' This judgment shall govern Writ Petitions Nos. 9383 of 1997, 9385 and 10107 of 1997 as similar question is involved in all these writ petitions. In response to the order of this Court, the respondents entered appearance and have also submitted reply raising certain preliminary objections. I have heard the learned counsel for the parties at some length so these petitions are being disposed of as notice cases.
2. Facts relevant for the disposal of these writ petitions are that an advertisement appeared in daily 'Jang' on 12-6-1997 for leasing out the rights to collect Goods Exit Tax for Zila Council, Sahiwal through auction for the year 1997-98. The case of petitioner in Writ Petition No,9383 of 1997 is that the lease period started from 1-7-1997 and to expire on 30-6-1998. The auction could not be made on the date proclaimed in the newspaper. Further, advertisement was given on 23-6-1997. After number of advertisement details of which are mentioned in reply submitted by the respondents due to Pool of the Bidders the Exit Tax could not be auctioned but in every public notice the lease period was published as from 1-7-1997 to 30-6-1998. Ultimately on 12-9-1997 the petitioner in Writ Petition No,9383 of 1997 participated in the auction and being highest bidder was declared successful. The petitioner further participated in negotiation proceedings on 21-9-1997 and having been declared as highest bidder @ Rs,2,75,00,000 signed the bid sheet but as this amount was less from the lease amount of previous years, therefore, in pursuance of the latest policy of the Government, the matter was referred for approval to the Committee constituted for* this purpose.
After negotiation between the petitioner and the said committee the amount of lease was enhanced to Rs,2,90,00,000 as final settlement and the grant of lease was accorded in his favour vide letter dated 22-9-1997. An agreement containing the terms and conditions of the lease was duly executed between the parties and work order was issued vide Letter No,5265/T, dated 22-9- 1997 authorising the petitioner to collect the tax accordingly. The grievance of the petitioner is that since the auction was for 12 months, but due to grant of approval and execution of the lease agreement the delay was caused for which the petitioner could not be held responsible.
3. It is contended on behalf of the petitioner that during the interregnum period i.e. From 1-7-1997 to 21-9-1997, the Staff of Zila Council recovered the tax through its own agency by departmental collection. The lease rights were granted to the petitioner from Z2-9-1997, when the lease became operative after issuance of work order and the execution of the lease agreement. The respondents were not ready to grant lease right for complete 12 months from 22-9-1997 to 21-9-1998. The lease right for a period of only 9 months and 8 days have been granted to the petitioners so he is entitled to reduction in the -lease amount according to lease period. It is further contended that the petitioner is not legally bound to pay the lease amount with retrospective effect as during the said period the lease was not granted to him and the respondents cannot demand the lease installments for the months of July, August and September, 1997. Consequently the petitioner is not liable to pay Income Tax @ 5% and also the Education Cess for the said period. Likewise the salary of the Staff of respondent for the said period is not recoverable from the petitioner as they have not served and performed duties under the supervision and control of petitioner during the aforesaid period. It is further contended that the demand notice issued by the respondents for the payment of lease amount and other dues with effect from 1-7-1997 to 21-9-1997 vide Letter No,5265/T, dated 22-9-1997 is in clear violation of the Punjab Local Councils (Lease) Rules, 1990. The petitioner had also submitted a representation against the said demand of Rs,94,96,780 but the respondents have not acceded to his request.
3-A. The learned counsel appearing on behalf of the petitioner in Writ Petition No,9385 of 1997 has argued that the lease right for 12 months were auctioned for a sum of Rs,15,200,000 (which amount was settled through negotiation) for the period from 1-7-1997 to 30-6-1998, but the lease rights have been granted for a period of 9 months and 8 days with effect from 23-9-1997 to 30-6-1998.
