' IJAZ UL AHSAN, J.--The petitioner is a registered partnership concern engaged in the business of running cinemas and theaters. As a part of its business it took on lease a cinema hall and connected facilities commonly known as "Al-Falah Cinema" situated in Al-Falah Building, Shahrahe-Quaid-e-Azam, Lahore. The leased property is owned by the Provincial Board of Management, Punjab Government Service (Benevolent Fund) Lahore. The lease agreement was executed by respondent No,2 in favour of the petitioner on 28-12-2000. The term of the lease was 10 years commencing ffom 28-12-2000. As per mutual agreement monthly rent of the demised premises was fixed as Rs,2,51,000 payable in advance till 10th day of each month for which it was due. The lessee was also required to deposit Rs,1,000,000 with the lessor as security before execution of the lease deed. It is alleged that the cinema leased to the petitioner was in a dilapidated (condition as a result of which it was not operational. The petitioner allegedly spent a sum of Rs,50,000,000 to make the cinema operational and furnished it with the latest equipment and high quality seating arrangements. It is alleged that on account of advent of Cable Television and mushroom growth of illegal video stores, the business of exhibition of films did not remain profitable leading to huge losses being suffered by the petitioner. In the year 2002, in order to save himself from further losses, the petitioner filed an application to respondent No,2 for permission to use the cinema as a theatre to show live stage plays. Such permission was granted vide letter dated 5-4-2002. On receipt of permission, substantial alterations had to be made to convert the cinema into a theatre cum cinema. The petitioner claims to have spent about Rs,35,32,100 to undertake such alteration. The petitioner continued to use the demise premises for his business on payment of monthly rent of Rs,251,000 per month. The lease was due to expire on 27-12-2010.
2. It appears that on 4-12-2010, respondent No,1, through an advertisement published in daily "Nawa-i-Waqt", invited bids for lease of Al-Falah Cinema/Theatre. It was stated in the advertisement that the bid was to be deposited in the prescribed form along with documents by 11-00 a.m. On 27-12-2010 and the same will be opened the same day in the presence of the bidders or their representatives at 11-30 a.m. It is alleged by the petitioner that the petitioner submitted his bid along with all documents and remained at the office of respondent No,1 between 11-00 a.m. To 12-00 noon, when the bids were opened. The petitioner offered to pay a sum of Rs,350,000 per month as rent. It is alleged by the petitioner that during this time, no one else came to submit any bid. Around 12-00 noon, respondent No,1 allegedly informed the petitioner that as the only bidder, he had been declared successful and - confirmation will accordingly be issued in due course of time. The petitioner alleges that at about 1-00 p.m. The petitioner received a call from the office of respondent No,1 informing him that another bidder namely respondent No,3 had offered a sum of Rs,431,000 per month as rent. In view of the fact that his bid was higher by Rs,81,000, the same had been accepted. The petitioner was aggrieved of the aforesaid acceptance of the bid submitted by respondent No,3, and approached this Court through W.P. No 27189 of 2010. The writ petition was disposed of vide order dated 29-12-2010 in the following terms:- "The main grievance of the petitioner is that he is the incumbent contractor and is holding a 10 years lease for Alfalah theatre. The lease was due to expire on 27-12-2010. Before such expiry, a pre- qualification notice was issued by respondents Nos. 1 and 2 on 4-12-2010, which was publicized through newspapers calling for bids for lease of the theatre for the next five years on "as is where is basis".
2. The learned counsel for the petitioner points out that according to the terms and conditions, bids could only be submitted by qualified contractors, who had at least 10 years experience of running a theatre. Further, bids were required to be submitted till 27-12-2010 by 11-00 a.m. In clause 12 of the pre-qualification notice, it was clearly stated that bids will be opened at 11-30 a.m. On 27-12-2010 in the presence of representatives of the bidders. The learned counsel submits that a bid was submitted by the petitioner for a sum of Rs,3,50,000 per month, which was the only bid submitted till 11-00 a.m. It was opened at 11-30 a.m. And being the highest and only bid, the same was liable to be accepted. However, subsequently, the petitioner was informed that respondent No,3 had submitted a higher bid of Rs,4,31,000. The learned counsel submits that in the first place, respondent No,3 did not meet the qualification criteria, insofar as he did not have the requisite experience of 10 years of running a theatre. Further the alleged bid was submitted in a clandestine manner after expiry of the time mentioned in clause 12 of the pre-qualification notice.
Consequently, the same could not have been entertained. He finally argues that the petitioner is ready and willing to not only match the highest bid but to improve it by offering a sum of Rs,4,50,000 per month as against Rs,4,31,000 offered by respondent No,3.
