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Writ Petition No. 799 of 1985, decided on 14th September, 1985.

--Art. 9--Punjab Local Government Ordinance (VI of 1979), 5.156/157- Punjab Local Councils (Contract) Rules, 1981, R.4(2)--Grant of lease of cattle market--Appeal--Limitation--Letter from Government to Commissioners and Deputy Commissioners in Punjab invoked--Additional Commissioner not suspending any resolution of Zila Council--Good reasons given by Additional Commissioner for holding petition/appeal within limitation--Reliance on letter for invoking limitation, held, was misconceived.

---Art. 9--Punjab Local Government Ordinance (VI of 1979), 5.156/157- Punjab Local Councils (Contract) Rules, 1981, R.4(2)--Cattle market- Contract--Lease not struck down in toto by Additional Commissioner-- Cattle market alleged to be new market--Additional Commissioner holding it to be old market--Lease for three years held by Additional Commissioner to be violative of Martial Law Instruction No. 25--Lease reduced to period of one year--Finding being one of fact, held, was not open to scrutiny in writ jurisdiction and was, therefore, unexceptionable.

--Art. 9--Punjab Local Government Ordinance (VI of 1979), 5.156/157- Punjab Local Councils (Contract) Rules, 1981, R. 4(2)--Lease found not in conformity with law--Public interest--Question of fact--Additional Commissioner, held, had jurisdiction to interfere under 5.156 of Punjab Local Government Ordinance--High Court in writ jurisdiction could not substitute its own opinion for that of relevant authority.

Haji Hashmat Ullah and others v. Karachi Municipal Corporation and others 1975 S C M R 359 ref.

--Art. 9--Punjab Local Government Ordinance (VI of 1979), S.39/156/ 157--Punjab Local Councils (Contract) Rules, 1981, R.4(2)--Cattle market--Lease not reported to Local Council in following meeting- Additional Commissioner finding lease to be in contravention of S. 39 of Punjab Local Government Ordinance and R. 4(2) of Punjab Local Council (Contract) Rules, 1981--Direction of Additional Commissioner, reducing period of lease to one year, and for changing day of holding cattle market, held, could well be made under cl. (c) of Ss. 156 & 157 of Punjab Local- Government Ordinance.

Ch. Mushtaq Ahmad Khan and Malik Amjad Pervaiz for Petitioner. M. Azam Rasool for Respondent No.1.

Ch. Mushtaq Masood for Respondent No.2.

Khalil Ramdey, A.-A.G. with Shabbir Laali and Ata Muhammad for Respondent No.3.

Dates of hearing: 10th, 27th, 30th April, 14th, 19th and 26th May and 3rd June, 1985.

Zilla Council Sialkot, petitioner No.2, leased out its rights to hold the cattle market in village Badhiana to Chiragh Din, petitioner No.1 for a period of three years commencing from 7-2-1984 against lease money of Rs.61,776 which was payable over three years According to the terms of the agreement, petitioner No.1 was to hold the cattle market every week on Friday. Mir Khalid Mahmood, respondent No.2, herein, obtained a lease from Municipal Committee, Pasrur, respondent No.1, on 8-12-1984 for holding a cattle fair on Fridays at Narowal Road, within the Municipal limits. Respondent No.2 got the lease in open auction for Rs.26,66,000. Lease of respondent No.2 was for a period of one year i.e. 1-1-1985 to 31-12-1985. After obtaining this lease, respondent No.2 preferred an appeal under section 156/157 of the Punjab Local Government Ordinance, 1979 (hereinafter called the Ordinance) against the present petitioners before the Additional Commissioner, Gurjanwala, to challenge the grant of lease of the cattle market at Badhiana to petitioner No.1. Respondent No.2 claimed the following reliefs in his appeal:

(i). that the petitioners be directed to hold cattle market at Badhiana on any day of the week except Friday on which day, Municipal Committee, Pasrur, was holding a cattel market at Narowal Road since 1977;

(ii) that the petitioners be directed to charge the market fee according to the prescribed rate of 4 per cent; and

(iii) that the Zilla Council Sialkot be directed to reduce the period of lease from three years to one year.

