' TARIQ SHAMIM, J.---Through this order we propose to dispose of I.C.A. No.131 of 2004 filed by the Punjab Privatization Board, Government of the Punjab and 3 others through which the judgment of the learned Single Judge in Chambers dated 8-3-2004 has been assailed.
2. The facts of the case are that the Punjab Privatization Board-appellant No.1 was constituted by the Government of the Punjab through Notification dated 4-8-1997 to undertake privatization/sale of industrial units etc. Owned by the Government of the Punjab for the purpose of retirement of Government debt and poverty alleviation. Subsequently the Board was re-constituted by Department of Finance, Government of the Punjab through notification dated 22-2-2000. The Government of the Punjab decided to sell the property commonly known as Old Punjab Road Transport Corporation Bus Dept., Ichhra, Lahore, measuring 75 Kanals, 12 Marlas, 44 Sq. Ft. Along with building structure situated at Ferozepur Road, Lahore which is owned and possessed by the Provincial Government through advertisements published on 30-9-2002 and 22-10-2002 in daily newspapers `fang', `Nawa-i-Waqr and 'The News' and invited sealed bids from interested parties. In response to the said advertisements seven sealed bids were received which were opened on 7-11- 2002 in the presence of the bidders by the Auction Committee. In terms of clause (4) of the advertisement the highest bidders were called for negotiations by the Special Committee for Negotiations i.e. Appellant No.3. Muhammad Younas Malik respondent No.1, who had initially given a bid for Rs.5,52,00,000 raised his bid to Rs.23,50,00,000 and since the other three bidders did not give any further offer, therefore, the offer of respondent No.1 was considered and approved subject to a number of conditions. The approval of the auction as per the bid documents was subject to decision/approval by the competent authority. The conditions attached by appellant No.1 to the approval of the offer of respondent No.1 were at variance with the terms and conditions of the bid documents. No letter either containing such counter-offer or acceptance of the offer made by respondent No.1 was issued or communicated to the bidder. One Muhammad Khalid Qureshi filed Writ Petition bearing No.19555 of 2002 titled 'Muhammad Khalid Qureshi v. Secretary, Punjab Privatization Board and others' wherein he made a claim to the said property. The learned Single Judge in Chambers vide order dated 14-2-2003 was pleased to grant ad interim restraining order to the effect that the auction proceedings of the Bus Stand shall not be concluded. After gaining knowledge about the pendency of the aforesaid writ petition appellant No.1 moved C.M. No.1147 of 2003 in the writ petition filed by Messrs Muhammad Khalid Farooq Qureshi seeking withdrawal of the prohibitory order or in the alternative for early hearing of the main petition. The said writ petition was finally dismissed by the learned Single Judge in Chambers on 10-9-2003 whereafter the interim prohibitory order dated 14-2-2003 ceased to remain operative qua the auction proceedings in respect of the said property. In the interregnum, the value of the property had gone up considerably. The Principal Secretary to the Chief Minister Punjab through letter dated 23-6- 2003 expressed doubts about the value of the offer received in the first auction. The terms and conditions negotiated with four bidders by the Special Committee for Negotiations were also not known to the public at large which constituted violation of fairplay, therefore, the appellant decided to re-bid the property subject to revised terms and conditions which were approved in the 44th Meeting held on 1-7-2003 in order to ensure that second auction is held in the most transparent manner in the public interest to get the best possible price of the property. Fresh advertisements were published in the aforementioned daily newspapers papers once again on 23-9-2003. The highest' bide offered by respondent No.1 was made the basis of minimum price of the said property and he was given the right of first refusal. Respondent No.1 being aggrieved of the decision of re- auction filed Writ Petition bearing No.13218 of 2003 on 24-9-2003 against the appellants and respondent No.2 praying for a declaration that the intention and attempt to re-auction the land in question was of no lawful authority and of no legal effect and a further declaration was sought regarding issuance of necessary letter in his favour. C.M. No.1 of 2003 was filed with the writ petition wherein prayer for issuance of restraining order was made. The C.M. Came up for hearing before the learned Single Judge in Chambers on 7-10-2003 on which the learned Judge passed the following order:-- "The auction is going to take place tomorrow and that is not being stayed. However, it will be subject to the decision rendered in the writ petition."