The petitioner through Letter No,858/T, dated 3-9-1997 was directed to deposit a sum of Rs,73,10,132 as Rs,22,00,000 were already deposited with Zila Council through call deposit dated 2-8-1997. The above said amount as directed by the respondent was deposited by the petitioner and agreement was duly executed between the parties on 23-9-1997. The respondent through Letter No,885-90/T, dated 25-9-1997 issued work order authorising the petitioner to collect the tax accordingly, The learned counsel contended that no departmental recovery can be made for supervision and control of respondents 'from 1-7-1997 to 21-9-1997, which is to the extent of Rs,52,10,132 and this amount could not be credited/adjusted into the account of petitioner. As the lease can only be operative from the date of execution of the lease agreement as envisaged in Rule 7(5) of Local Council (Lease) Rules, 1990 and the lease amount as well as other amount can only be recovered from the date of execution of lease agreement and issuance of the work order. In support of his arguments the learned counsel has relied on 1997 CLC 474 and 1997 CLC 673. The learned counsel further contended that the impugned notice is contrary to the Statutory Rules. The petitioner has admitted the execution of agreement deed, but contended that the arbitration clause in the agreement is not binding due to the fact that the Commissioner who was member of the Auction Committee and the grantor of the lease could not become Judge in his own cause and the Arbitration Clause has become redundant. The learned counsel further contended that section 26- A of the Local Council Ordinance, 1979 pertains to the curtailment of term of office. The learned counsel for petitioner has referred to PLD 1981 SC 553 to contend that writ petition is not barred even if the Arbitration Clause is provided in the agreement. The learned counsel has relied on PLD 1997 Lah 456, 1991 MLD 2191, 1992 CLC 335 and 519 and 1989 MLD 1999 to contend that this Court is competent to decide the writ petition in view of the breach of Statutory Rules.
4. Learned counsel for respondents have raised as many as five preliminary objections in addition to reply on merits. It is contended that in view of clauses 2 and 19 of the agreement which specifically lays down that in case of any dispute between the parties the Commissioner, Multan Division, Multan shall be sole arbitrator. He has referred Rule 19 of the Goods Exit Tax Rules, 1990 which is reproduced hereunder:--- "Arbitration
(1) A dispute between Zila Council and the lessee with regard any performance of the agreement or any other cause arising out of lease shall be decided through arbitration under Arbitration Act.
(2) The Commissioner shall be sole arbitrator for this purpose and his decision shall be final and binding on the parties."
The learned counsel contended that in view of above said provisions and Arbitration Clause of the agreement the writ petitions are not maintainable. Reliance is placed on 1994 SCMR 1484 and 1990 CLC 1639. It is further contended that according to Rule 14, the appeal is provided and without exhausting that remedy the Constitutional jurisdiction cannot be invoked. It is further contended that the petitioners according to their own conduct are estopped to file the writ petitions as the petitioners voluntarily accepted the terms and conditions of the agreement according to which the lease period as formally advertised was from 1-7-1997 to 30-6-1998 but the petitioners having signed the agreement deed, accepted the terms and conditions, at this stage are not entitled to challenge the same. The learned counsel further submitted that the petitioners participated in the auction proceedings after the due acceptance of terms and conditions of the same and have taken the lease and entered into agreement with respondent No,1 on the basis of said agreement the petitioners have paid all dues from 1-7-1997 upto November, 1997 and have also got credited/adjusted the amount collected by Zila Council in their name, therefore, they are not entitled to raise any objection at this stage. The learned counsel for respondent has pointed out about the lease period of goods exit tax for the year 1997-98 from 1-7-1997 to 21-9-1997 and submitted that the petitioners were served with the impugned notice dated 22-9-1997 to deposit the dues and the petitioners by adjusting the departmental recovery paid the amount and in this way have voluntarily accepted the lease period and now they are estopped to challenge the same.
Since the agreement was executed with free consent of the petitioners, therefore, there was no question of any coercion and duress and having accepted the lease period have already paid the dues from 1-7-1997 to November, 1997, so the question of non-payment of any amount does not arise.
