertaining to contracts, generally, is the controlling provision, incorporating the basic law and, besides, the Sindh Local Councils (Contract) Rules, 1980, governing all contracts of this genus remain equally applicable, all the more so because these are later statutory arrivals, in terms of time. Therefore, in the instant case, whether or not the Octroi Rules do or do not apply should have no particular significance.
10. Here it is to be recalled that rule 6(1) of the Sind Councils (Contract) Rules, 1980, provides that at least seven days' prior notice shall be inserted in a newspaper for inviting tendeRs, The object is to provide due publicity. Such provision cannot be permitted to be defeated by inserting the mandatory notice in a newspaper having limited or a doubtful circulation. In this case, the acknowledged position is that such notice was taken out in daily "Nawa-e-Inqilab", Sukkur, which has not been denied to be a newspaper having limited circulation. All that M/s. Muhammad Hanif Mangi and Abdul Ghani Shaikh, to counteract, say is that the publication was made in accordance with a specific and standing Government directive. Even if there was a directive to such effect and even if the Union Council considered it necessary to follow it, which would have been an incorrect approach, for a subordinate is bound only by lawful and proper orders of a superior, it would appear that, if the publication contemplated by Rule 6 above was not likely to achieve its desired objective, there was nothing to preclude respondent Union Council to insert an additional notice in another newspaper having the required circulation. Where the law says that publication may be made in a newspaper, not only that it would not be in negation of law to publish such notice in more than one newspaper but such, perhaps would be even a salutory approach to give effect to the intention of the law-maker, for the law by implication does not prohibit publication in more than one newspaper. Even the General Clauses Act envisages singluar to include a plural and vice versa. Taking out the publication, therefore, in a newspaper, admittedly lacking wide circulation did not fulfil the objective of law and cannot be considered to be a proper publication, in satisfaction of the requirements. Reliance has been placed by Mr. Abdul Fateh Malik on some cases including Abdul Ghani v. Province of Baluchistan PLD .1982 Quetta 63, in which cases similar publications in the context of the Land Acquisition Act and Order V, Rule 20, C.P.C. Have been held, to be inadequate. While these cases pertain to another set of laws, the same are equally attracted here, since the object of publication in either case is the same namely, to apprise all concerned of certain proceedings and recourse to publication, is taken on the basis of more or less similar requirements. My conclusion, which is in line with what the learned lower appellate Court has found, is that such publication, wanting as it was in the requirement, was bad.
11. There was another though, may be, a mutually exclusive aspect to the matter. Rule 6(2) of the Sind Councils (Contract) Rules, 1980 provides that in respect of tenders other than those referred to in sub-rule (1) of Rule public notice shall be pasted or affixed at a conspicuous place in the office of the Council. While no plea was initially advanced in respect of such a notice a purported notice under Rule 6(2) ibid has been brought on record. Such notice, however, does not show in its original Sindhi version that it was meant for the notice board or that it was duly pasted or affixed as contemplated in Rule 6(2) above. While Mr. Abdul Fateh Malik contends that the requirements of sub-rules (1) and (2) of Rule 6 had, both, to be fulfilled, such contention does not appear to be correct. Sub-rule (1) of Rule 6 regulates cases involving contracts, exceeding the amounts specified against each Council in the IIIrd Schedule to the Sind Councils (Contract) Rules, 1980. Sub-rule (2) of Rule 6, however, applies only in those cases which are not covered by Sub-rule (1) of Rule 6. Only one of such sub-rules, speaking strictly, would apply to a given case and if compliance was made of the relevant sub-rule, both in letter and . Spirit, necessary requirement would stand fulfilled.
