MUNIR A. SHEIKH, J.---This common judgment shall also dispose of I.C.As. Nos.121/96, 122/96 and 123/96 as all these I.C.As. Have been filed against a consolidated judgment dated 27-3-1996 passed by the learned Single Judge, by which Writ Petitions Nos.17600/95, 17601/95, 924/96 and 925/96 in which common question of law and facts had been raised, were decided.
2. The facts giving rise to these I.C.As. Shortly stated are that the dispute relates to right of holding the Cattle Markets at Kathala Sheikhan and Gojra within the territorial limits of District Council, Mandi Bahauddin.
3. As required by the rules an advertisement yeas made in Daily Urdu 'Musawat' and Daily Urdu 'Pakistan' dated 17-11-1995 through which it was notified that the auction would be held on 23-11- 1995. According to the District Council the highest bid received for the Cattle Mandi at Gojra was of Rs.5,10,000 whereas that of Kathala Sheikhan Rs.19,12,000. It is the case of the appellants that the auction was in fact openly held on the said date which was subsequently confirmed/approved by the Administrator of the District Council on 26-11-1995 which was conveyed to the appellants on 27- 11-1995. In pursuance of this approval a formal agreement under the rules was executed between the appellants i.e., the successful bidders and the District Council, Mandi Bahauddin on 30-11-1995, on which date the transaction was completed and the period of one year of --- the lease at both the places started running.
4. It appears that a complaint was made to the Chief Minister alleging commission of irregularities and illegalities in holding the auction including the one that in fact at the spot no auction openly was held and the lease was granted to the appellants for holding Cattle Mandis at both the places collusively. The Chief Minister cancelled the leases of the appellants. The order of the Chief Minister was conveyed to the Administrator, District Council, Mandi Bahauddin, on telephone on 7-12-1995 by Syed Jalil Abbas Shah, who then was the Secretary to the Chief Minister. Learned counsel for appellants submitted that the leases for both the Cattle Mandis were ordered to be re-auctioned.
This order/decision of the Chief Minister was challenged by Abdul Hameed, appellant, through Writ Petition No.17600/95 and Haji Mukhtar Ahmad. Appellant, through Writ Petition No.17601/95. Two other Writ Petitions Nos.924/96 and 925/96 were also filed by Muhammad Javed Gondal challenging the legality of the auction and the grant of lease to hold Cattle Mandis in favour of the appellants. Their case was that no auction was in fact held and the appellants were granted lease collusively by underhand means at a very low price.
15. During the pendency of these Constitutional petitions the petitioners in Writ Petitions Nos.924/9ti and 925/96 made offer of an amount of Rs.60,50,000 for Cattle Mandi at Kathala Sheikhan. The learned Single Judge after examining the comments and the record came to the conclusion that serious illegalities were committed in holding the auction. A serious note was taken that in this case the Government Exchequer was made to suffer inasmuch as against an amount of Rs.19,12,000 an offer had straightaway been made of an amount of Rs.60,50,000. Keeping in view the interest of the State which is supreme the learned Single Judge through judgment dated 27-3-1996 upheld the decision of the re-auction of the lease with the reserve price at Rs.60,50,000, the effect of which was that Writ Petitions Nos.17600/95 and 17601/95 filed by the appellants stood dismissed and that of the respondents decided in terms thereof which has been assailed in these appeals.
6. Learned counsel for appellants in support of these appeals made the following submissions:--
(a) As many as three inquiries 'were held in which no officer of the District Council was found responsible for any irregularity in conducting the auction after the highest bid of the appellants had been accepted by the competent Authority i.e., Administrator. The said acceptance conveyed to the appellants and formal agreement on 30-11-1995 having been executed a vested right had been created in favour of the appellants, as such, the same could only be cancelled under the Punjab Local Council (Lease) Rules, 1990 and not otherwise.
(b) According to the Punjab Local Council (Lease) Rules, 1990, the lease could only be cancelled if the lessee had failed to pay the lease money, or had committed breach of any rule or terms and conditions of the lease. Since the lease has not been cancelled on any of these grounds, therefore, the cancellation was without lawful authority. ,
(c) The Local Councils stood abolished under section 26-A of the Punjab Local Government Ordinance, 1979, as such, the control of the District Council in question vested in the Government of the Punjab, therefore, the confirmation of the auction in favour of the appellants and execution of the lease agreement by the Administrator was to be deemed to be an act of Provincial Government as such, the Chief Minister could not cancel the lease.
(d) There was no order in writing passed -by the Chief Minister as none has been produced, therefore, it is a case of cancellation of lease without any order.
(e) The respondents i.e., the prospective bidders/contestants if felt aggrieved could file appeal under section- 166 of the Punjab Local Government Ordinance, 1979, therefore, the Constitutional petitions on their behalf was not maintainable without availing of the said remedy which was both efficacious and adequate.
