MAULVI ANWARUL-HAQ, J. --- This I.C.A. Proceeds against the judgment dated 28.4.2004 passed by a learned Single Judge in Chamber, of this Court whereby W.P. No. 1072/2006 filed by respondent No. 8 was disposed of in terms stated.
2. Learned counsel for the appellant contends that respondent No. 7 had no locus standi to file the WP and as such it shall be deemed that the impugned order has been passed in exercise of suo motu jurisdiction which is not permissible for this Court under Article 199 of the Constitution. Further contends that the office and person of Chief Minister is synonymous to Provincial Government within the meaning of law covering the auction in question notwithstanding the non-confirmation of bid made by his client. The Chief Minister of the Province had the lawful authority to pass the order ultimately impugned in the writ petition i.e. Retention of the contract by his client. When confronted with the decision of this Court delivered by the Hon'ble Chief Justice in W.P. No. 1352/2006 filed by his client, he maintains that the same would not be causing any hindrance in the way of the Chief Minister of the Province to pass the said order.
3. The facts of the case as gleaned from the records of the WP are that the appellant participated in an auction for the lease of collection of excise duty on minerals for one year starting from 04.04.2006. This auction was conducted on 02.02.2006 and the appellant made the highest bid in the sum .Of Rs. 66,50,000/-. The bid was subject to the approval by the Provincial Government. It is an admitted position on record that the auction was not confirmed. On 06.02.2006, the appellant filed a suit in the Court of learned Civil Judge at D.G.. Khan; the prayer was that since he is the highest bidder, he should be allowed to operate the contract. On 15.02.2006 the appellant filed W.P.
No. 1352/2006 at the Principal Seat which came tip before the Hon'ble Chief Justice. The Provincial Government and the other officials impleaded as 'respondents in the said suit laid information that the said suit for the same relief had been filed and the writ petition did not contain a mention of the said fact. An adjournment was sought which was granted. The plea taken on the adjourned date of hearing was that the suit had not been filed by the appellant but someone else using his name.
This plea was disbelieved and the W.P. Was dismissed with. The observation that the appellant had not approached the Court with clean hands. This was done vide judgment dated 03.03.2006. W.P.
No. 1072/2006 was filed by respondent No. 8 in this Court on 09.03.2006. A report was called for through the learned Law Officer on 10.03.2006. Notices were issued. On 03.04.2006, the matter was taken up in presence of the learned Law Officer for the official respondents and the learned counsel for the present appellant. It was brought to the notice of the learned Single Judge that the Chief Minister of the Province had proceeded in the first instance to postpone the re-auction schedule for 23.02.2006 and thereafter vide order dated 18.03.2006 the request of the appellant to 'retain the said lease rights for collection of excise duty from 05.04.2006 to 04.04.2007 had been approved by the Chief Minister. The writ petition was admitted to hearing and consequently was allowed vide the impugned judgment.
4. Now coming to the said contention of the learned counsel the explanation given by the learned counsel is that Allah Ditta respondent No. 8 was not pre--qualified to take part in the said auction proceedings. We have already noted above that the W.P. Was filed in this Court on 09.03.2006 and according to the contents of notification (Annex. A/2) to the writ petition, respondent No. 8 was so qualified. This notification was issued on 21.02.2006.
5. Now so far as the said second contention of the learned counsel is concerned, it is an admitted position that in terms of Rule 36-A(2) of the' Excise Duty on minerals (Labour Weftare), Punjab, Rules, 1971 the acceptance of a bid at an auction conducted under sub- rule (1) of rule 36-A was subject to the confirmation by the Government. There is also- no cavil that Government means the Provincial Government. Needless to state that we asked the learned 'Counsel, as his client had been a lessee for the previous year as well, as to who confirmed the bid for the previous year, the answer is the Secretary, Mines & Minerals Development Department, Government of Punjab, Lahore. This officer had refused to confirm the bid made by the appellant.
Now under Article 129 of the Constitution the executive authority of the province shall vest in the Governor and shall be exercised by him either directly or through official subordinate to him, in accordance with the Constitution. Article 130 provides a Cabinet of Ministers with the Chief Minister as its head to aid and advise the Governor in the exercise of his functions. The mode and manner Of appointment of the Chief Minister is also stated in the said Article 133. Article 139 provides fOr making of the rules by the Governor, inter alia for the allocation and transaction of the business of the Provincial Government Such rules have been framed and laid down in detail for the allocation of the said functions.
6. Now according to the learned counsel the power vesting in the Chief Minister under rule 5(1)(d) to call for any case or information from any office, attached department or departments shall be construed to mean that he has the authority to pass the said impugned order.
7. Now Schedule 7 to the said Rules of Business, 1974 (Government of the Punjab) contains a list of cases in part-A thereof which have to be submitted to the Chief Minister for his approval before issuing of orders. While Part-B of the said schedule contains list of cases to be submitted to the Chief Minister for information. We note that neither in Part-A nor in Part-B of Schedule 7 is,there a mention of any award or acceptance of a contract.