3. In the second auction the previous four highest bidders made the following offers:--
(a) Messrs Advance Trend Builders Nil
(b) EOBI (Respondent No.2) 235.2 (M)
(c) Messrs Saeed Akhtar & Sons 235.2 (M)
(d) Messrs S.M. Zeeshan and others 236.1 (M)
' The said four bidders were invited for negotiations in the light of the terms mentioned in the advertisement. Only two bidders namely Messrs Saeed Akhtar & Sons and Employees Old Age Benefit Institution (EOBI)-respondent No.2 participated. Respondent No.2 offered the highest bid of Rs.311.1 million while the other bidder refrained from increasing the bid initially offered by him.
Respondent No.1 was also invited to join the negotiations proceedings vide letter dated 24th September, 2003 who although was present on 8-10-2003 but failed to match the highest bid and, as such, ceded his right of first refusal. Consequently, appellant No.1 in its 47th Meeting held on 16- 10-2003 approved the highest offer made by E.O.B.I.-respondent No.2 subject to decision of the writ petition which was still pending decision. Since the bid of respondent No.2 had been approved, therefore, the learned Single Judge in Chambers issued a notice on 24-10-2003 to the said respondent who also filed an application under Order I, rule 10, C.P.C. Along with written statement.
The learned Single Judge in Chambers after hearing the parties vide the impugned judgment accepted the writ petition.
4. Kh. Haris Ahmad, Advocate, the learned counsel who represents the appellants in I.C.A. No.131 of 2004 contended that the findings recorded in the impugned judgment by the learned Single Judge in Chambers are erroneous and against the law and facts of the case. Particular reference has been made to issues regarding maintainability of the writ petition, locus standi of respondent No.1 to file the writ petition, availability of alternate remedy, the status and the role of Privatization Board as per its notification, the legal position of bid made by respondent No.1, the alleged acceptance and its communication, the interpretation of documents including Minutes of 43rd and 44th Meeting of the Board and exercise of discretionary jurisdiction in a contractual matter containing disputed questions of facts. He has further argued that the learned Single Judge in Chambers has erred in failing to appreciate the ambit, nature, scope and applicability of the constitutional provisions including Articles 4, 5, 173, 174, 175(2) and 199 of the Constitution as well as Transfer of Property Act, 1882 and the Contract Act, 1372. He has also maintained that the impugned judgment is based on surmises and conjectures apart from erroneous assumptions of law and facts and the judgment being contrary to the constitutional provisions and the case-law cited at bar merits to be set aside. He has further argued that the learned Single Judge in Chambers has erred in failing to appreciate that Under the law the bid made by respondent No.1 was nothing more than an offer which had been made by respondent No.1 in accordance with the terms and conditions as contained in the bid documents whereas the Board in its 43rd Meeting had attached the terms and conditions which were different from the ones incorporated in the bid documents. Such altered terms and conditions constituted counter-offer instead of acceptance and that even the counter- offer had not been communicated to respondent No.1 by the authority. He has also argued that for valid reasons, the Board in its 44th Meeting held on 1-7-2003 decided to re-auction the said property which was brought to the notice of the learned Court through C.M. No.1147 of 2003 filed in Writ Petition No.18555 of 2002 and since respondent No.2 (E.O.B.I.) in the re-auction had made an offer of an additional amount of Rs.76 million, therefore, no concluded contract was ever made with respondent No.1 by the authority and in the instant case as the public interest was involved, therefore, discretionary relief could not have been granted. The learned counsel has further contended that the learned Single Judge in Chambers has erred in law while holding that the offer made by respondent No.1 was accepted and that the same would be deemed in law to have been communicated to respondent No.1 and, therefore, a valid contract had come into existence creating vested right. According to the learned counsel the conclusion so drawn by the learned Single Judge in Chambers run counter to the trite principle that if law requires something to be done in a particular mode and manner, it cannot be done in any other manner. He has further maintained that the learned Single Judge in Chambers had failed to take into consideration a number of infirmities in the writ petition, in particular the prayer made which could not have been granted in view of the law laid down by the Honourable Supreme Court of Pakistan in the case of Prof. Muhammad Usman and others v. Punjab University Academic Staff Association and another 1991 SCMR 320. While continuing his arguments the learned counsel contended that if the offer of respondent No.1 had been accepted and communicated to the said respondent by the authority then which letter was being solicited by respondent No.
