FAZAL ILAHI KHAN, CJ.---In this writ petition Abdul Razaq auction purchaser has prayed for issuance of a writ order or other appropriate direction to the respondents restraining them from violating the terms and conditions of lease of Export Tax for the year 1992-93 announced at the time of open auction, and compelling the petitioner to pay additional charges on account of Education Tax.
2. Facts of the case as given in the present writ petition briefly stated are that District Council Peshawar through its Chairman, (respondent No. 1) issued a public notice to auction lease of Export Tax alongwith educational Tax for a period of six months commencing from 1-7-1992 to 31-12-1992.
In a number of Daily Newspapers of the province including that in Daily Sarhad dated 26-5-1992.
The auction was held on 3-6-1992, in which the highest bid of one Nobat Khan amounting to rupees 6,30,00,000 (wrongly written Rs.6,30,000 in the petition) was accepted by the respondents. The highest bidder, however, failed to deposit the requisite initial amount, therefore, his bid was cancelled. A fresh public notice was published in various Newspapers for re-auction of Lease of Export Tax for full year, i.e. 1992-93 commencing from 1-7-1992 to 30-6-1993, at the risk and cost of the Contractor (Nobat Khan) with the condition that the bidder shall deposit Rs.10,00,000 by Call Deposit/Bank Draft in favour of the District Council before the bid; successful bidder shall deposit 20% of the contract amount in advance adjustable in the last instalment; that 2% of the auction amount shall be deposited with respondent No. 1 within seven days as security. This notice was published in Daily `Mashriq', Peshawar dated 24-6-1992.
3. The petitioner's highest bid for lease of Export Tax amounting to Rs.6,31,00,000 was accepted by respondent No. 1 on 27-6-1992 vide letter No. 6169 dated 27-6-1992 and approved by the Provincial Government vide letter No. DS-III (LCB)3-1/92, dated 30-6-1992. In compliance with the acceptance letter petitioner deposited the remaining amount of security i.e. Rs.12,62,000 and 20% advance bid amount total amounting to Rs.1,26,20,000. The petitioner assumed possession of collection' of Export Tax and Educational Tax from 1-7-1992 in accordance with the terms and conditions announced at the time of re-auction and started depositing the periodical instalments.
4. Allegedly about a week before filing of the present writ petition the petitioner was informed that Educational Tax is not included in the Export Tax put to auction, therefore, petitioner shall pay Educational Tax in addition to the Export Tax instalments for the period and to execute a regular agreement deed. The petitioner did not agree to the demand challenged the terms and conditions of the lease agreement in respect of educational tax as subsequent insertion was not binding on him. The relevant clause in the agreement was challenged as malicious, arbitrary, illegal and forcible extraction of extra amount from the petitioner in violation of the terms and conditions of notice of auction. Grievance is also raised that the respondents are trying to tamper with the record in order to show that Export Tax did not include educational tax. In support of the plea that export tax include educational tax it was alleged that levy and demand of Educational tax is contrary to law, and that the petitioner was not made to understand that educational tax was to be paid in addition to the auction amount of Export Tax. The terms and conditions of the lease were not announced before the auction and that subsequently, arbitrarily, education tax was included in it. It was further alleged that the petitioner has raised the last year bid of Rs.3,22,00,000 to Rs.6,31,00,000 on the understanding that educational tax was included in the Export Tax. It was lastly alleged that petitioner having accepted the bid money and having received the first advance instalment without any objection they are estopped from demanding extra amount i.e. the, education tax. In the alternative it is prayed that respondents be directed to return the amount received from the petitioner with costs and to make arrangement of its own for recovery of export and educational tax.
5. The factual aspect of the case referred to above with special reference to the relief claimed has been categorically controverted is the written statement filed by the respondents and in support thereof have placed on file all the relevant documents. Apart from raising preliminary objection to maintainability of the writ petition in the light of his conduct. It was stated that the writ petition is liable to be dismissed for suppression of material fact and lack of cause of action.
We have heard the learned counsel for the parties and perused the record. Undoubtedly through notice issued in daily `Sarhad' dated 26-5-1992 the Export Tax with Educational Tax was to be auctioned for a period of six months from 1-7-1992 to 31-12-1992 through open auction on 30-5- 1992. In the notice main terms and conditions have been enumerated from serial No. 1 to serial No.
