' FAZAL-E-MIRAN CHAUHAN, J.---This order will dispose of Writ Petition No.5239 of 2005 filed by the petitioner seeking direction to the respondents to accept and approve the final bid offered by the petitioner and act strictly in the supreme interest of justice.
2. Brief facts of the case are that respondent No.1 published in daily `Nawae-Waqe for auction of fishing rights for the year, 2005-2006 in District Muzaffargarh. On 6-8-2005, fishing rights were put in auction in the office of Assistant Director Fisheries, D.G. Khan. Respondent No.4 offered Rs.6,00,000 for the said water, which was not accepted by the Auction Committee and the same was again put in open auction on 23-8-2005 and the highest bid of Rs.7,00,000 was offered by the petitioner, which was again not accepted as the same was lower than the bid price fixed by the respondent-Department. The water was again put to auction on 27-8-2005. The petitioner, Muhammad Musa and Haji Muhammad Sadiq participated in the auction proceedings. The petitioner offered Rs.10,55,000 and being the highest bidder, his offer was recommended for approval by the Auction-Committee to respondent No.2. The recommendation made by respondent No.3 was forwarded by respondent No.2 for approval to respondent No.
1. The petitioner deposited Rs. 10,55,000 on 27-8-2005 and security amount of Rs.7,00,000 with respondent No.3 on 23-8-2005. On 29-8-2005 a fax was received in the office of respondent No.1 from respondent No.5 offering Rs.15,00,000 for the said water. On receiving the said fax, respondent No.1 deferred the approval of the recommendations made by respondents Nos.2 and 3. It is argued that according to the Condition No.7 of the terms and conditions for the auction of fishing rights for the year,,2005-2006 that if prior to final approval of the bid, if any person is interested in the auction proceedings and wants re-auction of the same, he is bound to deposit 20% more than of the highest bid with his request for re-auction. In the present case, only a fax was received in the office of respondent No.1 offering Rs.15,00,000. Respondent No.5 had not deposited 20% enhanced bid amount, whereas, respondent No.1, after receiving offer of respondents Nos.4 and 5 vide order, dated 31-8-2005, ordered to re-auction the water. This act/order of respondent No.1 for re-auction is illegal, void ab initio, arbitrary, fanciful, without jurisdiction and without lawful authority and ineffective qua the rights of the petitioner. He further argues that according to the terms and conditions for the auction of fishing rights, the offer made by respondents Nos.4 and 5 are illegal and the same are not sustainable in the eyes of law and the approval of the recommended documents for fishing rights qua the offer of the petitioner cannot be withheld. The order issued by respondent No.1 had no legal sanctity in the eye of law. He also argues that the Government functionaries are required to do the things in the particular manner as it is required to be done under the law and if a procedure given to be adopted for a particular act, is not observed and adopted by the Government functionaries, the entire proceedings would become illegal. He further argues that after the acceptance of auction documents and declaring the petitioner to be the highest bidder, legal rights have been vested in his favour and under the principle of locus poenitentiate, the same cannot be set at naught without any lawful excuse. Finally argues that the public functionaries are duty bound and under obligation to pass order with reasons, otherwise, the order would be deemed to be illegal and of no legal effect.
4. Conversely, learned A.A.-G. Appearing on behalf of respondents Nos.1 to 3 argues that as per Sharait-e-Nilam, the terms and conditions of the bidding for the year, 2005-2006, the respondent Authority is vested with the power under clause (2) to set aside the offer given by any bidder to be insufficient or unsatisfactory and can order for re-auction of the water. He further argues that no right vested with the petitioner, as the bid offered by him was not finally approved by respondent No.
1. It is also argued that although the petitioner was declared to be the highest bidder by respondent No.3 Auction-Committee, yet, it was the sole prerogative of respondent No.1 to see as to whether the bid offered by the petitioner was satisfactory and genuine unless and until the bid is approved and an order of its approval is passed by respondent No.1, no right vests with the petitioner to challenge the act and actions of the respondents. Here, in the present case, the bid amount was fixed as Rs.10,50,000 and the petitioner along with other bidders who joined hands at the time of bid, only offered Rs.10,55,000 which was on the lower side and the same remained under consideration with respondent No.
1. Before the bid of the petitioner was approved, an offer was received from respondents Nos.4 and 5 offering Rs.15,00,000 enhancing more than 20% of the offer made by the petitioner and Rs.5,00,000 were deposited with respondent No.1 on 30-8-2005. On receiving the said offer, respondent No.1 while exercising his power under clause (7) of the said terms and conditions, ordered for re-auction of the water keeping in view the best interest of the Government and public exchequer. The petitioner had every right to participate in the re-auction. He has no right to insist for accepting his bid, which was on the lower side only on the ground that the offer made by respondents Nos.4 and 5 was illegal and not in accordance with clause (7) of the terms and conditions.
