1. DORAB PATEL, J.---The Peshawar Municipality has, since 1968, beers, leasing out the collection of octroi by public auction in accordance with rule 225 of the West Pakistan Municipal Committee Octroi Rules, 1964 (hereinafter called the said Rules), and the public auction for the collection of octroi for a period of 300 days from 5-9-1975 to 30-6-1976 was held in the Municipal Hall, Peshawar on 21-7-1975. The highest bidder was the appellant's brother, who, according to the first respondent, was also the appellant's partner. Be that as it may, the lease in favour of the appellant's --brother was cancelled, and the right for the collection of octroi for the period of 3G0 days from 5-9-1975 to 30-6-1976 was re-auctioned on 3t1.8-1975 but by a notice dated 29-8-1975. A condition of this auction, and of the earlier auction, was that the highest bid was subject to the approval of' the Commissioner, Peshawar Division. The first respondent's bid of Rs. 85,05,000 was the highest, but it was not accepted by the Commissioner 7secause the appellant bad directly approached the Provincial Minister for Local Self-Government with an offer of Rs. 88,05,000, and the Minister had directed by his order of 1-9-1975 that this offer should be accepted, in the public interest because it was higher than the first respondent's offer by three lacs of rupees. Accordingly, the first respondent was informed by the Peshawar Municipal Committee's letter dated 2-9-1975 that his bid had been rejected, therefore, he filed a writ petition in the Peshawar High Court to enforce his rights. Now, I must explain here that the Commissioner, Peshawar had once upon a time been the Controlling Authority for the Peshawar Municipal Committee and in his writ petition the first respondent impleaded the Commissioner under the designation of "Controlling Authority (Commissioner), Peshawar Division, Peshawar". As there was no Authority known as the Controlling Authority, the first respondent's error has caused considerable confusion and I will refer to the Commissioner, Peshawar Division as the Commissioner except when necessary otherwise.
2. Reverting, however, to the first respondent's writ petition, his contention in it was that the Controlling Authority's failure to confirm his bid was illegal because it was contrary to rule 225 of the said Rules and because his offer had been rejected without giving him a hearing. He also alleged mala fides and prayed for a declaration that the Controlling Authority should have accepted his bid and that the lease in the appellant's favour was illegal.
3. The appellant as well as the Commissioner and the Provincial Govern--ment contested the petition. The Commissioner and the Provincial Government supported the case of the appellant in the High Court. The common contention of the appellant and of these respondents was that the Provincial Government had, in the exercise of its powers under rule 31 of the said Rules, relaxed the provisions of rule 225 in favour of the appellant and that the orders passed in the appellant's favour were in the exercise of the Provincial Government's powers under sections 61, 62 and 63 of the North-West Frontier Province People's Local Government Ordinance, 1972 (hereinafter called the said Ordinance). The further contention on which the petition was contested was that the fourth respondent was not entitled to invoke the discretionary remedy of a Constitutional petition because his bid had not been confirmed by the Commissioner.
4. The learned Judges of the High Court held that the fourth respondent was entitled to file a writ petition. They also rejected the plea of the Provincial Government that the impugned order had been passed in the exercise of its powers under rule 31 of the said Rules and in this connection they held that the Provincial Government's powers under this rule were limited to the relaxation of the rules contained in Chapter IV of the said Rules namely rules 28, 29, 30 and 32. The learned Judges of the High Court further held that Government's action was contrary to the said Rules and to the objects of the said Ordinance. They also accepted the plea of the first, respondent that the impugned order was mala fide and they further observed that it was "manifestly unjust and designed to undermine public confidence" because it was tantamount "to condemning the successful highest bidder unheard, it would be rightly construed to smack of nepotism which impression in public affairs must be avoided". Accordingly, by their judgment dated 24-10-1975 they allowed the fourth respondent's writ petition and directed that his bid was deemed to be pending before the controlling authority for consideration within the meaning of sub-rule (4) of rule 225 of the said Rules and the Controlling Authority was directed to dispose of this bid "by applying his own mind to the case without any influence from any quarter whatsoever".
