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Petitioner: AHMAD KHAN NIAZI VS Respondent: TOWN MUNICIPAL ADMINISTRATION, LAHORE through JUDGMENT
Court Name: Lahore High Court Judge(s): Mian Saqib Nisar Title:AHMAD KHAN NIAZI vs TOWN MUNICIPAL ADMINISTRATION, LAHORE through
JUDGMENT
Reported As: PLD 2009 Lahore 657 Result: Order accordingly Judgment JUDGMENT ' MIAN SAQIB NISAR, J.---This judgment shall dispose of the following cases, as all involve the common questions of law and most of the factual aspects of the matter; (i) W.P. No,16189/2008; (ii) W.P. No,16113/2008; (iii) W. P. No, 17375/2008; (iv) W. P. No .14858/2008; (v) W . P . No,13495/2008; (vi) W. P . No,7414/2008; ' The petitioner in W.P. No,16189/2008 claims to be a Class- A Contractor registered with the City District Government, Lahore under Rule-15-A of the Punjab Local Government (Contract) Rules, 2003. It is his grievance that for the year 2008-2009, the Cattle Market, Kot Kamboh and Shahpur Kanjra, had to put to public auction for the purposes of collection of fee etc. And was so done by the Town Municipal Administration ("TMA"), Lahore vide advertisement dated 18-10-2008 appearing in daily `Jang', Lahore in which, the petitioner intended to participate; however, he could not do so on account of the impugned order dated 29-10-2008 passed by the Secretary, Local Government, through which respondent No,3, the previous contractor, has been granted an extension of one year at the increase of 10% of the previous years' consideration. 2. The learned counsel for the petitioner has made reference to the provisions of section 54(1) (h) (nn) of the Punjab Local Government Ordinance, 2001 ("the Ordinance") to propound as to what are the functions of the TMA; besides, on the strength of section 191 of the Ordinance, the power of making the rules thereunder and referring to section 3, the non obstante. Clause, which has given overriding effect to the Ordinance on all other laws, and also by mentioning Second Schedule, Part- III, Serial No,2 of the Ordinance, it is contended that the ' collection of market fee shall be made by the TMA in the prescribed manner. Having set out the foundation about the Authority of the TMA for
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the purposes of the grant of contract for the collection of fee for the cattle market, the learned counsel has placed reliance upon Rules 3, 4 and 5 of the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 ("the 2003 Rules") and argued that as per Rule 3, the local Government shall collect any of its incomes mentioned in the schedule through a contractor by awarding collection rights to him for a period not exceeding one financial year. It is further submitted that rule 4 has placed a prohibition that no contract in terms of Rule 3 shall be granted except in the manner prescribed by the said rules, which as per rule 5 can only be made on the basis of the procedure provided therein and that is by a public auction alone. It is submitted that where a law requires an act to be done in a particular manner, it has to be done in that way and not otherwise; a special law in the nature of Ordinance, 2001 has come into force under which, the 2003 Rules were framed and it is these rules which on account of non obstante clause, section 3, have to be given absolute effect, in exclusion of any earlier rules on the subject, which otherwise stands expressly repealed in view of sections 168 and 182 of the Punjab Local Government Ordinance, 1979. In the instant case, the TMA itself had put the rights of collection for auction and the Secretary Local Government under no law had the Authority to usurp the powers of the TMA and to direct for the extension of the respondent No,3's contract through the impugned order dated 29-10-2008. The learned counsel has also made reference to Notification No,SO.IV (LG) 5-5/2002 dated 23-8-2002, clause (iii), wherein it is provided "The collection right of any cattle Mandi may not be leased out beyond one year as provided under the Lease Rules, 1990." It is stated that when this notification was issued, the 2003 Rules have not come into force and under rule 2 of the Rules of 1990, the leasehold rights could not be granted beyond the period of one year. The learned counsel for the petitioner has also made reference to the provisions of section 168(3) of the Punjab. Local Government Ordinance, 1979 to argue that the rules under the Municipal Administration Ordinance, 1960 ("the Ordinance, 1960") would only be applicable if those were not inconsistent with the provisions of 1979 Ordinance; same is the connotation of section 182 thereof; in the Ordinance, 2001 on account of section 196, the rules framed under the previous law which could be followed, are the one, which are not inconsistent with the 2003 Rules. As in the aforementioned Rules, a complete procedure has been prescribed whereby it is only through the public auction that the fee collection contract could be awarded and that too not beyond one year, without no extension