5. Learned counsel for respondents Nos.4 and 5 argues that his clients having 'come to know about the bid offered by the petitioner, which was on the lower side on 30-8-2005 deposited Rs.15,00,000 with the respondents for the said water and requested for re-auction of the bid. He further argued that no right had vested with the petitioner as the bid offered by the petitioner was not approved by respondent No.1, who is the competent authority to approve or reject the bid made by any party.
He also argued that respondent No.1 while exercising the powers conferred upon under the Punjab Fisheries Ordinance, 1961 and Rules, 1965 and the terms and conditions thereunder in the interest of public at large and keeping in view the income of the Government rightly ordered for re-auction.
He further argued that the sanctity has been attached to the auction proceedings conducted by the Auction Committee, which was subject to the final approval of respondent No.'1 but the same must be transparent and shall have been made keeping in view the overall interest of the respondent-Department, which should not be tainted with bona fide or through underhand means.
The public exchequer shall not be made to suffer due to exercise of power in an arbitrary or unreasonable manner.
6. I have heard learned counsel for the parties, perused the record and the relevant law on the subject. Admittedly, the petitioner was the highest bidder in the bid proceedings conduced on 27- 2-2005 offering highest bids of Rs.10,55,000 for fishing rights of River Sindh Tehsil Kot Addu for the year, 2005-2006. As per the rules, the said bid was transmitted by respondent No.3 to respondent No.2, who forwarded the same for final approval to respondent No.1, who appears to be hesitant in approving the bid offered by the petitioner. In the meanwhile, an application was received by him moved by respondent No.5 requesting for re-auctioning of the fishing rights of the River Sindh and offered Rs.15,00,000 for the said rights for the year, 2005-2006. He had also deposited Rs.15,00,000 with the respondents as required under clause (7) of the terms and conditions of auction, framed under the Rules by the respondents. Having received the offer, respondent No.1 rightly set aside the auction proceedings held on 27-2-2005 and ordered for re-auctioning the same keeping in view the offer made by respondents. The arguments advanced by learned counsel for the petitioner that a right had vested with him under the law as he was the highest bidder on 27-2-2005 and respondent No.1 was duty bound to approve the recommendation made by respondent No.3.
Though the petitioner was the highest bidder yet the same was subject to the approval of respondent No.1. No right, vested with the petitioner entitling him to restrain respondent No.1 to exercise his powers under clauses (2) and (7) of the terms and conditions of the auction proceedings. Bare reading of clause (2) clearly depicts that respondent No.1 was vested with the authority to declare the bid as null and void considering the same to be unsatisfactory and ordered for re-auction without assigning any reason. Herein the present case, respondent No.1 instead of exercising his power under sub-clause (2) proceeded to pass the order under clause (7) on receiving the application from respondents Nos.4 and 5 and the orders passed by him are in accordance with law and does not suffer from any illegality or irregularity. He has not exceeded in his authority, while exercising the powers vested with him under the terms and conditions and the rules. Following the dictum laid down in 2003 SCM R 280, (Muhammad Afzal v.
Shahzad Asghar Dar and others), it is declared that the order passed by respondent No.1 does not suffer from any malice or unlawful authority. The arguments advanced by learned counsel for the petitioner that after declaring the petitioner to be the highest bidder on 27-2-2005, respondent No.1 had no jurisdiction to interfere with in the matter and was duty bound to approve the offer made by him is devoid of any force. It is true that sanctity has to be attached to a concluded contract but the .Same must be transparent and shall have been made keeping in view the overall interest of the leasing body. The public exchequer shall not be made to suffer due to exercise of power or for some minor discrepancies in conducting the proceeding or approval of the same. Relying on PLD 2001 SC 116 (Messrs Ittehad Cargo Service and others v. Messrs Syed Tasneem Hussain Naqvi and others) and 1998 SCM R 2268 (Messrs Airport Support Services v. The Airport Manager, Quaid-i- Azam International Airport, Karachi and others), it is held that the proceedings conducted and taken by respondent No.1 is in the best interest of the Department and public exchequer. I see no merits in this writ petition which is hereby dismissed.
7. Before parting with this case, it is recommended to the respondents to enhance the bid offered by respondents Nos.4 and 5 that the actual price keeping in view of the said water is more than