PLJ 2013 Lahore
389
[Multan Bench Multan]
[Multan Bench Multan]
Present: Amin-ud-Din Khan, J.
MUHAMMAD ASHRAF
QADRI--Petitioner
versus
BANK OF PUNJAB through its Chairman and another--Respondents
W.P. No. 5977 of
2012, decided on 6.5.2013.
Constitution of Pakistan,
1973--
----Art.
199--Constitutional Petition--Auction of various properties was offered owned
by Bank--Sealed tenders/bids were collected alongwith
1% of offered bid amount--Tender submitted by petitioner was found highest but
after some days tenders were cancelled--Pay orders were returned to
unsuccessful bidders--Entitlement to take property on basis of amount
offered--Terms and conditions published in newspaper that all bids can be
rejected by Bank without assigning any reason--Validity--When decreeing
pendency of writ petition, process of re-auction was taken place whereby an
amount of rupees was offered for property for which petitioner had offered 3-10
million only, therefore, High Court has to protect interest of tax payers as
well as public exchequer notwithstanding follies or illogical and some times even casual attitude of custodians of public
exchequer--Custodian of properties had not discharged their duties with regard
to fixation of reserve price as well as assignment report, as according to defence of Bank that evaluation report was prepared with
connivance of writ petitioner, therefore, High Court has to see national
interest that national interest must take priority over private interest and
individual rights. [Pp. 392 & 393] A
& B
PLD
1989 SC 166, rel.
Constitution of Pakistan,
1973--
----Art.
199--Constitutional Petition--Discretionary powers--Sealed tenders were
collected for auction of properties owned by Bank--Highest tender was cancelled
without any reasons--Price was offered more than five time for same
property--High Court was bound to see that person who had come to Court for
discretionary relief, whether said relief was equitable--When any violation of
contractual obligation was made, petitioner had alternate remedies ordinarily
High Court refrains itself to exercise constitutional jurisdiction--It is not a
case where any third person has just offered more amount than amount offered by
petitioner but in instant case full fledge process of re-auction of suit
property was carried out and there is final offer for suit--Petition was
dismissed. [Pp. 393] C & D
Malik Waqar Haider Awan,
Advocate for Petitioner.
Mr. Muhammad Saleem Iqbal, Advocate for
Respondents.
Date of hearing:
6.5.2013.
Judgment
Through this
writ petition, the following prayer has been made:-
"In these
above mentioned circumstances it is respectfully prayed that this writ petition
may kindly be graced with acceptance and issuance of cancellation letter by
Respondent No. 2 dated 13.04.2012 (Annex-G) may kindly be declared illegal,
without lawful authority, without jurisdiction, arbitrary, based on malafides, unjust, unfair, against natural justice may
kindly be set aside/quashed.
It is further
respectfully prayed that respondents may kindly be directed to receive the
remaining amount and execute Registered Sale Deed in favour
of the petitioner."
2. Learned counsel for the petitioner argues
that the respondent-Bank previously offered auction of various properties owned
by the Bank in October, 2011 through publication in the newspaper and its agent
namely Green Wood Estate Consultants invited the interested parties to submit
their sealed tenders/bids along with 1% of the offered bid amount in shape of
pay order/demand draft in favour of the Bank of
Punjab; that the petitioner along with others on 28.10.2011 participated in the
bid process and submitted sealed tenders/bids; that the petitioner submitted
his sealed tender/bid of rupees thirty lacs (three
million) for the property reflected at Sr. No. 1 in the publication, which is
situated at Multan road Muzaffargarh measuring 1705
square feet; that on opening of tenders, the tender submitted by the petitioner
was found highest but after some days he was informed that the management has
cancelled all the tenders; that again the respondent-Bank published in the
newspapers `Jang' and `Dawn' on 29.02.2012 invited bids for the sale of its
various properties in open auction through Respondent No. 2; that the
interested parties were asked to submit pay order/CDR of Rs. 500000/- (five lacs) till 12.03.2012; that again the petitioner fulfilling
all the conditions mentioned in the publication submitted pay order of Rs.
