' MAULVI ANWARUL HAQ, I.C.A. Proceeds against the judgment dated 4-2-1997 of a learned Single Judge in Chamber whereby Writ Petition No,1881 of 1997 filed by the respondents was allowed.
2. Pursuant to an advertisement issued by the Zila Council Gujranwala on 24-5-1996 (Annex-F) for the auction of the lease of the collection of Export Tax for the period 1-7-1996 to 30-6-1997, the respondents made a bid on 3-6-1996 of Rs,15,75,00,000. Vide a letter dated 6-6-1996 the Administrator of the said local council forwarded the bid to the Secretary for approval (Annex-4.
The Secretary transmitted the approval to the said Administrator vide a letter dated 23-6-1996 (Annex-K). Pursuant to the said offer and acceptance agreement (Annex-L) was executed between the parties on 30-6-1996. However, the said period of one year was to commence on 13- 7-1996 and to end on 1.2-7-1997. On 22-1-1997, Writ Petition bearing No,1881 of 1997 was filed by the respondents. It was stated in the writ petition that during the yea- 1995-96, the Zila Council had decided to increase the rates of the said tax in accordance with the manner prescribed and a public notice was issued in the local press on 25-3-1996 (Annex-A), 31-3-1996 (Annex-B) and 28-3- 1996 (Annex-C) stating that the old rates as well as the proposed new rates and objections were called from the general public. After the disposal of the said objections a report was prepared alongwith a final schedule stating the enhanced rates of tax and this report was signed on 6-5- 1996. (Annexures-T and E); that the respondents participated in the auction on 3-6-1996 in view of said enhanced rates a copy whereof was handed over to them and the other intending bidders. It was then stated that in between fall of the hammer and the approval of the bid by the Competent Authority, vide a letter dated 5-6-1996 (Annex-H), the Provincial Government directed all the Urban Local Councils as well as the Zila Council not. To increase the rates of the tax without prier approval of the Government. It was complained that the respondents were made to give such a high bid on the representation that they will be entitled to recover the tax at the enhanced rates. It was then claimed that the respondents are entitled to proportionate reduction or rebate in the matter of payment of the said amount of bid which was worked out at Rs,5,04,75,000. With these averments it was prayed that the demand of the Zila Council for the lease money of Rs,15,75,00,000 be declared to be illegal and that the same be reduced proportionate and ratably on the basis of the rational of increase in the schedule of the tax which was relied upon by the respondents at the time of bid.
3. The appellants in their written statement objected 'that the respondents have continued to act on the agreement entered into between the parties on 30-6-1996 for almost alf of its duration i,e, six months and as such would be estopped from missing the pleas taken in the writ petition. It was also objected that the writ petition raises disputed question of fact and alleges breach of contract and as such is not competent. On merits it was stated that preliminary proposals enhancing the rates of the tax were made but sanction was not accorded. It was denied that the said proposed schedule was notified or was handed over to any of the bidding parties at the time of auction. It was asserted that the auction was held on the basis of the already approved schedule dated 11-1- 1993 (Annex-R/1).
4. The writ petition was heard on 4-2-1997 and was allowed vide a judgment dated 4-3-1997. The learned Single Judge proceeded to hold that the respondents were entitled to recover the tax according to the revised rates but they were not allowed to do so. The difference of the highest bid in the previous and the said year was found to be Rs,6.73,00,000. It was found that at an average there was an enhancement of 75% in the rate of taxes. The rebate was accordingly worked out at Rs,5,04,75,000. After deducting this amount from the amount of bid it was held that the respondents are liable to pay only Rs,10,70,25,000 and since they have already paid. Rs,10,05,37,803 vide receipts, Annexures P/1 to P/44, the balance amount is only Rs,64,87,197. It was further held that the respondents, would be liable to pay Income Tax and Education Tax on the amount of lease money of Rs, 10, 70,25,000. Subject to the said payments, the respondents were found to be entitled to collect the tax for the' remaining period of tile contract.
5. The I.C.A. Was admitted to regular hearing on 10-3-1997 and the impugned judgment was suspended. On 22-4-1997, the respondents put in appearance and' undertook to. Deposit the remaining lease money, on or before 12-6-1997. The balance payable was worked out at Rs,3,62,00,197 as it was stated that an amount of Rs,12,10,37,803 had already been deposited up to 16-4-1997. The said amount was directed to be paid in two equal instalments on 12-5-1997 and 12- 6-1997. This was subject to the result of the I.C.A.