2. Petitioners, took an objection before the learned Additional Commissioner that the matter agitated before him did not fall within the ambit of the provisions of sections 156(b)(c) and 157 of the Ordinance. It was further sumitted that the appeal/petition filed by respondent No.2 before the Additional Commissioenr was time-barred in so far as power to suspend the execution of any resolution passed or order made by a Local Council as envisaged under section 156 (b) of the Ordinance, even if available, could be exercised within 15 days of passing of the resolution and not thereafter, whereas, respondent No.2 filed the application /appeal almost a year after the grant of the lease in dispute. Learned Additional Commissioner repelled both these objections. He held that the impugned lease being against law and public interest, he was competent to interfere and cancel or modify the lease in question in exercise of the powers under section 156(b) and (c) and also to issue necessary directions under section 157 of the Ordinance. Learned Additional Commissioner also took note of clauses 12 and 17 of the lease agreement in question whether petitioner No.1 was bound to carry out the directions issued by the Government or any other authority with regard to the holding of the cattle fair at Village Badhiana.

As regards the objection about limitation, learned Additional Commissioner accepted the contention of respondent No.2 that petitioner No.1 actually held the cattle fair, for the first time, on 21-12-1984 and it was only then that the said respondent came to know of the lease in question. Note was also taken of the fact that the Chairman of the Zilla Council in flagrant disregard of the provisions of section 39 of the Ordinance and Rule 4(2) of the Punjab Local Councils (Contract) Rules, 1981, did not report the execution of the contract to the Zilla Council in its meeting next following the execution of the contract or in any subsequent meeting. Learned Additional Commissioner, therefore, held that the appeal/petition of respondent No.2 was well within time.

On merits of the case, it was held by the Additional Commissioner that the contract of the lease in dispute was not in conformity with the law in so far as it flouted the provisions of the Ordinance and the Punjab Local Councils (Contract) Rules regulating the execution of the contracts. It was further observed by the Additional Commissioner that the cattle fair at Badhiana, according to the record, was first started in the year 1977 and, as such, it was not a new market. Proceeding on this premises, it was held that the cattle market in question could not be leased out for more than one year in view of the provisions of Martial Law Instructions Nos. 10 and 25. Lease in question granted for three years was accordingly held to be in contravention of the said Martial Law Instructions. The lease in question was also found to be against the policy of the Government contained in Letter No. XOVI (SG)/SI(55), dated 26-2-1984, issued by the Secretary to the Government of the Punjab, Local Government, to all the Heads of the Local Councils in Punjab saying that no cattle fair be held on the same day on which an old cattle fair was being held in the vicinity. For all these reasons, lease of the cattle market .granted to petitioner No.1 was held to be repugnant to law. ,

It was further held by the Additional Commissioner that the lease in question in so far as it provided for holding of weekly cattle market at Badhiana on Friday was against the public interest because this would adversely affect the income of respondent No.2, who having got the lease from the Municipal Committee, Pasrur, for one year against the lease money of Rs.26,66,000 was already holding it on Fridays. Learned Additional Commissioner observed in this behalf that if protection is not afforded to respondent No.2, no person shall come forward in future to obtain the lease from the Municipal Committee, Pasrur, at such a high rate and thereby the revenues of the Municipal Committee shall suffer heavy loss which in turn shall seriously affect the development projects and other activities undertaken by the Municipal committee for the benefit of the public.

3. With the aforementioned findings and observations, learned Additional Commissioner accepted the appeal/ petitioner of respondent No.2 by order, dated 20-2-1985 with the following directions:-

(a) that the period of lease of cattle fair at Badhiana be reduced to one year and after the expiry of one year, the lease of this cattle fair be put to public auction afresh for a period one year;

(b) that the day for holding the cattle market at Badhiana be changed from Friday to any other day suitable to the petitioners herein; and

(c) that the Zilla Council shall ensure that Chiragh Din petitioner shall charge the prescribed cattle fair fee.

4. Chiragh Din petitioner filed the present constitutional petition on 21-2-1985 to challenge the aforementioned order of the Additional Commissioner. Zilla Council, Sialkot, was initially impleaded as respondent No.4 but note was given that "writ petition has also been filed for benefit of respondent No,.4 who shall be transposed as writ petitioner." Zilla Council, Sialkot, accordingly, moved an application (C.M.522-85) seeking its transposition as a petition. This application was allowed by order, dated 27-2-1985.

5. I have heard the learned counsel for the parties at considerable length. Learned Advocate appearing for the Municipal Committee Pasrur, and learned counsel for Mir Khalid Mahmood, respondent No.2, took a common stand and supported the order of the Additional Commissioner.