1. In fact letter dated 24-9-2003 addressed to respondent No.1 by appellant No.1 was a reply to his legal notice dated 13-9-2003 for all practical purposes which aspect had escaped the attention of the learned Single Judge in Chambers. It had been vehemently argued that the writ petition was bad for misjoinder and non-joinder of the necessary parties and that the learned Judge in Chambers completely overlooked the objects of "privatization" namely retirement of Government debts and poverty alleviation. He maintained that the offer made by respondent No.2 (E.O.B.I.) deserved to be preferred as the same was Rs.76 million more than the bid made by respondent No.1 failing which the provincial exchequer was bound to be deprived of financial advantage, therefore, the impugned judgments does not serve the public interest. He has lastly maintained that the learned Judge in Chambers has rendered the impugned judgment contrary to the law enunciated on the subject by the superior Courts of Pakistan which was binding upon him. The learned counsel has placed reliance on the cases reported as The Central Bank, Heotmal Ltd. v.
Vyankatesh Bapuji AIR (36) 1949 Nagpur 286; Haridwar Singh v. Begum Sumbrui and others AIR 1972 SC 1242; Dr. Azeem Shad v. Municipal Committee, Multan PLD 1968 Lahore 1419; Javaid Iqbal Abbasi & Company v. Province of Punjab and 6 others 1996 SCMR 1433 and Messrs Monarch Infrastructure
(P) Ltd. v. Commissioner, Ulhasanagar Municipal Corporation and others AIR 2000 Supreme Court 2272.
5. Mr. Muhammad Anwar Bhindar, Advocate, the learned counsel who represents the appellant in I.C.A. No.142 of 2004 (Intervener) contended that in view of fresh advertisement and pursuant thereto subsequent auction in which the appellant had topped the offer of respondent No.1, the writ petition had become infructuous. Further contended that on the facts established on the record there was no acceptance of the alleged offer which could only be granted by the competent authority which in the instant case was the Chief Minister of the Province of the Punjab. Also maintained that the writ petition arising out of alleged contractual relationship was not competent and the remedy of civil suit was available to respondent No.1, which could not be allowed to be bypassed. The status of respondent No.1 was that of a bidder and no right had vested in him as neither a concluded contract between the parties had come into existence nor any legal right had vested in the said respondent performance of which could be enforced by issuance of a writ of mandamus. Argued that the terms and conditions settled as reflected in the Minutes of the 43rd Meeting of the Board were different from those mentioned in the bid documents on the basis of which respondent No.1 had made his offer, the decision made in the 43rd Meeting did not constitute acceptance of offer and in fact it was a counter-offer which was neither accepted by the Board nor communicated to respondent No.
1. Also urged that the admission of acceptance and approval of respondent No. l's bid as stated in C.M. No.1147 of 2003 did not constitute valid communication of acceptance and approval of the offer and that the jurisdiction as enjoyed by this Court in terms of Article 199 of the Constitution being discretionary in nature, the same could not have been exercised in a case in which the public exchequer would suffer a loss of Rs.76.10 million. Lastly maintained that although allegations of mala fides had been levelled but no particulars thereof were provided in the writ petition and the persons against whom such mala fides had been alleged were not even impleaded as parties.
