CH. MUHAMMAD ARIF, J.---This appeal under section 3 of the Law Reforms Ordinance (No,XII of 1972) is directed against order dated 16-12-1996 made by a learned Single Judge in Writ Petition No,15654 of 1995 referring the matter in dispute therein to sole arbitration. This order was preceded by the details mentioned in the next paragraphs.
2. Appellant No,1 Administrator Zila Council, Lahore had leased out the income from Goods Exit Tax for the year 1995-96 in terms of the Public Notice appearing in the national Dailies of Lahore on 10- 7-1995. Respondent was the highest bidder in the open auction and his bid of Rs,38,02,00,000 was accepted by the appellant-Administrator. Appropriate agreement in that regard was also duly executed. Clause 18 of the Lease Agreement made the respondent bound to charge the tax according to the rates incorporated in the schedule thereto duly notified by the Zila Council, Lahore on 23-6-1992 w,e,f, 1-7-1992. He was not to charge the goods which were duly exempted by the Government. On 3-4-1993 the Government of the Punjab vide Letter No,SOVI(LG) 1-5/1991 (P.II)- directed that the tax schedule should not be amended or modified during the said financial year.
The Zila Council strictly adhered to the instructions and refrained from making any change in the schedule of rates during the lease period, i,e,, 1995-96.
3. However, the respondent claimed rebate on the basis of exemption granted by the Government on cold drinks, juices, iron-boxes, diesel engines and radios etc. The Government, on 7-8-1992, 17- 10-1992, 16-9-1992, 8-8-1992 and 11-8-1992, granted exemptions in respect of these items and appropriate changes in the schedule of rates were given effect to during the lease periods 1992-93, 1993-94 and 1994-95. The lessees, during the years 1992 to 1995, collected the Goods Exit Tax accordingly. The respondent claimed rebate for a sum of Rs,11,64,80,000 subsequently, although such rebate was not incorporated in the writ petition. After the filing of the writ petition, out of which this appeal has arisen, the matter was referred to appellant-Administrator for deciding his claim within the period of a month vide order dated 21-11-1995. Pursuant to the direction dated 21-11-1995 the appellant-Administrator rejected writ petitioner's claim regarding grant of rebate and reported the matter accordingly, on 3-9-1996. Order dated 3-9-1996 of the appellant-Administrator was not challenged in this writ petition. According to the appellants, after the decision dated 3-9-1996, the titled writ petition had been rendered infructuous and the same situation stands substantiated for the additional reason that the period of lease had also expired, during the interregnum on 20-6- 1996.
4. We have heard ex parte arguments as the respondent has not entered appearance in spite of service of process upon him on 8-2-1997.
5. Learned counsel, appearing in support of this appeal has contended that he was retained in the writ petition to defend the appellant-Secretary Local Government and Rural Development Department, Lahore and a Power-of-Attorney in that regard was filed in Court on 23-9-1996. Mr. Muhammad Ashraf A.A.G. also represented the Government of the Punjab. The learned Law Officer as well as Malik Ghulam Rasool, Advocate appearing on behalf of the appellant-Zila Council contended before the learned Judge in Chamber that arbitration is not acceptable to Zila Council.
On such statement being made by them on 7-11-1996 it was directed by the learned Judge in Chamber that the case will be decided on merits on the next date, i,e,, 13-11-1996. The case came up for hearing on 16-12-1996 without notice to the appellant. However, his own name appeared in the supplementary cause list for the said date only, as representing the Zila Council, Lahore. Mr. Yawar Ali, Additional Advocate-General appeared on behalf of the Government of the Punjab without instructions from the appellants herein. Although there were general instructions issued by the Secretary Local Government and Rural Development Department to the effect that no concessional statement regarding the appointment of any arbitrator etc. shall be made by any Law Officer in the writ petition, still such a statement was made by him and that too contrary to the stand taken earlier by the counsel for the appellants.
6. Learned counsel has reiterated the pleas taken in the memo of appeal to the effect that with the expirty of the lease period on 30-6-1996 there was no agreement of arbitration left in the field with the result that the arbitration clause could not be invoked in respect of the lease hold rights for 1995-96. The parties had agreed to settle their disputes in relation to their respective rights under the lease agreement dated 31-7-1995 through the Commissioner, Lahore as sole arbitrator.
Moreover, Rule 19 of the Punjab Zila Council (Goods Exit Tax) Rules 1990 clearly provides that any dispute between the Zila Council and the lessees with regard to any provision of the agreement or any other matter arising out of the lease shall be decided through the arbitration under the Arbitration Act (No,X of 1940). These rules provide that Commissioner concerned shall be sole arbitrator for the above purpose and his decision shall be final and binding upon the parties. The definition of the word 'Court' under section 2(c) of the West Pakistan Civil Courts Ordinance (No,II of 1962) read with section 3 and 10 thereof means a Court is competent to make reference in respect of the arbitration matters. It is only a Civil Court and not High Court which can refer the matter to arbitration. He has also referred to Abdul Qayyum Khan v. Government of Punjab through Secretary, Local Government and Rural Development Department and another (PLD 1995 Lah. 205) to contend that the matter could not be referred to arbitration by this Court in the exericse of its Constitutional jurisdiction.
7. There is no need for dealing with the averments made on behalf of the appellants in the memo. of appeal regarding the availability or otherwise of authority to the learned Law Officer to make concessional statement before the learned Judge in Chamber. Suffice it to say that the matter can be resolved by attending to the rest of the arguments falling in the sphere of making a reference to the sole arbitrator in this cause. It has been correctly argued by the learned counsel for the appellants that both, the learned Law Officer and Malik Ghulam Rasool, Advocate appearing on behalf of the appellant-Zila Council had contended before the learned Judge in Chamber that such reference is not acceptable to Zila Council. We find that the ratio of the precedent case also supports the appellants' case to the effect that in the matter of the parties requiring arbitration through intervention of the Court, this Court is not possessed of the requisite jurisdiction in that behalf as it is not a Civil Court as per the definition in section 2(c) of the Arbitration Act, 1940. Even the Punjab Zila Council Goods Exit Tax Rules, 1990, specifically provide that the Commissioner concerned shall be sole arbitrator, whose decision shall be final. It was not the case of the respondent that the appellants or anyone of them, had succeeded in obtaining a specific order by this Court to make a reference to sole arbitrator. As already mentioned above, both the learned Law Officer and Malik Ghulam Rasool, Advocate had, in fact, objected to such a course being adopted. Looked at from whatever angle, the order dated 16-12-1996 cannot be upheld. The instant appeal is allowed, order dated 16-12-1996 is recalled and writ Petition No,15654 of 1995 is dismissed.
There shall be no order as to costs.