1. ' I intend to decide the following writ petitions by one consolidated order having similar facts and law:--
(1) W.P. No,20574 of 2001.
(2) W.P. No,19549 of 2001.
2. The brief facts out of which the present writ petitions arise are that the respondents Nos.1 and 2 executed agreements with respondents Nos.3 and 4 for collection of fee of the cattle market allegedly in violation of mandatory provisions of Punjab Local Council (Lease) Rules, 1990. The petitioners approached respondent No,1 with offer of Rs,10,00,000 more with the request to hold public auction afresh in accordance with aforesaid rules. Respondent No,1 failed to accept the request of the petitioners. The petitioners being aggrieved filed the aforesaid writ petitions.
3. Learned counsel of the petitioners submits that public notice issued in daily newspapers "Din" dated 12-10-2001 is illegal, void and is not in accordance with the mandatory provisions of the aforesaid rules. The public notice does not mention either the period of lease or any other date of auction except 8-10-2001 and 11-10-2001 whereas no auction had taken place on the said dates..
2. Respondent No,1 malafidely enhanced the amount of earnest money from Rs,200,000 to Rs,800,000 and without any subsequent public notice got published in any newspaper granted lease to respondents Nos.3 and 4 on 15-10-2001 by preparing fictitious bid sheet. He further urges that period of clear 7 days in public notice for holding auction of lease rights either on 8-10-2001, 11-10- 2001 or 15-10-2001 was not provided to the prospective bidders/participants. Respondent No,1 in fact granted the lease to respondents Nos.3 and 4 through negotiations in underhand means, contrary to the rules. Therefore, on account of inaction of respondent No,1 huge financial loss has been caused to the public exchequer. He further submits that the bid was not approved by the Tehsil Council nor any work order could be issued without acceptance of bid in general meeting of the Tehsil Council in terms of the aforesaid rules. He further submits that respondent No,1 executed agreement with respondents Nos.3 and 4 w,e,f, 25-10-2001 as per back dated work order issued by respondents Nos.1 and 2 in illegal and arbitrary manner. Therefore, respondents Nos.1 and 2 are liable to be prosecuted for intentional financial loss caused to the Tehsil Council. He summed up his arguments that action of respondents Nos.1 and 2 is in violation of the mandatory provisions of aforesaid rules and the law laid down by the superior Courts. In support of his contention he relied upon the following judgments:-
(1) Abdul Hameed v. D.C. (1997 CLC 540).
(2) Ali Bahadur v. M.C., Arifwala (1999 MLD Lahore 142).
(3) Jehangir Mughal v. District Council (PLD 1998 Lah. 209).
(4) Abdul Hameed v. D.C. (1996 CLC 1992).
(5) Muhammad Shafiq Khan v. Secretary (1996 CLC 2045).
(6) Javed Iqbal Abbasi v. Province of Punjab (1996 SCMR 1433).
4. Learned counsel of respondents Nos.1 and 2 submits that writ petitions are liable to be dismissed as the petitioners have alternative remedy under the aforesaid rules. He further submits that petitioners have no locus standi to file these writ petitions as the petitioners did not deposit the earnest money nor the call deposit in obedience of the advertisement appeared in daily ne spaper "Din" dated 12-10-2001. He further submits that petitioners did not take part in the auction and have not approached the respondents. On 11-10-2001 on the day of auction all the bidders who were present signed and agreed that the auction be held on 15-10-2001 and the earnest money was enhanced from Rs,200,000 to Rs,800,000 on account of influence of respondent No,1 who intimated the bidders that earnest money mentioned in the newspaper is not sufficient. The public 'notice was also published in daily "Asas" on 10-10-2001 to that extent that earnest money be enhanced from Rs,200,000 to Rs,800,000 Nine bidders were present on 11-10-2001 who agreed that auction be held on 15-10-2001. All )the bidders signed the public notice which was pasted on Tehsil Office and on other public places. The bid was held on 15-10-2001 and respondents Nos.3 and 4 had given highest bid amounting to Rs,66,00,000, the agreement was executed with respondents Nos.2 and 3 on 24-10-2001, which was approved by the house subsequently on 8-11-2001 as is evident from Item No,3 of Annexures D and E attached with the parawise comments filed by respondents Nos.1 and 2 in Writ Petition No,20754 of 2001. Learned counsel of respondents Nos.3 and 4 also adopted the arguments of the learned counsel of respondents Nos.1 and 2. He submits that initially nine bidders were present on 11-10-2001 whereas on 15-10-2001 thirteen bidders participated in the auction proceedings as is evident from Annexure R/1 attached with report and parawise comments filed by respondent& Nos.3 and 4. He further submits that respondents Nos.3 and 4 have already deposited instalments to respondents Nos.1 and 2 amounting to Rs,45,00,000. He further urges that Punjab Local Councils (Lease) Rules, 1990 were repealed by virtue of section 196 of the Punjab Local Government Ordinance, 2001. Therefore, the contention of the learned counsel of the petitioner has no force that auction held by the respondents is in violation of the mandatory provisions of the aforesaid rules. He further submits that in case the aforesaid rules are applicable then the action of the respondents is in accordance with the rules. He summed up his arguments that petitioners approached this Court with unclean hands as the petitioners filed these writ petitions malafidely.