permissible, therefore, the impugned order is a clear ultra vires of the law. 3. Without prejudice to the above, it is argued that even according to clause (1) of the agreement between the TMA and respondent No,3, the extension could only be granted by the TMA subject' to its approval by the Local Government. In this case, the TMA has never granted any such extension as is visible from its own act because the rights of collection were put to auction through an advertisement, therefore, the Secretary Local. Government could not usurp the authority of the TMA, who undoubtedly had no power to grant the extension in the garb of either the supervisory jurisdiction or the so-called jurisdiction in appeal, which remedies are otherwise not available in the matter and was never even availed; it is only on an incompetent application that the extension has been granted. It is also submitted that as the collection rights were advertised to be put to auction, therefore, the petitioner had legitimate expectation to participate and acquire such rights if he was the highest bidder; however, this right of the petitioner has been circumvented through the impugned order. It is lastly submitted that in order to re-enforce the legal position that no extension could be granted, in the 2003 rules, an amendment has been made and by adding rule 27-A thereto, a complete embargo and prohibition have been placed blocking the extension of any such contract under any circumstances whatsoever. Mr. Aftab Gul, Advocate who is a co-counsel in the petition, submits that Rule 3 of the 2003 rules is conclusive and excludes the possibility of extension beyond the period of one year; Rule 27-A, which has been added to these Rules by virtue
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of an amendment, is further reinforcement in this direction; no procedure or mechanism has been provided for the extension and fit is so, as the law has not conceived and permitted the extension. 4. In W.P. No,17375/2008, the petitioner asserts the same locus standi and has challenged the same order in the noted W.P. No,16189/2008 and Mr. Muhammad Shahid Chaudhry, the learned counsel for the petitioner states that there are three fundamental questions involved in the matter: (i) Whether the Municipal Committee (Cattle Market) Rules, 1969 are saved or otherwise. (ii) Whether a contract of the like nature can be extended beyond one year and what is the purport of Rule 27-A of the Rules. (iii) Whether such a contract can at all be extended by the Secretary Local Government while exercising any of his jurisdiction. ' Elaborating his submissions on the first question, the learned counsel submits that the Rules of 1969 were framed under section 129 read with Item No,35-F of the 4th Schedule of the Municipal Administration Ordinance, 1960; this Ordinance was repealed under section 233 of the Punjab Local Government Act, 1975, however, certain acts and the rules made under the previous Act were saved by virtue of section 235, but the Cattle Market Rules of 1969 do not fall within the saving clause; 1975 Act was repealed by the Punjab Local Government Ordinance, 1979 and the following provisions of this Ordinance relate to the cattle fair and the shows:-- ' Section 3(19), Sections 51, 39-A and 39-B, Section 62(1-A) Section 101, Section 105 and section 106. ' Under the above, however, all the Municipal Committees were not allowed to hold cattle fairs and shows rather only Bakar Mandi which was meant for slaughter and those Municipal Committees were allowed to hold cattle fair which were holding the cattle fair before 17-1-1980, that too according to the byelaws which were to be framed and not under any Rules, especially not under the Rules of 1969; the combined reading of the section reveals that cattle fairs and shows were to be arranged and controlled by the bye-laws and by the Municipal Committee; Punjab Local Government Ordinance, 1979 was subsequently repealed by the Ordinance and the following provisions are relevant for the proposition in hand: ' Section 196 pertains to repeal and is a saving clause. Section 195 confers general powers to the Government. ' Under section 191, the Government may by notification in the official Gazette make rules on the items falling in Part-I of the 5th Schedule, while under section 192 in Part-II of the 5th Schedule. The Cattle Market falls within this part, however, no byelaws have been framed so far in this special category, rather the General Rules of 2003 are taken to be applicable and it is on account of the above that the cattle market can only be auctioned for the purposes of collection of the fee. ' In W.P. No,16113/2008, Mr. Yaqoob Sindhu, the learned counsel for can the petitioner, has submitted that without conceding if the, extension can be granted by the TMA, but assuming it to be so the Secretary Local Government has no jurisdiction at all in this regard. 