' ATA-UR-REHMAN, J.--- This petition has been filed by Shaukatali Fancy son of late Amirali Fancy of Fancy Group.
2. Facts leading to this petition are that Fancy Group were majority share-holders of Steel Corporation of Pakistan from 1960 up to its nationalization in 1972 and renamed as Metropolitan Steel Corporation Ltd. (MSCL i.e, respondent No,6). Respondent No,6 was denationalized and in the year 1998 the new owner entered into a M.O.U. With the NDFC, respondents Nos.3 and 4 i.e, Consortium of Banks (defunct NDFC taken over by the respondent No,2) whereby more than 73% shares of respondent No,6 were acquired by the Consortium. The Consortium decided to sell their shares through public auction. The first advertisement was published in daily Dawn of 30th January, 2002 and second in daily Dawn of July 3, 2002. Relevant clauses of the last public notice are reproduced hereunder;-- "(1)" Offers to be submitted through sealed bids accompanied with pay order/demand draft of Rs,5,000 million (refundable in case of non-acceptance at the time of decision on the sealed bids maximum period 60 days) in favour of National Bank of Pakistan as earnest money, and delivered to Muhammad Shabbir Rana, V.P./In-charge Remedial Assets Management (South), former NDFC Unit, National Bank of Pakistan 6th Floor, Finance and Trade Centre, Sharah-e-Faisal, Karachi by 12 noon. On July 22, 2002.
(2) The- price offered for the shares will be payable upfront in full within 30 (thirty) days of acceptance of the bid and shall include and cover consideration for the shares (with management control) as well as full repayment of standing long-term liabilities of MSCL towards the Consortium (but excluding current liabilities).
(3) It is clarified that upon acceptance of the bid and receipt .Of full payment of the price for the shares, the outstanding liabilities of MSCL and any charge or encumbrance on the fixed assets of MSCL in favour of the Consortium shall be discharged and adjusted by the Consortium and all legal proceedings filed by the Consortium members and pending (suits/winding-up- petitions) and/or decrees/orders passed against MSCL in such legal proceedings shall be withdrawn/stand satisfied. It is further clarified that all current liabilities will continue to remain the obligation of MSCL and all receivables, orders in hand and other commercial/ financial benefits of MSCL will continue to remain for the benefit of MSCL, after the transfer of shares and management control to the successful bidder.
(4) Any and/or all bid(s) may be rejected at the discretion of the Consortium without having to assign any reason for the same. The invitation for bids may be withdrawn or cancelled or terms and conditions varied at any time at the discretion of the consortium.
(5) The Consortium reserves the right to negotiate or enter into discussion with regards any bid at its discretion, without being found to do so and without incurring any obligation towards any other bidder.
(Sd.) Shabbir Alam"
3. In response to this notice various parties including the petitioner and respondent No,5 offered their bids. The petitioner by his letter, dated 16th July, 2002 (Annexure "D" to the petition) informed the respondent No,2 that he was ready to accept the terms and conditions as per invitation as well as the condition and showed readiness to deposit earnest money of Rs,5 (M). However, this letter onward placed and added many conditions for acceptance of the offer of the Consortium. It would be advantageous to reproduce the letter hereunder:-- ..Subject. Sale of 73.60% shares with Management Control of Metropolitan Steel Corporation Limited
(MSCL) to a Strategic Investor.
' Dear Sir, ' This refers to the invitation for sealed bids dated July 3, 2002 appearing in the National Press.
' On this subject we have already addressed two letters to the Bankers Consortium (NBP, HBL, UBL and NDFC), on April 24, 2002 and June 4, 2002 (copies enclosed), which form part of this proposal.
' We accept all the terms and conditions as per your invitation for bids as well as the condition of Rs,5 million to be deposited as earnest money. (The italic is for emphasis).
' An order has been issued by the Sindh High Court and published in National press on July 10, 2002 that upto an amount of Rs,100 million collected by National Bank on account of sale proceeds of Metropolitan Steel should be deposited with the Honourable Court pending adjudication of claim of Quality Steel Works against Metropolitan Steel. In the light of the above Court order, it is apprehended that the earnest money being part of sale proceeds may be seized by the Court. We would, therefore, be pleased to deposit the earnest money s soon as this Court order is vacated. In my letter of April 24, 2002 (copy enclosed) I have offered a price between Rs,200 million to Rs,250 million which is based on the consideration that the assets of the company shall be handed over free of all charges and liabilities (clear balance-sheet). All legal and other actions against the company shall be duly withdrawn and a clear legal title shall be available along with a legally binding-assurance that no further legal or any other type of action against the company, its management or its future share-holders shall be initiated in, the future by the Consortium.
