' SYED DEEDAR HUSSAIN SHAH, J.--The above appeals by the leave of this Court are being disposed of by a consolidated judgment, as they arise out of a common judgment, dated 17-4-1998, passed by Division Bench of the High Court of Sindh, Karachi, in Constitutional Petition No,D-1778 of 1997.
2. The facts, in brief, are that K.M.C. Levies and collects octroi on goods brought into the Municipal Limits Karachi, by Air, Road, Rail and Sea. On 7-4-1997 a notice was published of K.M.C. In national newspapers viz. Daily "Dawn" and "THE NEWS" informing the public that the auction for leasing the rights to collect octroi at K.M.C's. Octroi posts for the Road and Rail side for the period w.e.f, 1-7-1997 to 30-6-1998 would be held or 22-4-1997, 24-6-1997 and 28-4-1997. The reserve price for the Road and Rail side octroi posts was notified at Rs,56,07,04,000. However, nobody offered bid for getting the octroi contract for the abovementioned period. Government of Sindh in exercise of powers conferred under section 54(1) of the Sindh Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance), on 10-3-1996, laid down a specific procedure for holding auction by constituting a Special Auction Committee. In said procedure it was provided that in case if the prosecess of auction is not materialized, octroi contracts can be allowed on the basis of offer by increasing the amount by 15 per cent above the previous year offer, conducting auction proceedings at least thrice. The directions were applicable to all local councils including the K.M.C.
Pursuant to the aforesaid policy the appellants submitted an offer dated 28-6-1997 to the Administrator K.M.C. For lease of octroi collection rights at KMC's road and rail side, which was forwarded with recommendations by the Administrator KMC to the Local Government Department mentioning that the offer is 15 per cent above of the last year's contractual amount. Consequently, offer of the appellants was confirmed, they were awarded the contract on the abovementioned price and put in possession of K.M.C's. Octroi posts for the Road and Rail side on 1-7-1997. The appellants also deposited security of Rs,61.68 millions as required under Rule 225 of the Octroi Rules, 1964. A detailed agreement for the lease of octroi collection rights on K.M.C's. Octroi posts on Road and Rail side was executed between the parties on 5-7-1997 in terms of Rule 225 (8) of the Octroi Rules, 1964 read with section 45 of the Ordinance.
3. It is pertinent to note that in addition to the octroi contract price of Rs,560.74 Million appellants were bound to pay the following amounts under the agreement:
(i) Rs,28 milion as advance income tax.
(ii) Rs,02 million as wealth tax
(iii) Rs,15 million as salary, uniform, medical for K.M.C's. Octroi staff, insurance and stationary and also in cure expenses as follows:--
(i) Rs,30 million as salary of its own staff.
(ii) Rs,0.4 million as POL vehicle repair.
(iii) Rs,1.5 million as insurance and depreciation.
(iv) Rs,0.6 million as electricity charges, postage, rental of octroi post.
(v) Rs,2 million as rent/hire charges of vehicles, offices, telephones.
(vi) Rs,O.5 million as stationary.
(vii) Rs,1.5 million as stationary. (viii)Rs,25 million as interest on loan.
' It is significant to note that the appellants were bound to pay the price of contract, even if the Octroi collection suffers due to any downturn in business activity or due to any act of God, or deteriorating law and order conditions or any other reason. The appellants received the contract in very terms and lawful manner and started contractual obligations by collecting Octroi.
4. Respondent No,1, a free lance Journalist, moved the High Court of Sindh through Constitutional.
Petition No,1778 of 1997, as pro bono public, questioning the collection of Octroi by the petitioners under the above said agreement. He agitated before the High Court that cargo traffic by sea is being diverted from Karachi Post Trust (a post within the jurisdiction of the K.M.C.) to Port Qasim (a port outside. The jurisdiction of the K.M.C.) and further pleaded that the goods being discharged at Port Qasim were in fact goods entering the jurisdiction of K.M.C. Sea, therefore, K.M.C. Should itself collect octroi on such goods under the heard of "sea-dues". He also pointed out that K.M.C. Did not operate Octroi post at Port Qasim, therefore, no Octroi was collected on the goods discharged at Port Qasim, such goods are transported via land for use and consumption in Karachi and upon entering into the jurisdiction of the K.M.C. Are charged octroi by the present appellants. According to respondent No,1, K.M.C. Is to put a loss of hundreds of milion and the appellants were correspondingly making huge gains. Apart from other prayers, the first prayer of the respondent No,1 in the writ petition was to the effect that the local councils limits of Port Muhammad Bin Qasim
(QICT) be merged with K.M.C. By issuing a notification. After the filing of the writ petition, Secretary to Government of Sindh, Local Government Rural Development Department, filed parawise comments. In reply to para. 6 of the writ petition he submitted as under:-- ' "Denied. Since the area of Port Qasim does not fall within the limit of K.M.C., hence K.M.C. Cannot establish octroi post over there. However, the request of K.M.C. For extension of its limits so as to include Port Qasim is under consideration of the Government."
