This revision petition arises out of the following facts and circumstances.
2. The District Council, Karak, through publication in Newspapers advertised the dates for auction of various contracts for the period 1-7-1991 to 30-6-1992 and through one of the publications Export tax was to be auctioned on 5-5-1991,15-5-1991 and 25-5-1991. On the first two dates, none offered even the reserved price which was fixed at Rs,20,00,000. It was again postponed on 25-5-1991 to 26-5-1991 for the same reason. On 26-5-1991, about 17 bidders participated in the bid and the petitioner offered the highest bid of Rs,22,16,000 which was accepted. The same highest bid was subsequently placed before the Council on 28-5-1991 for approval which was accordingly approved by the Council in its resolution No,4 of even date with full reasons.
3. As respondents 4 and 5 were reluctant to execute an agreement with the petitioner, therefore, the petitioner was compelled to file a suit for declaration and injunction on 13-6-91 in the Court of Senior Civil Judge, Karak. By an order of even date, the learned trial Court ordered the interim status quo but respondent No,3 in presence of the status quo order, suspended the resolution passed by the District Council, approving the auction in favour of the petitioner vide letter dated 18- 6-91. The learned trial Court dismissed the application for the grant of interim injunction on 20-6-91.
Against the said order, an appeal was filed before the District Judge, Karak, on 26-6-91. Respondent No,4 however, executed the agreement with the petitioner on 27-6-91, and in pursuance thereof handed over the charge of Export tax on due date i,e. 1-7-91 to the petitioner. The appeal of the petitioner was dismissed by the learned District Judge, Karak, on 7-7-91.
4. Learned counsel for the petitioner has attacked the impugned order of the learned District Judge on two grounds; firstly, that the respondents were duly served under Order XLIII, Rule 3, C.P.C.
Through Mukhtiar Ali, Advocate, who was the Legal Advisor of the District Council, Karak, therefore, the finding of the learned District Judge that defendants-respondents 1 to 3 were not served, is against the mandatory provisions contained in Order LXIII, Rule 3, C.P.C. The learned counsel for the petitioner next contended that the Government can quash the proceedings or suspend the execution of any resolution or order of the Local Council under section 156 of the N.-W.F.P. Local Government Ordinance, 1979, provided that if in the opinion of the Government anything done or intended to be done by or on behalf of a Local Council is not in conformity with law. The learned counsel submitted that the only ground mentioned by the Government is that the said auction has violated the policy laid down by the Government which has been circulated through a letter dated 20-4-91 and according to para. 10, it is mentioned that the bid should increase the price by 10% in all the contracts over the previous years. He submits that the instruction contained in the circular letter has no force of law and is not covered by section 156 of the Local Government Ordinance, 1979. He further submitted that the Export tax was auctioned by the District Council, Bannu for the year 1990-91 for Rs,1,07,00,000 whereas for the year 1991-92 it has been auctioned for Rs,85,00,000 which offends the condition laid down in the circular letter dated 20-4-91 but no action has been taken against the District Council, Bannu and the contractor is still working, therefore, according to the learned counsel, the action of the Government is not only discriminatory and against Articles 4 and 25 of the Constitution of the Islamic Republic of Pakistan but also mala fide. He further contends that in the scheme of things, it is the Local Council which has been given the power to auction the Export tax and the only condition laid for the auction is that it should be approved by the District Council by a resolution and it should be subsequently followed by a contract agreement. He therefore, submits that the resolution has been passed as required under the rules of auction and agreement has been executed and the petitioner has started collecting the Export tax, therefore, the action of the Government was without any jurisdiction and is not covered by section 156 of the aforesaid Ordinance.
5. Learned counsel for the respondents submitted that the order of the learned District Judge is illegal as the petitioner did not serve respondents 1 to 3 personally which is violation of Order XLIII, Rule 3, C.P,C. Therefore, the appeal filed by the petitioner was not competent. Further contends that the instructions contained in circular letter dated 20-4-91 have been issued by the Government which should be treated as rules as laying down policy of the Department. He finally submitted that the action taken by the Government under section 156, ibid. Was legal and no exception can be taken to it.
6. After hearing the learned counsel for the parties and perusal of the record, it is clear that during the proceedings in the application for temporary injunction a notice was issued to the respondents/defendants but only respondents-defendants 4 and 5 appeared and contested the application whereas defendants-respondents 1 to 3 did not appear in the trial Court but in spite of that, arguments in the application were heard and it was dismissed. It is an admitted fact that Mukhtiar All Khan, Advocate, was duly representing defendants-respondents 4 and 5 and he also had filed power of attorney on their behalf. It is also admitted by both the parties that Mukhtiar All Khan,