' As per the information provided to us, the company in the last five years has produced on yearly basis, material less than 10% of its capacity. This may indicate a serious malfunction somewhere in its installations.
' The Court order issued by the Sindh High Court against a claim of Quality Steel does not seem to be included in the balance-sheet of the company. This creates an impression that there may be other claims of similar nature against the company which may come up later.
' This offer is, therefore, dependent on: ' Engineering verification of the integrity of the Factory installations.
' Legal due diligence.
' Audited balance-sheet as at March 31, 2002. At the moment the only available balance-sheet is as at March 31, 2001.
' In my letter of June 4, 2002 (copy enclosed) I have clearly stated-that I shall try and match the highest industrial bid which may be received by the Consortium.
' I also hereby agree to be bound by the three conditions as offered by me in .My letter of June 4, 2002 in order to ensure that the MSCL premises are utilized only as a Re-Rol4g and Engineering Industry.
' In order to streamline the procedures and engineering rehabilitations of Metropolitan Steel, it is imperative to instal an efficient management till completion of legal due diligence and technical audit.
' I now hope that such confidence building measures would be initiated to encourage long-term vision and redefine business morality.
' This act will send a very strong message to the world about your intentions to attract foreign investment in the country's aim to revitalize dormant industry, and in returning national assets to the original owners will bring about a positive investment environment.
' I most sincerely request you to please patronize Industrial Utilization instead of Liquidation.
' Thanking you. (Sd.)"
4. He wrote yet another letter to the respondent No,2 on 13-8-2002 which is reproduced hereunder:- - .
' ".... Subject: Metropolitan Steel Corporation Ltd. Dear Sir, ' This is with reference to our meeting in your office in relation to the letter received by you from the Chief Executive's Secretariat regarding my interest in Metropolitan Steel.
' As informed to you in our meeting I have already narrated my position in my bid and stand fully committed towards the project. Regarding your observation to the earnest money, please allow me to say that I am a dispossessed owner and no one can be more earnest than a dispossessed owner. I have not to prove my earnestness. (underlining for emphasis).
' I am ready to match the highest bid of Rs,261 million, which is inclusive of Rs,5 million as earnest money.
' I shall be ready to deposit the amount as soon as the letter of interest is issued in my favour and all the technical legalities are formalized.
' Thank your for your courtesies."
4. The petitioner wrote a letter, dated 10-9-2002 to the Federal Government which is also reproduced hereunder:-- ........................................ Reg: Metropolitan Steel Corporation.
' Dear Sir, ' I had addressed a letter on July 2, 2002 to General Pervaiz Musharraf with a request to save Metropolitan Steel Corporation Limited from land-grabbers and to give it back to the Engineering Industry.
' Simultaneously I also had made a commitment with the President to match the highest industrial bid which the Bankers Consortium may receive in response to their forthcoming public invitation.
' Accordingly I participated in the bidding process on July 22nd, 2002 (copy enclosed) and submitted a bid of Rs,250 million as against the highest bid of Rs,261 million.
' Thereafter in a meeting held at the invitation of Mr. Saleemullah Chaudhary, Executive Vice- President, Special Assets Management Division, National Bank of Pakistan, I raised my offer to match the highest bid of Rs,261 million which included Rs,5 million earnest money. (underlining for emphasis). Copy of my revised offer dated August 13th, 2002 is enclosed for your kind information.
' I had also informed Mr. Saleemullah Chaudhary that I shall deposit the amount as soon as the letter of interest is issued in my favour and all the technicalities and legalities are formalized.
National Bank has not responded to my offer.
' I shall be most grateful if you could kindly use your good offices and save an Industrial Flagship which symbolizes Re-Industrialization effort of the present Government and save it from falling in the hands of Land-Mafia who want it for vandalizing purpose.
' I appeal to you sir, most sincerely to kindly intervene and save a grave injustice from happening.
' Thanking you."
6. From the correspondence it is revealed that the Consortium remained in contact with the petitioner and other bidders up to August, 2002. The respondent No,5 increased their bid from 261
(M) to 295(M). In the result, on October 11, 2002, the respondent No,2 by a letter informed the respondent No,5 their offer was accepted and they were directed to pay full sale price of Rs,295 (M) within 30 days. This letter is reproduced hereunder:-- ' .... Dear Sir, ' Purchase of 73.6% shares with Management Control of Metropolitan Steel Corporation Limited (MSCL).
