' Charging of five percentum amount as security deposit and refund claim deposit charged by the respondent Zila Council is assailed in this petition by the petitioner.
2. Collection of Goods Exit Tax (commonly known as export tax) is leased out by the Zila Councils in Punjab through auction. Zila Council Rajanpur intended to lease out the collection of tax for the period 1998-99. The terms and conditions of auction were issued. The petitioners gave the highest bid of Rs,2,75,00.000 which was accepted and agreement was executed. This agreement is effective from 1-10-1998 to 30-6-1999. An amount of Rs,13,75,000 five per cent of the hid money was deposited by the petitioners as security and another an amount of Rs,2,00,000 to meet refund claims was deposited, as per terms and conditions of auction.
3. The petitioner has challenged the amount of security deposit and the amount of refund claim on the ground that Rule 16(3) of Punjab Zila Council (Export Tax) Rules, 1990 empowers the council to charge security deposit a sum equal to one percentum of the amount of the bid only and any other amount charged/claimed in excess of the same is illegal and without lawful authority and that the amount of Rs,2,00,000 charged for refund claim is not authorized by law and be declared illegal and without lawful authority.
4. Messrs Muhammad Khalid Alvi and Abdul Aziz Khan Jaskani, Advocates, learned counsel for the petitioner contend that Rule 16(3) authorises a council to charge a. Sum equal to one percentum of the amount of bid as security for the performance of obligations and instead charging of five percentum by the respondents was illegal. It is further contended that there is no authority in law to charge any sum for refund claims and therefore, the amount of Rs,2,00,000 has illegally been charged by the council. In order to meet the objection as to the competency of the writ petition it is contended that the remedies of appeal, revision or reference to arbitration which lie before the Commissioner of the Division ate neither adequate nor efficacious and/or illusory in nature. It is contended that even in matters of contract writ jurisdiction can be invoked in appropriate cases.
Reliance is placed. On Messrs Wak Orient Power and Light Limited through Chief. Executive, Lahore v.
Government of Pakistan, Ministry of Water and Power, through Secretary, Islamabad and 2 others (1998 CLC 1178) for this purpose. It is further contended that although the petitioners agreed to pay the aforesaid amount yet they are not estopped to challenge the same as the same was contrary to law. He invokes the well-known principle that there can be no estoppel against statute.
Reference has been made to PLD 1993 SC (AJ&K) 24 and Mian Muhammad Nawaz Sharif v. Sardar Farooq Ahmed Khan Leghari, President of Pakistan (1996 CLC 1714).
5. On the other hand, Mr. Fayyaz Ahmed Shaheen, Advocate, learned counsel for the respondents has pleaded the incompetency of the writ petition on the ground that Rule 14 of the Punjab Zila Council (Export. Tax) Rules, 1990 provides an appeal to the Commissioner whereas Rule 15 (ibid) provides of revision to the Secretary Local Government department. He also refers to Rule 19 (ibid) and clause (16) of the agreement to contend that any dispute arising between the parties is referable to an arbitrator who is the Commissioner of the Division nominated in the agreement itself. It is contended by him that since the deposit made by the petitioner is part of the conditions of auctions and the agreement signed by the petitioners, therefore, the writ petition is not competent in such-like matters. On merits of the case his contention is that by instructions, dated 27-7-1998, the Government of the Punjab had enhanced the security amount from one per cent. To 'five per cent. And having accepted the terms of the auction and the agreement the petitioners cannot object to the same.
6. The lease for collection of Goods Exit Tax relates to, the, period 1998-99. The admitted position obtaining in the matter is that. Before the auction of the lease the Government of the Punjab, Local Government Rural Development Department issued instructions to all the Metropolitan/ Municipal Corporations and Zila Councils in Punjab vide Notification No,S0V-1(LG)2- 5/97, dated 27-7-1998 which provided inter alia in clauses (viii) and (ix) as follows:- "(viii) It should also be specially mentioned in the terms and conditions of auction and agreement deed that the amount equal to the average amount per year calculated on the basis of refund claims received in the Zila Councils during the years 1996-97 and 1997-98 shall be paid by the contractor in advance before taking possession of the contract for settling the refund claims.
(ix) Five per cent. Of the bid should be obtained as security from the contractor of Goods Exit Tax before handing over the possession of the contract. This security should be refunded after 6 months, of the expiry of the lease period."
