Ch. Ijaz Ahmad, J.--The brief facts out of which the present Intra Court Appeal arises are that a- public notice was published in daily `Khabrain' on 26.10.2003 for collection rights of entry fee namely children games amusement park which is located in Quaid-e-Azam Park, G.T. Road Gujranwala.
The auction proceedings were held on 6.11.2003 in terms of aforesaid public notice. The bid of the respondent was highest amounting to Rs, 60,000/- which was not approved by the appellants and issued second public notice for the said purpose which was published in daily `Nawa-eWaqt' on 9.12.2003. The auction proceedings were held in terms of aforesaid public notice on 20.12.2003. The bid of the respondent was highest amounting to Rs, 320,000/- which was also not approved by the appellants. Consequently, the appellants issued another public notice which was published in daily `Khabrain' on 7.1.2004. The auction proceedings were held on 20.1.2004. The bid of the respondent was highest amounting to Rs, 320,000/-. The sub committee of the appellants recommended the case of the respondent but Tehsil Nazim did not place the same before the house in accordance with Rules and Regulations of the appellants. The respondent being aggrieved filed. W.P. No, 12342/2004 with the prayer that the Tehsil Nazim be directed to place the case before the house which was disposed of with certain directions to Tehsil Nazim vide order dated 8.9.2004. The appellants issued public notice which was published in daily Pakistan' on 4.11.2004 according to which the auction proceedings would be held on 13.11.2004. The respondent being aggrieved filed W.P. No, 18513/2004 challenging the vires of the auction notice dated .4.11.2004. The constitutional petition was filed on 10.11.2004 which was placed before the learned single Judge or 12.11.2004.
Notice was issued to the appellants for 29.11.2004. The following interim order was also passed: N "In the meanwhile, no auction with regard to awarding of a contract invited vide advertisement published in daily Pakistan in its edition dated 4.11.2004 shall take place."
The auction proceedings in terms of the public notice were held on 13.11.2004. One Muhammad Shafiq alongwith others participated in the auction proceedings held by the appellants on 13.11.2004 whose bid was highest amounting to Rs, 370,000/-. The respondent being aggrieved filed W.P. No, 19450/2004 on 26.11.2004 challenging the vires of the auction proceedings held on 13.11.2004 without impleading Muhammad Shafiq the highest bidder. W.P. No, 18513/2004 was accepted by the learned single Judge vide impugned judgment dated 3.12.2004. W.P. No, 19450/2004 was also disposed of on the same day in the following terms: "As W.P. No, 18513/2004 has been decided in favour of the petitioner, there is no need to issue any direction in the instant petition which is also disposed of."
The appellants being aggrieved filed this Intra Court Appeal against the impugned judgment of the learned single Judge dated 3.12.2004 passed in W.P. No, 18513/2004.
2. Learned counsel of the parties have been notified that this appeal will be decided as pacca case. With concurrence of the learned counsel of the parties the appeal is decided as pacca case.
3. Learned counsel of the appellants submits that appellants placed the case in terms of the direction of this Court dated 8.9.2004 passed in W.P. No, 12342/2004 before the house and the house has rejected the bid of the respondent and consequently appellants issued public notice which was published in daily 'Pakistan' on 4.11.2004 for fresh auction which was held on 13.11.2004.
One Muhammad Shafiq participated in the auction proceedings whose bid is highest amounting to Rs, 370,000/- which was in the knowledge of the respondent as the date of auction was mentioned in the public notice dated 4.11.2004 for 13.11.2004 which in fact the respondent has challenged in the constitutional petition. Therefore, it was in the knowledge of the respondent that one Muhammad Shafiq participated and has given highest bid but the respondent did not implead said Muhammad Shafiq as respondent in the constitutional petition. Therefore, constitutional petition is liable to be dismissed. He further submits that respondent has not challenged the order of the house in which the bid of the respondent was rejected under the direction of this Court. Therefore, respondent is estopped to file a constitutional petition on the well known principle of estoppel and waiver without challenging the order of the house qua the auction proceedings held on 20.1.2004. He further submits that auction of the appellants is in consonance with the auction rules of the appellants and bid of the respondent was not accepted. Therefore, respondent has not been accrued any vested right.