' In counter-affidavit also he denied the contents of the writ petition and stated that the allegations made therein were misconceived and baseless. He further stated that under the scheme of Sindh Local Government Ordinance, 1979, the local councils are enjoying maximum autonomy and dispose of the revenue contracts in accordance with the provisions of law. The Administrator K.M.C.
Also filed parawise comments wherein he denied the allegations of respondent No,1 stating that the appellants were allowed to charge Octori on the said post i.e, near Bhains Colony, and that the appellants were collecting Octroi under the provisions of Lease Agreement i.e, the goods entering into Karachi through road/Rail. He further submitted that the appellants were awarded Road/Rail side Octroi contract for the year 1997-98 for Rs,56.07,40,000; that the K.M.C. Collects revenue on the goods imported into Karachi for sale, use consumption within K.M.C. Limits through Road/Rail, Air and Sea. The first two mentioned routes have been awarded to the appellants at Rs,56,07,40,000 and Rs,3,31,92,006 respectively. One Shafique Anwar, Assistant Director, Octroi Department, K.M.C.
Filed a counter-affidavit objecting that respondent No,1 was not an aggrieved person in terms of Article 199 of the Constitution and the writ petition was not maintainable. He also affirmed that Road/Rail side contract was awarded to the appellants for Rs,56,07,40,000. One Sofan Das, partner of the appellants, filed a counter-affidavit stating that the petition filed by respondent No,1 on or after 24-12-1997 was not maintainable, as the same was vague, false and frivolous, as the respondent was not resident of Sindh; that he was not an aggrieved person; that a valid contract for collection of Octroi was made between the appellants and the K.M.C., which was awarded in lawful manner; that the appellants had not violated the contract or rules and the allegations levelled against the appellants are false and mala fide.
' In this background of the matter, during pendency of the writ petition 15 miscellaneous applications were filed and 26 interlocutory orders were passed by the High Court of Sindh. Finally the writ petition was allowed on 17-4-1998.
5. Mr. Abdul Hafeez Pirzada, learned counsel for the appellants, inter alia contended that Constitutional Petition No,1778 of 1997, filed by respondent No,1, under Artilce 199 of the Constitution was not maintainable. Apparently respondent No,1 cannot be termed as an aggrived person; that he is resident of Hub Balochistan), his name appears in the voters list of Mouza Pathan (Hub) and confirnied in a police report of Police Station Hub; that the respondent also filed C.P. No,50 of 1998 in the High Court of Balochistan, where he had shown his residence at Hub that the respondent is a Journalist by profession as Correspondent of daily "Jang" and is also associated with daily "Bolan Times" Hub, whose office address at Karachi has been shown as is address in the Constitutional petition. He, in - any case, cannot be claimed as an aggrieved person. He has filed the writ petition with mala fide intention, as he neither has suffered any injury, either personal or otherwise, nor he has any personal interest/right of any degree directly or remotely; that he has not availed the alternate remedy available to him under section 53 of the Ordinance, which is efficacious and effective, therefore, invoking of extraordinary jurisdiction under the Constitution was not proper exercise of jurisdiction. He further argued that the subject-matter involves extension of territorial limits of the K.M.C. Which could only be extended by the Government of Sindh under section 13 of the Ordinance, for which writ cannot be filed or issued; that all the Government functionaries acted in accordance with the relevant law and rules; that the learned High Court had erred in interfering with the contractual rights of the appellants in exercise of the writ jurisdiction, whereas the appellants were awarded a contract in open and transparent manner for a valuable and lawful consideration; the said rights were being attacked by the respondent, who is an outsider and does not have any direct or indirect interest in the agreement or contract awarded to the appellants by the K.M.C. That the learned High Court had erred in not taking into consideration the contents of the counter-affidavits and parawise comments fled by the respondents particularly by the Government functionaries. In all such counter-affidavits which were not rebutted by means of any affidavit-in-joinder the respondents/Government functionaries have recognised the rights of the appellants to collect octroi