5. The appellant has come in appeal to this Court against this judgment. The Provincial Government now opposes the appeal and supports the case of the fourth respondent. However, before I examine the arguments advanced, I have to observe that in accordance with the High Court's judgment the bid of the fourth respondent was re-examined by the Commis--sioner, who again rejected it, and thereafter the Municipal Committee has been collecting octroi itself. We were also informed that the amount of octroi collected directly by the Municipality considerably exceeds the amount for which the right to collect the octroi had been auctioned to the first respondent, and the amount for which the Municipality had leased its octroi rights .To the appellant.
6. There is no dispute before us about the Peshawar Municipality's right to collect octroi. The dispute is only about the manner in which octroi can be collected and according to the learned Advocate- General the manner in which octroi can be collected is regulated by rule 225 of the said Rules. This rule is to be found in Chapter XXX of the said Rules and reads; "225.-(1) Notwithstanding anything contained in these rules, Municipal Committee may, with the prior approval of Government, lease out by public auction for a period not exceeding one year, the collection of Octroi on such terms and conditions, not inconsistent with the provisions of this Chapter, as may be specified by Government.
(2) The acceptance of any bid at an auction conducted under the provisions of sub-rule (1) shall be subject to confirmation by the Controlling Authority.
(3) The Municipal Committee shall, within seven days of the date of auction, submit the bid accepted at the auction to the Controlling Authority for its confirmation.
(4) The Controlling Authority shall, within thirty days after the bid has been submitted to it by the Municipal Committee for confirmation, either confirm the bid or declare that it withholds its confirmation to the bid, provided that if within the aforesaid period of thirty days the Controlling Authority fails to do either of these things, it shall be deemed to have confirmed the bid.
(5) Where the Controlling Authority within the period specified in sub-rule (4), declares that it withholds its confirmation to the bid, the lease of the collection of Octroi shall subject to any direction that may be given by the Government in this behalf under sub-rule (1) be again put to auction and the provisions of sub-rules (2 ), (3) acid (4) shall apply to such re-auction.
(6) .---------------
(7) .----------------
(8) .--------------- It is clear from this rule that Muni3ipalities are expected to collect Octroi themselves, therefore, they can lease the right to collect it by public auction only with the prior approval of the Provincial Government to which I will refer as the Government. Secondly whilst granting its approval, the Government can impose terms and conditions about the collection of octroi, and it can give similar directions if the lease for the collection of octroi is re-auctioned under sub-rule (5). Thirdly, in my humbly opinion an implied condition of the Government's approval for auctioning the right to collect octroi is that the auction should be held in a fair and reasonable manner. Lastly, as the rule does not envisage any other method for the collection of octroi, a Municipality has to collect octroi itself or to lease out the right to do so by public auction. No other method of collecting octroi is permissible and that is made very clear by section 56 of the said Ordinance which I will presently examine.
7. I now turn to the submissions advanced, and as the respondents rely on rule 225, Mr. Zafar submitted that the Minister's order of 1-9-1975 (to which I will refer as the impugned order) was valid because of the Govern--ment's power under rule 31 of the said Rules to suspend the provisions of rule 225. As the High Court held that the Government could not, in the exercise of its powers under rule 31, suspend the provisions of rule 225 it is necessary to examine rule 31. It reads; "31. Government may relax any of the provisions of these rules with reference to all Municipal Committees or any specified Municipal Committee."
8. Mr. Zafar submitted that this rule expressly empowered the Government to suspend the provisions of any of the said Rules because the words "these rules" meant the said Rules. Mr. Zafar's submission is correct and I see no ambiguity whatsoever in the rule. However, according to the High Court if the intention of the Government of West Pakistan which had framed the said Rules had been to confer on itself the power to suspend the provisions of any of the said Rules it would have referred to the Rules by their full name namely the West Pakistan Municipal Committee Octroi Rules, 1964. But as the Government had instead used the expression "these rules" the learned Judges of the High Court were of the view that the expression "these rules" meant something different from the said Rules, therefore, as redundancy could not be attributed to the rule-maker the learned Judges held that the expression "these rules" meant the rules in the Chapter of the said Rules in which this expression was to be found. Rule 31 is in Chapter IV of the said Rules and the expression "these rules" is to be found in Chapter I of the said Rules, therefore, according to the learned Judges this expression meant in Chapter I the rules in that Chapter and in Chapter IV the rules in Chapter IV.
