Case of the petitioner as set out in this Constitutional petition is that Zila Council, Jhang, auctioned the lease of Cattle Market, Adda Hujra. (Lalian) for a period of three years. Petitioner gave the highest bid of Rs.5,10,000 as an annual lease money. He was accordingly granted the lease of the Cattle Market for a period of three years with effect from 19-2-1991 in consideration of Rs.5,10,000 per annum with 10% increase every year. One Bashir, a lessee of Bakar Mandi from Town Committee, Lalian, who was holding his Mandi on Tuesdays, filed W.P. No.5186 of 1991 in this Court praying that the prehunt petitioner bu duccied to hold hi:5 cattle market on a day other than Tuesday. On a miscellaneous application moved in the writ petition stay order was issued on 27-7-1991 directing the present petitioner (-who was respondent No.3 in that writ petition) not to hold the cattle market on Tuesdays. This direction remained operative until 14-10- 1991 when Writ Petition No.5186 of 1991 was finally withdrawn. It is stated that by reason of the aforementioned stay order petitioner---s business was disrupted as he could not hold the cattle, market from 27-7-1W1 to 14-10-1991. Petitioner thus stopped paying instalments to the Zila Couucil its in his view, according to the terms of the contact, he was not supposed to make the payment of instalments during the periodthe cattle market remained suspended. Zila Council, in the meantime, got a notice published in a newspaper or 4-10-1991 for auctioning the cattle market in question on 13-10-1991. Petitioner brought a suit for permanent injunction in the Court of the Civil Judge, Chiniot, on 10-10-1991 for restraining the Zila Council from re-auctioning the cattle market. In that suit an interim order was passed by the Civil Court on 12-10-1991 restraining the Zila Council from re- auctioning the cattle market. Cattle market was thus not auctioned on 13-10-1991.
2. On 28-10-1991, the respondent Zila Council gave a notice to the petitioner directing him to deposit the arrears of lease money amounting to Rs.1,67,011 within three days failing which he shall be liable for any loss caused to the Zila Council as a result of re-auctioning the cattle market.
Petitioner filed another suit in the Civil Court challenging the validity of the notice dated 28-10-1991.
The trial Court suspended the operation of the notice in question on 31-10-1991. It appears that the Zila Council cancelled the petitioner's lease on 2-11-1991 and intimation thereof was given to the petitioner on 3-11-1991. The cancellation of the lease, it is alleged, was made without issuing any show cause notice to the petitioner and in violation of the injunction issued by the Civil Court. The petitioner moved a contempt application before the Civil Court on 11-11-1991 on which a notice was issued to the Zila Council for 16-11-1991.
It is further stated that the Zila Council again issued a notice in the newspaper on 16-11-1991 for auctioning the cattle market in dispute on 25-11-1991. The petitioner moved a miscellaneous application in his second suit on 21-11-1991 for-staying the re-auction of the cattle market scheduled to be held on 25-11-1991. The learned Civil Judge issued a prohibitory order on the same day restraining the Zila Council from re-auctioning the cattle market. It is alleged by the petitioner that despite this restraint order, the respondent held the auction "in a surreptitious and secret manner and "in a clandestine manner accepted the bid of respondent No.3 for a sum of Rs.5,50,000". Respondent No.3 was also issued work order by respondent No.2, the Chief Officer of Zila Council. Petitioner is stated to have approached the Civil Court once again with a prayer to restrain the respondents from interfering in the holding of the cattle market by the petitioner. The learned Civil Judge directed the SHO, Police Station Lalian, to see that the orders ofthe Civil Court were complied with. The allegation of the petitioner is that this order was not acted upon and the learned Civil Judge passed yet another order on 8-12-1991 restraining the respondent from interfering with the holding of the cattle market by the petitioner, but to no effect and in the meantime, respondent No.3 filed Writ Petition No.11304 of 19-91 vvimicitt true facts were not disclosed and by impleading Town Committec, Lalian as a respondent therein sought the relief that the said Town Committee be restrained from interfering with his cattle market.
Report/parawise commune were sent for from the Town Communication on 3-12-1991 and the Committee was further directed to proceed strictly in accordance with law, grievance of the petitioner is that respondent No.3 misused the interim order dated 3-12-1991 passed in Writ Petition No. 11304 of 1991 with a view to taking over forcible possession of the cattle market from the petitioner and finally on 10-12-1991, respondent No.3 by using physical violence and strong arm methods expolled/ousted the petitioner's staff from the cattle market. Petitioner approached the local police but it gave no help to him. Petitioner then approached this Court through this Constitutional petition praying that "an order may kindly be passed declaring the grant of lease/work order to the respondent No.3 as having been done without lawful authority and the same being of no legal effect". He has further prayed that "the order passed by this Hon'ble Court dated 3-12-1991 may kindly be withdrawn in view of the gross misrepresentation, concealment of facts by the respondent No.3". Petitioner has also prayed that "an order may kindly be passed directing the respondents to refrain from interfering with the holding of cattle market, Lalian by the petitioner".