7. None of these contentions have any force in the facts and circumstances of this case. It was provided under section 26-A of the Punjab Local Government Ordinance, 1979 that on abolition of the Local Council the functions of such Local Council were to be performed by such person or authority as the Government may appoint in this behalf. The Deputy Commissioner was appointed as Administrator to perform the functions of the District Council, Mandi Bahauddin, therefore, while performing such functions he was acting on behalf of the District Council and not as Provincial Government, as such, the argument that his act of approval of the auction in favour of the appellants had acquired the status of an order passed by the Provincial Government, as such, the Chief Minister could not subsequently cancel the same, has no substance. The contention that no order in writing of the Chief Minister was produced equally has no force inasmuch as after the Administrator received information from the Secretary of the Chief Minister on telephone on 7-12- 1995 conveying him the order of the Chief Minister by the said Secretary the Administrator conveyed to the Chief Minister that the lease bad been cancelled in compliance with the directive received from him through his Secretary according to the documents placed on the record by the appellants with their writ petitions. No document has been placed on the record that in response to this compliance report there was any correspondence from the Chief Minister to the effect that he had not earlier issued any order for cancellation which according to the established practice about the functions of the office of the Chief Minister shall be deemed to be an act of approval as to what the Private Secretary earlier conveyed to the Administrator about cancellation of the lease.
8. The Provincial Government is the highest authority under the Punjab Local Government Ordinance which is vested with overall supervisory powers over the affairs of the Local Councils. In our view as a matter of fact the functions which the Local Councils perform are primarily the functions of the Provincial Government which have been delegated to the Local Councils through legislation, therefore, the Chief Minister being the head of the Provincial Government was vested with power to look into the complaints, if any, made against any act of a Local Council and remedy the wrong which in this case was rightly done for it was revealed that the lease had been granted at a very low amount as a consequence of which the District suffered financial loss.
9. The argument that under the Lease Rules of 1990 the lease once granted and agreement executed could only be cancelled on all or any of the grounds mentioned therein, is also devoid of any force. The respondents had challenged the legality of the auction on which all subsequent acts of confirmation and execution of lease agreement were based. The advertisement was made in the newspapers on 17-11-1995 and auction was allegedly held on 23-11-1995. It was provided in the rules that the auction shall not be held before seven days after the publication of notice in the newspaper whereas it was held on the sixth day thereof, therefore, the holding of auction even if it is assumed that the same was held as alleged on the said date, was an act which was ab initio void. It is firmly settled law that if basic order or an act was void any superstructure based on such void act would automatically fall to the ground and will be of no legal efficacy. This principle has been settled by the Supreme Court in a case reported as Yousaf A.I v. Muhammad Aslam Zia and 2 others (PLD 1958 Supreme Court (Pak.) 104), as such, the confirmation of the auction which was ab initio void and execution of formal agreement were also equally void and of no legal effect, therefore, the Constitutional petition before this Court directly could be filed in respect of such acts and the remedy of appeal or revision, if any, if had not been availed, the same did not adversely affect the maintainability of the Constitutional petition particularly in view of the fact that the Chief Minister himself intervened and had cancelled the lease.
10. Learned counsel for respondents called our attention to the fact that even of his own showing the appellant did not deposit the full amount which under the rules he was required to deposit after the confirmation of the auction. He pointed out that in Writ Petition No.17601/95 filed by one of the appellants it was admitted that apart from an amount of Rs.3,00,000 required to be deposited under Rule 6, for due performance of lease agreement, being 2 % of last year's lease money as security to participate in the auction, the bidder was required to pay further amounts on account of 5 % security advance instalment, income-tax Q 3% of 1st instalment totalling Rs.4,64,616 inclusive of the 1st instalment. The amount of Rs.3,00,000 already deposited was to remain with the District Council as security which was to be refunded after the expiry of lease period, as such, it was not adjustable from the said amount payable by the appellant before execution of the lease agreement whereas the appellant after adjustment of the said amount of Rs.3,00,000, deposited only an amount of Rs.1,72,000 which was violative of the express provisions of the rules, as such, he could not maintain that he had complied with the requirements of the rules in order to argue that his lease could not be cancelled alleging that there was no violation of the rules regarding the lease. In the other case an amount of Rs.1,00,000 was stated to have been deposited by the appellant for the other lease but there was no evidence to this effect.
11. Considering the above facts we have no hesitation to hold that in this case initially the Chief Minister and subsequently the learned Single Judge rightly interfered in the matter being a matter regarding public money and public welfare, therefore, the Courts were justified in interfering under Article 199 of the Constitution. This view has the support of rule laid down by the Supreme Court in the case reported as Javaid Iqbal Abbasi & Company v. Province of Punjab and 6 others (1996 SCMR 1433) as the amount on which lease was granted to the appellants and the amounts offered by the respondents there was substantial difference, as such, the public exchequer has been benefited and the appellants were rightly not allowed to retain ill-gotten gain from an illegal act.
12. For the foregoing reasons the judgment passed by the learned Single Judge is perfectly valid and justified and does not suffer from any illegality and calls for no interference. The appeals have no force, therefore, they are hereby dismissed.
13. Since the lease has been auctioned in favour of private respondents and on account of interim orders passed in these appeals they could not hold the Cattle Markets, therefore, they shall be given full one year commencing from the date on which they are now allowed to hold Cattle Markets.