9. Now Chapter IV consists of only five rules: rules 28 to 32. Rule 32 expressly empowers both the Government and the Controlling Authority to issue instructions to Municipal Committees "for the administration of octroi". Clearly, therefore, this rule is independent of rule 31 and this by itself is a circumstance not very important which militates against the view taken by the High Court. Further, as rule 32 is independent of rule 31, on the view taken by the High Court the power conferred on the Government by rule 31 is limited to the power of suspending the provisions of rules 28, 29 and 30.
10. Rules 29 and 30 deal with trivial matters like the manner in which octroi lists are to be published and displayed and an express power to relax the provisions of these two rules was not necessary in view of the very wide powers reserved by the Government to itself under rule 3?. Rule 28 is a rule which permits Municipal Committees to adopt the model octroi schedule and such modifications as they may deem necessary. As any decision taken by a Municipal Committee under this rule would be subject to the directions which may be issued by the Government under rule 32, rule 31 would become almost redundant if it were confined to the power to suspend the provisions in rules 28, 29 and 30.
11. Additionally I observed that the expression "these rules" was also to be found in the first Chapter of the said Rules. This Chapter consists only two rules and rule 1 reads ";.
(1) These Rubs may be called the West Pakistan Municipal Committee Octroi Rules, 1964.
(2) They shall come into force on 1st August 1964."
12. Rule 2 is the rule containing definitions and it reads;-- "(2) In these rules, unless the context otherwise requires the following expressions shall have the meanings hereby respectively assigned to them, that is to say . . . . ------"
13. Then follow the clauses containing the definitions. Now on the view taken by the High Court, the expression "these rules" in both these rules means only the two rules contained in Chapter I. But if this conclusion be correct, the definitions contained in rule 2, which have been framed with so much care by the rule-maker, would automatically become redundant. This would be attributing absurdity to the rule-maker. Accordingly, in the circumstances discussed, I see no reason to curtail the ordinary and natural meaning of the words "these rules" and I would hold that rule 31 empowers the Government to suspend the provisions of any of the said Rules.
14. However, the powers conferred by this rule is only a power to relax the provisions of the said Rules.
15. As the relevant rule in the instant case is rule 225, the Government could have relaxed any of the provisions of this rule, and the question is whether it has done so. Now the impugned order contains two directions. The first is that the first respondent's bid at the auction of 30-8-1975 was not fit to be accepted, and the second is that the right to collect octroi was to be leased to the appellant. As no submission was advanced in this respect, it is not necessary to examine whether these directions amounted to instructions within the meaning of rule 32, but in any case they cannot be described as orders under rule 31 for the relaxation of the provisions of rule 225. Mr. Zafar was also not able to refer us to any rule or provision of any rule which had, by necessary implication, been relaxed on account of the impugned order. On the other hand, as indicated earlier, the said Rules do not permit Municipal Committees to lease out the right to collect octroi by private treaty, therefore, the impugned order is contrary to the said Rules. And as the power to relax the application of a rule cannot include the power to act contrary to that rule, the impugned order is ultra vires of the Government's powers under rule 31.
16. Mr. Zafar also submitted that the impugned order had been passed under sections 61, 62 and 63 of the said Ordinance and in fairness to learned counsel I would point out that this was his main submission. And as submitted by learned counsel the history of these sections is not irrelevant to the scope of the powers conferred on the Government under these sections. But I would first examine these sections. They read; "61. Supervision over People's Local Councils.-Government shall exercise general supervision and control over the People's Local Councils in order to ensure that their activities conform to the purposes of this Ordinance.
