' Charging of five percentum amount as security deposit and refund claim deposit charged by the respondent Zila Councils is assailed in these petitions by the petitioners. Except slight variations as to the dates of auction, dates of agreement and deposits, the facts and the law points involved being common in these Writ Petitions i,e, Nos.1160/99, 1755/99 and 1756/99 the same are being disposed of through this common judgment.
2. Collection of Goods Exit Tax (commonly known as export tax) is leased out by the Zila Councils in Punjab through auction. Zila Council Khanewal intended to lease out the collection of tax for the period 1998-1999. The terms and conditions of auction were issued (whit had application all over the Province of Punjab). The petitioners gave the highest bid of Rs, 4,01,50,000 which was accepted and agreement dated 30-9-1998 was executed. This agreement is effective from 11-10-1998 to 30- 6-1999. An amount of Rs,20,00,750 five per cent of the bid money was deposited by the petitioners as security and another amount of Rs,10,00,000 to meet refund claims was deposited, as per terms and conditions of auction.
3. The petitioners have 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,10,00,000 charged for refund claim is not authorized by law and be declared illegal and without lawful authority.
4. At the pre admission stage the respondent council was directed to submit report and parawise comments which have since been filed in one of the petitions. The interim relief on certain conditions was granted to the petitioners as had been granted to some other petitions by another learned Bench of this Court. In this case the respondent/Zila Council Khanewal moved an application for the vacation of the interim order in which notice was issued to the petitioners. Since the points urged in support of the application were germane to the merits of the main case it was considered proper, with the concurrence of the learned counsel for the parties to hear the main petition.
5. Mr. Muhammad Rafique Rijwana, Advocate the learned counsel for the petitioners contends 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,10,00,000 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 are 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 the 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 Ahmad Khan Leghari, President of Pakistan (1996 CLC 1714).
6. Mr. Muhammad Khalid Alvi, Advocate, learned counsel for some of the petitioners has in addition to the above contended that the agreement was a result of duress and pressure as the petitioners had to succumb to the demand of the council as otherwise the agreement could be cancelled. He relies upon section 16 of the Contract Act, Secretary of State v. Krishna Prosad Roy Chaudhri (AIR 1936 Calcutta 774).
7. On the other hand Mr. Ali Hussain Syed, the 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 remedy of revision to the Secretary Local Government Department. He also refers to Rule 19 ibid and clause 27 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. Mian Jamal-urRehman, Advocate who also represents the respondents has cited Millat Tractor 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) to contend that the petitions are not competent.
8. 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 and Rural Department issued instructions to all the Metropolitan/Municipal Corporations and Zila Councils in Punjab vide Notification No, SOV-I(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,6 of the same is that the contractor shall deposit five per cent of bid as security and condition No,36 provided for the payment of Rs,10,26,000 for refund claim (this condition has been incorporated with reference to a Letter No,SOV-1(LG) 2-73/95, dated 31-5-1997 issued by the Government of the Punjab).
9. In the presence of and in pursuance of the conditions of auction which were signed by the petitioners, they participated in the auction. Their highest bid was accepted and letter of acceptance was issued and were asked to deposit five per cent security amount i,e, Rs, 2,00,750 and Rs,10,00,000 for refund claims. This letter which was issued on 10710-1998 was also signed by the petitioners in token of its acceptance. These payments were made by the Contractor and agreement signed. Clauses (2), (3) and (28) of the agreement also contemplate the security deposit of five per cent. Likewise under clause (30) it is the obligation of the contractor to deposit Rs,10,00,000 for refund claims. This was a pure and simple agreement signed after due understanding of the terms of the same of their own violation and the contention of duress or coercion, now after a long time when it is near completion of its terms is merely an afterthought and cannot be entertained.
' In Kodoth Ambu Nair v. Echikan Cherekere Kelu Nair (AIR 1933 PC 167) it was observed as follows:---
10. 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 bilateral agreement entered into by them with full awareness and open eyes and are 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 petitioners has no real substance and the cases cited by them have no relevance on the point in issue.
11. 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 decrees, 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."
"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.
12. 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 occasion that even instructions contained in memoranda 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).
13. Further, these instructions and the other instructions dated 31-5-1997 (concerning the refund claims) were incorporated in the terms and conditions of auction and also the agreement signed and executed by the contractors. The binding force of the same, therefore, cannot be challenged or avoided by them.
14. 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 petitioners having entered into an agreement should in all fairness follow and fulfill its terms. It is the command of God Almighty as ordained in the Holy Qur'an. {{ARABIC TEXT}} "0 ye who believes; fulfil all obligations."
' Since the petitioners seek to avoid their contractual obligation their conduct does not entitle them to equitable relief.
15. 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 Lah. 68) and M/s Sandal Fibres Limited v. Government of Pakistan and 7 others (PLD 1992 Lah. 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. Reliance placed on the case of 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) is misplaced inasmuch as in that case the respondents had purported to act unilaterally for cancelling of the agreement on wholly unattendable grounds. The context and circumstances of that case were entirely different and, thus, has no application to this case.
16. In the light of the view which I am persuaded to take in these cases I do not consider it necessary to dilate upon the other contentions of the learned counsel for the parties as I find that these petitions are without any merit.
' In view of the above statement of facts and law these petitions are dismissed, leaving the parties to bear their own costs.