3. The bid of the last year was Rs,44,00,000 whereas the respondents secured the lease for Rs,66,00,000.
4. ' I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is pertinent to mention here that petitioners alleged that no auction was held on 8-10-2001 and 11-10-2001 whereas the contention of the respondents is that the bidders present in the office of the respondents on 11-10-2001 agreed and signed the public notice which reveals that auction be held on 15-10-2001. This fact brings the case in the area of disputed question of fact and this Court has no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction as per principle laid down by the honourably Supreme Court in Muhammad Younas Khan's case (1993 SCMR 618). It is also admitted fact that the petitioners did not bring on C record any document to show that the petitioners visited the office of respondents Nos.1 and 2 on 8-10-2001 and 11-10-2001,. Therefore, the petitioners are not aggrieved persons. In arriving to this conclusion I am fortified by the law laid down by this Court in Rashid A. Khan v. West Pakistan Railway Board (PLD 1973 Lahore 737). The relevant observation is as follows:- "On the face of the assertions made in this case the petitioner is not the lowest tenderer and unless his position is so, he cannot claim any benefit nor can he hope that his tender would be accepted.
5. It cannot be said that he has suffered the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
6. ' It is pertinent to mention here that the aforesaid judgment was upheld by the honourable Supreme Court. The aforesaid proposition of law was also considered by this Court in Malik Muhammad Imtiaz v. Cantonment Board (NLR 1988 Civil 422) and laid down the following principle:-- "He would have been certainly an aggrieved person if he had made a bid in the auction held out by the respondent Board but without taking part in the same and sitting simply as a over-looker at a reasonable distance he could not claim himself to be an aggrieved person."
7. ' The aforesaid proposition is also supported by the following judgments:--
(i) Mohabat Ali v. Abdul Jabbar (1989 ALD 347).
(ii) Haji Muhammad Ismail v. Government (1987 MLD 2451).
8. ' It is also admitted fact that the contract shall have to expire automatically on 15-6-2002 which means that major period of the contract had already expired. In such circumstances it is not in the interest of any party that the contract executed between respondents Nos.1 and 2 with respondents Nos.3 and 4 be terminated by the intervention of this Court. In arriving to this conclusion I am fortified by the law laid down by this Court in Rasheed Mahmood v. Administrator, District Council (PLD 1997 Lahore 407). The relevant observation is as follows:-- "The real question is that respondent-Council and respondent-Contractor having worked out the agreement for almost 7/8 months, should this Court intervene at this juncture and direct fresh auction when only about 2/3 months are left to the remaining period of the lease. I am clear in my mind that the answer is no. Interference at this juncture will upset the apple-cart and smooth working of the contract. I am also mindful of the fact that offer of respondent No,6 was higher to the offer of the petitioner by about 1-1/2 lacs. It has been stated at the bar that a sum of Rs,3-1/2 crores approximately has since been paid by respondent-contractor to respondent-Zila Council. If the auction dated 5-8-1996 is declared as illegal at this juncture, lot of complications are likely to arise.
9. The Constitutional writ being not a writ of course, can be withheld if the issue of the same is likely to create more problems."
10. In view of the aforesaid circumstances the judgments cited by the learned counsel of the petitioners are distinguished on facts and law and have no relevance to resolve the present controversy between the parties. In view of the aforesaid circumstances, I am not inclined to exercise my discretion at this stage as per principle laid down by the honourable Supreme Court in Nawabzada Ronaq Ali's case (PLD 1973 SC 236). In view of the aforesaid special circumstances, I am not inclined to set aside the proceedings. However, respondents Nos.1 and 2 are directed to auction the lease in question in the next year after observing the legal formalities in accordance with law.
11. ' With these observations these writ petitions are disposed of.
12. ' It is pertinent to mention here that in Punjab Local Government Ordinance, 2001 right of appeal is provided under section 190 as may be prescribed. The Competent Authority has not prescribed or framed rules or bye-laws to nominate the authorities under this section to hear the appeals. This situation creates difficulty for the aggrieved persons that there is no forum where the aggrieved persons may agitate the matter under this provision of law. Let a copy of this order be sent to Secretary, Local Government and Rural Development, and Chief Secretary, Government of Punjab who are directed either to prescribe the authority under this section or send the summary to the competent Authority to prescribe the authority in terms of section 190, as early as possible so that this anomaly may be removed. Mr. Maqbool Ellahi Malik, learned Advocate-General, Punjab is also directed to send a copy of this order to the concerned authorities for necessary action and compliance mentioned above.