62. Control over the activities of People's Local Councils.-(1) If, in the opinion of Government anything done or intended to be done by or on behalf of a People's Local Council is not in conformity with law, or is in any way against public interest, Government may, 'by order---
(a) quash the proceedings ;
(b) suspend the execution of any resolution passed or order made by the Council ;
(c) prohibit the doing of anything proposed to be done ; and
(d) require the Council to take such action as may be specified.
(2) Where an order under subsection (1) has been made, the People's Local Council concerned may, within thirty days of the passing of the order, apply to Government for review of the same and any order passed in review shall be final.
63. Powers of Government to give directions to People's Local Councils.-(1) Government may direct any People's Local Council or any person or authority responsible thereto to take, within such period as may be specified, such action as may be necessary for carrying out the purposes of this Ordinance.
(2) Where after due enquiry Government is satisfied that a People's Local Council or person or authority. Has failed to comply with any direction made under subsection (1), it may appoint a person or persons to give effect to such direction and may further direct that the expenses incurred in connection therewith shall be borne by the said Council.
(3) Should the expenses be not so paid, Government may make an order directing the person having the custody of the balance of the local fund of the Council to pay the expenses or so much thereof as may from time to time be possible."
17. These sections, which are to be found in Part IV of the said Ordinance, confer wide powers on the Government. Next, as to their history the Municipal Administration Ordinance, 1960 (to which I will refer as the rep.-sled Ordinance) was repealed by the said Ordinance, and whilst section 62, which I quoted, corresponds to section 111 of the repealed Ordinance, sections 61 and 62 are new provisions inserted for the first time in the said Ordinance. Similarly, the powers conferred on the Government under sections 64, 65 and 66 for suspending Municipal Committees are also wider than under the repealed Ordinance. The substitution of the Controlling Authority in the repealed Ordinance by the Prescribed Authority in the said Ordinance is also intended to enlarge the Government's control over the Municipal Committees. There is, therefore, force in Mr. Zafar's submission that the object of the said Ordinance is to enable the Government to exercise greater control over municipal Committees than it had under the repealed Ordinance. But, however, wide be the powers conferred by these sections, sections 61 and 63 expressly prescribe that these powers are to be exercised for "the purposes of this Ordinance" whilst the 3imitations in section 62 are that the Government must exercise its powers in the public interest and so as to ensure that Municipal Committees act in conformity with law. Secondly, even a casual perusal of these three sections shows that they relate to the administrative control to be exercised by the Government over Municipal Committees. And it is significant that the heading of the Chapter in which these three sections are to be found reads "Administration of People's Local Councils".
18. On the other hand, the powers conferred on the Government about the levy of taxes etc. And the manner for the collection and recovery of taxes etc. Are contained in Part III of the said Ordinance. And I would' briefly refer here to the relevant provisions of Part III. Section 53 permits the Government to frame model tax schedules, and rule 28 of the said Rules to which I referred earlier empowers Municipal Committees to adopt this model Octroi Schedule with such modifications as they may deem --necessary. Section 54 is important. It reads "54. Directions with regard to levy of tax, etc.-(1) Government may' direct any People's Local Council---
(a) to levy any tax, rate, toll or fee which the Council is competent to, levy under section 51 ;
(b) to increase or reduce any tax, rate, toll or fee or the assessment thereof to such extent as may be specified ; or
(c) to suspend or abolish the levy of any such tax, rate, toll or fee.
(2) If a direction issued under subsection (1) is not complied with within the specified time, if any, Government may, make an order giving. Effect to the direction."
19. Section 56 reads; "56. Collection and recovery of taxes, etc.-(1) Unless otherwise provided all taxes, rates, tolls and fees levied under this Ordinance shall be collected in the prescribed manner.
(2) All arrears of taxes, rates, tolls and fees and other moneys claimable by a People's Local Council under this Ordinance shall be recoverable --as a public demand or as arrears of land revenue.
(3) Notwithstanding the provisions of subsection (2) Government may empower any People's Local Council to recover arrears of taxes, rates, tolls, fees and other moneys claimable by the Council under this Ordinance by distress and sale of the movable property belonging to the person concerned, or by attachment and sale of the immovable property belonging to him.