The conditions of auction were accordingly issued by the council. Condition No,18 of the same is that the contractor shall deposit five per cent. Of bid as security and condition No,9 provided for the payment for refund claim.
' In the presence of and in pursuance of the conditions of auction which were signed by the petitioner, he participated in the auction. He accepted these conditions and also signed the same.
These payments were made by the Contractor and agreement signed. Clause 18 of the agreement also contemplates the security deposit of five per cent. Likewise, under clause (9) it is the obligation of the Contractor to make deposit for refund claims. This was a pure and simple agreement signed after due understanding of the terms of the same of his own volition.
8.The Contractors having full knowledge of the terms and conditions participated in the auction, accepted the same, paid the amount and signed the agreement. This was a bilateral agreement entered into by him with full awareness and open eyes and is bound by the same. There is thus no question of applicability of principle that there cannot be an estoppel against statute. There is no violation of any statute attracted in this matter. Rule 16 of the Punjab Zila Council (Export Tax) Rules, 1990 indeed enables a council to lease out by public auction the collection of Goods Exit Tax on such terms and conditions and in such manner as may be specified by the Government. Therefore, the contention of the learned counsel for the petitioner has no real substance.
9.Principle which gets attracted to a situation like this is stated by M. Munir in Principles and Digest of the Law of Evidence Volume II at page 1245:- "Estoppel by accepting benefit under a judgment, order, decree, agreement, or other arrangement.- When a deed confers on a person certain benefits burdened with certain obligations, that person has the right to elect whether he would take the benefits under that deed or not. If he does elect to take the benefits under the deed, he must also bear the burdens created thereby. The law does not permit him to retain the benefits and to repudiate the burden."
' In Kodoth Ambu Nair v. Echikan. Cherelcere Kelu Nair (AIR 1933 P.C. 167), it was observed as follows:- It is a well-accepted-principle that a party cannot both approbate and reprobate. He cannot to use the words of Honeyman, J.. In Smith v. Bakar 8 CP 350: 'at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled to the footing. That it is valid, and at another say it is void for the purpose of securing some further advantage."
The contractor having elected to accept the terms and conditions of the auction and signed and executed the agreement is bound by the same. He cannot repudiate or resile therefrom.
10. The contention of the learned counsel that rule 16(3) fixes one per cent. Of the bid as a security for performance is also not tenable for the reason that the Government of the Punjab had before the auction for the lease period 1998-99 issued instructions on 27-7-1998, that the security amount shall be five per cent. Of the bid money. These were instructions of general nature applicable to all Metropolitan/ Municipal Corporations and Zila Councils in Punjab. Such like instructions or memoranda have the status and force of law as laid down in Faiz Ullah. Khan v. Government of Pakistan (PLD 1974 SC 291) where it was observed as follows: "This Court has stated on several occasions that even instructions contained in momoranda issued by the appropriate Government could be regarded as being in the nature of statutory rules provided they are expressed with precision and yet possess generality so as to be capable of application to a large number of cases."
' The same principle was reiterated in Muhammad Asghar v. Safia Begum (PLD 1976. SC 435).
11., It may be observed that writ jurisdiction is essentially a remedy in equity and discretionary in nature. Grant of relief in writ jurisdiction is always dependent upon the conduct of a petitioner in a particular case. The petitioner having entered into an agreement should in all .Fairness follow and fulfil its terms. It is the command of God Almighty as ordained in the Holy Qur'an. {{ARABIC TEXT}} "0 you who believe; fulfil all obligations."
' Since the petitioners seek to avoid his-contractual obligation, his conduct does not entitle him to equitable relief.
12. The object of the petition clearly appears to be to avoid contractual obligations. It is settled law that contractual obligations cannot be enforced through writ jurisdiction. See Millat Tractors Employees Trust and 2 others v. Government of Pakistan through Secretary, Ministry of 'Labour, Manpower and Overseas Pakistan, Islamabad and 6 others (PLD 1992 Lahore 68) and Mts. Sandal Fibers Limited v. Government of Pakistan and 7 others (PLD 1992 Lahore 400). If writ jurisdiction cannot be invoked for the enforcement of contractual obligations, likewise, it cannot be exercised to permit the avoidance of contractual obligations.
' In view of the above statement of facts and law this petition is dismissed, leaving the parties to bear their own costs.