' IQBAL HAMED-UR-REHMAN, J.---With the concurrence of learned counsel for the parties, this is being dealt as a Pakka case. Moreover, through this single judgment I intend to dispose of Writ Petition No, 16579 of 2009 and Writ Petition No,23900 of 2009 as common facts of law are involved in both these petitions.
2. Facts of the case, succinctly required for determination of these petitions are that in response to advertisement appeared in Daily Jang on 7th April, 2009 regarding open auction of plots to be held on 15th April, 2009, the petitioner while completing all the conditions of the advertisement, participated in the auction and his bid of Rs,1,910,000 per marla was found to be the highest and accordingly he deposited Rs,7.7 million as 20% of the total amount. That vide letter, dated 23-6- 2009, Deputy Director (S&A), Lahore Development Authority informed the petitioner for acceptance of his bid by the competent authority being the highest. The petitioner after receiving the recovery memo. Issued by Deputy Director (Revenue), Directorate of Estate Management, Lahore Development Authority on 22-7-2009 for further depositing Rs,30,504,025 within sixty days. On 18-8- 2009, the petitioner mace the payment of balance amount vide payment Order No,1160173, dated 18-8-2009 of Bank of Punjab Temple Road, Branch. That the petitioner approached the Lahore Development Authority authorities for the delivery of possession of the plot on 21-8-2009 with a written application, however, vide letter, dated 3-9-2009, issued by Deputy Director (S&A), Lahore Development Authority, the petitioner was informed that the Director-General Lahore Development Authority on 29-8-2009 had rejected the bid of the petitioner. This order, dated 29-8-2009 has been impugned through the instant petition.
3. Iftikhar Ali petitioner of Writ Petition No,23900 of 2009 vide C.M. No, 3650 of 2009 moved in the instant petition, sought for his implement in this writ petition as necessary party. However, vide order, dated 23-11-2009, the C.M. Was dismissed and his request was rejected. Writ Petition No, 23900 of 2009 has been filed against Muhammad Tariq (petitioner in Writ Petition No,16579 of 2009) and the Lahore Development Authority with the averments that the auction proceedings were not conducted fairly and he was denied to participate in the auction proceedings on 15th April, 2009 although he has offered Rs,2.1 million per marla. The legality of the auction proceedings as well as acceptance of bid in the name of present petitioner has been challenged.
4. Learned counsel for the petitioner in Writ Petition No,16579 of 2009 has argued that under the Contract Act, 1872, once the offer is accepted, the contract comes into being and in the instant case, the auction was held on 15th April, 2009, and the same was also accepted vide letter, dated 23-6-2009 issued by the respondents as such a valid contract had come into being and the same could not have been unilaterally rescinded and that it is a well-settled principle of law that the proprietary rights in the land commence from the date when the sale price is paid by the buyer and accepted by the seller and not from the date when formal sale-deed is executed. To support his stance, learned counsel for the petitioner has relied upon the dictum laid down in Faiz Ali v. Mst.
Rafia Jan and two others (PLD 1956 Lah. 94) and Rehmat Ullah and others v. Muhammad Ismail and others (PLD 1958 W.P. (Rev.) 77). It is further stated that respondent No, 1/Director-General Lahore Development Authority failed to realize that when he issued the impugned letter on 29-8- 2009, there was no bid in the field, as on 18-8-2009, the petitioner had become the owner of the plot having made the payment of balanced amount.