on goods coming from Port Qasim through its post at National Highway; that the High Court mainly relied on the press clipping of newspapers for forming opinion against the appellants and Mr. Bhagwan Das Chawala; that the impugned judgment is not based on the appreciation of the documentary evidence filed by the appellants which was supported by the Government functionaries; that the High Court had wrongly held that insertion of clause 6 (10) in the Agreement is a fraudulent act, whereas during the course of hearing the K.M.C. Was directed to produce octroi agreements of the previous years viz. 1993-94, 1994-95, 1995-96 and 1996-97, which were accordingly submitted by the K.M.C. Alongwith application on 14-3-1998, as such agreements (except for the year 1994-95) contained specifically clause 6(10), which is in the same language ..As was applied in the present Octroi agreement signed by the appellants. Learned counsel further pointed out that the existing octroi agreement was executed in accordance with Rule 225 of the Octroi Rules, 1964 read with section 45 of the Ordinance; and that in the facts and circumstances of the case the High Court had erred in appointing official assignee and other person as receivers under Order 41, Rule 1, C.P.C.
6. Mr. Suleman Habibulah, Additional Advocate-General, Sindh adopted the arguments of Mr. Abdul Hafeez Pirzada learned Senior Advocate Supreme Court and submitted that respondent No,1 was not an aggrieved person and the writ petition was not maintainable; that the Octroi collection contract was duly entered into by the appellants and the Government functionaries, which was a valid contract and awarded in accordance with law; the impugned judgment of the High Court is not maintainable and the appeal may be allowed.
7. Mr. Abrar Hassan, learned counsel for K.M.C., during the course of arguments, was required to pin point from the record, as to whether the contract awarded to the appellants by the K.M.C., with the approval of the Government of Sindh, was in violation of the Ordinance and Octroi Rules made thereunder, and whether any violation of breach of contract was committed by the appellants, but he was not able to do so. However, he supported the impugned judgment of the High Court.
8. We have minutely considered the arguments of the learned counsel for the parties and gone through the material available on record. Respondent No,1 is admittedly a resident of Hub. Neither he is a party to the Octroi collection contract between the appellants and the K.M.C., nor he has suffered any loss on the act of the appellants or the Government functionaries, through he may be a Journalist. The main prayer of the respondent in the writ petition was that the jurisdiction of local council limits of Port Muhammad Bin Qasim be included to the jurisdiction of the Karachi Municipal Corporation and such notification may be issued. It would be advantageous to refer relevant clauses of the Octroi Agreement, which read as under: "6(10). That the contractor shall collect Octroi in the manner and at the rates prescribed in Octroi Rules, 1964, and octroi schedule 'B' as per Notification No,1288/Gen/Oct/92, dated 6-6-1992 and as amended from time to time and shall recover Octroi under Schedule 'A' strictly for goods imprted from abroad through Bin Qasim and aforesaid Octroi posts as per Notification No,SO(VI) 5-1-1992 dated 18-1-1993. In the event of any dispute over the assessment of Octroi, description of goods, the matter shall be referred to the Director Octroi, whose decision shall be final and binding upon the contractor unless set aside by the appellate authority as specified in the Octroi rules."
"6(11) That the amount charged in excess by the contractor or his authorised agent or any Municipal staff working under him shall be refunded to the party concerned by the contractor under the relevant rules, and under intimation to the Director Octroi, K.M.C."
"6(12). That the staff working on contractual Octroi posts shall be deemed to be under the supervision of contractor from the date and time of taking over the charge of Octroi posts. The staff shall carry out all the legal obligations, instructons/orders of the contractor in discharge of their official duties."
"6(13). That the contractor shall reimburse to Government the following expenditure in respect of the staff working in the contracted Octroi posts:--
(a) Pay and allowances as admissible under the rules, subject to revision from time to time.
(b) Recreation allowance or any other fringe benefits if allowed by the Government at any subsequent stage.
(c) Medical charges to tune of Rs,9,00,000.
(d) Actual expenditure on uniform of Octroi staff.