3. The. Allegations made by the petitioner require a factual probe. However, in view of the fact that a higher amount has been offered, which is in the interest of the exchequer and allegations of acceptance of an unqualified have been made, I am inclined to refer this matter to the Additional Chief Secretary, Government of Punjab/Vice Chairman of Provincial Board of Management Punjab Government Servants (Benevolent Fund), who is the authorized officer to decide such disputes. The Additional Chief Secretary 'shall treat this petition as a representation and decide the same strictly in accordance with law through a speaking order after giving due notice to the parties and affording the parties an opportunity of being heard. This shall be done within a period of 7 days from the date of receipt of certified copy of this order. Till such time that the representation is decided through a reasoned order, a work order, if not already issued, shall not be issued to any of the parties. Till decision of the representation as aforesaid, no unlawful action shall be taken by the respondents.
4. With the above observations this petition, is disposed of."
It appears that respondent No,1 heard the parties.
' Vide order dated 4-1-2011, he rejected , petitioner's representation. The petitioner is aggrieved of dismissal of his representation through order dated 4-1-2011 and has assailed the same through this petition.
4. The learned counsel for the petitioner submits that respondent No,1 has failed to advert to the contentions of the petitioner as incorporated in order dated 29-12-2010 passed by this Court. He submits that in the first place the bidder did not meet the qualification criteria prescribed by respondent No,1 itself, which specifically required that the applicant/contractor must have experience of running a theatre/allied business for at least 10 years. Clause 1 of the Pre- Qualification Notice is reproduced below:-- ' The learned counsel for the petitioner submits that, according to his own documents respondent No,3 is a Producer of stage plays and does not fulfil the criteria of 10 years, experience of running a theatre. He, therefore, submits that since respondent No,3 was not qualified to submit his bid, the same was liable to outright rejection. He further submits that bids were required to be submitted personally by the bidder till 27-12-2010 by 11-00 a.m. As per clause 12 of pre-qualification notice bids had to be opened at 11-30 a.m. On the said date in the presehce of representative of bidders. On the said date and time, the petitioner was the only and highest bidder, therefore, any bid subsequently submitted was of no consequence in view of the fact that it had been submitted in a clandestine and stealthy manner afjer expiry of the time mentioned in the pre-qualification notice.
Notwithstanding the legal objection, the learned counsel for the petitioner, on instructions submits that he was not only ready and willing to match the highest bid but also to improve upon it by offering a sum of Rs,450,000 per month as against a sum Rs,4,31,000 per month offered by respondent No,3.
5. Respondents Nos.1 to 3, on being served, entered appearance and contested the matter. This petition was admitted to regular hearing on 30-3-2011. The respondents were directed to file their written statement. The respondents filed their written statement and rejoinder to the amended writ petition. The respondents vehemently denied all allegations of the petitioner and raised factual as well as legal defences. It was argued on behalf of the respondent that the petitioner had not approached this Court with clean hands. It was pointed out that the petitioner had earlier approached the civil court by way of suit for declaration with consequential relief with mandatory and permanent injunction on 4-12-2010. The suit was disposed of on 18-12-2010. This Court was approached without disclosing the aforementioned fact. The respondents have taken the position which appears to be substantiated by the record including a copy of attendance sheet that there were more than one bidders. The bid of respondent No,3 being the 'highest was rightly accepted in the presence of a representative of the bidder. It is further submitted that the petitioner had filed a representation with respondent No,3 on 27-9-2010 seeking reduction in rent which request was not entertained. It is submitted that the petitioner never made a bid for Rs,450,000 per month.
Therefore, the offer at this stage cannot be entertained. It is further argued that this Court needs to take judicial notice of the fact. That he was informed vide notice dated 1-12-2010 that in accordance with the terms and conditions of the lease, he was required to vacate the premises on or before 28-12-2010. It is pointed out that instead of agreeing to participate in the tender proceedings for a fresh lease, the petitioner went to the civil court and then approached this Court in an attempt to hold on to the possession of the demised premises.
6. Adverting to the question of experience and qualification, the learned counsel has drawn my attention to various certificates issued by Lahore Arts Council and other related departments certifying the fact that respondent No,3 has experience of more than 15 years as, a Producer of stage plays. He has pointed out that the petitioner entered into an agreement with respondent No,3 in the year 2006, subletting the premises to respondent No,3 for the purpose of running stage plays.
It is, therefore, submitted that respondent No,3 was at the relevant time amply qualified to submit a bid in view of the fact that the business of running a theatre, producing plays and staging them in such theatres falls within the definition of "related businesses.
7. It is finally argued that the stance taken by the learned counsel for the petitioner that since the petitioner has invested substantial sums of money towards renovations, installation and seats and other equipment in the demised premises, he has a preferential right to the grant of further lease is contrary to the terms and conditions of the lease agreement. My attention has been drawn to the terms of the lease agreement as well as an undertaking signed and submitted by the petitioner, (which has not been denied), through which the petitioner categorically stated that he will not demand any extension in the lease period as settled in the lease agreement between the Provincial Board of Management, Punjab Government Service (Benevolent Fund) Lahore and the petitioner on the pretext of investment on the premises or any other ground.
