' MUSHIR ALAM, J.--- The petitioner has impugned the action of leasing out the commercial plot bearing No,41-A, measuring 1160 square feet, situated at New Wholesale Fruit and Vegetable Market, Shikarpur Road, Sukkur (the subject plot) by the Sukkur Municipal Corporation (hereinafter referred to as S.M.C.) in favour of respondent No,3.
2. Facts as necessary for seeking above relief are that the petitioner, who is a fruit and vegetable merchant through application, dated 14-12-1993, requested the S.M.C. To sell the plot to him at reasonable rate or to put the same to open auction, but the same was not responded.
3. It is the case of the petitioner, that he learnt that the S.M.C. On the strength of a letter, dated 30- 10-1994 leased out subject plot to the respondent No,3 for 99 years at a throw away price of Rs,50 per square feet, as against Rs,300 per square feet obtained in open auction for the plots in same market held in 1983.
4. On coming to know the clandestine transaction, the petitioner unsuccessfully approached the higher-ups and ultimately filed the instant petition.
5. It is contended by Mr. Abdul Naeem, Advocate for the petitioner, that complete ban on. The disposal of all categories of land/plots except through balloting or by public auction was imposed by the Government of Sindh through Circular No,PS-CS/9781/1992, dated 17-10-1992, and S.M.C. Was no exception to said ban, yet, the subject plot was leased out without holding any auction in terms of section 45(4) of the Sindh Local Government Ordinance, 1979 (hereinafter referred to as S.L.G.O., 1979) and Rule 5 of Sindh Councils (Contract) Rules, 1980.
6. The respondent No,2 S.M.C., took stand that the subject plot was allotted to respondent No,3 as he was commission agent in the Old Fruit and Vegetable Market, was accordingly entitled to such plot alongwith other shiftees from the old market to the new market, but despite directions of the Court, S.M.C. Did not file the list of the shiftees or the list of the bona fide affectees who were shifted in 1977 from the old market.
7. Respondent No,3, has filed copies of applications made to various authorities for the allotment of plots, which persuaded the respondent No,2 S.M.C. To lease out subject plot. He has challenged the locus standi of the petitioner.
8. We have heard the arguments of the learned counsel for the petitioner, learned Additional Advocate-General, Sindh and counsel for respondent No,3, whereas, counsel for S.M.C. Respondent No,2 chose to remain absent.
9. From the record produced before us, it has come on the record that ban on the allotment of plots was imposed by the Government of Sindh, as is evident vide Circular, dated 17th October, 1992. It was provided in the said circular that no powers to relax the rule during the ban shall be exercised by any authority.
10. Adverting to section 45(4) of S.L.G.O., 1979, which reads as follows:-- "45(4). All contracts for transfer by grant, sale, mortgage, lease or otherwise of immovable property or any interest and right thereto or disposal or sale of movable property or for leasing out right to collect taxes shall, subject to the rules, be entered into after inviting offers in an open auction: ' Provided that if the highest bid is not accepted by the council, approval in writing of Government shall be obtained and Government shall in its order give reasons for not accepting the highest bid: ' Provided further that a council may with the approval of Government enter into a contract without inviting offers in auction."
11. It will further be advantageous to refer to rule 5 of the Sindh Councils (Contract) Rules, 1980 which reads as under:-- "5. Personal responsibility of the authority.--- The authority shall be personally responsible of ensuring that--
(i) the contract is made without coercion, undue influence, fraud or misrepresentation of parties;
(ii) the parties are competent to make the contract;
(iii) the contract does not involve any favourtism;
(iv) no official or member of the council is directly or indirectly interested in the contract except with the sanction of the Government;
(v) the contract is in the best interest of the council and in making it full advantage has been taken of the competitive rates prevailing in the market; and
(vi) the contract is legally in order."
12. From the above-referred provisions of S.L.G.O., 1979 and Rules framed thereunder, it is clear that the respondent No,2 S.M.C., is not seized of the authority to enter into any contract for transfer by grant, sale, mortgage or otherwise immovable property without putting the same in open auction.
Only exception is that contract with the approval of Government could be entered without recourse to auction.
13. Rule 5, quoted above postulates that peculier/interests of the Council are to be safeguarded and ensured while awarding any contract.
14. It is not the case of the respondent No,2 or 3 for that matter, that for allotment and lease of the subject plot condition of auction was not attracted, as no approval of the Government is available on record. On the contrary, Administrator, S.M.C., has placed on record extract of note No,35 made by Administrative Officer, S.M.C., which reads as under:- "The case of Baboo Abdul Karim for grant of two plots is submitted for further orders. If police post is not constructed/established there then the area of 1000 sq. Feet i,e, 50' x 20' may be allotted to him at the highest bid of Rs,310 per sq. Ft. Which has been received in the auction conducted on 20-4- 1983. A period of 10 years has passed and if put to open auction just now the bid may increase more than Rs,310 per sq. Ft.
' The authorities may decide the case as deemed fit.
(Sd.) Raja Abdul Ghani, Administrative Officer, S.M.C., Sukkur."
15. It is as against this office note, that the Administrator, S.M.C., on 30-10-1994 passed following order:- "The Plot No,41-A measuring 1160 sq. Ft. Situated at New Wholesale Fruit and Vegetable Market, Shikarpur Road, Sukkur, is hereby allotted to Mr. Baboo Muhammad Karim Mangal, at the rate of Rs,50 per sq. Ft. On usual terms and conditions.
(Sd.) Administrator, Municipal Corporation, Sukkur."
16. Laws are not ornamental piece of Legislature to be preserved on the statute books but are framed by the Legislature to be respected and observed in letter and spirit, authority of the executive/public functionaries emanates from law. They do not possess any plenary powers to deal with public c property in the manner they like, ignoring laws regulating, and their authority.
17. In the instant case, where provisions of S.L.G.O., 1979 and Rules framed thereunder circumscribe the authority of the S.M.C. To deal with the D immovable property or any interest or right thereto, then such authority is to be exercised within the parameters set therein and not otherwise.
18. In a case reported as Kalat Press v. Secretary, Education Department 1998 CLC 833 where the printing work were awarded to one of the respondents, without obtaining approval of the scheme from the Controlling Authority as required under section 10(2) of Balochistan Textbook Board Ordinance (IX of 1976) despite having been substantially executed, was struck down.
19. The Administrator, S.M.C. Had no authority to allot the subject plot to the respondent No,3 in violation of law referred to above.
20. In the instant case it is one of the examples where the law and rules framed under the law have been flouted to benefit a single individual which is not permissible.
21. Learned counsel for the respondent No,3 has questioned the locus standi. Of the petitioner to challenge the transaction which is between the Sukkur Municipal Corporation and respondent No,3.
According to him he has no locus standi to dispute or challenge such transaction.
21-A. The contentions are totally ill-founded, as where the question of disposal of public property or right thereunder is concerned, all the citizens are entitled to have equal and fair opportunity to acquire the same in fair and equitable manner, such being the intent of provisions of S.L.G.O., 1979 referred to above.
22. Under the circumstances, order, dated 30-10-1994 passed by respondent No,2 alloting the Commercial Plot No,41-A, New Wholesale Fruit and Vegetable Market, Shikarpur Road, Sukkur is declared to be without lawful authority, all actions based thereon, are also accordingly struck down. Resultantly the petition succeeds and the respondent No,2 Corporation is directed to dispose of the subject plot strictly in accordance with law and rules framed thereunder.
23. At the conclusion of the hearing, by a short order petition was allowed and listed C.M.As.
Disposed of. Aforesaid is the statement of detailed reasons for the final judgment.