12. It is to be noted that the Sind Councils (Contract) Rules, 1980 have been framed under section 45 of the Sind Local Government Ordinance, 1979, which provisions has, therefore, to be examined in order to see as to what are the requirements in relation to contracts entered into by Union Councils generally. One of the principal requirement under section 45(3) of the Sind Local Government Ordinance, 1979, is that all contracts, subject to the rules, "shall" be entered into after inviting competitive tenders or quotations and where expenditure exceeds such amount, as may be prescribed, tenders or quotations "shall" be invited through newspapeRs, Similarly, section 45(4) provides that all contracts for transfer by grant, sale, mortgage, lease or otherwise of immovable property or any interest and right thereto or disposal or sale of movable property "shall", subject to the rules, be entered into after inviting offers in an open auction. This requirement may be waived by a Council with the approval of the Government. It is, thus, obvious, that irrespective of the Rules, contracts concluded by Council are required to be concluded in full public view either through proper publication satisfying the intent and purpose of the law or by holding public auctions after ensuring due publicity of such auction. If, therefore, it comes about and is shown that law as complied with only in name and not in substance that may be a case for interference, by Government. This is all the more so where mala fides are alleged and past conduct is cited to show that public exchequer has suffered at the hands of those alleged to be interested otherwise. In all such cases, amongst others, for similar grounds may be inexhaustible, the Government may invoke all powers of supervision and control, inter alia, recognized in sections 53 and 54(1) of the Sind Local Government Ordinance and may direct any Council or any person or authority responsible thereto to take within such period, as may be specified, such action, in conformity with law as may be necessary, for carrying out purposes of the Ordinance. Clearly, therefore, the Government could have acted under such provisions and, in public interest, set afoot remedial measures on that score. Prima facie, irrespective of the applicability of the Rules and without going into the cognate question as to which Rules were attracted, the Government could have and may have acted under the provisions last mentioned.
13. It is contended for the petitioners that the complainant Mushtaqe Ahmed Soomro, as implied in his complaint, was aware of the auction proceedings and, therefore, was estopped from questioning such proceedings at the level of the Government. For one thing the publication in the newspaper, for what it may be worth was made on 16-4-1989 and the auction was fixed for 17-4- 1989, which notice was clearly insufficient and, for another, no auction, admittedly, took place on 17- 4-1989 and, instead, the contract was awarded to the petitioners on 24-4-1989, without, apparently, anyone material being the wiser about it. Obviously, no rule of estoppel applies. Even if it did there was no bar for the Government of Sindh to take due action in public interest, as warranted by law, and as, to it, appeared proper, in consonance with justice and fairplay.
Manifestly, the provisions of section 54(1) of Sind Ordinance XII of 1979 are wide enough, in the context of power and scope to, include any such action, which in this case happened to be a reauction.
14. It would, now, be appropriate and in order to consider the proceedings in the trial Court generally. It is obvious that the suit before the trial Court involved a money contract which, till the date of the filing of the suit namely, 24-6-1989, had not commenced. Still, the learned Civil Judge issued an order of status quo without notice and contrary to the terms of Order XXXIX, Rule 3, C.P.C.
Not only that, the entire Injunction Application, without affording due opportunity to the defence, was heard and disposed of before the commencing date of the contract viz. 1-7-1989, per order dated 29-6-1989. Even the application of the abovesaid Mushtaque Ahmed Soomro for joinder as a party, since the petitioners had not joined him was not disposed of before passing of these orders, The crucial point in the case was the question of irreparable loss. Since money was involved and loss, if any, to the plaintiffs could have been assessed in terms of money, question of irreparable loss hardly arose but all that the learned Judge said on the subject was that "valuable right has been created in favour of the plaintiffs, by the said contract, therefore, in my humble opinion breach of the said contract cannot be adequately compensated in terms of money". Manifestly, contracts involving collection of monetary benefits, which themselves have been obtained on specific monetary considerations, on principle, cannot involve irreparable loss because such loss, inherently, means and implies only such loss as is incapable of being calculated on the yardstick of money. Unless all the required ingredients of prima fade case, balance of convenience and irreparable loss to the aggrieved party are found to subsist, no Injunction under Order 39, Rules, 1 and 2, C.P.C. Can issue. The trial Judge was, therefore, in error in coming to a different conclusion. In the same context, no notice was taken of alleged previous conduct of the petitioners or to patent corresponding loss to Government revenue an element relevant to the concept of balance of convenience, muchless to resultant interference with functions of the Government, all of which were weighty matters,
15. I would have preferred to dismiss this revision application on the short ground that no jurisdictional error, as contemplated by section 115 of the Code of Civil Procedure, was involved.
Interference in revisional jurisdiction, as consistently held, can only be made where the impugned order involves refusal to exercise jurisdiction or exhibits excess in the exercise of jurisdiction or is shown to be illegal or suffering from a material irregularity in the exercise of jurisdiction. None of these elements were present in the context of the orders of the learned District Judge. However, I chose to consider this case at some length mainly to show that in such like matters a great deal of care and caution is to be exercised at the interlocutory stage of grant or refusal of Injunction. It would be another matter in the context of a final decision of the case, for then, the rights and obligations of the parties would come up for adequate consideration and orders would be based in the broader spectrum of the relevant facts and law and suitable redress can be granted. That may be even so in this case, but this was not a fit case for grant or confirmation of an Injunction.
This revision application is, therefore, dismissed with costs.