6. Learned counsel for the petitioners assailed the validity of the impugned order on the following grounds:-

(i) that the grant of lease in question by Zilla Council, Sialkot, to petitioner No.1 was neither in contravention of any law nor was it against public interest and, as such, provisions of section 156 of the Ordinance were not attracted to the instant case;

(ii) that, in any case, the directions issued by the learned Additional Commissioner in the impugned order are not covered by the provisions of clauses (b) and (c) of section 156 of the Ordinance which envisage only an action to suspend the execution of a resolution passed or order made by the local council and to prohibit the doing of anything proposed to be done and not to cancel or modify the lease agreement already concluded;

(iii) that the impugned order was also not justified with reference to the provisions of section 157 of the Ordinance because the lease in question did not defeat any purpose of the Ordinance;

(iv) that the petition/appeal of respondent No. 2 to challenge the lease in question was filed beyond the limitation period of 15 days prescribed in Letter No.DS(R)-118/80, dated 29-8-1981;

(v) that the letter, dated 26-2-1984 relied upon by the Additional Commissioner for holding that the cattle market at Badhiana should not be held on Friday is not applicable to the instant case, firstly, for the reasons that it was issued after the grant of lease in question, and secondly, because it applies to those cattle markets which are held within close proximity of the earlier market, whereas petitioners cattle market is at a distance of 14 kilometers from the cattle market of Municipal Committee, Pasrur;

(vi) that there is otherwise no sanction in law for prohibiting the petitioner from holding the cattle market on a particular day;

(vii) that the lease in question was not required to be placed before the Zilla Council because the Chairman was otherwise empowered by resolution of the Zilla Council to approve such leases;

(viii) that the cattle market at Badhiana was a new market and, as such, it could well be leased out for a period of three years in terms of Martial Law Instruction No. 25 and

(ix) That grievance agitated by the lessee from the Municipal Committee, Pasrur was his personal and individual grievance and it did not involve any public interest.

7. I would first of all take up the question of limitation. Contention of the learned counsel in this behalf is founded on a letter, dated 29-8-1981 (Annexure G/1) addressed to all the Commissioners of the Divisions and Deputy Commissioners in the Punjab. Heading of this letter is "suspension of resolution in local councils". Para. 1 of this letter read as follows:-

"If within 15 days of the receipt of a resolution, the suspension order is not passed by the competent officer, he will not be competent to do so thereafter."

It obviously does not apply to the exercise of other powers under sections 156 and 157 of the Ordinance. By the impugned order, learned Additional Commissioner has not suspended any resolution o the Zilla Council. Reliance on the aforementioned letter for the purpose of invoking limitation is, therefore, misconceived. Even otherwise, learned Additional Commissioner gave good reasons for holding that the petition/ appeal filed by respondent No.2 was well within time. Objection of the petitioners regarding the limitation was therefore, rightly repelled.

8. Next contention of the learned counsel requiring examination is based on the provisions of sections 156 and 157 of the Ordinance. For better appreciation of the contention it will be of advantage to refer to the relevant provisions of these two sections, which are reproduced hereunder:-

"156. Safeguards.-- If, in the opinion of Government, anything done or intended to be done by or on behalf of a local council is not in conformity with law or is in any way against public interest, Government for reasons to be recorded may:-

(a) quash the proceedings;

(b) suspend the execution of any resolution passed or order made by the local council; and

(c) prohibit the doing of anything proposed to be done."

"157. Powers to give directions.--(1) Government may direct any local council or any person or authority responsible thereto, to take within such period as may be specified such action as may be necessary for carrying out the purpose of the Ordinance."

Before proceeding to examine the contention, it may be stated that the powers of the Government under the aforequoted provisions except under clause (a) of section 156 have been delegated to the Commissioners in case of Zilla Councils.

9. It is quite clear from the provisions of section 156 that the powers thereunder can be exercised if the action of the Local Council is not in conformity with law or is against the public interest. In the present case, finding of the learned Additional Commissioner is that the lease in question was both against law and public interest. It is, however, significant that notwithstanding this finding, the lease in question was not struck down in toto. On the other hand, the directions contained in the operative part of the impugned order show that the learned Additional Commissioner accepted the lease in question as valid for one year. This means that in ultimate analysis, lease in question was held to be violative of Martial Law Instruction No. 25. The said instruction lays down in categorical terms that no lease except the lease for new cattle market shall be for a period of more than one year and that in case of new cattle market, lease may be given for extended period of three years extendable from year to year with an annual increase of 10 per cent in the lease money for every subsequent year. Learned counsel for the petitioners vehemently contended that the cattle market at Badhiana was a new market, and as such, it was rightly leased out for a period of three years. It was not denied by the learned counsel that the cattle market at Badhiana was started in 1977. His position, however, was that although the said cattle market had been leased out a number of times since 1977, it was never actually held until petitioner No.1 obtained it on lease in 1984. It is difficult to believe that the cattle market in question was never actually held for the last more than seven years. However, even if it be so, cattle market launched since 1977 and leased out many a times since then cannot be treated as a new cattle market. Learned Additional Commissioner, therefore, rightly found that it was not a new cattle market. Even otherwise, this finding being one of fact is not open to scrutiny in writ jurisdiction. Thus, the lease in excess of one year was clearly repugnant to Martial Law Instruction No. 25 and the learned Additional Commissioner rightly directed that the period of lease be reduced to one year. The view taken by the Additional Commissioner is, unexceptionable.