(4) Government may by rules specify the officials or classes of officials by whom the power under subsection (5) shall be exercised and, prescribe the manner in which it shall be exercised."
20. According to clause (39) of section 3 of the said Ordinance, "prescribed"' means "prescribed by rules made under this Or.9inance", therefore, the --Government bad to frame rules under section 80 for the collection of octroi. It has not done so but as I pointed out rule 225 of the said Rules deals with the collection of octroi. However, section 4 of the said Ordinance reads; "4. Repeal and savings.-(1) On the coming into force of this Ordinance-- the enactments mentioned in the First Schedule shall, if and in so far as applicable to any area in the North-West Frontier Province, stand repealed.
(2) Where an enactment stands repealed under subsection (1) any appointment, rule, regulation or be-law made, notification, order or, notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall, so far as it is not inconsistent with the provisions of this Ordinance and the rules, be deemed to have been respectively made, issued, imposed, or assessed, entered into, instituted or taken under this Ordinance."
21. The effect of this section is that rule 225 of the said Rules continues to be in force only in so far as it "is not inconsistent with the provisions" of the said, Ordinance. Therefore, the direction in section 56 that octroi "shall be collected in the prescribed manner" means that octroi shall be collected in manner prescribed in rule 225 provided that it is not inconsistent with the provisions of the said Ordinance.
22. Section 59 of the said Ordinance is also relevant. It again prescribes that all taxes etc. Shall be collected in the manner prescribed in the rules. It reads; "59.-(1) All taxes, rates, tows, fees and other charges levied by a People's Local Council shall be imposed, assessed, leased, compounded, administered, and regulated in such manner as may be provided by rules.
(2) Rules framed under this section may, among other matters, provide for the obligations of the tax-payer and the duties and powers of the officials and other agencies responsible for the assessm ent and collection of taxes."
23. Although the Legislature has conferred wide powers on the Government under sections 54, 56 and 59, it has also defined these powers in great detail, and its intention in defining these powers in such detail is that the Government shall be bound by the restrictions thus placed on these powers.
24. I would now examine the impugned order in the light of this discussion, and it is necessary to repeat here that the position taken by the Government before the High Court was that the impugned order bad been passed by it in the exercise of its powers under section 61, 62 or 63 of the said Ordinance. The Government cannot resile from the factual position taken by it in the High Court, but as the vires of the impugned order is a question of law, the learned Advocate-General submitted that the impugned order was ultra vires of the Government's powers under the said sections, because, as held by the learned Judges of the High Court, it was neither in the public interest nor was it in accordance with the purposes of the said Ordinance. Now, as I explained, the impugned orders consisted of two directions, and if, for example, the direction to lease to the appellant the right to collect octroi was ultra vires, it did not mean that the direction to reject the first respondent's bid was also ultra vires. Further, in my humble opinion, the view that the latter direction was ultra vires required a more careful examination.
25. I pointed out earlier that the first auction was held on 21-7-1975 and the highest bid was just over rupees 96 lacs. As that auction was set aside, the Municipal Committee held the second auction at which the first respondent's bid was the highest. But it was only for a sum of just over rupees 85 lacs. The difference of 11 lacs of rupees was a great loss to public revenues. Now whilst examining the impugned order the learned Judges of the High Court rightly observed (I say so with respect) that the object of rule 225 was to ensure that Municipal Committees did not lose revenues by leasing out the right to collect octroi. Therefore, I am surprised that the learned Judges were very highly impressed by the first respondent's claim, because its acceptance necessarily entailed a heavy loss of revenue. But to my surprise, the learned Advocate-General also did not appear to think that this loss of revenues was material, nor could he explain why tile second auction of 30 8- 1975 was so unsuccessful as compared to the earlier auction. In my opinion, the reason why this second auction was compara--tively unsuccessful is obvious. The facts speak for themselves. The auction was held on 30-8-1975 and the notice for it was given on the previous day which was a Friday. The appellant claims that he was out of Peshawar and when he returned to Peshawar on coming to know of the auction he tried to attend it but was too late. The truth of this claim was not denied before us by Mr. Bangash who appeared for the first respondent. But much more important was the obvious circumstance that other persons interested in bidding at the auction may not have learnt of it or may not have been able to attend it because of the extremely short notice. I am, therefore, constrained to observe with very great regret that the unseemly haste with which this auction was held brought a windfall of some lacs of rupees to the first respondent.
