RAJA MUHAMMAD KHURSHID, J.--This order will deal with both the writ petitions captioned above as similar points of law and facts are involved in both of them.
2. The writ petitions above referred were at motion stage, but the learned counsel for the parties addressed arguments on the merits after a notice was issued to the respondents, who have also filed parawise comments. Since the points raised call for elaborate and comprehensive decision, therefore, both the writ petitions are admitted to regular hearing and are proposed to be decided on merits.
3. The brief facts are that the petitioners in both the writ petitions state that they were the permanent residents within the local limits of Municipal Corporation, Rawalpindi and were paying different municipal taxes and as such were interested in the working of the local council i,e, respondent No,1, which was a statutory body constituted under the Punjab Local Government Ordinance, 1979 and its functioning was regulated under the aforesaid Ordinance and the rules framed thereunder.
4. Respondent No,1 was authorised under the law to collect Water Rate, Sewerage Fee and Sanitation Fee from the residents, residing within its limits. Respondent No, I decided to lease out the collection rights of the aforesaid taxes for the year 1997-98 through public auction and consequently an advertisement was published in the daily Jang Rawalpindi dated 9-6-1997 for auction of the collection of lease hold rights of the aforementioned taxes. However, the auction aforesaid was postponed. Again through publication in the daily Jang, Lease Hold Rights were proposed to be auctioned. The auction was held on 23-6-1997. In the aforesaid auction the highest bid on Rs,3,05,00,000 was given by respondent No,4. The Administrator, Municipal Corporation, Rawalpindi was the competent authority to confirm the aforesaid auction, but the same was not confirmed against the aforesaid amount. However, allegedly through some under-hand dealing, respondent No,4 managed to get the Lease Hold Rights for an amount of Rs,3,25,00,000 although allegedly total budget for the recovery of aforesaid taxes was rated at Rs,29,57,000. The award of lease hold rights in favour of respondent No,4, was challenged on the ground that it was in violation of the Punjab Local Councils (Lease) Rules, 1990, which required that the auction was to be conducted atleast two months before the start of financial year. However, the auction was conducted on 23-6-1997. As such the statutory provisions were grossly violated. The publication for holding the auction was made in the newspaper on 18-6-1997 whereas the auction took place on 23-6-1997 i,e, after six days of the publication of auction notice. On that ground also the statutory provisions were infringed as no sufficient time was given between the publication of the notice and holding of actual auction. The grant of lease holding rights without open auction for an amount of Rs,3,25,00,000 was allegedly based on favouritism resulting in huge loss of public revenue.
5. Lastly, it was contended that notice of auction published in the daily Jang did not state about the auction of lease hold rights for the recovery of Sewerage Fee and Sanitation Fee although it only mentioned about the auction of Water Rate. It was, therefore, alleged that public response was discouraged because only one item was proposed to be auctioned whereas lease hold rights were given to respondent No,4 not only in respect of published item i,e, Water Cess, but also two additional items i,e, Sewerage Fee and Sanitation Fee. It was, therefore, alleged that auction in favour of respondent No,4 was not only illegal, but also mala fide and without legal authority.
6. A dispute had arisen during the pendency of Writ Petition No,1989/97, when the petitioner wanted to withdraw this writ petition. This however, was resolved vide order dated 13.11.1997 as one of the applicants namely Ghulam Mustafa appeared and stated that he never intended to withdraw the writ petition nor he had moved any application for the withdrawal of the writ petition.
7. The learned counsel for the petitioners reiterated that he had instructions to pursue the matter.
8. Both the writ petitions were opposed by the learned counsel for respondents Nos.1 to 3 as also by the learned counsel for respondent No,4 on the ground that the petitioners had no cause of action to file any of the two petitions because they were not the aggrieved persons nor there was anything to show that they are the tax payers of the local taxes; that the auction of the lease hold rights was done in accordance with the law and was confirmed by respondent No,1 through its Administrator; that there was no public response in the first auction and, therefore, the second auction was conducted upon which the highest bid was offered by respondent No,4 for an amount of Rs,3,05,00,000. However, through negotiations that amount was raised to Rs, 3,25,00,000 by respondent No,4 whereupon the auction was confirmed in his favour being beneficial to the local council; that auction proceedings were not only transparent but were also conducted in accordance with law and rules and the lease hold rights were auctioned at the most competitive rate in the best interest of respondent No, 1 . Reference was made to Ch. Muhammad Younus v. The Islamic Republic of Pakistan through the Secretary, MInistry of Communication, Government of Pakistan, Islamabad and 3 others reported as PLD 1972 Lahore 847 and Raja Muhammad Ramzan and 21 others v. Union Council, Bajnial and another reported as 1994 SCMR 1484(Supreme Court of Pakistan) to urge that petitioner had no locus standi, nor the writ was maintainable as petitioners had not exhausted the remedies available to them under the law. On the later point it was alleged that since alternate remedies were available to the petitioners under sections 156 and 158 of the Punjab Local Government Ordinance, 1979, therefore, the present writ petitions were not competent on the principle of 'non-exhaustion of remedies'.
9. The learned counsel for the petitioners submitted that the 'principle of exhaustion' cannot be successfully pressed in this case because respondent No,1 had already moved the Government, which was ultimate authority to give a final decision, and upon such a reference, the impugned order was made. Hence pursuing to the abovereferred remedy would have proved to be an exercise in futility. Reference was made to Pakistan Chest Foundation etc v. Government of Pakistan etc reported as 1997 CLC 1379, in which while taking into account the provisions contained in Article 2-A, 4, 178 and 179 read with Article 24 of the Constitution of Islamic Republic of Pakistan, 1973, the orthodox view about the 'aggrieved person' involved in lis was discarded and a broader meaning was given to it if there was detection of public injustice. In this regard, it was submitted that every citizen will have a locus standi to move High Court, or the Court may act suo moto on receiving any information if the public interest was largely involved in an issue.