4. Learned counsel of the respondent submits that respondent has challenged the public notice dated 4.11.2004 in W.P. No, 18513/2004 on the ground of mala fide and the learned single Judge has noted the manner of exercising power by the appellants and accepted the constitutional petition in accordance with law. He further submits that respondent participated in the auction proceedings on three occasions qua auction proceedings held by the appellants on 6.11.2003, 20.12.2003 and 20.1.2004 and the bid of the respondent was highest which was not accepted by the appellants with mala fide intention. The fourth public notice and auction proceedings held on 13.1.2004 are also without lawful authority in view of the conduct of the appellants. He further submits that appellants issued notice to the respondent to execute an agreement with the appellants vide letter dated 25.1.2005 in spite of the fact that restraining order was secured by the appellants from the Division Bench of this Court on 19.1.2005. He further submits that respondent has presented the cheque to the appellants which has been withdrawn by the appellants on 9.2.2005. Therefore, Intra Court Appeal his become infructuous.
5. Learned counsel of the appellants in rebuttal submits that counsel of the respondent has presented and relied upon photo-copy of the letter of the appellant dated 9.2.2005 but it does not amount that appellants have withdrawn the said amount. He further submits that this fact was not agitated by the respondent by filing an application before this Court whereas he has not such instructions from the appellants that they have withdrawn the said amount as this fact is pointed out by the counsel of the respondent during arguments. He further submits that respondent has filed Crl. Org. No, 39-W/2005 against the appellant which is pending adjudication.
6. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record.
7. It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties:-
(i) The appellants invited bids from general public for collection of the fee in question in the first attempt to hold the auction and had remained unsuccessful as noted in the impugned judgment in para-2.
(ii) The second bid was held in response to public notice dated 26.10.2003 on 6.11.2003. The bid of the respondent was highest amounting to Rs, 60,000/- which was not approved by the competent authority.
(iii) Public notice for the said purpose was published in daily `Nawa-e-Waqt' on 9.12.2003 and the auction was held on 20.12.2003. The highest bid amounting to Rs, 320,000/: was of the respondent which was also not approved by the competent authority.
(iv) Thereafter public notice published in daily `Khabrain' on 7.1.2004. The auction was held on 20.1.2004. The bid of the respondent was highest amounting to Rs, 320,000/-. The sub committee of the appellants recommended the same for approval to the Tehsil Nazim who did not place the same before the house in terms of the Rules.
(v) The respondent filed W.P. No, 12342/04 which was disposed of by this Court vide judgment dated 8.9.2004 and directed the Tehsil Nazim to place the matter relating to award of contract to respondent before the house within current month, so that an appropriate decision to taken by the house in the matter.
(vi) The Tehsil Nazim placed the matter in the house on 29.9.2004. The house rejected the same vide Resolution No, 16 dated 29.9.2004.
(vii) The appellants invited bids for the said purpose through public notice published in daily 'Pakistan' dated 4.11.2004 and the auction date was fixed as 13.11.2004.
(viii) The respondent being aggrieved filed W.P. No, 18513/04 on 10.11.2004 challenging the vires of public notice dated 4.11.2004 which was accepted by the learned single Judge vide impugned judgment dated 3.12.2004 after securing parawise comments from the appellants wherein the appellants had taken a stand that matter was placed before the house in terms of the direction of this Court passed in judgment dated 8.2.2004 passed in W.P. No, 13432/2004 which was rejected vide Resolution No, 16 dated 29.9.2004. Intimation was also sent to this Court as well as intimation to the respondent as is evident from Annexure-A, B, C & D with the reply of the appellants before the learned Single Judge.
(ix) The learned single Judge passed following interim order in the said writ petition on 12.11.2004:-- "In the meanwhile, no auction with regard to awarding of a contract invited vide advertisement published in daily Pakistan in its edition dated 4.11.2004 shall take place."
(x) During the pendency of the writ petition auction was held by the appellants on 13.11.2004. One Muhammad Shafiq has given highest bid amounting to Rs, 370,000/- which was subject of final decision of the constitutional petition filed by the respondent.
(xi) The respondent filed W.P. No, 19450/2004, without impleading said Muhammad Shafiq, challenging the vires of auction proceedings held by the appellants on 13.11.2004 which was also disposed of by the learned single Judge in view of the judgment dated 3.12.2004 passed in W.P. No, 18513/2004 vide order dated 3.12.2004.
