1. ' This judgment shall dispose of W.P. 6475 of 1998 titled Ali Bahadur v. Municipal Committee and other and W.P. 6813 of 1998 titled Habibullah Khan v. Secretary Local Government etc. As both of them relate to the grant of lease for collection of fee for holding cattle market within the local limits of Municipal Committee Arifwala.
2. ' Facts briefly for the disposal of these Constitutional petitions are that a publication appeared in the Daily Pakistan on 18-5-1998 for holding of auction respecting the collection of fee of cattle market to be held on 23-5-1998 for a period effective from 1-7-1998 to 30-6-1999. The auction accordingly was held on 23-5-1998 and was given to Habibullah Khan and Abdul Ghaffar petitioners in Writ Petition No,6813 of 1998 for a consideration of Rs,1,12,00,000. An agreement according to the learned counsel was executed on 3-6-1998 after the lease-holder deposited all the amount. According to the learned counsel for the lease-holder by virtue of Rule 7(5) of the Punjab Local Council Lease Rules 1990 after execution of the agreement the lease became operative. The petitioner according to the terms of the agreement embarked upon the work with effect from 1-7-1998.
3. ' It has further been stated by the learned counsel that the petitioner All Bahadur filed W.P. 5867 of 1998 taking exception to the grant of lease inter alia on the ground that no proper notice as required under rules of the Punjab Local Council Lease Rules, 1990 was given. Said writ petition according to Dr. M. Mohyuddin Qazi, learned counsel was withdrawn by Ali Bahadur on 13-7-1998. It is reflected from the aforesaid order that the learned Additional Advocate-General Mr. Khadim Nadeem Malik placed on record copy of letter dated 9-71998 issued by the Government of Punjab Local Government and Rural Development Department whereby re-auction had been ordered by the Department. In view of these changed circumstances the W.P. 5867 of 1998 was disposed of as not pressed. Thereafter, said Ali Bahadur filed W.P. 6475 of 1998 making grievance that in spite of the fact that the reauction was ordered by the Department but till date the same has not been conducted. Respondents Nos.7 and 8, namely Abdul Ghaffar and Habibullah Khan (latter is petitioner in W.P. 6813 of 1998) had been allowed to continue with the lease rights through under hand means. A notice was issued to the aforesaid respondent. Habibullah Khan one of the respondents as already mentioned filed Writ Petition No,6813 of 1998 taking exception to the order dated 9-7-1998 whereby the lease rights were cancelled with a direction to hold fresh auction. It is pertinent to mention over here that Ali Bahadur petitioner consistently offered Rs,1,52,00,000 (Rs,40 lacs more than the original consideration for the said lease). He also deposited Rs,10 lacs with the Deputy Registrar (Judi) of this Court apart from Rs,18,22,000 earlier deposited by him as call deposit so as to show bona fide of his stance.
4. ' Learned counsel for the petitioner Dr. M. Mohyuddin Qazi has argued the case at length. He has stated that after the conclusion of the agreement the matter became past and closed and there was no valid reason to interfere with the lease rights. He has also stated that All Bahadur petitioner had got no locus standi as he is stranger to these auction proceedings. The impugned order of cancellation has been passed on 9-7-1998 by the respondent Secretary Local Government without providing any opportunity of hearing. He has further stated that second W.P. 6475 of 1998 of Ali Bahadur is not maintainable as he withdrew his earlier Writ Petition No,5867 of 1998 on 13-7-1997 without securing permission to refile. In support of his contention he has placed reliance upon PLD 1994 SC 141 and PLD 1975 SC 355 to contend that a valid contract cannot be interfered with in the manner stated above.
5. ' Mr. Khalid Alvi, learned counsel appearing for the respondent in W.P. 6475 of 1998 has sought dismissal of Habibullah's W.P. 6813 of 1998 on the ground that he has suppressed the important features. He has pointed out that earlier W.P. 6684 of 1998 titled Habibullah Khan v. Municipal Committee Pakpattan etc challenging this very cancellation of the lease was filed but the same has not been mentioned in the present W.P. No,6813 of 1998 filed by him. He has, further stated that the petitioner Habibullah filed a Civil suit on 10-7-1998 taking exception to the cancellation order dated 9-7-1998 and that too had not been mentioned in this writ petition. He has also stated that the lease rights had been dolled out to Habibullah and others in a surreptitious manner without giving proper publication as required under rules of the Punjab Local Council Lease Rules, 1990. In support of his contention he has placed reliance upon PLD 1961 SC 531, PLD 1973 SC 236 and 1994 SCMR 859.
6. ' Since the case has been argued at quite some length as such it is disposed of as Pacca matter.
7. ' I have considered the contentions and have gone through the contents of these writ petitions. It is admitted that seven days notice as required under Rule 4 (1) of the Punjab Local Council Lease Rules, 1990 was not given. The publication in the Daily Pakistan was made for holding auction on 18- 5-1998 while the .Auction was held on 23-5-1998 i,e, 5 days thereafter. This shows that as required under the aforesaid rules which provided that at least 7 days notice be given was not allowed. In these circumstances it cannot be said A that it was a valid contract as the same was not concluded in accordance with mandate of lease rules. It is an established principle of law that if a method is provided to do a thing it must be done in that way or not at all. In these circumstances the argument of the learned counsel that it was a valid contract is repelled.