6. The learned counsel for the appellant contends that the material allegation of fact made in the writ petition had been denied by the appellants and as such a pure question of fact was involved which required a trial for its decision and could not have been resolved without giving an opportunity to the parties to lead their evidence in the manner prescribed by law. Further contends that in the circumstances of this particular case, the case of the respondents as set forth in the writ petition was, prima facie, false. The learned counsel for the respondents, on the other hand, has tried to support the impugned judgment.
7. We have gone through the records of the writ petition, with the assistance of the learned counsel for the parties. We have already referred to the material contents of the writ petition above. The precise case of the respondents was that a representation was made to them by the appellants that they would be entitled to recover the tax at enhanced rates as proposed and because of the said representation a very high bid was made by the respondents. Of course, these allegations were denied by the appellants. No issues were framed and no evidence has been recorded. The matter has accordingly been dealt with on basis of the said pleadings of the parties and the documents being relied upon by them. To our mind, going by the very contents of the writ petition, prima facie, there was no case being made out for award of damages. According to the chain of events discernible from the writ petition itself public notices were issued in the month of March, 1996 inviting objections to the proposed enhancement in the rates of the taxes. The objections were disposed of and a report was prepared for the proposed enhancement on 6-5-1996. Auction was advertised on 24-5-1996 and was held on 3-6-1996. The Provincial Government issued prohibition against the enhancement of the rates on 5-6-1996. The bid was forwarded for approval by the Administrator to the Secretary on 6-6-1996. The approval was made by the Secretary on 23-6- 1996, the agreement was signed by the parties on 30-6-1996.
8. There is not a word in the writ petition as to what prevented the respondents from revoking the bid between 5-6-1996 and 30-6-1996 when Government had already prohibited the appellant from making the increase in the rate of tax. There is also no explanation as to why the appellants entered into the agreement on 30-6-1996, when they were aware of the said prohibition. Needless to state that under section 4 of the Contract Act, 1872 a communication of an acceptance of an offer is complete as against the proposer when the acceptance is put in a course of transmission to him as to be out of the power of the acceptor while it is complete against the acceptor when it comes to the knowledge of the proposer. Under section 5 of the said Act, the proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer but not otherwise. On the other hand, the fact that the respondents did enter into the agreement on 30-6-1996 on terms stated therein, prima facie, shows that the respondents had made the bid and then proceeded to enter into the agreement on the basis of the already approved Schedule.
9. The sole reasons which weighed with the learned Single Judge for granting the said relief is that the bid was in excess of the bid for the year immediately preceding 1996-97. In our humble opinion it was not a safe measure to award damages to the respondents, prima facie, it is a matter of record that for the year immediately preceding 1995-96, a collection of Rs,5.96,66,352 was made.
Now for the year 1995-96, admittedly the bid was Rs,9,02,00,000. To our mind going by the said rate of enhancement in the bid amount, an enhancement of about Rs,6,00,00,000 in proportionate to the enhancement of about Rs,4,00,00,000 for the previous year is not extraordinary, prima facie.
10. Be that as it may, the pure question of fact was involved as to whether or not a representation was made by the appellants to the respondents to the effect that the latter would be entitled to recover the tax at the enhanced rates. The allegation has been repeatedly made in the writ petition and denied with equal vehemence repeatedly in the written statement. This was a question which could not has been resolved without resorting to a trial and recording of evidence.
11. Honourable Supreme Court of Pakistan has consistently cautioned against the undertaking of such exercise in writ jurisdiction. Reference be made to the case of Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim (2001 SCM R 1493) where their Lordships with reference to the cases of Ataur Rehman Khan v. Dost Muhammad and others (1986 SCM R 598) and State Life Insurance Corporation of Pakistan v. Messrs Pakistan Tobacco Company Ltd. (PLD 1983 SC 280) and several other dictums of the apex Court have observed that the superior Courts should not involve themselves into a full probe or in-depth investigation of disputed question of fact which necessitated taking of evidence and that it is their Lordships' considered view that this can conveniently and appropriately be done by the forum available in the hierarchy. It was further observed that Constitutional jurisdiction is primarily meant to provide expeditious and efficacious remedy in a case where an illegality,- impropriety and flagrant violation of law regarding impugned action of the authority is apparent and can be established without any comprehensive enquiry into complicated. Ticklish controversial and disputed facts.
12. For all that has been stated above, the I.C.A. Is allowed and resultantly Writ Petition bearing No,1881 of 1997 is dismissed, leaving the parties to bear their own costs.