26. The learned Judges of the High Court appear to have been of the view that no exception could be taken to the first respondent's bid, because it was in compliance with the provisions of rule 225 of the said Rules. I examined this rule earlier. It does not lay down the manner in which auctions are to be held. But there are things which are too obvious to require to be stated. Even Mr. Bangash did not contend that the auction would have been valid if for example the first respondent had forcibly or) fraudulently prevented other contractors from attending the auction. Hence my observation that rule 225 implies that auctions should be held fairly. And as the auction in the instant case was held with unseemly haste, `' it was bound to lead to a loss of revenue, and the Government cannot be criticised for taking action on being informed of the loss to the municipal revenues.
27. I have deliberately used the words "unseemly baste" with reference to this auction because Courts should not read malice into every human error. And here I may refer to the explanation of the unseemly haste which the learned Advocate-General attempted to offer. On the basis of the files, he stated that everyone concerned was under the erroneous impression that Municipal Committees should not collect octroi themselves, and, as the deadline for auctioning the right to collect octroi was fast approaching, the submission was that the Municipal Committee had made a bona fide mistake in holding the auction at an extremely short notice. Having examined the files, the explanation appears to me to be plausible. But this cannot alter the fact that the decision to hold the second auction at a very short notice had caused a heavy loss to the revenues of the Municipal Committee, therefore, the Government's direction clearly fell under section 62 of the said Ordinance because it was an order setting aside an auction which had been held, perhaps through negligence, in a very improper manner.
28. However the learned Judges of the High Court were also of the view that the rejection of the first respondent's bid was illegal because the Con--trolling Authority had not regard the first respondent before rejecting his bid and because in rejecting it the Controlling Authority had merely carried out the Government's order without applying its own mind. And as I pointed out the learned Judges bad remanded the case to the Controlling Authority.
29. Now I observed earlier that the Commissioner of Peshawar had, once upon a tine, been the Controlling Authority for the Peshawar Municipality, but that was during the pendency of the repealed Ordinance. On the other hand, Municipal Committees are not subject to the supervision of any Controlling Authority under the said Ordinance, and the functions or some of the functions exercised under the repealed Ordinance by the Controlling Authority are exercised by the Prescribed Authority under the said Ordinance. The definition of the Prescribed Authority is different from that of the Controlling Authority and I agree with Mr. Zafar that the object of this change is to enable the Government to exercise greater control over Municipal Committees. Therefore, the omission of the Legislature to amend rule 225 has led to a very anomalous situation. The learned Advocate-General feebly submitted that we should in rule 225 wherever they occur read the words "the Controlling Authority" as the words "the Prescribed Authority". But neither the learned Advocate---General nor Mr. Bangash could refer us to any adaptation clause in the said - Ordinance and on the other hand the effect of section 4 of the said -Ordinance is that the said Rules remain in force to the extent to which they are not inconsistent with the provisions of the said Ordinance. Therefore, Mr. War's submission was that sub-rule (5) of rule 225 of the said Rules had ceased to be valid on the promulgation of the said Ordinance.