8. Writ Petition of Habibullah numbering 6813 of 1998 merits dismissal on another ground that he suppressed in this writ petition the filing of his earlier Writ Petition numbering 6684 of 1998 which was disposed of vide order dated 31-7-1998. The argument of Dr. M. Mohyuddin Qazi that it was directed against the Municipal Committee Arifwala and the Secretary Local Government who had cancelled the lease vide order dated 9-7-1998 was not made a party is devoid of any force. The bare reading of both these Writ Petitions numbering 6684 of 1998 and 6813 of 1998 in juxta position demonstrates that most of the paras. Are identical and d the subject-matter is one and the same in both these cases. Prayer in W.P. 6684 of 1998 was made that the functionaries should be directed not to interfere in the holding of cattle market till 30-6-1999. The argument that in earlier Writ Petition 6684 of 1998 Municipal Committee was made party and in the subsequent Writ Petition No,6813 of 1998 Habibullah Khan added Secretary Local Government as a party would not make any difference when the subject-matter in both these writ petitions is one and the same. Apart from this Habibullah Khan also filed a civil suit before Ch. Shahid Rafique, Civil Judge Pakpattan taking exception to the cancellation order passed on 9-7-1998 by the Secretary Local Government.
9. That too has not been mentioned in W.P. 6813 of 1998. In these circumstances it can be said that the petitioner Habibullah who has suppressed all these aspects in his present Writ Petition No,6813 of 1998 is not entitled to any discre tionary relief under Article 199 of the Constitution of Islamic Republic of Pakistan. The argument of the learned counsel that lease can only be cancelled under rule 8 of the Punjab Local Council Lease Rules, 1990 is also without any force. As already stated the base of the lease under dispute is illegal as it was not publicised in accordance with the mandate given in Rule 4(1) of the Punjab Lease Rules, 1990, as such, in these circumstances the execution of agreement would not give more strength to Habibullah Khan. It is an established principle of law that if a base of an C action is wrong, all the superstructure made thereupon has got no sanctity under the law. Apart from this a reference is also made to sections 153 and 156 of the Punjab Local Government Ordinance wherein supervisory powers have been provided. The sections are as under: "153. Supervision of Local Councils:--Government shall exercise general supervision and control over the local councils in order to ensure that their activities conform to the provisions of the Ordinance."
156. Safeguards.--If in the opinion of Government anything done or intended to be done by or on behalf of a Local Council or Committee is not in conformity with law or is in any way against public interest Government for reasons to be recorded may---
(a) quash the proceedings;
(b) suspend the execution of any resolution passed or order made by the Local Council or Committee: and
(c) prohibit the doing of anything proposed to be done."
10. ' In the case in hand the Secretary Local Government having supervisory powers keeping in view the illegality committed in the conduct of auction has ordered reauction through his order dated 9-7-1998. It is a bounden duty of the functionaries of the Government in whom the property of the Local Council vests under section 26(2) of the Local Government Ordinance, 1979 to utilise the same in the best manner so as to watch its interest. The financial matter of the Local Bodies cannot be put at stake. The functionaries entrusted with the performance of duty are expected to act in an honest and transparent manner so as to protect the interest of the State. In the case in hand Ali Bahadur petitioner is offering Rs,40 lacs more i,e, Rs,1,52,00,000 for the grant of lease right. He earlier took exception to the auction proceedings through W.P. No,5867 of 1998 inter alia on the ground that notice was not published in accordance with Rule 4(1) of the Punjab Local Council Lease Rules, 1990. Said writ petition was withdrawn by him on 13-7-1998 at the statement of learned Additional Advocate-General Mr. Khadim Nadeem Malik that the Secretary through order dated 9-7-1998 had ordered for reauction after cancelling the contract in view of the illegalities committed. In these circumstances it cannot be said that Ali Bahadur writ petitioner could not have filed Writ Petition No,6475 of 1998 after withdrawal of his earlier writ petition. He being a prospective bidder has got every right to challenge the grant of lease right by the functionaries in violation of statutory rules.
11. Reliance in this respect is placed upon M/s Muhammad Safdar & Company v. The Province of the Punjab PLD 1996 Lahore 22, which judgment has also been approved by the Hon'ble Supreme Court.
12. ' In these circumstances the order of cancellation passed on is upheld as it would not only advance the cause of justice but would also be beneficial to the financial interest of the State.
13. ' Accordingly for what has been stated above Writ Petition No,6813 of 1998 filed by the writ petitioner Habibullah Khan is hereby dismissed. While Writ Petition No,6475 of 1998 filed by Ali Bahadur is hereby accepted. It is directed that the fresh auction be held with the base line of Rs1,52,00,000 (Rupees One crore and fifty two lacs) as offered by Ali Bahadur in W.P. 6475 of 1998. It is made clear to him that in case he does not stick to his offer of Rs,1,52,00,000, the deposit of Rs,18,22,000 as call deposit as well as Rs,10 lacs deposited with the Deputy Registrar (Judi) of this Court would be forfeited. There shall be no order as to costs.