5. Regarding the maintainability of the instant petition, learned counsel has contended that the petitioner has challenged the impugned order, dated 29-8-2009, passed by the Director-General Lahore Development Authority, therefore, this Court has got jurisdiction to entertain the instant petition. It is further argued that section 24-A of the General Clauses Act, 1897 binds the public functionaries to act in accordance with law without fear, favour or nepotism and they are further enjoined to act justly, fairly, equitably and reasonably and the impugned order being in violation of this explicit provision of law is liable to be set aside being without lawful authority, without jurisdiction and nullity in the eyes of law. It is further argued that the impugned order is whimsical, arbitrary and capricious as it unilaterally through purported rejection of the bid seeks to achieve rescission of a validly concluded contract and the same is not sustainable. In the end learned counsel seeks setting aside of the impugned order, dated 29-8-2009 communicated through letter, dated 3-9-2009 as the same tantamount to destroying the public confidence in the auctions conducted by public bodies. To strengthen his case further, learned counsel has made reliance on the following authoritative law:-- ' PLD 1987 SC 512 ' Hudayibia Textile Mills Ltd. And others v. Allied Bank of Pakistan and others ' PLD 2005 SC 819 ' Muhammad Ikhlaq Memon v. Zakaria Ghani and others ' 2009 CLC 1104 (Karachi)
' Fateh Muhammad Agha and another v. City District Government, Karachi and 5 others ' PLD 2009 Lahore 506 ' Mubashir Iqbal Cheema v. Cantonment Board ' PLD 2004 SC 271 ' Brig. Muhammad Bashyir v. Abdul Karim and others ' 2004 CLC 1104 (Lahore)
' Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and another v. Messrs Shoaib Bilal Corporation and 2 others ' PLD 2003 Karachi 369 ' Haqbahoo Corporation v. PIA and others ' 2004 CLC 478 (Lahore)
' Javed Iqbal v. PASSCO and another ' 1998 SCMR 2268 ' Messrs Airport Support Seivices v. The Airport Manager, Qauid-e-Azam International Airport, Karachi ' 2004 SCMR 1274 ' Messrs Ramna Pipe and General Mills (Pvt.) Ltd. v. Messrs Suit Northern Gas Pipelines (Pvt.) and others ' 2006 CLC 131 (Lahore)
' S.M. Ismail v. Capital Development Authority through Chairman and 5 others, ' 2003 CLD 153 (Karachi)
' Puri Terminal Ltd. v. Port Qasim Authority and others ' PLD 1972 SC 279
6. Learned counsel for the petitioner in Writ Petition No,23900 of 2009 has stated that the auction took place on 15th April, 2009 is a public auction having its direct relation to the public exchequer. It is further stated that act of respondent-Authority for denying the petitioner to participate in the auction proceedings and consider the bid of petitioner in Writ Petition No,16579 of 2009, in the presence of the admitted fact that the petitioner had made a better offer of Rs,2.1 per marla, is mala fide and the same is liable to be set aside. It is further argued that the auction proceedings were conducted in a hasty and unlawful manner and recommendations of the Auction Committee have not been honoured in the instant case. While referring the case-law PLD 2009 Lahore 506 and PLD 2006 Lahore 49, learned counsel has stated that transparency of the auction is the basic requirement, which is missing in the instant case. Further while relying upon PLD 2000 SC 2036, learned counsel has contended that recommendations of the auction committee cannot be overruled. In the end while relying upon 1998 SCMR 2268, learned counsel has urged that the Director-General Lahore Development Authority had the full authority to cancel the auction proceedings as the Additional Director-General (Housing), Lahore Development Authority, used the authority, which was not inherited to him rather it was delegated by the Director-General Lahore Development Authority. Learned counsel has also relied upon 1973 SCMR 342, PLD 1969 SC 223, PLD 2000 Karachi 224 and PLD 2006 SC 697.
7. As against above, learned counsel representing the respondent- Authority has contended that allegations levelled on behalf of petitioner' in Writ Petition No,23900 of 2009 are false and frivolous, which are definitely afterthought. It is further argued that if the petitioner in that very writ petition was not allowed to participate in the auction proceedings as alleged by him, he should have preferred as representation/ appeal on the same day before the competent authority. Further states that due to these reasons, Writ Petition No, 23900 of 2009 is not maintainable.
8. While controverting the arguments advanced by learned counsel for the petitioner in Writ Petition No, 16579 of 2009, learned counsel for the respondent-Authority has stated that the auction was not conducted in a fair and impartial manner, therefore, the Director-General, Lahore Development Authority used his power legally, lawfully vide the impugned order, dated 29-5-2009.
To show the mala fide on behalf of the petitioner, learned counsel for the respondent-Authority has stated that the auction was also conducted earlier and the bid of Rs,19,05,000 was not considered as the best price, therefore, mere with the addition of Rs,5000 in the second auction, how it could have been considered fit for the same land. Learned counsel further argued that it is merely an exercise of one man, Additional Director-General (Housing), Lahore Development Authority, as Committee of seven Directors was constituted, which after thorough inquiry did not approve the auction.
9. Regarding the maintainability of these petitions, learned counsel for the respondent-Authority has stated that both the petitioners have not approached the 'Authority 'in appeal/representation, being the higher forum for redressed of their grievance, therefore, these writ petitions, cannot be entertained by this Court being not maintainable.
10. I have considered the arguments advanced on behalf of the parties. For proper determination of all the facts, I have also gone through the relevant provisions of the Contract Act, 1872. The Transfer of Property Act, 1882 and the case-law cited at the bar as well as material available on record.
11. Firstly, I intend to take up Writ Petition No,23900 of 2009. Admittedly, the writ petition did not participate in the auction proceedings held on 15th April, 2009. Learned counsel has failed to convince me that the petitioner was forcibly prevented from participating in the auction proceedings held on 15th April, 2009. Therefore, whether the proceedings were fair or unfair, transparent or otherwise, legal or unlawful, the petitioner has no concern. I may also mention here that the dispute regarding the subject-matter is between the respondent-Authority and petitioner in writ petition No, 16579 of 2009. Furthermore, as the petitioner has got no lawful right to file the Writ Petition in this matter, the whole case-law cited by learned counsel for the petitioner can lend no help to the case of the petitioner. Hence, while holding that the Writ Petition No, 23900 of 2009 is devoid of any force and not maintainable, the same is hereby dismissed.
