The respondents Municipal Corporation, Bahawalpur entitled to collect Tehbazari fee from the occupants of the open space under section 122 of the Punjab Municipal Administration Ordinance, 1979 (to be referred to as the Ordinance) had leased out the right to collect Tehbazari fee in an open auction. The petitioner was the highest bidder in the open auction and, therefore, was authorised to collect the temporary Tehbazari fee on lease within the limits of Bahawalpur City for the period commencing from Ist of August 1993 to 30th of June, 1994 in accordance with the settled terms and conditions. One of the terms was that the office-holders of the Municipal Corporation, herein the respondents, shall render all legal assistance with regard to the collection of temporary Tehbazari fee from the defaulters. However, what the respondents did was, as alleged by the petitioner, that they suddenly prohibited the petitioner from the collection of temporary Tehbazari fee from the lessees who were functioning their business inside the Bund Road of the city causing pecuniary loss to the petitioner. The respondents were also unresponsive to the complaint of the petitioner that large number of licensees were not paying Tehbazari fee and instead removed large number of Tehbazari occupants in September, 1993. All the aforementioned incidents caused financial loss amounting to Rs.3,04,100 (three lacs four thousand and one hundred) which swelled to Rs.5,01,800 (five lacs one thousand and eight hundred) up to y-2- t `)94. The petitioner, therefore, filed the Constitution petition soliciting directions to the respondents:
(a) Help recover the temporary Tehbazari fee from the defaulters as per clause 18 of the agreement (Annexure C);
(b) all the Tehbazari occupants removed after coming into existence of the lease deed be restored enabling the petitioner to achieve the target of the contract; and
(c) alternatively at least 50% of the remission in the contractual amount be made which comes up to Rs.2,90,000 (two lacs and ninety thousand).
2. The Municipal Corporation, Bahawalpur through Administrator, submitted parawise comments on the averments of the writ petition raising legal objection that the petitioner has sought to enforce his right, if there, contractual in nature which cannot be agitated through the Constitution petition. On merits it was averred that the collection of Tehbazari fee was confined to the city outside the Bund Road and that the persons occupying Tehbazari were squatters and, therefore, were removed under section 12(2) of the Ordinance and that the persons against whom the petitioner wanted action by the respondents were not Tehbazari-holders.
3.Most of the questions involved in this Constitution petition are as to determination of the terms and conditions of the agreement and if its clause 17 included the right of collection of Tehbazari inside the walled city or not and further if the petitioner had suffered pecuniary loss owing to non- cooperation of the respondents by not realizing the Tehbazari fee from temporary Tehbazari- holders and if so to what extent. I agree with the learned counsel of the respondents that the questions involve contractual rights and obligations which can not be determined by the Civil Court after recording evidence. My' learned brother Irshad Hassan Khan, J. had ruled in Pakistan National Shipping Corporation v. Rent Controller, Lahore and 2 others (PLD 1992 Lahore 305) that "Contractual obligations cannot be enforced through writ jurisdiction nor the Constitutional, I as a such substitute for a oil for recovery of money or for resolution of dispute involving factual controversy."
The petitioner, therefore, will be at liberty to move the trial Court to get the nature of the terms of the contract determined and claim damages arising out of alleged breach of contract In the circumstances, I find no good ground to 131 redress the grievance of the petitioner, if any, except issuing direction to the respondents that they shall comply with the terms and conditions of the agreement enabling the petitioner to complete the remaining period of Tehbazari and so would do the petitioner for that end. The petition therefore, dismissed.