(e) Leave salary and pension contribution as per Government of Sindh Finance Department Letter No,FD(SR-iii)/81-82 dated 2-3-1992, subject to revision from time to time.
(f) Contingent expenditure including rent etc., of all Road/Rail side Octroi posts/staff."
"6 (14). That the contractor shall remit the salary specified in clauses 6(13) and 6(13)(e) by 25th of each calendar month with effect from the date of taking over possession through pay order or in cash. However, the salary and other charges as determined by the Octroi department for the month of June, 1998 shall be paid by 5th June, 1998. The charges specified in clause 6(13)(b),(c).(d) and (0 shall be paid by the contractor within seven days as and when demanded.
Salary/allowances etc., of any employee (s) shall not be deducted by the contractor from the monthly bills prepared by the octroi department, K.M.C. Leave cases etc., shall be referred to the Director Octroi for necessary action under the rules.
"6(19-A). That the contractor may recover Octroi under Octroi Schedule 'A' on goods imprted by sea/air and brought back to K.M.C. Octroi limits provided that prior permission is obtained from Corporation in this regard."
' There is no allegations that the appellants have violated the terms of the contract. The Secretary, Local Government Sindh, Administrator of Karachi Municipal Corporation as well as the Deputy Director Octroi filed their parwarise comments and counter-affidavits in which they admitted the agreement executed between the appellants and the K.M.C., rather they supported the case of the appellants before the High Court of Sindh. The contract entered into the appellants and the K.M.C.
Was a valid one, the appellants deposited the required money with the K.M.C. And the appellants started to collect Octroi fee according to Schedule ' A' sanctioned by the Government of Sindh. The existing contract was also affirmed by the Government of Sindh.
9. The perusal of the impugned judgment shows that it is based on conjectures and surmises and is not supported by necessary documents filed by the appellants and the Government functionaries. Respondent No,1 is not an aggrieved person as contemplated under Article 199 of the Constitution. Moreover, he had not exhausted available remedies to agitate the matter before the Government of Sindh. Be that as it may, he may be free lancer Journalist and filed petition as free lancer pro bono publico. The learned High Court wrongly considered him as an aggrieved person and allowed the petition without sufficient cause, reasons or justification. According to the record, parawise comments and counter-affidavits filed by the Government functionaries it is crystal clear that Port Qasim is located within the union council of Dansano Chano which is a rural area and the Octroi and other taxes are being charged by the Union Council DarsanO Chani established under the Ordinance and the prayer of the respondent that local council limits of Port. Qasim be included in the K.M.C. By the writ issued by the High Court is not sustainable in law. Admittedly, it is not within the competence of the High Court to pass such administrative order, which is only prerogative of the concerned Provincial Government under the Ordinance and the Constitution.
' For the facts, reasons and circumstances we are of the considered opinion that the contents involved in the writ petition were contractual obligation for which a valid contract was signed between the appellants and the K.M.C. And there is no allegation of breach of the contract. The Government functionaries have stated that the contract was awarded to the appellants under the Act and the Rules with the approval of the Government of Sindh.
10. It is pertinent to mention here that during the course of arguments before the High Court, learned counsel for the appellants referred to Islamic Republic of Pakistan v. Muhammad Saeed (PLD 1961 SC 192), Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar (PLD 1965 SC 725), Lahore Improvement Trust v. Custodian of Evacuee Property (PLD 1971 SC 811), Khalil Khan v. Haji Nazir and 4 others (PLD 1997 SC 304) and Province of the Punjab v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351) regarding the maintainability of the writ petition and jurisdiction of the High Court as to where it may interfere and pass orders and the learned Division Bench did not consider the above mentioned case law, but relying on the cases of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105), Suleman Mala v. Karachi Building Control Authority (1990 CLC 448), Darshan Masih v. The State (PLD 1990 SC 513) and Javaid Iqbal Abbasi & Co. v. Province of Punjab (1996 SCMR 1433) accepted the writ petition. We have specifically perused the abovementioned case law and found that the facts of the case law relied upon by the High Court are quite different and distinguishable from the cases of the appeals in hand, which, in any case, were not relevant for the disposal of the writ petition.
11. In view of what has been stated above, we allow these appeals, set aside the impugned judgment and the amount lying with the Nazar of the High Court of Sindh, with profits so accrued may be paid to the appellants, with no order as to costs.