' SH. IJAZ NISAR, J.---Leave to appeal is sought in these petitions against the order, dated 25-3- 1998, passed by a Division Bench of the Lahore High Court, Multan Bench, in Intra-Court Appeals Nos.36 and 37 of 1998, upholding the judgment, dated 9-2-1998, of the learned Single Judge, whereby the Constitutional petitions filed by Mumtaz Ahmad and Muhammad Nasir Azhar, the petitioners herein, were dismissed.
2. The facts, in brief, are that Mumtaz Ahmad petitioner was awarded lease for the collection of goods exit tax of Zila Council, Sahiwal, for the year 1997-98, and the work order was issued to him on 22-9-1997. He was called upon to make payment of the bid money, salaries of the employees and other allied expenses for the period w.e.f, 1-7-1997 to 21-9-1997. He challenged the same through Writ Petition No,9383 of 1997 on the ground that since the work order had been issued to him on 22-9-1997, and prior to it, the collection had been made by the Zila Council, he was not liable for the said payment.
3. In Intra-Court Appeal No,37 of 1998, arising out of Writ Petition No,9385 of 1997, Muhammad Nasir Azhar petitioner had been awarded lease for the collection of goods exit tax of Zila Council, Pakpattan Sharif, for the year 1997-98, and an agreement to that effect was executed between the parties on 23-9-1997. The Chief Officer, Zila Council, Pakpattan Sharif, issued a notice to him to deposit the lease amount and other dues w.e.f, 1-7-1997 to 24-9-1997. The petitioner challenged the said demand on the same ground, as taken by Mumtaz Ahmad petitioner, and failing to find any favourable response he filed Writ Petition No,9385 of 1997 in the High Court, which was taken up alongwith Writ Petition No,9383 of 1997, and was dismissed by a learned Single Judge in Chambers vide judgment dated 9-2-1998.
4. Feeling aggrieved, Mumtaz Ahmad and Muhammad Nasir Azhar petitioners filed Intra-Court Appeals in the High Court, which were dismissed together vide the impugned order on the grounds that since there was an arbitration clause in the agreement executed between the parties, as per Rule 19 of the Punjab Zila Council Goods Exit Tax, the petitioners, if felt aggrieved, should have recoursed to the said provision, and further that since the matter in dispute was of a contractual nature involving question of fact which required a detailed inquiry, the Constitutional jurisdiction was not invocable. The operative part of the impugned order is as under:-- '"Here in both these cases, the appellants executed agreement on their own volition, without any outside interference and a clause is provided therein that in case of any dispute between them, the matter would be referred to the Commissioner for Arbitration. Similarly Rule 19 of the Punjab Zila Council Goods Exit Tax also provides as under:- '19. Arbitration.--(1) Any dispute between the Zila Council and the lessee with regard to any provision of the agreement, or any other matter arising out of the lease shall be decided through arbitration under the Arbitration Act, 1940.
(2) The Commissioner shall be the sole Arbitrator for this purpose and his decision shall be final and binding on the parties.'
' The argument of the learned counsel that the Commissioner was party to the negotiation when the amount of lease money was enhanced in both these cases would not be of any assistance to the appellants as the respective agreements which are the basis of the collection of goods exit tax were executed by the Administrators. The appellants themselves had committed that in case of any dispute the matter would be referred to the Commissioner for arbitration. Even otherwise, the matter under dispute is of a contractual in nature involving resolution of disputed question of facts for which a detailed inquiry is required as such in these circumstances, the Constitutional jurisdiction would not be attracted. Learned counsel for the appellants have failed to point out any illegality in the impugned order warranting interference. Accordingly these Intra-Court Appeals are dismissed in limine."
5. Hence, these petitions. It is contended on behalf of the petitioners that since there was violation of the statutory rules and the principle of natural justice, the writ petitions were competent. Further, that since the lease rights had been granted for a period of about 9 months, the petitioners were entitled to the proportionate reduction in the lease amount, and that the petitioners were in no way concerned with the exit tax collected by the officials of the respondents from 1-7-1997 till the date of delivery of the work order to the petitioners and hence they could not be asked to pay anything to the respondents in respect of that period.
6. Learned counsel for the respondents have seriously contested the petitions and stated that in view of the presence of Arbitration clause in the agreement the writ petitions were not maintainable in view of the law laid down in Raja Muhammad Ramzan and 21 others v. Union Council, Bajnial and another (1994 SCM R 1484). It was further contended that since alternate remedy of appeal, as provided by Rule 14 of the Local Council (Lease) Rules, 1990, was available to the petitioners, they could not invoke the Constitutional jurisdiction without availing of the same. In the case of Mumtaz Ahmad petitioner it was urged that since in pursuance of the demand notice he had paid the disputed amount he was, thus, estopeed from challenging the same.
7. The petitioners had voluntarily executed the lease agreements without any duress, compulsion or threat and had not only agreed to pay instalments for the months of July, August and September, 1997 alongwith other dues, but had actually deposited the same at the time of assuming work under the lease agreements. They were, therefore, not justified to take exception to those payments at the fag-end of the lease period. Anyhow, if they had any grievance, they could have invoked the Arbitration clause and referred the matter to the Arbitrator or file appeal under the relevant rules, but in view of the availability of these remedies, they could not have invoked the writ jurisdiction. Hence, the Intra-Court Appeals filed by the petitioners were rightly dismissed and in consequence these petitions are dismissed.
Before parting, we deprecate the conduct of the Local Councils in not timely granting the leases from the beginning of the financial year, they keep on postponing it on one pretext or the other till the expiry of a period of 2/3 months and then require the contractors to pay lease money even for the period for which they had been themselves collecting the taxes resulting in litigation. A lot of complications and litigation can be avoided if the Local Councils finalize the matter well before the date of the actual commencement of the lease period, and, if for any reason it is not possible, the contract should be awarded for the period during which a contractor is actually to make collection of the taxes.