12 Now I dilate upon the question of maintainability of Writ Petition No,16579 of 2009. It is noteworthy, that through the instant petition, the petitioner has only assailed the impugned order, dated 29-8- 2009, passed by the Director-General, Lahore Development, Lahore being whimsical, arbitrary and capricious. As Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 deals with regard to maintainability of petitions/jurisdiction of this Court, it would be advantageous to reproduce the relevant provisions of the ibid Act, which read as under:--
199. (1) subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,---
(a) on the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province oi a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to , any territory within the jurisdiction in of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter-I of Part-II.
I see much force in the contentions raised by learned counsel for the petitioner that the petitioner's case is well within the purview of the above Article as he has challenged the impugned order, dated 29-8-2009, passed by the Director-General Lahore Development Authority. No doubt a concluded contract commands respect and its sanctity is to be preserved as a matter of public interest/public policy, but this does not mean that order in respect of its grant is sacrosanct and unassailable. High Court in exercise of its constitutional jurisdiction can examine validity of such order and strike it down on grounds of mala fide, arbitrary exercise of discretionary power, lack of transparency, discrimination and unfairness etc. Provided it is challenged promptly and contentious questions of fact are not involved. Reliance in this regard is placed on the dictum laid down in Messrs Ittehad Cargo Service and others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116. Similarly, in the case of Muhammad Bashir v. Abdul Karim and others (PLD 2004 SC 271), it has been held that "Such power is conferred on High Court under the Constitution and is to be exercised subject to Constitutional limitations Provision of Art. 199 of the Constitution is intended to enable High Court to control executive acts in violation of law, an appropriate order can be granted which can relieve the citizen of the effects of illegal action."
13. Furthermore, section 24-A of the General Clauses Act, 1897 binds the public functionaries to act in accordance with law without fear, favour or nepotism and they are further enjoined to act justly fairly, equitably and reasonably. As the Director-General Lahore Development Authority had delegated the Authority to the Additional Director-General (Housing), Lahore Development Authority., the former, in such a situation, had no authority whatsoever conferred upon him to recall the order passed by the latter, hence the impugned order is whimsical, arbitrary and capricious as rescission of a validly concluded contract could not have been taken place in such a way.
14. Admittedly, under the Contract Act, 1872, once the offer is accepted, the contract comes into being and in the instant case, the auction was held on 15th April, 2009, and the same was also accepted vide letter, dated 23-6-2009 issued by the respondents. Further the petitioner had also made the whole payment vide pay order, dated 1'8-8-2009 and as such a valid contract had come into being and the same could not have been unilaterally rescinded as it is a well-settled principle of law that the proprietary rights in the land commence from the date when the sale price is paid by the buyer and accepted by the seller and not from the date when formal sale-deed is executed.
The case-law cited by learned counsel for the petitioner in this regard i.e, Faiz Ali v. Mst. Rafia Jan and two others (PLD 1956 Lahore 94) and Rehmat Ullah and others v. Muhammad Ismail and others (PLD 1958 W.P. (Rev.) 77] is fully applicable to the facts of the instant case. Furthermore, the impugned order passed by the Director-General Lahore Development Authority cannot remain in field as on the day of passing that very order there was no bid in the field, as on 18-8-2009, the petitioner had become the owner of the plot having made the entire payment of balanced amount.
15. So far as the contention of learned counsel that it is merely an exercise of one man I e Additional Director-General (Housing), Lahore Development Authority, as Committee of seven Directors was constituted, which after thorough inquiry did not approve the auction is concerned, suffice it to say that the petitioner has annexed the order, dated 8-6-2009 of the Auction Committee convened in this regard and encorsed by the Additional Director-General (Housing), Lahore Development Authority on 22-6-2009, which belies the contention of learned counsel for the respondent- Authority; wherein it is stated that the bid has been approved by the Directors as detailed in para. 46(iii) of the file.
16. As observed above, the discretion and right reserved to reject bid or offer are to be exercised fairly, equitably and before the acceptance by the competent authority, once bid is accepted by the competent authority, no more discretion to cancel the auction is retained by the authority.
Hence, while relying upon the dictum laid down in the case of Fateh Muhammad Agha and another v. City District Government, Karachi and 5 others (2009 CLC 1104), I hold that impugned order, dated 29-8-2009, passed by the Director-General, Lahore Development Authority, Lahore, conveyed to the petitioner through order, dated 9-3-2009; is unwarranted and cannot sustain, resultantly, the impugned order, dated 29-8-2009 is set aside and Writ Petition No, 16579 is allowed with no order as to costs .