8. The learned counsel for respondents Nos.1 and 2 has adopted the arguments of the learned counsel for respondent No,3.
9. I have heard the learned counsel for the parties and have examined the record with their assistance. Al-Falah Cinema was taken on lease by the petitioner through a lease agreement dated 28-12-2000 for a period of 10 years. The lease was due to expire on 27-12-2010. However, on 1- 12-2010, respondents Nos.1 and 2 addressed a notice to the petitioner calling upon him to vacate the demised premises on expiry of the lease. However, the petitioner had the right to participate in the open bidding for which bid could be submitted by 27-12-2010 till 11-00 a.m. As per clause 12 of the pre-qualification notice, which was published in daily newspaper, bids were required to be opened at 11-30 a.m. On the same day in the presence of representatives of the bidders. It appears that the petitioner, instead of participating in the bid chose to approach the civil court and tried to assert a preferential right in its favour on account of alleged investment made by it in the theatre hall. However, the suit did not succeed and was disposed of vide order dated 8-12-2010. The learned civil court, however; observed that the. Petitioner could not be dispossessed till 28-12-2010, however, since the bid proceedings were being carried out and the notice in this regard had appeared in daily newspapers, the petitioner may participate in the auction proceedings in accordance with law and rules. Having failed to get the requisite relief from the civil court, the petitioner approached this Court in exercise of its constitutional jurisdiction. After hearing the learned counsel for the petitioner W.P. No,27189 of 2010 was disposed of vide order dated 29-12- 2010. The matter was referred to respondent No,1 with the direction to decide the matter in accordance with law through a speaking order after giving notice to the parties and affording them an opportunity of being heard. Respondent No,1 heard the parties and passed an order on 4- 1-2011 addressing all factual matters agitated by the petitioner. Respondent No,1 came to the conclusion on the basis of factual inquiry conducted by him and examination of the record that all bids were received within the stipulated time as was evident from the attendance sheet which was' signed not only by the representative of three bidders but also by members of tender opening committee. A finding was therefore, recorded that the tenders had been validly opened in the presence of the parties and respondent No,3 was found to be the highest bidder. Likewise, It was found that respondent No,3 had furnished a certificate clearly stating that the experience of the said firm in theatre and allied businesses met the necessary requirement for pre-qualification. In this regard reference was made to certificate issued by the Punjab Council of Arts. I have gone through the document regarding experience in the relevant field. Admittedly, respondent No,3 has the experience as producer of stage plays spanning over a period of more than 15 years.
Interestingly enough, even the petitioner had entered into an agreement with respondent No,3 to give the hall on lease to respondent No,3 in 2006. Even otherwise, in my opinion, production of stage plays falls within the definition of "theatre and related fields". Therefore, the adequacy of the experience of respondent No,3 in a related field is not seriously at issue. Further, pursuant to an, order passed by this Court respondent No, 1 has conducted a factual inquiry on the basis of which he has recorded findings of fact. Such findings are based on the record. I have no reason to disbelieve the record or the findings based on the same.
10. As far as the question of right of first refusal is concerned, the learned counsel for the petitioner had laid great emphasis on the fact that by virtue of having made huge investment for installation of equipment, seats and converting the cinema into cinema cum theatre, the petitioner had automatically earned a right of first refusal. I am afraid, I am unable to subscribe to the said view, specially so, in view of the aforesaid undertaking given by the petitioner that he would not claim any preferential right by virtue of his investment at the time of expiry of the lease. Further, the terms and conditions of the lease agreement also point towards the same conclusion. Had there been any intention on the part of the parties to give a right of first refusal, the same being an important right would have been incorporated in the lease agreement which is not the case. I, therefore, hold that in the facts and circumstances of the case, the petitioner does not enjoy a preferential right..
11. Having dealt with the aforesaid legal and factual issues in the aforesaid manner, it may be mentioned that a significant event occurred at the conclusion of the arguments. The learned counsel for the petitioner vehemently stated that he was ready and willing to improve upon the highest bid by way of offering Rs,450,000 instead of Rs,431,000 offered by respondent No,3.
Respondent No,3 promptly responded that he was ready and willing to improve upon the offer made by the petitioner and made an offer of Rs,475,000 per month. This led to a process of bidding before the Court in which both parties readily and willingly participated in the presence of and in consultation with their learned counsel. Each party tried to improve upon the offer made by the other side. This process culminated in a final bid being offered in the sum of Rs,10,25,000 per month made by respondent No,3. The petitioner failed to match the said bid. Consequently, in addition to my finding recorded above, it was found that the interest of respondent No,1 stood adequately served in view of the fact that the rent was increased from Rs,431,000 per month to Rs,10,25,000 per month which resulted in a substantial monetary benefit. This is one more reason for the petition not succeeding.
12. For reasons recorded above, this petition is found to be without merit. It is accordingly dismissed.
The respondent No,1 shall grant lease to respondent No,3 according to the standard terms and conditions subject to payment of rent Rs,10,25,000 per month in addition to security deposit and other charges (if any) required to be paid under the relevant rules and regulations.