8. Now rule 9 of the said Rules lays down the duties and functions of a Secretary defined in rule 2(xxiii). Under Rule 9(1)(e) the Secretary is responsible to the Minister for the proper conduct pf the business of the department and to keep him informed about the working of the department and of any important cases disposed of without reference to the Minister. Under clause 6 of Rule 9(1) the Secretary has to keep the Chief Secretary informed of important case disposed of in the department. Clause (g) of Rule 9(1) mandates that where the Minister's orders appear to involve a departure from Rules, Regulations or Government Policy, the Secretary is to resubmit the case to the Minister inviting his attention to the relevant Rules, Regulations or Government Policy and that if the Minister still disagrees with the Secretary, the Minister shall refer the case to Chief Minister for orders.
9. It will thus be seen that the matter is to be reported to the Chief Minister only in the 'circumstance visualized in the said clause (g). Now the said Rules of 1971 do provide for the auction of said lease for collection of excise duty on minerals. The mode of auction as also the acceptance of the highest bid is provided therein. The Secretary had not confirmed the bid and had ordered a re- auction in accordance with sub-rule (5) of rule 36-A of the said Rules of 1971. There is not even a plea that the Secretary had acted in violation of the rules or that an occasion arose to refer the matter to the Chief Minister. It, of course, does not need to be mentioned that the Chief Minister could have only acted in accordance with the rules. He could not have directed the retention of the lease by the appellant. When the rules provided for a re-auction in the case of non-confirmation of bid by the Provincial Government, which authority in this case was to be exercised by the Secretary of the department. It is also to be noted that the writ petition filed by the appellant for the same relief had been dismissed by, this Court for reasons recorded and the said judgment was never questioned. It is by now well settled that a bid in an auction is only an offer and without confirmation of sale it does not confer any right in favour of successful bidder and further that confirmation of sale cannot be claimed as of right. Reference be made to the case of Afzal Maqsobd Butt Vs. Banking Court No. 2, Lahore & 8 others. (P.L.D. 2005, SC 470). The I.C.A. Accordingly is dismissed-in-limine.
MUHAMMAD JEHANGIR ARSHAD, J. --- I have gone through the detailed and well-reasoned judgment of my learned brother Maulvi Anwarul 'Haq, J. And besides agreeing with the said reasoning as well as conclusions dismissing the I.C.A., I would also like to add a few words of my own, especially with reference to the power of the Chief Minister in terms of Article 139 of the Constitution- of Islamic Republic of Pakistan, 1973 as well as the legal sanctity of the directive issued by the Chief Minister's Secretariat on 18.3.2006 by G.M. Sikandar, Principal Secretary to the Chief Minister conveying "Chief Minister has been pleased to approve the request of Malik' Habib Ullah for retention of lease rights for collection of excise duty from Tehsil D.G. Khan (excluding Zinda Pir area) for the period 05.04.2006 to 04.04.2007; being the highest bidder during Open auction held on 2.2.2006" in the presence of the verdict by the worthy Chief Justice dated 3.3.2006 dismissing W.P. No. 1352/2006 holding that "the appellant/petitioner has approached the Court with unclean hands. He instituted a suit but when he was unable to obtain any, injunction in his favour, he came to this Court and filed the present petition. The conduct of the petitioner disentitles him to any relief."
2. The learned Single Judge, in chamber, of this Court while passing the order impugned in this I.C.A. Was inter alia persuaded by the fact that Chief Minister was not properly apprised of the true state of affairs otherwise, the said: directive would not have been issued. When asked as to whether the factum of non-approval of bid in favour of the appellant by the Government viz. Secretary Minerals, Government of the Punjab, Lahore dated 22.2.2006 and the findings recorded by the worthy Chief Justice were in the knowledge of the Chief Minister while issuing the said directive, though the learned counsel for the appellant gave the answer in the positive yet failed to substantiate the same by referring to any document to this effect. We are therefore, satisfied with the findings of the learned Single Judge that the said directive was got issued from the Chief Minister by concealing both these facts. However, the main thrust of argument of learned counsel for the appellant was that non-approval of bid by the concerned Secretary on 22.2.2006 as well as the above-mentioned findings of the worthy Chief Justice dated 3.3.2006 could not be considered as an impediment in the way of Chief Minister from issuing the impugned directive i.e. 18.3.2006 as according to the learned counsel for the appellant the Chief Minister being the Chief Executive of the Province was free to issue such directive in exercise of the powers conferred on him under Article 139 of the Constitution of Islamic Republic of Pakistan, 1973 read with Rule ' 5(1-d) of the Rules of Business of Government of Punjab, conferring powers on the Chief Minister to call for any case or information from any office, attached department or departments. Further contention of learned counsel for the appellant was that in terms of rule 36-A(5) of the Excise Duty on Minerals (Labour Welfare), Punjab Rules, 1971 the Chief Minister being a Government was competent to issue the impugned directive,hence, the same was issued with authority and this Court had no jurisdiction to declare the same as without lawful authority. We are not impressed by the above arguments of learned counsel for the appellant. When questioned as to who had earlier been granting approval to the bids held under the Rules, the learned counsel for the appellant frankly conceded that it was the concerned Secretary; meaning thereby that in terms of Rules of Business, such power was delegated to the concerned Secretary who in the present case is Secretary, Mines & Mineral Department, Government of Punjab, which means that the Government of the Punjab had delegated and allocated the powers of the Government to act under the, said Rules to the concerned Secretary in terms of Article 139 of the Constitution of 'Islamic Republic of Pakistan, 1973 as well as Rules of Business, 1974 and the Chief Minister after said delegation of powers was left with no authority either to interfere in the matters of auction under the said Rules or to issue any .Directive. In arriving at said conclusion we are also supported by the judgments of the Hon'ble Supreme Court of Pakistan in the case "Wahid Akhtar Vs. Government of the Punjab through Secretary, Local.