6. Mian Nisar Ahmad, Senior Advocate Supreme Court of Pakistan, the learned counsel for Muhammad Younas Malik, respondent No.1 has contended that the offer of Rs.235.00 million of respondent No.1 had been accepted by the Special Committee for Negotiations constituted by the Punjab Privatization Board and it was approved by the Board which was the competent authority in its 43rd Meeting held on 7-6-2003 and, therefore, vested right stood created in the said respondent. He further argued that the Board itself was the competent authority to accept and approve the highest bid without any reference either to any functionary of the Government or the Chief Minister of the Punjab. He strenuously argued that once legal rights had vested in an aggrieved party, the same could be enforced through a constitutional petition, in particular when the facts were not disputed and to decline exercise of constitutional jurisdiction was tantamount to hardship and unnecessary delay in determination of the rights between the parties. In fact it was abundantly clear from 43rd Meeting held on 7-6-2003 that the Special Committee for negotiations had accepted the offer of respondent and the same had also been approved by the Board and in view thereof right had accrued in favour of the respondent. It has also been contended by Mian Nisar Ahmad, Advocate that in the instant case the principle of "acceptance by silence" is appiicable and even if the decision regarding approval of the Board had not been communicated to respondent No.1, mere silence was tantamount to acceptance. He has argued that the acceptance of bid of respondent No.1 stood communicated to him when Civil Miscellaneous No.1147 of 2003 was filed by the Board on 14th July, 2003 wherein it was mentioned that the highest bid received from the Special Committee for negotiations amounting to Rs.235.00 million was approved by the. Punjab Privatization Board in its 43rd Meeting and that due to pendency of Writ Petition No.19555 of 2002 filed by Muhammad Khalid Qureshi the formal approval of the bid was not issued to the highest bidder. The respondent had instructed his counsel to attend the proceedings and to watch his interest. According to the learned counsel he attended the proceedings in the Court with a watching brief and was also marked present on 23rd July, 2003 as well as on the final date of hearing of the said writ petition when the same was dismissed. It has lastly been contended that the application was tantamount to communication of acceptance of approval of the highest bid of the respondent. Reliance has been placed on the judgments reported as Mst.
Surraya Begum and others v. Mst. Suban Begum and others 1992 SCMR 652; Pakistan v. Messrs H. Pir Muhammad Shamsuddin PLD 1962 (W.P.) Karachi 810; Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678; Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116; Ch. Muhammad Yunus v. The Islamic Republic of Pakistan through the Secretary, Ministry of Communication, Government of Pakistan, Islamabad and 3 others PLD 1972 Lahore 847; Pakistan v. Golam Moinuddin Ahmed PLD 1966 Dacca 570 and Federal Government of Pakistan through Secretary, Ministry of Interior, Islamabad v. Government of Punjab through Chief Secretary, Lahore and another PLD 1991 SC 505.
7. We have heard the learned counsel for the parties and with their able assistance we have scrutinized the documents placed on the record.
8. The Punjab Privatization Board was established in the year 1997 through Notification dated 4-8- 1997 issued by the Finance Department, Government of the Punjab, which was reconstituted subsequently through Notification dated 22-2-2000. Sealed bids were invited by the Punjab Privatization Board in respect of the property commonly known as Old Punjab Road Transport Corporation Bus Depot, Ichhra, Lahore, measuring 75 Kanals, 12 Marlas and 44 sq. Ft. Located at Ferozepur Road, Lahore, through advertisement dated 30-9-2002 and 22-10-2002 published in the Daily Newspapers 'jung', Nawa-i-Waqt' and 'The News' for its auction on 7-11-2002. A number of sealed bids were received by the Punjab Privatization Board which were opened in the presence of the bidders by the Member (Colonies), Board of Revenue Punjab, Lahore. The top four bidders were; --
(a) Mr. Farooq Saeed Khan Rs.17,75,00,000
(b) Messrs Nawaz Khan Trading Co. Rs.17,00,00,000
(c) M. Khalid Randhawa Rs.10,10,00,000 and
(d) M. Younus Malik, respondent Rs.5,52,00,000 No.1.
' The said bidders were called for negotiations in terms of clause (4) of the advertisement. During the course of negotiations respondent No.1 raised his bid from Rs.5,52,00,000 to Rs.23,50,00,000.
However, the other participants did not feel inclined to make any further offer for the property in question. Consequently, the appellant-Punjab Privatization Board in its 43rd Meeting held on 7-6- 2003 considered the offer of the participants and the bid of respondent No.1 being the highest was approved by the Committee subject to the following conditions:--
(a) 25% of bid upfront within 30 days of the bid approval.
(b) 75% Bank guarantee within 90 days of bid approval. (c) Bank guarantee for 365 days from bid approval date.
(d) On "as is where is" basis.
(e) Possession on furnishing of bank guarantee, thereafter all title transfers wholly or partially with bidder.