In case aforesaid facts are put in a juxta position then it is crystal clear that auction proceedings were held three times on 6.11.2003, 20-12-2003 and 20.1.2004 respectively wherein the bid of the respondent was highest amounting to Rs, 60,000/-, Rs, 320,000/- and Rs, 320,000/- respectively.
The Tehsil Nazim did not place the case before the house and respondent filed W.P. No 12342/2004 which was disposed of by this Court vide judgment dated 8.9.2004. In obedience of the direction of this Court Tehsil Nazim placed the case before the house and the house rejected the same vide Resolution No, 16 dated 29.9.2004. This resolution was not challenged by respondent before any higher forum under the provisions of Punjab Local Government Ordinance, 2001 and Rules framed thereunder or before this Couirt. Therefore, the respondent is estopped to challenge the public notice dated 4.11.2004 in the constitutional petition on the well known principle of approbate and reprobate as the law laid down by the Honourable Supreme Court in the following judgment:-- Dr. Habib Ullah's case (PLD 1973 S.C. 144)
Ch. Ghulam Rasool's case (PLD 1971 S.C. 376).
It is also admitted fact that bid of the respondent was not approved by the appellants. Therefore, auction of the appellants is in consonance with the law laid down by the superior Courts in the following judgments:-- Munshi Muhammad's case (1971 SCMR 533); Merqj Din's case (1970 SCMR 542); Babu Pervaiz Qureshi's case (1974 SCMR 337); Rehmat Ali's case (1973 SCMR 342); Muhammad Din's case (PLD 1960 Lahore 823).
The ratio of the aforesaid judgments is that it is well settled law that a bid made at an auction is in the nature of an offer which does not mature into contract at all till its acceptance. The auctioneer acts as an agent of the seller and if he has authority to accept the bid, concluded contract comes into being the moment bid is accepted either by the word of mouth or any other customary method. If however, auctioneer is not vested with the power to accept the bid which is with another person or authority, the contract only comes into being when the bid is accepted by that authorized person. In case of Dr. Azeem Shah versus Municipal Committee Multan (PLD 1968 Lahore 1419), a D.B. of this Court was pleased to hold that as the acceptance of the offer made by contractor, was not communicated to him, no concluded contract came into being. In case of Muthu Pillali vs. Secretary of State (AIR 1923 Madras 582), the relevant observation is as follows:-- "That till such time the sale at auction is not confirmed by the authority, competent to do so, there cannot be said to be a concluded contract between the parties."
It is pertinent to mention here that the aforesaid facts were not highlighted by the counsel of the appellant before the learned single Judge. The Honourable Supreme Court has laid down parameters qua maintainability of constitutional petition in Ali Mir's case (1984 SCMR 433) wherein it is the duty and obligation of the writ petitioner to point out that action of the respondent is in derogation of its Rules and Regulations which the respondent's counsel has failed to point out before the learned single Judge as well as before us. Therefore, constitutional petition is not maintainable. The photo-copy of receipt produced by the counsel of the respondent has also no value in the eyes of law in the given circumstances which does not reveal that the appellant has withdrawn the amount deposited by the respondent.
8. It is pertinent to mention here that no vested right has also accrued to one Muhammad Shafiq whose bid is subject to final decision of the constitutional petition coupled with the fact that respondent has also not impleaded him as party in W.P. No, 19450/2004. Therefore, case of the respondent falls in the area that respondent has not approached this Court with clean hands.
Therefore, constitutional petition was not maintainable in view of the conduct of the respondent as the respondent did not challenge the vires of Resolution No, 16 dated 29.9.2004 of the appellants and also did not implead one Muhammad Shafiq in second constitutional petition.
In view of what has been discussed above; the judgment of the learned single Judge is not in accordance with the dictum laid down by the Honourable Supreme Court in the aforesaid judgments. Therefore, Intra Court Appeal is accepted. The appellants are directed to invite bids for re-auction of the collection rights of entry fee in question by mentioning the base bid amount amounting to Rs, 370,000/- and shall complete the process in accordance with law within one month in terms of the Rules and Regulations of the appellants. They are further directed to submit report to Deputy Registrar (Judi) of this Court within the stipulated period.