' We refer to your bid submitted earlier and today's meeting with the Consortium Banks' representations at National Bank of Pakistan, Head Office and are pleased to convey in principles of your revised offer of Rs,295 million (Rupees two hundred ninety-five million only).
' In addition to above sale price Alloy Steel Company would settle/reply MSCL's short-term liabilities (funded/non-funded) towards United Bank Limited.
' The Consortium Banks including National Bank of Pakistan would not be liable for the consequences/claims arising out of any suit. Filed against MSCL including suit filed by Messrs Quality Works Limited.
' The detailed terms and conditions of the sale would be stipulated in the sale agreement drafted by our legal counsel.
' The full sale price of Rs,295 million is to be paid within the 30 days from the date of this letter.
' Yours faithfully (Sd.) (italic for emphasis).
7. According to learned counsel for the respondents, the respondent No,5 paid the entire amount on 23rd December, 2002 and thereafter all the formalities of transfer of shares had been completed and at present nothing is left out to be done therein.
' Learned counsel for the petitioners contended as under:--
(i) The petitioner has a personal interest into the transaction being a member of the family which founded the respondent No,6 being the member of founders of respondent No,6 need not to prove his earnestness by depositing the required earnest money;
(ii) the petitioner is an aggrieved person as the Consortium illegally ousted him from the competition; the transactidn between Consortium and respondent No,5 is a collusive one being without notice to the other competitors of the results of negotiations with the respondent No,5;
(iii) the respondent No,5 defaulted in depositing the balance amount of Rs,295 (M) with the 30 days as required by letter dated 10th October, 2002 instead of scraping the deal with respondent No,5 and inviting fresh bids; the Consortium without lawful justification extended the time and allowed him to deposit the same on 23rd of December, 2002; the transaction is not transparent and it is tainted with mala fides;
(iv) the respondents Nos.2, 3 and 4 are controlled and supervised by the Federal Government and the. State Bank of Pakistan, therefore, their functions are amenable to the writ jurisdiction;
(v) even if it is assumed that the petitioner is not an aggrieved person, this petition be treated as the public interest litigation; and an in upon scrutiny be conducted into the actions of the Consortium.
8. In support of his submission he relied upon Sandal Fibers Ltd. v. U.B.L. PLD 1992 Lah. 400, Zahir Enterprises v. Government of Pakistan and others 1999 MLD 3112, Messrs Pecific Multinational (Private) Ltd. v. Inspector-General Police, Sindh Police Headquarter and 2 others PLD 1992 Kar. 283, Dadabhoy Investment (Private) Ltd. Karachi v. Federation of Pakistan and others PLD 1995 Kar. 33, Mian Fazaldin v. Lahore Improvement Trust Lahore and others PLD 1969 SC 223, Salahuddin and 2 others v. Frontier Sugar Mills and Distillery PLD 1975 SC 244, National Bank of Pakistan v. Crescent Star Insurance Co. Ltd. 2002 SCMR 1789, Messrs Airport Support Services v. Airport Manager, Quaid- e-Azam International Airport, Karachi and others 1998 SCMR 2268, Badar Iqbal v. The Speaker Sindh Provincial Assembly PLD 1995 Kar. 312 and Federation of Pakistan and others v. Haji Muhammad Saifullah Khan PLD 1989 SC 166.
