' The instant petition as also W.P. No,22190 of 1999, are being disposed of together as both are directed against the order, dated 20-10-1999, passed by the Commissioner, Gujranwala Division.
2. Brief facts of the case are that, District Council, Sialkot through a public advertisement dated 23- 5-1999 offered for auction the lease rights to hold cattle market "Outside the local limits of Pasrur"
(Seranwala). The petitioner participated in the auction, held in this behalf on 1-6-1999 and was the highest bidder offering Rs,24,02,000. This offer was accepted by the Zila Council and according to the conditions of the auction, he on 3-6-1999 deposited certain sums including ten per cent. Of bid amount, advance income-tax, security, etc.
3. Thereafter, a valid contract was executed between the said parties on 4-6-1999. The petitioner was issued work order by the Zila Council on 12-6-1999 and he commenced the job.
4. On 3-8-1999, respondent No,5 filed a Writ Petition No,14469 of 1999, in this Court, challenging the auction and the award of the contract, to the petitioner primarily on the ground, that in the advertisement dated 23-5-1999, the exact location of the cattle market was not specified. Anyhow, this Court while disposing of the writ on 4-8-1999 held as under:-- "With reference to document appended with this petition as Annexure-F the learned counsel for the petitioner has pointed out that respondent No,7 has the requisite jurisdiction to entertain and decide the matter agitated in the present writ petition. According to the learned counsel for the petitioner, he shall be satisfied if a copy of this writ petition is sent to respondent No,7 who may decide the matter in issue at the earliest possible.
' Let a copy of this writ petition be sent by the office of this Court to respondent No,7, who is directed to decide the matter with all convenient dispatch, preferably within the next fifteen days after hearing all the parties concerned with the dispute. Respondent No,7 shall submit a report in that regard to the Deputy Registrar (Judicial) of this Court about the decision made by him in the matter. With this direction this writ petition is hereby disposed of."
5. In pursuance of the above order, the matter was heard by the Commissioner, Gujranwala Division, who vide impugned order rejected the pleas of respondent No,5, raised before him. It may be pertinent to state here that another Cattle Market known as "Badyana" was under the leasehold rights of respondent No,5, which lease was to expire on 30-9-1999. The lease rights of this market were put to auction, on 20-9-1999 by the Zila Council. Respondent No,5 did not participate in the bid and the petitioner in Writ Petition No,22190 of 1999, was the highest bidder to the tune of Rs,15,75,000. However, the contract of this cattle market was not concluded and the impugned order was passed.
6. Anyhow, the Commissioner, after having dismissed the pleas of respondent No,5, concluded in the impugned order as below:-- "During the course of hearing of this case, the petitioner offered bid of Rs,55,00,000 for one combined Mandi for one year with a call deposit of Rs,2,00,000. No doubt the offer of Rs,55,00,000 is higher by Rs,15,75,000 the combined income of Badiana and Seranwala i,e, Rs,15,25,000 + Rs,24,02,000 but the risk of Zila Council is greater in losing the secure contracts of two Mandis, in case two contracts are cancelled and the petitioner also goes back on his offer. The petition is, therefore, disposed of with the directions that Zila Council should hold open auction for one combined Mandi at Seranwala. Then on every Friday, if the petitioner offers in writing a bid of Rs,55,00,000 with call deposit of Rs,15,00,000. Open auction will start from Rs,55,00,000. Highest bidder will get it, if it goes above Rs,55,00,000. If it does not go beyond Rs,55,00,000 petitioner will be bound to take it. If he fails, call deposit of Rs,15,00,000 will be forfeited in favour of Zila Council. If the order is made by the petitioner within 10 days of judgment previous auctions of Badiana and Seranwala, then will stand cancelled. If he fails, the petition will stand dismissed automatically and two auctions will be treated valid and carried forward for implementation. Since the judgment in this case was reserved, the parties be informed accordingly.
' It is this part of the order, which has been assailed in these two writ petitions.
7. Learned counsel for the petitioner contends, that there was a valid concluded contract between the petitioner and Zila Council, Sialkot, which was acted upon. The petitioner had deposited the requisite amounts and also paid the installments for the months of August and September, 1999, therefore, by virtue of the impugned order, such a contract could not be nullified or quashed by the Commissioner while exercising his powers under the provisions of section 166 or 156 of the Local Government Ordinance, 1979. In the other petition, the submission is that the petitioner was the highest bidder of cattle market "Badamia" thus had acquired the lease rights of such market.
Besides, the matter pertaining to this cattle market was neither referred to the Commissioner by this Court, nor was an issue before him, therefore, the petitioner cannot be deprived of his rights to hold the market.