' The Bank guarantee to be provided by the bidder from a scheduled Bank which was subject to verification from the Bank before delivery of possession.
9. Before the decision of the Board was conveyed to respondent No.1 regarding approval of the bid subject to the conditions referred to above a Writ Petition bearing No.19555 of 2002 titled 'Muhammad Khalid Qureshi v. Secretary, Punjab Privatization Board and others' had been filed by one Muhammad Khalid Qureshi asserting his claim to the property in question. By the order dated 14-2-2003 passed in the said writ petition the learned Single Judge in Chambers passed an injunctive order restraining the Punjab Privatization Board and others from concluding the auction proceedings in the meanwhile. In view of the prohibitory order, the auction was not finalized.
Respondent No.1 through an application sought impleadment in the writ petition. Civil Miscellaneous (C.M.) bearing No.1147 of 2003 was preferred by the appellants in the aforementioned writ petition in which recall of the prohibitory order was sought. The writ petition, however, was dismissed on 10-9-2003, whereafter the interim iniunctive order ceased to have effect. While the aforesaid writ petition was pending a substantial time had elapsed and the value of the property in question had gone up. Consequently, the appellant decided to re - bid the property subject to revised terms and conditions settled in its 44th Meeting held on 1-7-2003. In order to ensure that the auction was held in a most transparent manner and in the public interest, the terms and conditions mentioned in the advertisement as well as settled in 44th Meeting of the Board were relaxed in order to obtain the best possible price for the property. Respondent No.1 being the highest bidder in the earlier auction proceedings was given the right of first refusal. A fresh advertisement was published in the aforesaid newspaper on 23-9-2003 for auction to be held on 8-10-2003. Four bidders participated through sealed bids in the auction and made offers as under:--
(a) Messrs Advance Trend Builders Nil
(b) EOBI (Respondent No.2) Rs.235.2 (M)
(c) Messrs Saeed Akhtar & Sons Rs.235.2 (M)
(d) Messrs S.M. Zeeshan and others Rs.236.1 (M)
' The said bidders were invited for negotiations in terms of the advertisement, however, only two bidders namely Messrs Saeed Akhtar & Sons and since Employees Oldage Benefit Institution (E.O.B.I.) participated. During the course of negotiations E.O.B.I. Offered highest bid of Rs.311.1 million while the other bidders restrained from giving any further offer. Keeping inline with the decision made in the 44th Meeting, respondent No.1 was invited vide letter dated 24-9-2003 of the appellant to participate in the bidding process and to match the highest bid in terms of the said decision.
Although respondent No.1 was present which is evident from the noting made by the Chairman Special Committee for Negotiations on 8-10-2003 but he refrained to match the highest bid. The appellant in its 47th Meeting held on 16-10-2003 after due deliberations approved the bid offer by E.O.B.I., however, subject to the decision of this Court in the writ petition filed by respondent No.l.
10. It has been observed by us that the bid made by respondent No.1 was in fact an offer made in accordance with the terms and conditions as contained in the bid documents whereas the Punjab Privatization Board, appellant No.1 in its 43rd Meeting had approved terms and conditions which were different from the terms and conditions as incorporated in the bid documents. For all intents and purpose, such altered/changed terms and conditions constituted a counter-offer and by no stretch of imagination could the same be termed as, acceptance of his bid. In its 44th Meeting held on 1-7-2003 the Board opted to re-auction the property in question which was brought to the notice of the learned Single Judge in Chambers through C.M. No.1147 of 2003 filed in Writ Petition No.19555 of 2002. The learned Single Judge in Chambers did not feel it expedient to stay the auction proceedings as prayed for by respondent No.1 in C.M. No.1 of 2003 filed with his writ petition.
In the subsequent auction respondent No.2 (E.O.B.I.) made an offer exceeding the offer made by respondent No.1 by Rs.76 million.
11. The most vital question which needs to be answered is as to whether the offer made by respondent No.1 had been approved by the Board and, if so, had the same been conveyed to respondent No.1 under the law?
12. Although the offer of the appellant was approved by the Board, however, we have not been able to find any convincing document or piece of evidence on the record which reflects that the approval had been communicated to respondent No.
