MIAN ALLAH NAWAZ, J.- This judgment will govern seven Constitution petitions namely Writ Petition No. 16154. 17067. 17068, 17069 of 1993. 8245 and 8246 of 1994 and 3350 of 1995. All of these petitions arise out of order passed by learned Commissioner Sargodha Division. Sargodha/Appellate Authority dated 19.10.1993. Dr. Mohay-ud-Din Qazi Senior Advocate entered appearance in Constitutional Petition No. 16154/93 and maintained that his arguments be considered in all the remaining petitions. The learned counsel for the parties, also, agreed that the aforesaid petitions are inter-connected and assail the vires of order of Commissioner dated 19.10.1993 and so be disposed of through single judgment. All these petitions, therefore, are being adjudicated upon through common- judgment with the consent of the learned counsel for parties.
2. The facts, which form the background of these petitions are these: that Sargodha Municipal Corporation constructed a Plaza in accordance with plan sanctioned vide a Resolution No. 54 dated 24.5.1998. This Plaza was to have two stones. On the ground-floor, there were thirteen shops.
However, the plan was changed and 62 shops were built on ground-floor. Municipal Corporation, on account of pecuniary constraint, was not able to build first-floor. Confronted with this situation.
Corporation invited the prospective investors to come into the field am1 incest in die construction of first-floor. Resultantly, the first-floor/roof was detruded into seven, portions and Corporation got an advertisement published in press wherein the parties were called to seek lease of the said portions of first-floor/roof through open auction. This auction was, so. Held on 20.10.1991 and three portions were leased to Khawaja Muhammad Umar Farooq, Mst. Robina Yasmin and Raja Mehboob Elahi/petitioners in Writ Petition No. 16154793.
3. As the offer of petitioner was highest, the same was accepted; the normal contract was executed between the parties on 24.12.1991. According to this contract, the petitioners were to construct a hall at the site by spending about 14.70.857 - rupees (according to estimate prepared by Municipal Engineer and sanctioned by the Corporation; that the rent of so leased premises, was 7,000/- rupees p.m; that petitioners were to pay an amount of Rs. 3,500/- as monthly rent and remaining half was to be deducted from the expenses incurred on construction, it is necessary to mention. Over here that petitioner was also tenants in shop No. 15.16 and 21 on the ground-floor and the site, leased out. To petitioners was on these shops. Unfortunately, one Ilyas as Vice Chairman of Anjuman Tajran, moved an application on 20.10.1993 alleging therein that he was the Vice Chairman of Anjuman-e-Tajran; that roof of ground-floor was being leased out in violation of resolution No. 54: that the occupants of ground floor were entitled to get the space over their shops without any payment. This application came up for hearing before, ( commissioner Sargodha Division on 10.3.1993 and the same was allowed by the said Authority on 19.10.1993 in the following terms:- "it is a fact that the House of the Municipal Corporation had taken a certain decision in its resolution number 54 which was also placed before the Commissioner in a meeting and had his endorsement also. Clearly, any departure from the decision taken by the House should have been possible only with the prior approval of the House which was admittedly not obtained. Moreover, approval of the auction did not t lie within the authority of the Mayor. According to rule 3 sub rule
(b) of the Punjab Local Councils (Lease) Rules, 1990, it is in the meeting of the House that a local council may either accept a bid or reject the same. The auction in case of first three sites was conducted on the 20th October, 1991 and in case of the other three on the 16th February, 1993. The Anjuman Tajran submitted their application on 10th March, 1993. The first auction was impugned after considerable delay. Both the orders are clearly without jurisdiction and the limitation does not apply in filing an appeal against these orders.
As regards the prayer of Anjuman Tajran to consider their case for grant of lease rights of the first floor sympathetically, it is clear from the record that they have no claim at all. At no stage were they given any indication that they would have any preferential rights in the allotment/leasing out of the shops on the first floor.
Regarding the auction conducted by the Mayors on two occasions, as has been stated above, both the orders are without jurisdiction and non maintainable and are set aside. The Corporation should proceed in the matter in accordance with resolution number 54 passed on the 24th May. 1988 or in case it . Feels that it is in its interest to make any modification, it should first get the approval of the House or the Authority which has these powers. In any case, the outcome of the open auction has to be placed before the House for a final decision to accept or reject the bids in accordance with the Punjab Local Councils (Lease) Rules, 1990."
This is how these Constitutional petitions have come to this Court.
4. The learned counsel for petitioners,, in support of this petition; inter alia, urged as follows- Firstly; this is the relevant time, the Commissioner was Administrator of Municipal Corporation Sargodha; that he was appointed so under Notification dated 15.10.1983: that the decision passed by the Administrator Municipal Corporation, so, could not be scrutinized by him as an appellate authority.
Secondly: That the application had been filed by Mr. Ilyas who was Vice Chairman of Anjuman Tajran; that he had participated in auction; that his offer was on the lower side and so was rejected. On the strength of the above circumstances, it was canvassed that Mr. Ilyas was so precluded from taking any exception to acceptance of offer of petitioners.
Thirdly; that the agreement has been executed on 24-10.1991; that petitioners had deposited an amount of Rs. 50,000/-, so, it was highly oppressive to give effect whimsical plea of Mr. Muhammad Ilyas.
Fifthly: that the Punjab Local Councils (Lease) Rules, 1990 were not applicable to facts of the case in hand. Learned A.A.G, who entered appearance, on behalf of official respondents, did not support the order. According to him, the Commissioner had no jurisdiction to treat an application as an appeal and proceed to allow it. At this stage, Syed Jamshaid Ali, senior Advocate was asked to help the Court as to whether the Commissioner Sargodha Division Sargodha, who was at the relevant time Administrator Municipal Corporation, could hear appeal against the order .Of Administrator.