10. Having found that the lease in question was not in conformity with law. I do not consider it necessary to go into the further question whether it was also against public interest because the Additional Commissioner would undoubtedly have the jurisdiction to interfere under section 156 of the Ordinance if the lease was against law. Even otherwise question of public interest is essentially one of fact which has to be determined by the relevant authorities on consideration of a number of factors. As held in Haji Hashmat Ullah and others v. Karachi Municipal Corporation and others 1975 S C M R 359, this Court sitting in writ jurisdiction cannot substitute its own opinion for that of the relevani. authorities.

11. It is now to be seen whether the directions given in the impugned order could validily be made under section 156, clauses (b) and (c) and section 157 of the Ordinance. Impugned directions evidently do not fall within the ambit of clause (b) which provides only for suspension of execution of a resolution /order passed by a local council. However, clause (c) of section 156 is more comprehensive as it empowers the appropriate authorities to prohibit the doing of anything proposed to be done. Directions of the Additional Commissioner for reducing the period of leas to one year and for changing the day of holding the cattle market cold well be made under clause (c). These direction could also be made under section 157 of the Ordinance which provides for issuance of directionq necessary for carrying out the purpose of the Ordinance. It cannot be denied that one of the purposes of the Ordinance is to ensure that the contracts executed by local councils do not offend against any provisions of law and strictly conform to the procedure laid down by the Ordinance and the relevant rules. It has been found by the learned Additional Commissioner that the grant of lease in question was in contravention of section 39 of the Ordinance and rule 4(2) of the Punjab Local Councils (Contract) Rules, 1981. Section 39 of the Ordinance provides that all contracts made by or on behalf of a local council shall be 'reported to the local council by the Chairman at the meeting next following the execution of the contract". Subsection (2) of section 39 provides that 'no contract executed otherwise than in confromity with the provisions of this section shall be binding on the local council'. It is not the case of the petitioners that the contract of the lease in question was ever reported to Zilla Council at any of its meetings. Learned counsel, however, contended that the Chairman of Zilla Council was empowered through resolutions (Annexures 'D' and 'E') to approve the lease in question and, as such, it was not necessary to place the matter before the Zilla Council. This contention has not impressed me because, in my view, despite the said resolutions, Chairman was not absolved from the statutory, liability of reporting the matter to the Zilla Council in accordance with the aforementioned provisions.

12. As held above, the lease in question could not be granted for more than one year which period has, in any case, expired on -2-1985. It is, therefore, no more necessary to examine and determine the validity of the other direction regarding the change of day for holding the cattle market. This is no more a live issue so far as the present petition is concerned. Learned counsel for the petitioners, however, pointed out that in the presence of this direction Zilla Council shall be precluded from holding the cattle market in question on Fridays. Zilla Council, in my view, is not without remedy. It can agitate this matter before the District Co-ordination Committee set up under section 160-A of the Ordinance which is more appropriate body for examining and 31 deciding such questions which involve the interest of more than one local councils in the district. Needless to point out that the Additional Commissioner gave the direction for holding the cattle market at Badhiana on a day other than Friday for the reasons that the Municipal Committee, Pasrur, was also holding its cattle market on that day. Question of proximity of the two cattle markets can also be more appropriately examined by the Co-ordination Committee.

13. Before concluding, I would like to point out that the learned counsel for the petitioners did not seriously object to the direction regarding the charging of prescribed cattle fair fee. However, this matter is even otherwise no more relevant for the reasons given above and, in any case, it can also be agitated before the District Co-ordination Committee.

14. In view of the foregoing discussion, the impugned order of the learned Additional Commissioner does not call for any interference This petition is, therefore, disposed of with the aforesaid observations There shall be no order as to costs in the facts and circumstances of this case..

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