1. The general rule relating to offer and acceptance is that there can be an acceptance of an offer by communication of assent of the person to whom the offer is made or by his doing some act which he is required by the terms of the offer to do. In the case of Dr. Azeem Shad v. Municipal Committee, Multan PLD 1968 Lahore 1419 it was observed that under section 3 of the Contract Act the communication of proposals and the acceptance of proposals are to be deemed by an act or omission of the party proposing or accepting by which he intends to communicate such proposal or acceptance. A mere acceptance without communicating the same cannot be binding. Our view is fortified by the observation made in the case of Powell v. Lee (1908) 99 LT 284 in which the plaintiff was a candidate for the headmastership of a school and the board of managers, with whom the appointment lay, passed a resolution selecting him for the post. One of the managers 'while acting in his individual capacity informed the plaintiff of what had occurred, but he received no other intimation. The resolution was rescinded and the Court held that in the absence of an authorized communication from the whole body of the managers there was no complete contract.
Thus, in the absence of communication of acceptance there can be no contract between the parties. In the case of Javaid Iqbal Abbasi & Company v. Province of Punjab and 6 others 1996 SCMR 1433 the honourable Supreme Court of Pakistan has held that by merely participating in an auction and giving the highest bid a person does not acquire any vested right to get his bid accepted as the highest bid in auction is subject to approval by the competent authority although the highest bid was sent to the Government for approval but was rejected for cogent reasons directing re-auction of the lease right. It is not the case of respondent No.1 that at any stage he had made an offer to raise his bid in order to match the bid offered by respondent No.2 ,(E.O.B.I.). The opportunity to raise bid and to match with the highest bid was afforded to respondent No.1 who opted to refrain. In case where the highest bid is rejected and re-auction is ordered which afforded equal opportunity to the person whose bid has been rejected, it cannot be said that any principle of natural justice had been violated. Further, the mode of communication provided in the advertisement inviting bids as well as the bid documents i.e. Communication by approval through a written letter formally accepting and approving the bid was not resorted to by the appellants which signifies that the bid of respondent No.1 had not been approved and that the same had not been communicated to him.
13. In the case of City Schools (Pvt.) Ltd., Lahore Cantt. v. Privatization Commission, Government of Pakistan and others 2002 SCMR 1150, it was held by the Honourable Supreme Court, of Pakistan that test for deciding whether a valid contract was made between the parties or not was to ascertain if the parties were of one mind on all the material terms at the time it had been finalized and whether they intended that the matter was closed and concluded between them. There is nothing available on record to come to the conclusion that the Privatization Board had considered the matter to have come to an end. Rather the documents appended with this appeal and the record suggest otherwise.
14. It has been observed that the Privatization Board in its 44th meeting had decided to re-auction the property in question, which meant that its earlier decision of accepting the bid of respondent No.1 had been rescinded. The said decision of the Board in its 44th meeting had been taken in the larger interest of the Government and could by no stretch of the arguments be termed as mala fide, unfair or unreasonable. In the case of Messrs Ittehad rargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116, the Honourable Apex Court had upheld the decision of the Pre-qualification Committee holding that the said administrative decision neither lacked transparency nor was tainted with mala fides nor was unfair, unjust or unreasonable nor based on bias or favourtism and discretion vested in the Authority had been properly structured.
15. We also tend to agree with the learned counsel for the appellant that confirmation of bid depended on the discretion of the government as is clearly spelt out from the advertisements themselves. No objection could be raised if the bid was found to he below the price which the government expected that the property would fetch.
16. Another important aspect of the case which needs to be dilated upon is that in constitutional jurisdiction the court can judicially review a public contract only on the touchstone of reasonableness, relevance fairplay, natural justice, equality and non-discrimination. Challenge was made before the learned Single Judge in Chambers by respondent No.1 not on any of the aforesaid ground. Rather, if the so-called contract is viewed on the touchstone of reasonableness and fariplay, no writ could have been issued as the issuance of the same would tend to confer undue advantage on respondent No. 1 .
17. For what has been discussed above, we accept this Intra-Court appeal and set aside the order passed by the learned Single Judge in Chambers dated 8-3-2004.
' There shall be no order as to costs.