Government and two others" (P.L.D. '1995 S.C. 530) and "Union Council Dhabeji v. M.S. Alnoor Textile Mills Ltd., and others" (1993 S.C.M.R. 7). The ratio of both the judgments is that once a power has been delegated to an authority under the Rules of Business then the order passed by such authority is deemed to be the order passed by the. Government and as in the present case admittedly the concerned Secretary was exercising the powers of the Government under the Rules of Business and he had disapproved the auction in favour of the appellant on 22.2.2006 which he was competent under Rule 36-A of the said Rules, therefore, to say that Chief Minister still retained the power to, issue the impugned directive in exercise of the powers under Article 139 of the Constitution, is neither correct nor in accordance with law.
Similarly, there is no force in the contention of learned counsel for the appellant that in terms of Rule 36-A(5) the Chief Minister still retains the power to issue the impugned directive although confirmation of bid was not approved by the concerned Secretary. Before proceeding further we would like to reproduce Rule 36-A(5) as under--- "Where confirmation to the bid is withheld, the lease shall, subject to any direction that may be given by the Government in this behalf, be again put to auction and the provision of sub-rules (2),
(3) and (4) shall apply to such re-auction."
In support of his above-mentioned contention, learned counsel for the appellant laid stress on the words "subject to any direction that may be given by the Government in this behalf' and has drawn the conclusion that despite withholding of confirmation of lease by the Government which according to the learned counsel means the Chief Minister, he could still issue the impugned directive. We are afraid that such contention of the learned counsel is sustainable for the simple reason that here the Government means the person exercising the delegated authority under the Rules who as held above, is the concerned Secretary and secondly that such direction may only be with regard to giving of lease through auction in view of the language of Rule 36-A(1), (2), (3) and
(4) which is reproduced below:- "(1) Notwithstanding any thing contained in these rules , the Commissioner may with the prior approval of the Government lease out by pubic auction for a period not exceeding one year, the collection of duty on such terms and conditions not inconsistent with the provisions of this chapter, as may be specified by the Government in this behalf.
(2) The acceptance of any bid at an auction conducted under sub-rule (1) shall be subject to confirmation by the Government.
(3) The Commissioner, shall, within seven days of the date of auction, submit the bid accepted at the auction to the Government for its confirmation.
(4) The Government shall within thirty days of the submission of the bid under sub-rule (3) confirm the bid or with hold its confirmation but if no order is passed within the aforesaid period , the bid shall be deemed to have been confirmed."
A perusal of the above portions of the said Rule clearly indicates that lease is to be given through auction as conducted under sub-rule (1) mentioned above. Therefore, the contention of learned counsel for the appellant that in terms of Rule 36-A(5) the Chief Minister being Government had ample powers to issue the directive like the impugned one by ignoring the earlier part of the said Rules requiring giving of lease of the minerals through open auction, is not sustainable because such interpretation of the said Rules would not only amount to nullifying the basic object of Rule 36-A but would also be giving erroneous interpretation to said sub-rule (5) which clearly lays down that if the confirmation of bid is withheld, lease shall again be put to auction and provisions of sub- rule (2), (3) and (4) shall apply to such re-auction. If interpretation as given by learned counsel for the appellant to the words "subject to any direction that may be given by the Government in this behalf" used in the sub-rules, is accepted than there appear to be no fun for the rules making authority for inserting the words "be again put to auction and the provisions of sub-rules (2), (3) and (4) shall apply to such re-auction." The interpretation as given by learned counsel for the appellant not only does not appeal to a man of ordinary prudence but would also amount to destroying the object of the rules regulating the procedure of lease through auction and not otherwise. Hence, for these reasons also we cannot subscribe to the contention of the learned counsel.
Lastly, the contention of learned counsel for the appellant that in terms of Rule 5(1-d) of Rules of Business of Government of the Punjab, Lahore, the Chief Minister has the power to call for any case or information from any office, attached department or departments, is also not sustainable for the simple reason that as held above after the delegation of powers under the Mineral Rules to the Secretary concerned, such powers of the Chief Minister were no more available to him with regard to the matter in dispute and the above rule would only apply to the matters where the Government has not delegated its powers to any Secretary.
For the above-mentioned reasons, I am satisfied that the learned Single in chamber, rightly struck down the impugned directive of the Chief Minister and that I.C.A. Merits dismissal in limine.