9. In reply, the learned counsel for the respondents submitted that:--
(i) The respondent No,6 was nationalized in 1974 and was subsequently denationalized in 1998 with an option to the original owners to own the same; they failed to exercise the same, therefore, it was sold to a third party; at present the petitioner has no like option nor any personal interest in respondent No,6; he is an aggrieved person under Article 199;
(ii) the, petitioner admittedly failed to deposit the earnest money a condition precedent to participate, the auction proceedings; it cannot be substituted for services rendered by his family;
(iii) before second publication of July, 2002, the Consortium by letter, dated 24-5-20902 (Annexure "C" to petition) provided the petitioner an opportunity of acquiring the share in question of the respondent No,6 but he failed to avail the same;
(iv) the letter dated 16th July and 10th September, 2002 as well as 13th August, 2002 of the petitioner referred above had placed number of conditions before paying the earnest money and participating in the auction; the petitioner offered to match with the highest bid of Rs,261 (M) including the earnest money
(v) in these circumstances, the petitioner was not considered as a legible bidder before finalizing deal with respondent No,5 letters dated August 20, 2002 were issued to other legible bidders for a meeting on 23rd of the August;
(vi) the respondent No,5 had increased his bid from Rs,262 (M) to Rs,295(M); there was another competition in field, therefore, final letter, dated October 11, 2002 was issued to respondent No,5;
(vii) the three members of the Consortium took time to arrange their internal affairs as to the disbursement etc. Of the sale proceeds of the shares; transfer of a large number of shares in the name of respondent No,5 caused delay in payment of balance amount by. Them; this delay was not caused by the respondent No,5 and therefore, the Consortium had neither any justification for setting aside the entire exercise nor for fresh one;
(viii) in fact the respondent No,5 had been tolerant and accommodated the Consortium to arrange their internal affairs which concluded in February, 2002; thereafter, the transaction was completed;
(ix) there is neither any colourful exercise by the Consortium nor the transparency of the transaction is tainted one;
(x) the petitioner has relied upon the letter, dated October 11, 2002 which was addressed by Consortium to the respondent No,5; this shows that he kept watching the proceedings and was in the knowledge of events taking place time to time, however, for the reasons best known to him he kept quite; but after completion of transaction, he once again became active wrote letter, dated 5- 3-2003 to the respondent No,2 wherein he offered to pay Rs,300 (M) and first time sent a pay order of Rs,5 (M) as earnest money; this letter was replied by the Consortium on March 11, 2002 (Annexure "H" to the petition) thereby they reminded him that on August 13, 2002 he was advised to deposit the earnest money to enable the Consortium to negotiate the subject transaction with him, but he defaulted and so his bid was not considered;
(xi) it is purely a business and commercial transaction in the normal course of the business and is neither subject to Rules and Regulations of State Bank or Federation of Pakistan. The petitioner has no locus standi to file this petition. This petition has been field for seeking personal relief and cannot be treated a petition in the public interest;
(xii) the members of Consortium jointly or severally are not amenable to the jurisdiction of this Court; no violations of any statutory rules or regulation allegedly committed during the proceedings, have been placed before this Court;
(xiii) the petitioner right from the beginning, was not serious in owning the respondent No,6 and he had been attempting to create hurdles into transaction between the Consortium and other bidders.
' They relied upon Petitioners v. Federation of Pakistan NLR 1995 (CLJ) 574, Nagina Bakery v. Sui Southern Gas Ltd. And 3 others 2002 CLC 1559, Syed Muhammad v. Settlement and Rehabilitation Commissioner and others 1976 SCMR 61, Babu Parvez Qureshi v. Settlement Commissioner, Lahore, Multan and others 1974 SCMR 337, Messrs Ittehad Cargo Service and 2 others v. Messrs S. Tasneem Hussain Naqvi and others PLD 2001 SC 116 and People's Union, for Democratic rights and other v.
Union of Indian and others AIR 1982 SC 1473.
8. (sic). We considered the submissions and perused the record. The petitioner by letter dated 16th July, 2002 though agreed to accept all the terms and conditions of the public notice dated July 3, 2002, but failed to deposit the earnest money which was condition precedent for participation in auction proceedings. It is obvious from correspondence that the Consortium had provided him opportunity to deposit the earnest money but he remained adamant and refused to do the same.
See letter, dated March 11, 2002 (Annexure "H" to the petition) a reply of respondent No,2 to the petitioner's letter, dated March 5, 2003. The same reads as under:-- ' Sub: Offer for purchase of 73.6% shares of Metropolitan Steel Corporation Limited with Management Control.
' Dear Sir, ' This refers to your letter dated March 5, 2002 addressed to our President.
' You would recall that at the meeting in our Mr. Saleemullah Chaudhry office on August 13, 2002 at National Bank of Pakistan Head Office you were categorically advised, notwithstanding your claims to earnestness as a previous owner, to submit a pay order for Rs,5,000 million to enable to Consortium to negotiate the subject transaction with you. However, for reasons best known to you, you choose not to do so. Your bid was non-complaint and hence could not be considered for acceptance.
' As you would be aware the Consortium has already accepted the bid of Messrs Alloy Steel Company and issued letter of intent.
' We, therefore, regret that your offer cannot be considered at this stage and return your pay order herewith.
' Yours, truly (Sd.)" (Italics is for emphasis).
12. (sic) The Consortium had every right to ignore. The alleged offer/bid of the petitioner and to negotiate with other parties. Even before this Court, the petitioner has not been able to place any lawful justification for his claim exempting him from depositing the earnest money. We agree with the contention of the learned counsel for respondents that any service or contribution of the family of petitioner in establishing the respondent No,6 in 1960's cannot be substituted to the required earnest money. We have no hesitation in observing that in the given facts and circumstances, the petitioner is not an aggrieved person and he cannot be allowed to invoke the writ jurisdiction under Article 199.