500000/- (five lacs) in favour
of Bank for the properties mentioned at Sr. No. 5 situated at Multan road Muzaffargarh. Learned counsel for the petitioner further
states that the reserve price fixed in the publication for the said property
was Rs.2600000/- (2.60 million) and the petitioner as well as others took part
in the bidding process on 12.03.2012 and petitioner was declared highest bidder
by offering Rs.3100000/- (thirty one lacs), therefore
pay order of petitioner was retained and rest of the pay orders were returned
to the unsuccessful bidders; that the petitioner was formally informed about
the acceptance of bid through Letter No. BOP/GSD/2012/272/03/3510 dated
15.03.2012 and schedule for rest of the payment was also mentioned in this
letter of acceptance; that even prior to the formal acceptance letter
petitioner has sent through fax the copy of pay order of Rs.9,30,000/-; that
when on 26.03.2012 petitioner tried to submit the original pay order of said
amount, which was refused on the pretext that one Faiz
Ahmad Khan has filed a suit in the civil Court of Muzaffargarh,
therefore the petitioner was forced to file this writ petition; that during the
pendency of this writ petition the respondent-Bank again advertised for auction
of said property, then the petitioner moved CM No. 4927 of 2012, which was
heard on 06.07.2012 as the auction was scheduled for 12.07.2012. The order
dated 06.07.2012 is as follows:
"This is an
application under section 151 CPC for staying the auction scheduled to be held
on 12.07.2012.
2. Notice. Meanwhile the auction may take place
but it shall be held subject to decision of this writ petition."
Learned counsel
further states that the contract was completed and there was no occasion and
power with the respondent-Bank to revoke the same, as the proposal became
promise when the acceptance, letter dated 15.03.2012 was issued in favour of the petitioner and after that the respondents
have no authority to refuse the transfer of property in favour
of petitioner. He has relied upon "PLD 2001 Supreme Court 116 (Messrs Ittehad Cargo Service and 2 others vs. Messrs Syed Tasneem Hussain
Naqvi and others), 2007 YLR 2887 (Faisal Razzaq vs. Tehsil Municipal
Administration, Khairpur Tamewali
and 5-others), 1999 MLD 2418 (Messrs Hotel Summer Retreat Nathiagali
through Managing Partner vs. Government of N.W.F.P through Secretary, C&W
Department Peshawar and 5 others), 2006 SCMR 721 (Messrs M.A. Khan & Co.
through Sole Proprietor Muhammad Ali Khan vs. Messrs Pakistan Railway Employees
Cooperative Housing Society Ltd. Through Principal officer/Secretary, Karachi),
2009 CLP 1336 (Fateh Muhammad Agha
and another vs. City District Government, Karachi through District Coordination
Officer and 5 others), PLD 1972 Supreme Court 279 (The Murree
Brevery Co. Ltd. Vs. Pakistan through the Secretary
to Government of Pakistan, Works Division and 2 others), PLD 1992 Karachi 283
(Messrs Pacific Multinational Pvt. Ltd. Vs. Inspector General of Police, Sindh Police Headquarters and 2 others), PLD 1993 Lahore
141 (Islamia University, Bahawalpur through Vice
Chancellor vs. Dr. Muhammad Khan Malilk), PLD 1975
Supreme Court 244 (Salahuddin and 2 others vs.
Frontier Sugar Mills & Distillery Ltd. Tokht Bhai and 10 others), PLD 2000 Lahore 489 (Muhammad Zubair Akram vs. Aitchison College, Lahore), PLD 2002 Supreme Court 452
(Town Committee, Gakhar Mandi
vs. Authority under the Payment of Wages Act, Gujranwala and 57 others), 1998
SCMR 2268 (Messrs Airport Support Services vs. The Airport Manager, Quaid-e-Azam International
Airport, Karachi and others), PLJ 1998 Lahore 665 (FB) (M/s. Wak Orient Power & Light Limited Gulberg
III, Lahore vs. Govt. of Pakistan Ministry of Water and Power through its
Secretary, Islamabad & 2 others) and PLD 1975 Lahore 575 (Umar alias Umar Hayat and another vs. The State)." Learned counsel for
the petitioner prayed that this writ petition be accepted and refusal by the
respondent-Bank be declared against the law and he be declared entitled to take
property on the basis of amount offered by the petitioner.