6. Messrs. Khawaja Saeed-uz-Zafar and Asjad Saeed, the learned counsel for respondent No,3 (the contractor in whose favour extension has been made through the impugned order) have argued that West Pakistan Municipal Committees (Cattle Market) Rules, 1969 ("the Rules of 1969") are saved and still applicable as these are not inconsistent with any subsequent legislation on the subject and specially not with the 2003 Rules, therefore, the extension in terms of the provisions of rule 6 (of the Rules of 1969) can be granted, when a new cattle market has been established. It is submitted that earlier there was one cattle market located at Kot Kamboh, but as the residents of the area had a grievance about it, which was agitated before the Court, resultantly on account of an order of. The Court, the market was partly moved to Shahpur Kanjra, where the respondent- contractor had spent considerable amount of money for providing the necessities and thus it is in the circumstances that the extension for the period of one year was permissible, because of it being a new cattle market; they have also submitted that the Rules of 1969 were promulgated
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under the Municipal Administration Ordinance, 1960 which was finally repealed by the Local Government Ordinance, 1975 substituted by the Act, 1975 and according to sections 229 and 217(3), the said Rules were duly saved. ' It is also argued that according to the consistent conduct of the Local Government Department and also the Local Governments constituted under different laws on the subject, the cattle market collection rights have throughout been granted .Under Ihe Rules of 1969 and, therefore, such consistent practice of the department shall be considered valid and enforceable in terms of the law laid down in the judgment reported as Nazir Ahmad v. Pakistan and 11 others (PLD 1970 SC 453) (at page 459). It is also argued that as per the provisions of section 217(3), the expression "regulation" in fact is an interchangeable term of the rules and therefore, it is the rules which have been saved; for the proposition they have referred Lever Brothers Pakistan Ltd. And another v. Government of Punjab through Secretary, Health Department, Civil Secretariat, Lahore and 3 others (PLD 2000 Lahore 1); the practice and procedure, which is being followed by the Government in entering into contract with the private party is not changed, despite the change in law, such a practice and procedure shall be considered valued to be followed in awarding the contract on the basis of the Rules of 1969 despite the fact that there has been subsequent legislation conforming with the Municipal Administration Ordinance, 1960 and the rules framed thereunder, but at no point of time, any classification was made on account of the change brought about; Mrs. Amatul Jalil Khawaja v. Federation of Pakistan through Secretary Ministry of Interior Islamabad and others (PLD 2003 Lahore 310) has been relied upon in this context; it is also submitted that the present writ petition has been filed by those who have not participated in the auction proceedings; advertisement in this behalf appeared in the daily "Nawa-I-Waqt" on 7-10-2007, previous contract was to expire on 31-10-2001, yet the petitioners did not come forward to take part in the auction and the necessary steps in that regard, thus they lack the locus standi, reliance has been placed upon Manzoorur-Rehman v. Government of Sindh and others (2008 SCMR 1375). It has been submitted that the Secretary Local Government had ample power to grant the extension in exercise of its appellate jurisdiction; reference in this regard has been made to Rules of Appeal Schedule-I, Serial No,3 under the head of Authority making the Rules; without prejudice to the above, it is argued that even if the appeal was incompetent, yet the Secretary had the supervisory jurisdiction in the matter; reliance has been placed upon Tehsil Municipal Administration, Hafizabad v. Government of Punjab through Secretary, Local Government and Rural Department, Lahore and others (2006 SCMR 1089) (at page 1091) to argue that where there are no guidelines provided, the prohibition cannot be assumed; by further drawing support from Zia Shahid v. Sh. Rafiq Ahmad (1999 CLC 1491), it is submitted that the rule of implied report cannot be imported into the matter reliance has also been placed upon Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others (PLD 2001 SC 169) (at page 173); the principle of Casus Omissus has also been pressed in the matter and reliance is placed upon Patricia Anne Patel v. Gerald Cowling Patel (PLD 1912 Karachi 444) and Amanullah Khan v. Chief Secretary, Government of N.-W.F.P. And 2 others (1995 SCMR 1856). It is further submitted that the provisions of Rule 27-A read with rule 3 of the Rules are permissive in nature, and it is misconceived if it places any prohibition on the extension; by also relying upon section 221(3) of the Act of 1975 and section 4 of the said Act, it is contended that the Rules of 1969 were duly saved under the law. 7. Mr. Khadim Hussain Bhatti, the learned counsel appearing for the TMA, has supported the case of the respondent/contractor and has further argued that the Mandi at Kot Kamboh was new in nature and, therefore, according to proviso to rule 6 of the Rules of 1969, the extension to the extent of three years could validly be granted. It is submitted that for the purposes of establishing a new Mandi, the requirements are, to provide facilities such as drinking water both the human being and the animals, sheds etc., the mangers for the fodder of the animals, the machines for cutting the