13. The next contention is that the Consortium being a public functionary of the Federation had not acted in a transparent manner and carried out the exercise colourfully. It is observed that the petitioner has not been able to place any evidence to establish the allegations of non- transparency by the Consortium nor it has been brought on record that the Consortium which consisted of statutory/nationalized institution have acted in contravention of any provision of law/rules or regulations. The allegation of the petitioner that before issuing letter dated 11th October, 2002 to the respondent No,5, other bidders were not taken into confidence is not correct.
The fact is that the Consortium had issued to other bidders namely International Textiles, Alkaram Textile Mills Pvt. Ltd. Including the respondent No,5 the letter, dated 20-8-2002 for a meeting on 23rd August, 2002 in the office of respondent No,1. It was after this exercise that the letter dated October 11, 2002 was issued to the respondent No,5 It is noted that none of the other bidders had approached this Court questioning the transaction between the Consortium and the respondent No,5. The petitioner has annexed with the petition and relied upon the letter, dated October 11, 2002 addressed by Consortium to the respondent No,5. This shows that he had all along been in knowledge of the transaction between the Consortium and the respondent No,5 but he remained quiet up to March 5th, 2003. It is obvious that he likes other bidders was satisfied with the subject- transaction. The counsel for respondents Nos.2 and 3 had clarified in his arguments that the delay in payment of balance amount from 11-11-2002 to 2-12-2002 was on account of the internal arrangements of the Consortium and the respondent No,5 is not to be blamed for the same.
Nothing has come on record to disbelieve this fact. There was no justification for the Consortium to scrap the deal with the respondent No,5 and go for fresh advertisement. We have no reason to doubt the transparency of the transaction.
14. Before examining the contention that his petition to be treated as public interest litigation the prayer clause of the petition is reproduced hereunder:--
(i) Declare that the deal entered privately with the respondent No,5 by the respondents Nos.2, 3 and 4 for the sale of 73.6% sharos of the Metropolitan Steel Corporation Ltd. After frustration of the letter of intent, dated 1140-2002 is mala fide, unjust discriminatory and indirect conflict with the provisions under the Constitution of Islamic Republic of Pakistan, 1973 as well as section 24-A of the General Clauses Act, 1897 and other laws for the time being in force and, therefore, thus not sustainable at law and liable to be struck down;
(ii) declare that the petitioner as the highest bidder has acquired lawful vested right under the law and is entitled to be transferred 73.6% shares of the Metropolitan Steel Corporation Ltd.;
(iii) grant Prohibitory injunction restraining respondents Nos.2, 3 and 4 from in any manner giving effect to the impugned deal dated 11-10-2002 with the respondent No,5 in any manner and thereby restraining them from enforcing and implementing the same and thereby transferring the shares in favour of the respondent No,5 or any other person and further refrain them from creating any third party interest in favour of whomsoever;
(iv) grant mandatory injunction directing the respondents Nos.2, 3 and 4 to comply with all the legal formalities for peacefully transfer of 73.6% shares of the Metropolitan Steel Corporation Ltd. In favour of the petitioner without raising any obstacle obstruction or impediments by any means or devices;
(v) ..
(vi) .
15. A plain reading of prayer clauses discloses that the petitioner has not sought any relief in the interest of public but for his personal interest; and prayed for a declaration that he is highest bidder and entitled to the transfer of share of the respondent No,6. Even for maintaining the petition on the public interest side, it is necessary that some material be available before the Court for interference into the transaction. In the absence of any evidence to that affect it will be an exercise which will hamper normal business of commercial institutions. ' petition, another party namely Metro Pvt. Ltd. Had filed Suit No,1296 of 2002 against the Privatization Commission and the present respondents for (a) declaration that they were owners of shares of the respondent No,5, (b) direction to the Privatization Commission to specifically perform its duty and obligation under the Novation agreement, dated 2741-1994 (c) mandatory injunction directing the Privatization Commission to issue 50.99% shares of respondent in their favour etc. Alongwith this suit, application under Order 39, rules 1 and 2. C.P.C. Was also filed which was heard on the original side and the same was dismissed vide order, dated 25-2-2003. This order was questioned by Metro Pvt. Ltd. In the High Court Appeal No,423 of 2003, which was dismissed vide judgment, dated 29-3-1993.
17. After considering the facts we are of the opinion that no case in favour of the petitioner is made out and he is not entitled to the relief claimed by him.
18. In view of the above finding we do not find it necessary to either discuss the other points raised by the parties and the case-law relied upon by them.
19. The upshot of the above is that this petition has no merit and, therefore, dismissed in limine with no orders as to costs.