3. On the other hand, learned counsel for the
respondents-Bank argues that actually the process of auction whereby the
petitioner stood successful bidder was with the connivance of evaluator of
property and whole the process is based upon fraud and that a huge public
exchequer is involved in this matter. Further states that when during the
pendency of this writ petition the suit property has been auctioned and a
successful bidder has offered an amount of rupees 15.200 million which is five
time more than the offer of petitioner. While relying upon "2003 YLR 1597
(Muhammad Safdar Gogar vs.
Province of Punjab through Secretary and 4 others), 2005 YLR 1443 (Babu Javed Ahmad, Tehsil Nazim and 2 others vs.
Abdul Hafeez) and 2012 YLR 174 (Mehmood
Medical Store through Proprietors vs. Services Hospital, Lahore through Medical
Superintendent and 3 others)" learned counsel prays for dismissal of this
writ petition.
4. I have heard the learned counsel for the
parties at length and also gone through the record appended with this petition
by the petitioner as well as the respondents-Bank with the comments.
5. It is not denied that one Adeel
Mukhtar has been declared successful bidder in the
last auction, who has offered an amount of rupees 15.200 million, whereas the
highest offer of petitioner was rupees 3.10 million. It is also not denied that
in the terms and conditions published in the newspaper it is mentioned that any
or all bids can be rejected by the Bank without assigning any reason. When
during the pendency of this writ petition the process of re-auction has taken
place whereby an amount of rupees 15.200 million has been offered for the
property for which the petitioner has offered rupees 3.10 million only,
therefore this Court has to protect the interest of taxpayers as well as public
exchequer notwithstanding the follies or illogical and some
times even casual attitude of the custodians of public exchequer. In
this context light can be taken from the judgments reported as "1993 SCMR
508 (Province of Punjab and 3 others vs. Dr. Muhammad Daud Khan Tariq) and
1996 SCMR 1433 (Javed Iqbal Abbasi
& Co. vs. Province of Punjab)". In
this case it transpires that the custodians of properties have not discharged
their duties with regard to fixation of reserve price as well as assignment
report, as according to the defence of Bank that the
evaluation report was prepared with the connivance of writ petitioner,
therefore this Court has to see the national interest and that the national
interest must take priority over private interest and individual rights.
Reliance is placed upon "PLD 1989 Supreme Court 166 (Federation of
Pakistan and others vs. Haji Saifullah
Khan and others)," It is also the duty of custodians of properties at the
time of auction that they must be ensured that the auction proceedings are
transparent and the price procured is fairly closer to market value. When these
are the circumstances where it is visible that the price has been offered more
than five time for the same property and for exercising discretionary powers
conferred upon this Court under Article 199 of the Constitution of Islamic
Republic of Pakistan, 1973, therefore this Court is also bound to see that the
person who came to the Court for discretionary relief, whether this relief is
equitable or not. Furthermore, when any violation of contractual obligation is
made, the petitioner has certainly alternate remedies available to him. In case
of availability of alternate remedy ordinarily this Court refrains itself to
exercise constitutional jurisdiction. In the matter in issue if the petitioner
presumes that he has no fault on his behalf and he has deposited the amount for
the purchase, of property and same has been used by the respondent-Bank for
some period, he has a right to seek his efficacious remedy before the proper
forum. In these circumstances, keeping in view the principles of equity and
interest of the public exchequer I am not inclined to exercise extra ordinary
constitutional jurisdiction in favour of the
petitioner.
6. So far as the acceptance of offer by the Bank
is concerned, learned counsel for the petitioner ably proved that it became a
contract but this Court while exercising extra ordinary jurisdiction has to see
that whether in every case this Court has to order for the performance of
contract. It is not a case where any third person has just offered more amount
than the amount offered by the petitioner but in this case full fledge process
of re-auction of suit property has been carried out and there is a final offer
of rupees 15.200 million for the suit property whereas the petitioner has
offered rupees 3.100 million.
7. In the light of what has been discussed
above, this writ petition having no force is dismissed with no order as to
costs.
8. Before parting with this order I expect that
the Bank will take action against the evaluator as well as its officials who
contributed in the auction of disputed property for such a low rate in favour of petitioner. The Bank will forthwith return the
amount received from the petitioner.
(R.A.) Petition
dismissed