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fodder; the Mandi earlier was being conducted till October, 2007 at Kot Kamboh, but in the circumstances explained above, from 1st of November, 2007 it was shifted to Shahpur Kanjra, where respondent No,3 has made the constructions, provided the said facilities by incurring substantial amount of money. 8. The learned Additional Advocate-General appearing for the Government has also supported respondent No,3 on the proposition about the application of Cattle Market Rules, 1969 and submitted that under section 220 of the Act, 1975, the power was available to make the rules, but no rules were framed, however, section 221 empowers the framing of the bye-laws which has to be done by the Municipal Committees, but again there is the lapse in this behalf; repealed section 233 of the Act, 1975 and section 235 validated certain orders and the proceedings which thus saved the Rules of 1969; Punjab Local Government Ordinance, 1979 was enforced and according to section 167 of the Ordinance, Government was empowered to make the Rules; the Punjab Local Council Lease Rules, 1990 were enforced and repealing clause in this behalf is (14) and by virtue of rule 225, West Pakistan Municipal Committees (Octroi) Rules, 1964 were repealed .Which means .That those rules till the Rules of 1990 were still applicable, because otherwise there was no question of repealing them, reference in the same context has been made to Rule 12-A of 1990 Rules; making mention to Punjab Local Government Ordinance, 2001 it is submitted that the power to make the rules was given to the Government under section 191 and to make the bye-laws under section 192; section 196 is the repealing and saving clause; the 2003 Rules have not repealed the Rules of 1969; in this behalf reliance is placed upon Taj Din and 4 others v. Zilla Council, Kasur and 3 others (PLD 1990 Lahore 269) and Messrs Khayal Muhammad and Sons v. Chairman Municipal Committee, Jhelum and 3 others (PLD 1985 Lahore 545); it is also submitted that in fact section 182 of the Local Government Ordinance, 1979 had re-insurrected the Cattle Market Rules, 1969. 9. The other set of writ petitions pertains to the contract of Cattle Market Kot Ranjeet Singh District Sheikhupura and its contract period has been extended vide order. Dated 13-8-2008 passed by the Secretary Local Government. The brief narration of the facts of the case is as under. 10. The petitioner is registered with the TMA as a contractor and otherwise is qualified for the procurement of contracts for collection of various fees (especially the cattle market fee); it is his grievance that though the cattle market Kot Ranjeet Singh, Sheikhupura had to be auctioned for the year 2008-2009 on account of the expiry of the contract of the previous contractor/respondent No,6, but through the impugned order dated 13-8-2008, the contract (of the former contractor) has been illegally and unlawfully extended by increasing the contract amount to Rs,3,15,00,000 (i,e, double amount of the previous contract). 11. The learned counsel for the petitioner has argued that the order impugned is coram non judice; violative of the provisions of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003; the Local Government has no authority in law to grant such an extension; there was no order passed by the TMA, Sheikhupura which could be challenged by the contractor in so-called appeal upon which, the impugned order could be passed; even otherwise, the applications (Annex-D & Annex-D/1) on the basis of which, the impugned order has been passed, cannot be treated to be the appeals. 12. Explaining the backdrop of the case, it is pointed out by the learned counsel for the petitioner that respondent No,6 (the contractor) had procured the contract of the noted cattle market for the year 2007-2008, which was to expire on 1-7-2008, but almost 7/10 days before the expiry thereof, he filed a Writ Petition No,7414/2008 in this Court seeking the relief that because the site for holding the cattle market for the contract period was not provided to him (the contractor) and was delayed for four months resultantly, "respondents may very kindly be directed to provide a period of four months to the petitioner for holding cattle market as compensation for the period, during which no suitable place was provided to the petition (sic) by the respondents for holding the cattle market