The learned counsel contended that he could not. According to him he was the Administrator of Municipal Corporation, so was custodian of its interest and could not function as an appellate authority. On the principle of bias, he placed reliance upon K.R. Bhaskarananda v. State of Karanataka (AIR 1990 Kant, 181) incorporated in Cases and Materials on Indian Administrative Law by M.P. Jain 1994 Edition Volume-1. The learned counsel for the contesting respondents, however, supported the impugned order. He, however, contended that the Commissioner, should have referred the application of Anjuman Tajran to Provincial Government for its decision within the ambit of Section 156 of Punjab Local Government Ordinance, 1979.
5. 1 have heard the learned counsel for parties at length and attended to their rival contentions. The first point, to be examined, is whether the Commissioner Sargodha Division, who was at the relevant time Administrator Municipal Corporation Sargodha, was qualified to hear the application moved by Anjuman Tajran. This point is free from difficulty. In the first place, the learned counsel for petitioners, learned A.A.G, and even learned counsel for the contesting respondents argued that principle of bias was attracted to the facts and circumstances of the case and Commissioner had no authority to hear the application filed by Anjuman Tajran as appeal, this approach of learned counsel, I feel, was/is highly laudable and in consonance with the rule propounded in Mubarik Bhatti v. Fayyaz Ali Khan (PLD 1963 Lah; 8). In this case, Mr. Fayyaz Ali Khan was the Chairman of the Screening Committee who had recommended the removal of employee. His appeal was heard by Mr. Fayyaz Ali Khan as an Appellate Authority and was dismissed. This matter came before the Division Bench of Erstwhile West Pakistan High Court. I was held by his lordship Sardar Muhammad Iqbal, J (as he then was) speaking for the Bench" the hearing of an appeal by an Authority who has himself participated in original proceeding, is contrary to law."
In another precedent titled King v. Salford Assessment Committee Exparte Odgen < 19371-2-K B. 1; it was held:- "An officer of rating authority, whose duty was to attend the meeting of the ratings committee for the purpose of taking minutes of their proceedings, and so would obtain knowledge of all the transactions of the rating authority was appointed by the Assessment committee for that area acting clerk to the committee and would have to advise the assessment committee upon matters of procedure. The assessm ent committee would have to consider an objection by the rating authority to a proposal to amend the valuation list. An application was made to prohibit the assessm ent committee from acting clerk to the assessment committee and also from acting upon a resolution directing him to remain in attendance on the committee during the hearing of the objection to the appellant proposal to amend the valuation list and the deliberations of the Committee thereon on the-ground that if the officer were present at the meeting of the assessm ent Committee when this objection and proposal were being heard, and be impossible to hold that it was a case where justice appeared manifestly and undoubtedly to be done.
Similarly in case Rex v. Essex Justices is was observed:- "the question therefore is not whether in this case deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the I criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice."
In Muhammad .Shaft v. Mauj DinS and R.C. Ere. His lordship A.S. Salam, J (as he then was) said:- Thus, it is quite clear that, even where there can be a suspicion that justice was not being done, the proceedings are liable to be quashed. In the case of R. V. East Karrier Justice QBD 144 whereafter the Justices had retired to consider the guilt and had come to the conclusion of finding' the accused guilty, the clerk obtained an information from the police officer and informed the Justices in the retiring room for considering the question of sentence, on account of previous conviction, the final order was challenged by means of an application in the nature of certioral. Lord Goddard. C.J.
Observed that.
"It has been said over and over again that decision must be the decision of he justice and not the decision of the Justice and their Clerk, still less the decision of the clerk, and if the clerk retires with the justices, people will inevitably form the conclusion that the justices' clerk may influence the justice or may take some course which it is for the justice alone to take "Devlin, J, observed that" I should like to state that I believe to be the principle on which the Court is acting. We are not dealing with a case of actual injustice. If we were, that would be the end of the matter, and clearly the conviction would be quashed. We are dealing with an infringement of the rule that justice must not only be done, but must also manifestly appear to be done and, accordingly, we are dealing with matters of important not only that justice should be done, but also that it should be seen to be done, and that a person who has been found guilty by the justices should know there has been no actual in justice."
6. Applying these rules to facts and circumstances of the case in hand, it is quite clear that the principle of Bias was fully attracted to instant cases. Clearly, the Commissioner Sargodha Division was, at the relevant time, Administrator Municipal Corporation; that the term of elected Corporation had been curtailed and the Commissioner had been appointed as Administrator and he was running its affairs. The interest of Municipal Corporation was the interest of the Commissioner. He was, therefore, not qualified to function as appellate authority against the decision/order of Administrator Municipal Corporation. On this view of the matter. I have no option but to accept all these petitions. The impugned order dated 19.10.1993 passed by Commissioner.
Sargodha Division is declared to have been passed without any lawful authority and so is quashed.
These petitions, so, are allowed with the grant of requested reliefs. In result the impugned . The application filed by Muhammad Ilyas, shall be deemed to be still pending adjudication. The Commissioner. Sargodha Division. Sargodha shall send the aforesaid application to the competent authority under Section 156 of ti Local Govt. Ordinance. The competent authority shall determine the appl Muhammad Ilyas, after affording opportunity of hearing to all the concerned parties and that too in consonance with the law. Since these petitions have succeeded on the doctrine of bias, there shall be no order as to costs.