10. After taking into account the above situation, it appears necessary to adopt liberal interpretation of the term 'aggrieved person' if it is found that the issue involved in a particular case is of paramount public importance, or it relates to the management of the fiscal affairs of a statutory body or of a Government department dealing with the public exchequer. In such matters the narrower or technical approach to non-suit a citizen would be in the infringement of the spirit as well as fundamental rights enshrined in the Constitution. Needless to say that right to move a High Court for the enforcement of any such fundamental right cannot be allowed to be abridged nor should be defeated, on technical premises.
11. I have considered the arguments addressed from both sides. In the instant case, the petitioners have filed these petitions pointing out that there was gross violation of the rules, which govern the functioning of local councils as there was no proper advertisement nor the sanction of lease hold rights was granted with transparency. Looking to the allegations raised in these writ petitions, it appears that provisions of rule 4 of the Punjab Local Councils (Lease) Rules, 1990 were violated. It says that auction shall be conducted after a public notice to be issued in a daily newspaper atleast 7 days before the date of auction. As pointed out above, it was auctioned on the 6th day.
Likewise subrule(2) of rule 4 ibid lays down that first auction was to be conducted atleast two months before the start of financial year and that no subsequent attempt for re-auctioning shall be made till the expiry of 15 days of the first attempt. In the instant case, this rule was also infringed as there was nothing to show that the first auction was conducted or scheduled to be conducted two months prior to the start of financial year or the second attempt was made 15 days thereafter.
It is also an admitted fact that respondent No,4 had offered Rs,3,05,00,000 as highest bid but later on enhanced the aforesaid amount to Rs,3,25,00,000 without advancing any reasons. Likewise the proposed budget demand for the aforesaid taxes was Rs,4,29,57,000 against the highest bid of Rs,3,25,00,000. In view of that situation, the Administrator even did not confirm the aforesaid bid and had admittedly made a reference to Government. In the letter No,542/G dated 4-8-1997 (P-6 of written statement) addressed to the Secretary Local Government and RD Department, Lahore the following three options were kept open:-
(i) To reject the offer and continue collection departmentally.
(ii)To re-auction the contract; and (iii)To accept the bid of Rs, 3, 25,00,000.
It was also made clear in the concluding paragraph of the aforesaid letter that the Water Rate (inclusive of Sewerage Fee and Sanitation Fee) has never been contracted for collection through private sector by the Rawalpindi Municipal Corporation in the past. It is thus obvious that the Administrator, Municipal Corporation, Rawalpindi was the competent authority to approve the final bid, but he declined to do so presumably considering it less advantageous and had, therefore, made a reference to the Government, which was revisional authority in the matter. The Government vide its letter No,SOVI(LG)2-59 of 1997 dated 3-9-1997 (P-8 of the written statement) addressed to the Administrator, Municipal Corporation, Rawalpindi pointed out that the Commissioner of the Division was to take the final decision in such case, but in order to facilitate the project in hand after discussing the case on telephone with the Commissioner, Rawalpindi, the Administrator was advised to go ahead with the proposal. However, it was not made clear in the letter as to what proposal out of the three options was approved by the Government to be acted upon by the Administrator. As such it appears that even the Government had not confirmed specifically any proposal out of the three options suggested by the Administrator. As such the confirmation of the auctioned bid appears to be in melting pot being in fluid form till date. It therefore, follows that none of the Competent Authorities had taken any decision on the matter in issue specifically saying that proposal of acceptance of final bid by respondent No,4 was approved. Even otherwise the notice for auction issued by respondent No,1 and placed on record at page 16 shows that the lease hold rights in respect of collection of water rate were to be put to auction. This would be clear from the entry appearing at serial. No,6 of the proclamation under reference. Though an attempt was made in the letter of the Administrator addressed to the Government that the Water Rate included Sewerage Fee and Sanitation Fee, but it was not made clear in the notice published in the newspaper in those terms. It, thus, follows that even the notice for auction was also inherently defective because it only mentioned about the Water Rate without mentioning the Sewerage Fee and Sanitation Fee. However, lease hold rights were given to respondent No,4 i,e, the contractor in respect of those fees which were not published in the notice itself. There is no explanation whatsoever for granting lease hold rights to the Lease Holder in addition to the Water Rate as published in the aforesaid proclamation.
12. The above discussion will make it sufficiently clear that the respondents did not act in accordance with law to publish the notice for collection of all the three taxes and that the time frame fixed by the rules for holding of auction and publication of the proclamation was also not followed thereby seriously prejudicing the public interest at large. Since the auction proceedings were also not transparent as the highest bid was changed from Rs,3,05,00,000 to Rs,3, 25,00,000 without any further auction and in a secret manner, therefore, the entire proceedings would be tainted with not only illegality but would be considered to have been conducted with some ulterior motive being mala fide as well
13. In the light of above discussion, both the writ petitions are allowed and the auction proceedings in favour of respondent No,4 are set aside, with a direction that respondent No,1 may re-auction the lease hold rights of all the three items i,e, Water Rate, Sewerage Fee and Sanitation Fee. The proceedings for re-auction shall be conducted in accordance with law and in a transparent manner.