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and the petitioner has already bonafidely paid the instalments of that period without holding cattle market." It is further prayed in the petition that the respondents may kindly be directed to extend the contract of the petitioner for a further period of one year with an increase of 10% in the auction price of Rs,1,51,00,000. 13. Vide order dated 23-6-2008, the report and parawise comments to W.P. No,7414/2008 were required from respondents Nos.1 to 3, which were submitted by the respondent-TMA and the claim of the petitioner in the writ petition (respondent No,6 in the noted petition) was opposed. On 4-7- 2008, C.M.A. No,3/2008 moved by respondent No,6 was fixed before the Court in which, a request was made that he be permitted to deposit the instalments for the current month till the time the bid process is finalized by the respondents. The permission though was granted by the Court, but it is clearly mentioned in the order that "it will in no manner prejudice legal rights of the respondents in any manner whatsoever and also that the same is purely interim arrangement and will hold field till the day the new auction proceedings are finalized." On 30-7-2008, the counsel for respondent No,6 requested the Court that the arrangement made vide order dated 4-7-2008 may be permitted to be continued, as the auction proceedings have not so far been finalized. The counsel for respondents Nos.1 to 3 in that petition agreed to the above, however, the Court again directed as under:-- "----till finalization, arrangement may continue subject to deposit of agreed monthly instalment. However, the same shall be accounted for and adjusted, when the auction is finalized; this arrangement is without prejudice to the legal rights of the parties in law. ." ' When the said writ petition came up for hearing on 19-9-2008, the counsel for the petitioner wanted to withdraw the same on the ground that his grievance stands redressed on account of the order dated 13-8-2008, (the impugned order passed by the Secretary Local Government). It may be pertinent to mention here that in the meantime, the present petitioner had moved an application (C.M.A. No,2442/2008) in the said writ petition seeking impleadment as a party to the matter; however, he has not yet been arrayed as a party thereto, when the noted writ petition has been instituted in which the order dated 13-8-2008 has been challenged on the grounds which are briefly mentioned above, and further submissions of attack shall be reflected in the course of this judgment. 14. Dr. M. Mohy-ud-Din Qazi, the learned counsel for the petitioner, has argued that the impugned order (in this case) is violative of the various orders passed by this Court in W.P. No,7414/2008 as on the one hand, the respondent has been seeking the time in the garb of extension of four months which he allegedly lost on account of non-handing over of the possession of the site and avowed that this shall be till the process of auction is finalized, but on the other hand, secretly and surreptitiously applied to the Secretary Local Government for obtaining extension in the contract period for another year. It is also argued that neither under the terms of the contract between the respondent/contractor nor under any law, an extension could be granted to the said respondent; in this behalf reference has been made to clauses 2 and 25 of the contract, which postulates that the agreement shall be for a period of one year and upon expiry thereof, the respondent shall be obliged to handover the possession to the TMA; he in unequivocal terms has referred to rules 3, 4 and 5 of the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 to argue that as per these rules, the right of collection of the fee can only be awarded for the period not exceeding one financial year and also not otherwise than according to the prescribed manner; the procedure for the award of contract is prescribed by rule 5 which is only through public notice published in the newspapers for conducting an auction as provided, with some further conditions attached thereto. He has vehemently submitted that viewing the case from any angle, the Secretary Local Government had no jurisdiction to extend the period when the extension could not even be allowed by the TMA and was never ever recommended by it (the TMA). Besides raising the
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plea of jurisdiction, the learned counsel has also made reference to section 190 of the Ordinance read with the Punjab Local Government (Appeal) Rules 2003, Rules 1 and 3 and Schedule thereto to argue that there has never been any order passed by the TMA which could be challenging before the Secretary. Moreover, Annex-D and Annex-D/1, on which the impugned order has been passed, are not even the appeals which could be said to have challenged any order of the TMA, rather those are in the nature of some representations, which are not competent or maintainable under any law empowering the Secretary to grant the extension as has been done in the instant case; without…
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