4. I have heard the learned counsel for parties at some length. So far as Writ Petition No,10107 of 1997 is concerned the petitioner filed an earlier Writ Petition No, 9783 of 1997, which was disposed of vide order dated 10-10-1997 at the request of the petitioner as the appeal filed by the petitioner was already pending before the Commissioner, Multan, Division, Multan and the petitioner was directed to appear on 16-10-1997 at 11-00 a m. It was further directed that the Commissioner shall decide the appeal but the auction proceeding shall not be finalized till 16-10-1997. The learned counsel for respondent has submitted that the above said appeal was dismissed as withdrawn. The petitioner at the time of arguments before the Commissioner submitted an application for arbitration and requested that the above said appeal may, be dismissed as withdrawn and both appeals as per request of petitioners were dismissed as such. Thereafter, the Commissioner after due consideration of the point raised before him announced the award. In compliance of order/award dated 16-10-1997 passed by the learned Commissioner, the petitioners paid the disputed instalments prior to the execution of lease agreement, which was executed on 20-10-1997. In the light of their above conduct the petitioners are estopped to file any writ petition. No question of coercion or threat arises as the agreement was executed out of free consent of the petitioners. The terms and conditions of the agreement are self-explanatory and the petitioners, cannot be allowed to blow hot and cold at the same time. Having withdrawn their earlier writ petition and also having accepted the arbitration clause and also having got award/order from the Commissioner this writ petition is not maintainable on the principle of res judicata. If at all the petitioners are aggrieved by the execution of the agreement they can agitate this matter before competent and proper forum. With this observation this writ petition stands disposed of.
5. So far as the other two writ petitions are concerned since the judgments referred to above by the learned counsel for petitioner are distinguishable as in both the cases 1997 CLC 747 and 1997 CLC 673 the point of jurisdiction was not raised and never considered, therefore, with utmost respect the above judgments are not helpful to the petitioners. The arguments advanced by the learned counsel for respondent that the contract cannot be enforced in writ jurisdiction have got much force. A specific arbitration clause has been provided in the agreement and if the petitioners have got any grievance against the contents of the said agreement they can avail their remedy before the proper forum as it needs a detailed inquiry. It is further pointed out that in view of arbitration clause contained in the agreement the petitioners are estopped to challenge the same in writ jurisdiction. As the agreement was voluntarily signed by the parties and there was no duress, compulsion or threat from any side the agreement is enforceable under law. The conduct of the petitioners shows that they voluntarily participated in the auction proceeding and having accepted it they cannot wriggle out from the same. The parties are bound by the agreement and unless the remedy provided under the agreement as well as under the Statute is exhausted the parties cannot be allowed to agitate the same in writ jurisdiction as contractual obligation cannot be enforced by invoking Constitutional jurisdiction of this Court. I am fortified by the judgment of the Hon'ble Supra= Court of Pakistan in Shameer v. Board of Revenue, etc. (PLD 1981 SC 604).
Relevant portion is reproduced below: "We do not see any merit in these submissions. If the petitioner was seeking to enforce a contractual obligation, then the proper remedy for him to invoke the jurisdiction of a Civil Court by means of a regular suit."
' In case Pakistan Mineral Development Corporation Ltd. v. Pakistan Water and Power Development Authority and others (PLD 1986 Quetta 181) it has also been held as under: "The petitioner should have contacted the Electric Inspector for resolving the dispute regarding the Tariff which was applicable in this case. This is an obligation arising out of the contract and cannot be enforced by means of a Constitutional petition. On this score also the present petitioner cannot invoke the Constitutional jurisdiction of this Court."
In the light of above discussion, keeping in view the preliminary objections raised by the learned counsel for respondents and since the disputed questions of facts are involved, the writ jurisdiction in such-like cases cannot be invoked. The petitioners have got alternate remedy and may avail the same. I, therefore, do not intend to discuss the merits of the case so that it may not cause prejudice to any party and would further like to observe that the discussion made in the above paragraphs shall not affect the merits of the case and the authority concerned shall decide the same in accordance with law.
6. In view of what has been discussed above, the writ petitions are not maintainable. The petitioners may seek their remedy, if so advised, before the competent and proper forum. With the above observations these write petitions stand disposed of.