8. Arguments heard. Admittedly, the petitioner was the highest bidder, which bid was accepted by the Zila Council, Sialkot. This was not subject to the approval of the Government. Consequently, a valid contract was executed by the petitioner and Zila Council; the petitioner deposited the requisite amount and was regularly making the payment of monthly installment, when the impugned order was passed. It is not the case of the respondents that the petitioner has either violate any term and condition of the contract or the same was procured by him through fraud and misrepresentation. Anyhow, the respondents have attempted to justify the impugned order of the Commissioner on the reasoning that by virtue thereof, the Zila Council would fetch an additional minimum amount of Rs,15,75,000, which is in the best "public interest", therefore, the Commissioner in term of section 156, has rightly acted to safeguard the interest of the Council and the order is valid.
9. Under the provisions of section 154 of Local Government Ordinance, 1979 (the Ordinance), in order to ensure that their activities conform to the provisions of the Ordinance, the Government has supervisory authority and control over the Local Councils. According to section 156, if in the opinion of the Government, anything done or intended to be done by or on behalf of a Local Council or Committee, is not in conformity with law or in any way is against public interest, the Government for reasons to be recorded may; (a) quash the proceedings; (b) suspend the execution of any resolution, etc. (c) prohibits the doing of anything proposed to be done. It is conceded by the learned counsel for the respondents that the present case is not covered by sub-clause (a) or (b) of section 156. Their contention is, that the Commissioner has exercised his power under sub- clause (c) to prohibit the enjoyment of lease right held by the petitioner, as it was in the "public interest", because in view of offer made by respondent No,5, the Zila Council would be benefited, minimum to the tune of Rs,15,75,000. I am afraid that this contention has no merits. Firstly, that it was never the grievance of respondent No,5, on whose initiation the matter was referred by this Court to the Commissioner, that the award of contract to the petitioner was against the interest of the Zila Council or the "public interest". No element of fraud, etc. Or violation of law was agitated to assail the contract. The objections of said respondent were rejected by the Commissioner. Thus there was no legal justification for putting an end to such a contract only on the basis that in the amidst of a subsisting contract, a rival competitor has made a higher offer. Secondly, in the case of validly concluded contracts, which are acted upon, the Commissioner while exercising the powers under section 156, had no authority in law to cancel or rescind the contracts.
9. "Public interest" undoubtedly requires due consideration, while exercising powers under section 156 but at the same time, the vested rights of the citizens cannot be trampled and scarified at the altar of this touchstone. It would be wrong to assume that if an offer of higher bid is made during the currency of a contract, it should be accepted by nullifying a subsisting contract on reasoning of "public interest", rather this kind of attitude is bound to shake and erode the confidence of public in entering into a contract with a local council on a valid apprehension of insecurity to complete the tenure - of the contract. In fact, this would be more dangerous and against the overall interest of the public and the local council; the people may not come forward to bid genuinely feeling vulnerable of the cancellation of their contracts, if some competitor makes a higher bid afterwards.
12. Learned Additional Advocate-General, by relying on Abdul Hamid v. D.C./Administrator, Zila Council Mandi Bahauddin and 4 others 1997 CLC 540 has contended that Courts in writ jurisdiction, have refused to interfere in a case where the Chief Minister has cancelled an auction of leasehold rights on the principle of "public interest".
' I have carefully examined the above-cited judgment and find that the contract involved in the case was awarded in breach of terms of auction and it was held to be void ab initio. Obviously, if the award of contract is void, any superstructure built thereupon would have no efficacy or effects, resultantly this Court rightly declined to exercise its writ jurisdiction. But in the instant case, there is no objection from the respondents' side, that the contract awarded to the petitioner was void or invalid for any reason.
13. Mr.Irfan Qadir, learned counsel for respondent No,5, has also referred to a clause of the agreement between the petitioner and the Zila Council, to argue that in case of a dispute between the parties, the Commissioner could act as an arbitrator and thus it is in exercise of arbitral powers, he has passed the order.
' I am afraid that there was no dispute at all between the Zila Council and the petitioner, which was preferable to the arbitration of the Commissioner in terms of the relevant clause. Even otherwise, from the order itself, it is clear that the Commissioner has not acted as an arbitrator but has exercised his powers under section 156, which has held earlier, is not in accordance with law.
14. As regards the grant of relief in W.P. No,22190 of 1999 is concerned, suffice it to say that the petitioner was only a highest bidder and no contract has been executed between him and the Zila Council, thus he has no vested right to claim the contract of the Cattle Market Badania, particularly in a situation, where considerable time has lapsed and now to award the contract to the said petitioner, would not be in the interest of the Zila Council, which may opt to re-auction this cattle market and could fetch a better bid.
15. The upshot of above is, that by allowing this petition, the impugned order is set aside and the petitioner is allowed to complete his term of lease, while W.P. No,22190 of 1999 is disallowed for the reasons mentioned above. No order as to costs.