3. Respondent No.3 appeared of his own along with his counsel Raja Muhammad Anwar, Advocate, at the preliminary hearing on V-i2-ig9j. He was directed to file his reply/written-statement which he does not appear to have filed as it is not available on the -record. Learned Advocate-General appearing for Zila Council has filed the parawise comments stating therein that the lease of the petitioner was cancelled on 2-11-1991 on account of his failure to pay the instalments in accordance with the terms of the contract, It is, however, stated that "no fresh auction for holding the cattle market at Adda Hujra, has been granted by the answering respondent" In para. 1-i of the parawise comments submitted by respondents No.1 and 2 it is stated that "the prevailing position is that both the parties, the petitioner and respondent No.3 art; including cattle rnarkets despite the position explained above. The contract of the petitioner stood cancelled from 1-11-1991 and the contract in favour ul respondent No.3 has no validity but both are continuing on their own deriving support out of litigation pending in the Civil Court and in this Hon'ble Court".
4. 1 have heard the learned counsel for the petitioner as also Raja Muhammad Anwar, Advocate appearing for respondent No.3 and the learned Advocate-General who has put in appearance for respondents No.1 and 2. Raja Muhammad Anwar, Advocate has pointed out that after the cancellation of the petitioner's lease, he filed the amended plaint before the Civil Court on 17-12- 1991 challenging the cancellation of his lease and re-auction of the cattle market in favour of respondent No.3. Learned Civil Court issued an interim injunction against respondent No.3 on 22- 12-1991. Respondent No.3 preferred an appeal against the grant of interim injunction. Learned Additional District Judge vide his order dated 4-1-1992 suspended the interim injunction issued by the trial Court. Petitioner then filed Civil Revision No.6 of 1992 in this Court which has buen dismissed on 6-1-1992. Learned counsel for the petitioner has not decided these facts.
Learned Advocate-General as also the learned counsel appearing for respondent No.3 have argued that the controversy raised by the petitioner in the present Constitutional petition already forms the subject-matter of a civil suit filed by him before the Civil ' Court which is still pending. In the circumstances, it is submitted that the petitioner cannot be permitted to invoke writ jurisdiction of this Court and he should be directed to pursue his remedy before the Civil Court. Learned counsel for respondent No.3 has relied upon Abdul Rahman Mayat and another v. Wealth Tax Officer and others 1988 SCM R 1722 to contend that where a person has already taken recourse to a remedy available to him in law which remedy is still pending adjudication, he cannot be allwed to invoke the writ jurisdiction. Learned counsel has also pointed out that in the presence of Order XXXIX, rule 2(3) which gives ample powers to the Civil Court to enforce its injunctive orders, it cannot legitimately be contended that the civil suit is not an adequate or efficacious remedy.
Learned Advocate-General has particularly referred to section 166 of the Punjab Local Government Ordinance, 1979, which provides that "any person aggrieved by any order passed by a Local Council or its Chairman or its Vice--Chairman or Officer in pursuance of the Ordinance or the rules or by-laws, may appeal to such authority in such manner and within such period as may be prescribed". He has also referred to Schedule-I to the Local Councils (Appeal) Rules, 1980 whereunder an order of Zila Council, its Chairman or Vice--Chairman is appealable before the Divisional Council concerned. Learned Advocate-General has argued that in the presence of a statutory remedy of appeal which is quite adequate and efficacious, petitioner is not entitled to approach this Court without first exhausting that remedy. Raja Muhammad Anwar, Advocate hw cited v judgweat of the Supreme Court of Pakistan reported as Humayun Saifullah Khan v.
Federation of Pakistan PLD 1990 SC ,599 wherein the following, observations in the celebrated case of Tariq Transport Company PLD 1958 SC (Pak) 437 are quoted:- "Having given careful consideration to this aspect of the matter, I am of the view that the present case was governed by the general rule that where a statute creates a right and also provides machinery for the enforcement of that right, the party complaining of breach of the statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of a writ. Since in the present case the statute under which the respondent had a grievance provides an appeal in which that grievance can be set right, no writ of certiorari or mandamus or any other discretionary order of that nature should have been issued by the High Court.
I consider it to be wrong on principle for the High Court to entertain petitions for writs, except in every exceptional circumstances, when the law provides a remedy by appeal to another Tribunal fully competent to award the requisite relief, Aity indulgencethe contrary by the High Court is calculated to create disti asi in statutory Tribunals of competent jurisdiction and to cast an undeserved reflection on their ,honesty and competency and thus to defeat the legislative intent."
6. 1 have given my anxious consideration to the facts of this case as also to the aforenoted objections raised by the Advocate-General and the learned counsel appearing for respondent No3. It is not denied by the learned counsel for the petitioner that remedy of appeal against the impugned orders of the Zilla Council is available to the petitioner. It is also an admitted position thai the petitioner has already filed a civil suit praying for the same relief as has been sought in this Constitutional petition. Learned counsel for the petitioner, however, contends that the petitioner was constrained to approach this Court in writ jurisdiction because the interim injunctions issued by the Civil Court from time to time were flouted by the respondents. I am afraid, this plea does not furnish a valid ground for invoking constitutional jurisdiction of this Court during the pendency of the suit. As rightly pointed out by the learned counsel appearing for respondent No3, the Civil Court has adequate powers to enforce and ensure implementation of its orders/injunctions by taking recourse to the provisions of Order XXXXIX, rule 2(3), C.P.C. In the circumstances, the petitioner should pursue the remedy of civil suit which he has already taken, to its logical end or in the alternative, he may, if so advised, filed an appeal before the Commissioner against the impugned orders/actions of the Zilla Council.
7. In the aforesaid view of the matter, I am not inclined to entertain this Constitutional petition which is accordingly disposed of in limine.
AA./N-46/L.