30. Mr. Zafar also criticised the view of the High Court that the first respondent was entitled to be beard on the question whether his bid was to be accepted or not. Learned counsel submitted that the rule audi alterem partem could not be extended to disputes arising out of a contract and in support of this submission learned counsel relied on this Court's judgments in Meraj Din v. Noor Muhammad and others (1970 SCMR 542), Munshi Muhammad and another v. Faizanul Hag and another (1971 SCMR 533), and in Babu Parvez Qureshi v. Settlement Commissioner, Multan & Bahawalpur Divisions, Multan unit others (1974 SCMR 337). Both these submissions raise question of law of very great importance. But as pointed out by the learned Advocate-General the appel--lant had not challenged the vires of sub-rule (5) of rule 225 in the High Court or even at the leave stage, therefore, when it admitted this appeal this Court rejected the appellant's prayer for the suspension of the High Court's order remanding the case to the Controlling Authority. The result was that the Commissioner of Peshawar heard the first respondent and after giving him a full hearing rejected his bid. The learned Advocate-General -was not able to explain whether the Commissioner had herd the first respondent in his capacity as the Prescribed Authority or whether be had heard the first respondent as the Commissioner of Peshawar under the terms of the auction notice. However, as the first respondent's bid was rejected after giving him a hearing, it is not necessary to decide the vires of sub-rule (5) of rule 225 and it is also not necessary to decide Mr. War's submission that the rule audi alterem partem is not applicable to contracts. The appeal against this part of the judgment therefore fails because it is infructuous.
31. I now turn to the direction in the impugned order that the octroi rights should be leased to the appellant. According to the first respondent, this direction was mala fide whilst according to Mr. Zafar it was in the public interest within the meaning of section 62 because it would have increased Municipal Revenues. There cannot be any doubt that the direction would have increased municipal revenues if it had been implemented. But the question of the bona fides of this direction would be relevant only if the appellant had established that the direction was not ultra vires, and the burden of establishing that it was not ultra vires is on the appellant, because as I explained when I examined rule 225. a Municipal Committee has either to collect octroi itself or to lease out the right to collect octroi by a public auction. As a Municipality cannot lease out the right to collect octroi by a private treaty, the burden of proving that the Government could give the direction which it did is on the appellant. Mr. Zafar of course relied on the wide powers of the Government under sections 61, 62 and 63 of the said Ordinance, but these powers relate to the administrative control to be exercised by the Government over Municipal Committees, whilst the Government's powers in the matter of the levy and collection of taxes by Municipal Committees falls under sections 54, 56 and 59 of the said Ordi--nance. Now, it is a trite observation that a statute has to be read as a whole, and the Government cannot, by resorting to its powers under sections 61, 62 and 63, defeat the express limitations placed on its powers untie sections 54, 56 and 59 because these sections are the special provisions enacted by the Legislature for defining and limiting its control in the matte of the levy and collection of taxes by Municipal Committees. The direction for the lease of the octroi rights to the appellant was, therefore, without lawful authority as held by the High Court.
32. Mr. Zafar was conscious that the appellant's case against this part of the impugned order was on a much weaker footing than the challenge to the direction for the rejection of the first respondent's bid. Learned counsel, therefore, submitted that as the first respondent's claim arose out of a breach of contract, the High Court had erred in holding that his writ petition was maintainable. In support of this submission learned counsel relied on this Court's judgments in Meraj Din v. Noor Muhammad and' others, in Munshi Muhammad and another v. Faizanul Haq and another and in Babu Parvez Qureshl v. Settlement Commissioner, Multan & Bahawalpur Divisions, Multan and others. But the High Court had allowed the writ on the ground that the first respondent had relied on the breach of a statutory provision namely sub-rule (1) of rule 225 and had also challenged the Government's order inter alia on the ground that it was ultra vires of sections 61, 62 and 63 of the said Ordinance.
33. The question whether sub-rule (1) of rule 225 is in force is not free from doubt, but in any case, the direction to lease the octroi rights to the appellant was a breach of a statutory provision, and as the first respondent's claim that he bids at auctions for octroi rights has not been challenged, he teas an aggrieved person within the meaning of Article 199 of the Constitution. The appeal, therefore, fails but as success is divided between the parties, I would not award costs.
34. SALAHUIDDIN AHMED, J.---On the whole I agree with the judgment pro--posed to be delivered by my learned brother, Dorab Patel, J. I would, however, like to observe that rule 31 of the said Rules provides for relaxation of any of l the provisions of the Rules with reference to all Municipal Committees or any specified Municipal Committee. The rule does not speak of relaxation in the cafe of a particular individual.