5. According to para 5 of the notice the detail terms and conditions could be verified from the District Council office during the working hours. As is admitted by the petitioner the highest bid of Nobat Khan offered on 3-6-1992 did not materialise, therefore, a fresh notice of auction was published is daily `Mashriq' of 24-6-1992 for auction of Export Tax from Ist of July, 1992 to 30-6-1993 at the risk and cost of the previous contractor. The terms and conditions for participation in the auction proceeding were given in the notice but terms and conditions of lease have not been given and it is provided that those were to be verified from the office during the office hours before the actual auction. The petitioner's highest bid of Rs.6,31,00,000 for the lease of Export Tax was accepted. Respondents have placed on file certified copies of the terms and conditions of "lease agreement of Export Tax." Clause 13 of which reads as follows:- Clause 21 of the terms and conditions of lease agreement further provides as follows:- According to the practice invoked in the Department all the participants in the auction had to peruse these terms and conditions and as a token of its acceptance were to sign the same before the actual auction. The auction was scheduled to take place on 17-6-1992 and on its failure on 29- 6-1992 and at the most on 30-6-1992. Twenty-four persons who opted to take part in the auction duly accepted the terms and conditions and signed the same. Petitioner herein has also signed the same which fact he did not deny. However, he asserted in para. 10 of the writ petition that he was asked to sign the terms and conditions -soon after the auction was approved on the spot which he signed without reading the same resisting the respondents assertion. No doubt initially in the public notice dated 26-5-1992 it was mentioned that the Export Tax with Educational Tax was to be put to auction for a period of six months subject to the terms and conditions of the lease agreement provided for and available in the main office but the ambiguity, if any, was removed in the subsequent public notice expressly providing for auction of lease of "Export Tax"as the words "Bama Taalimi tax" were omitted there from. The lease of Export Tax was subject to the terms and conditions of the lease. Both these notices are quite different on material points. Firstly the words "Bama Taalimi Tax" were omitted and secondly the period of lease was extended from six months to one year. Such being the case petitioner cannot back out and deny his liability to pay fifteen per cent educational tax over and above the lease amount offered for the export tax, per clause 13 of the lease agreement, relied upon by the respondents. The learned counsel for the petitioner contended that last year the export tax was auctioned for a lesser amount can hardly be a ground to 'ignore the auction proceedings. For the reasons stated above the disputed question of fact whether the terms and conditions -of the lease were signed before or after the auction was accepted cannot be gone into the present constitutional petition.
It may also be pointed out that the petitioner did enter into a contractual relation with the defendant, as already stated, which is governed by the terms and conditions referred to above, therefore, in absence of violation of any statutory rules any dispute arising from such contract is not emenable to writ jurisdiction. Reliance can be placed on M/s Sandal Fibres Limited.
Government of Pakistan and 7 others (PLD 1992 Lahore Page 400), A.F.M. Abdul Fateh v. Province of East Pakistan and another (PLD 1966 Dacca Page 178) and Mir Rasool Bux Khan Sundrani & Co. v.
People's Municipality, Bukkur and 2 others (PLD 1975 Karachi Page 878). The last mentioned authority which was also with regard to lease agreement for collection of Octroi their Lordships referring to the dispute arising out of such agreement between the parties observed as follows:- "Now the relief sought by the petitioners expressly is for a direction on the basis of the terms of the lease agreement and the schedule, but it is well settled that Courts while exercising extraordinary jurisdiction do not issue orders or directions for the endorsement of contractual obligations nor can this jurisdiction be allowed to be used for the purpose of determining and enforcing such rights."
6.It may also be pointed out that clause 21 of the terms and conditions of the agreement specially provides that dispute arising out of the contract of lease between the parties can be resolved through arbitration which is the proper and adequate remedy available to the petitioner. In the end the learned counsel for the petitioner stressed that an observation be made that in case the petitioner does not agree to pay fifteen per cent educational tax on the export tax, the petitioner be allowed to withdraw his security and earnest money on withdrawal of his highest bid, but we are afraid this Court cannot go into that question in the present proceeding. If the petitioner is so advised he can approach the competent authority or take the matter to the Arbitrator in terms of the agreement.